 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates Criminal Justice and Immigration |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee
Clerk
†
attended the Committee
Public Bill CommitteeTuesday 23 October 2007(Morning)[Sir Nicholas Winterton in the Chair]Criminal Justice and Immigration BillFurther written evidence to be reported to the HouseCJ&I 302
Lawyers’ Christian
Fellowship
CJ&I 304 Brian
Green
CJ&I 308 Miss
Charlotte Bird
CJ&I 311
NAPO
CJ&I 315 Mrs SM
Pheasant
CJ&I 316 Robert
Hyde
CJ&I 321 Jim and
Catherine France
CJ&I 325 Mr
Philip Mear
CJ&I 330 Kay
Statter
CJ&I 339 Keith
Welton
CJ&I 341 Dr Clarissa
Smith
CJ&I 356 Paul
Burch
CJ&I 357
CARE
CJ&I 358 Ruth
Cuthbert
CJ&I 359 Paul and
Jean Dancy
CJ&I 360 W
Walton
CJ&I 361 Pamela
Work
CJ&I 362 David and
Margaret Welf
CJ&I 363
Stuart Moffat
CJ&I 364 Peter
Kinley
CJ&I 365 Mrs Zena
Farlowe
CJ&I 366 Mrs A
Bowen
CJ&I 367
CARE
CJ&I 368
Lawyers’ Christian
Fellowship
CJ&I 369 Youth
Justice Board for England and
Wales
10.30
am
The
Chairman:
I welcome the members of the Committee to a more
traditional Committee room for deliberation and scrutiny of this
important
Bill.
Mr.
David Heath (Somerton and Frome) (LD): I beg to move
amendment No. 164, in clause 1, page 1, line 5, after
‘aged’, insert ‘over 10
and’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 165, in
clause 1, page 1, line 5, after
‘aged’, insert ‘over 12
and’.
No. 166,
in
clause 1, page 1, line 5, after
‘aged’, insert ‘over 14
and’.
No. 1, in
clause 1, page 1, line 5, leave
out ‘or
before’.
No.
163, in
clause 1, page 1, line 8, at
end insert
‘for a
maximum of 3 years’.
Mr.
Heath:
I welcome you, Sir Nicholas, and other hon. Members
to the Committee. I do not whether it is because mine is a deeply
reactionary nature, but I feel more comfortable in these surroundings
than I did in the other room.
This series of probing
amendments is intended to gain a clear view from the
Government about the precise age range that the orders will
cover. Amendment No. 164 suggests a lower age limit of 10, amendment
No. 165 one of 12, and amendment No. 166 one of 14.
From reading the latter parts
of the Bill, it is clear that the Government intend the orders to be
used for children under 14. In schedule 1, on page 91 of the Bill, and
in the Government amendments in that respect, we see that attendance
centre requirements can be used for an offender aged 14. We must
therefore assume that there is a Government view of the suitability of
that sort of attendance. I have no quarrel with that; I just want
clarity. Many criminal justice Bills ago, we had many learned debates
about the age of criminal responsibility. A Latin phrase, which has now
completely gone out of my head, was used to describe what was until
then the age of criminal responsibility. I see puzzled looks in the
room—everyone has now forgotten the phrase; it has been
consigned to
history.
Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): Is the
hon. Gentleman referring to the debates on doli
incapax?
Mr.
Heath:
I am so grateful to the right hon. Gentleman. He
remembers the phrase because we were both dealing with Home Office
affairs at the time. It is always good to have classical erudition
added to the debate. Doli incapax is exactly the phrase that I was
trying to recall. We had long discussions about whether it was right to
extend to a lower age the assumed capacity of a child to know that they
had done wrong.
That
is an historical debate, however. The law was changed. Doli incapax was
removed as a legal concept and children are now brought before the
criminal courts at a much younger age. I tabled amendments Nos. 164 to
166 to enable the Government to state clearly at what age they expect
the new orders to
apply.
Alun
Michael:
The hon. Gentleman says that the amendments are
probing. There are many difficult judgments to be made about the
capacities of individual children in various circumstances, so I should
have thought that he would accept greater flexibility for the courts to
make sensible decisions. However, I wonder what his view is. Is it that
a specific age should be nailed down? If so, what is it? He has tabled
a number of amendments in what might be described as a typical Liberal
Democrat approach. Considering his knowledge of the subject, I am sure
that he has an opinion.
Mr.
Heath:
It is unfortunate that the right hon. Gentleman put
in that little barbed comment towards the end of his
speech.
Mr.
Heath:
He says that he could not resist, but it is a
fairly well worn track for Opposition amendments to offer a range of
options so that the Government can argue for or against each one, so I
do not think that that method of questioning can be seen exclusively as
a Liberal Democrat attribute.
I would find it very difficult
to accept that what is essentially a criminal law sanction should be
used for a child under the age of 10. We have very well founded systems
within our social services for dealing with children who misbehave at
that age. Although I do not dispute for one moment that there are
processes—sanctions is perhaps the wrong word—which a
child who misbehaves at a young age ought to undergo in order that they
might be taught a better standard of behaviour, I am not sure that this
is the process by which that should be done. I hope that that answers
the right hon. Gentleman. There is nothing on the face of the Bill to
indicate any lower age limit and that is why I thought that it would be
useful for the Minister to have the opportunity to say what he
thinks.
Amendment No.
163 deals with the slightly different matter of the length of currency
of such an order. The amendment suggests that the
words
“for a maximum of 3
years”
be inserted into
the clause relating to the making of the orders. Again, we find that
schedule 1 gives an intimation of the Government’s thinking, but
no more than that. Schedule 1, part 4, deals with provisions applying
where the court makes youth rehabilitation orders. Paragraph 31(1)
states:
“A
youth rehabilitation order must specify a date, not more than 3 years
after the date on which the order takes effect, by which all the
requirements in it must have been complied
with.”
That suggests that
the Government intend a currency of three years as a maximum for an
order.
The difficulty
that I have with that wording—the Minister might like to comment
on this—is that it is not clear to whom the words
“must have been complied
with”
are addressed. Does
that apply to the authorities or to the individual who is subject to
the order? It is not clear to which of the two those words apply. What
is to happen if the authorities are in breach, as opposed to the
individual? Are the authorities to be brought back to the court to show
why they have not complied with the order within three
years—presumably in that instance with regard to provision that
should have been made within that time—or is the provision
really intended to ensure that the currency of the order is no more
than three years? If that is the case, I suggest to the Minister that
the amendment would make the Bill more explicit, would state the case
better and would be a valuable addition to the Bill. If that is not the
Government’s intention, the Minister can explain exactly what is
intended and why paragraph 31(1) gives that slightly ambiguous
statement.
Those are
the four amendments that stand in my name and that of my hon. Friend
the Member for Cambridge. I do not intend to divide the Committee on
three of them, but, if I have divined correctly what the Minister
intends by the current drafting, the fourth is a
serious suggestion for making the Bill more explicit. The hon. and
learned Member for Harborough may now wish to expand upon the remaining
amendment in the group, amendment No.
1.
Mr.
Edward Garnier (Harborough) (Con): When the hon. Member
for Somerton and Frome tabled the amendments, I thought that he wanted
to have a debate about the age of criminal responsibility, but I see
that that is not the case. I am happy that we will not be having such a
debate this morning, because I am not sure that it is necessarily what
we want to do when discussing the Bill. None the less, the amendments
provide us with an opportunity to invite the Government to be a little
clearer in their response to the speeches from Opposition Members about
the general policy behind clause 1 and schedule 1, and to see if we can
tease out some details and the intentions behind them, so that the Bill
may be better
understood.
Amendment
No. 1 is very simple; it requires the Government to explain why the
words “by or before” are necessary. Surely the person is
convicted by a court and he will also be before that court, unless he
is an absent defendant. Surely clause 1(1) would perfectly easily and
sensibly
read
“Where a
person aged under 18 is convicted of an offence, the court
by...which the person is convicted may in accordance
with”—
and so on,
or
“the
court...before which the person is convicted may in accordance
with”.
I may be being not
unusually obtuse, but for the present purposes, I cannot see the point
of having both prepositions. No doubt, the Minister will explain the
thinking behind
that.
Again, it is not
for me to answer for the Government, and I realise that much of the
Bill is pretty muddled, but in relation to the three-year point with
which amendment No. 163 deals, inserting
“for a maximum of three
years”
into clause 1(1),
I suspect that if one looks at schedule 1, one will conclude that the
sentence must be on the defendant, so the order, which is the sentence,
is on the defendant, and he must comply with that within three years.
The court does not sentence anyone other than the defendant. I think
that I have probably made my point. Although the language of the Bill
may be inelegant and somewhat opaque, I think that most of us would be
able to understand that the defendant—the offender—must
have completed the requirements imposed upon him within a period of
three years. That strikes me as being reasonably
clear.
I do not have
much to say about amendments Nos. 164 to166, which deal with
the bottom age of the person convicted of the offence, other than that
there is reference, as the hon. Member for Somerton and Frome pointed
out, in schedule 1 to the age of 14 in relation to an attendance
requirement. That reference to the age of 14 is not replicated in all
or any of the other requirements. That may be an oversight or it may be
deliberate, but it is certainly susceptible to
clarification.
I do
not want to have a stand part debate at this stage, but it is
important, at least from my party’s point of view, that we set
out our general concerns. The Bill is
very ill drafted in all sorts of ways; it has been pulled together. I do
not like to tease the Minister of State with stories of plum-duff,
because he finds that offensive. It appears that he had a neglected
childhood and did not have any plum-duff—that was the evidence
he gave during the course of the hearings in the Boothroyd room. I will
leave that
aside.
10.45
am
In an ideal
world—and I appreciate that being in government is not
necessarily ideal—this Bill would have been deconstructed and
reduced into several separate Bills. As it stands, it is totally devoid
of a theme. Part 1 and schedule 1 are examples of that. There are lots
of confusions. If one were to sit down with a hot towel on one’s
head, one could probably get to the bottom of them. What concerns me is
that when the Bill is implemented and practitioners and courts have to
find their way through it, there will be the sorts of difficulties that
the hon. Member for Somerton and Frome has raised.
The other relevant matter is a
proposal that appears to have Government support. It was reported in
this morning’s newspapers. I will take one example from The
Daily Telegraph, which was the first to come to my attention on the
internet. It
stated:
“Children
as young as 10 will be given the power to punish young offenders as
part of a new Government experiment to reform
troublemakers...
The
so-called children's court will deal with lesser offences such as
graffiti, under-age drinking and anti-social behaviour.
It will hand out minor
sentences, for example asking the offender to clean up litter, or
working on tidying up a garden.
A pilot scheme is running at
the Restorative Justice Centre in Preston. If it is successful, it will
be brought in across the country. Ministers believe that peer pressure
from the youngsters’ own age group will encourage them to reform
their ways, and the court aims to punish up to 300 children in its
first year.
As part
of the controversial project, which began this week, some of the
youngsters sitting on the jury will have been identified by police as
potential troublemakers
themselves.”
Apparently,
the initiative has been funded by a £487,000 grant from the
Treasury, which was agreed by the Chancellor. The scheme has been
criticised by magistrates. John Fassenfelt of the Magistrates
Association—a body that we heard from in the evidence sessions
last week—said:
“Children do not have
the balance or maturity to make a judicial decision. We are very much
against this and we are amazed that such a meaningless exercise should
have been given so much taxpayers’
money.”
My hon. Friend
the Member for Arundel and South Downs (Nick Herbert) said:
“Faced with a rising
tide of violence, the public deserves proper punishment for young
offenders to deter them from a life of crime.
Cleaning graffiti or forcing
thugs to apologise to their victims should be an additional penalty,
not a weak substitute for justice in the
courts.”
That is a
newspaper report and it may be wholly inaccurate. The Government may
have no such plans and there may be no such activities going on in
Preston or anywhere else. However, we need a degree of clarity in
Government thinking on how to deal with youth
crime.
Alun
Michael:
I am listening to the hon. and learned Gentleman
with interest, but I wonder whether we will be asked to look at every
newspaper report that contains fairly light discussion of some very
serious issues, rather than at the considerable body of evidence on
reparation and at the different experiments in engaging young people
with the
process?
Mr.
Garnier:
The right hon. Gentleman misunderstands me. I am
a keen supporter of restorative justice, in the right cases, whether it
involves young offenders, children or adults. What I am concerned
about—if I consider it necessary, I shall produce newspaper
reports that reflect on the amendments under
discussion—
The
Chairman:
Order. May I suggest that we do look at the
amendments we are discussing? I say to the hon. and learned Gentleman,
who is a very distinguished lawyer, that he is going rather wider than
the amendments under consideration.
To return to my
neat and thoroughly coherent argument, how we deal with children who
commit crimes is an important matter. It is hugely important because if
you do not prevent them from getting into the criminal justice system,
if you do not prevent them from committing crimes before the age of 10,
the chances are that they will get stuck on the conveyor belt of minor
and then increasingly serious criminal behaviour. They end up before
the courts, they end up in custody, they end up in young offender
institutions, and they end up in adult prisons.
We already know—this is
not controversial, the Minister will agree—that the reoffending
rate for youngsters is in excess of 70 per cent.; and some figures
suggest that it is as much as 75 per cent. For adults, the rate is in
excess of 65 per cent. That is an awful waste of life and an awful
waste of public money. I am as determined as the Minister is to bear
down on the amount of reoffending, and as keen as he is to ensure that
youngsters, whether below or above the age of criminal responsibility,
are diverted from becoming involved in crime and the criminal justice
system.
I used the
illustration of the children’s courts referred to in this
morning’s edition of The Daily Telegraph as an indication
of my concern that when we look at the amendments and when we look at
schedule 1 and clause 1, we do not see a coherent pattern of approach
to the issue. I am not accusing the Government of being ill motivated;
I am just accusing them of being somewhat disorganised. When the
Minister of State responds to the amendments on behalf of the
Government, I would appreciate it if we can extract from him a little
more about the philosophy behind the Government’s approach.
Having said that, I will leave the matter there and I look forward to
hearing others who may wish to contribute.
Harry
Cohen:
I am grateful to the hon. Member for Somerton and
Frome—we need a screen, like we have in the Chamber—for
giving us the opportunity to talk about the age of criminal
responsibility. I do not think that the Committee wants a major debate
on the morals of that question, but we have at least a chance to say a
few words about it. By the way, we were squeezed for time at the end of
the debate on Second Reading, and I got five minutes to speak in which
I think I referred to the age of consent. That was one example where I
was clearly wrong, Sir Nicholas, although I later corrected
it.
It is
interesting, however, that the age of consent is 16. There are all
sorts of inconsistencies about when children reach adulthood. For
example, I do not know whether the Government have done this already,
but they were talking of increasing the age at which a person can buy
cigarettes to 18. In that respect, the presumption is that one is still
a child until the age of 18, when one can decide to buy
cigarettes.
Alun
Michael:
As my hon. Friend says, this is an extremely
interesting topic, and he may be interested to know that the Minister
for the third sector, our hon. Friend the Member for Corby (Phil Hope),
was one of those who worked with the National Youth Bureau to unpack
some of these issues in a project known as the process of
enfranchisement. That project demonstrated that far from there being
one point at which a child moves into adulthood, there is a series of
steps running over some 15 to 20 years, through which different aspects
of how a child is able to do things or is treated change over
time.
Harry
Cohen:
That is a very good point, which should be
recognised where it can be; if not in the law, then in administrative
arrangements. Some people, including some MPs perhaps, never grow up,
or in some aspects of their lives never grow up, but I will not go down
that path, or you will cut me off, Sir
Nicholas.
We have the
lowest age of criminal responsibility in Europe, at 10. However, it is
lower in Scotland at eight, which I think is not a long way off from
being barbaric and I hope that the Scottish Parliament will revisit
that at some point. We still have one of the lowest ages of criminal
responsibility and it came out of the Jamie Bulger case. The Government
understandably responded to the public reaction, and that is why that
measure was brought in. However, I have been to conferences of, for
example, young offender team managers, and they do not like it. They do
not agree with the age of criminal responsibility being set at
10—they think that is too low. Other professionals who work with
children also think that.
The Government have said that
they will not revisit the matter, but I think that they should look, if
not at the age itself, at the process of dealing with children in those
circumstances. On Second Reading I said—and the amendment
provides an opportunity for me to say it again—that the welfare
and development of the child must remain the paramount concern of the
state. Most
of the offences committed by children are not horrendous, but even in
cases such as that of Jamie Bulger, once a child has been taken into
custody, the welfare and the development of that child must remain an
important principle for the state.
Alun
Michael:
I am sorry to disagree with my hon. Friend, and I
do not disagree that the protection of the child’s welfare is an
important principle for the state, but I thought that the Crime and
Disorder Act 1998 clarified that the prime purpose of the youth justice
system is to reduce and prevent reoffending, not least because
offending damages not only the victim and the community, but the family
and the individual offender themselves. That is why it is such an
important principle. I understand my hon. Friend’s point, but it
must be seen in context when we deal with youth justice
issues.
Harry
Cohen:
I bow to my right hon. Friend’s terrific
expertise and I accept that that is a key issue. However, I still
return to what may in some cases be deemed to be the paramount point:
that the welfare and the development of the child do not go away in
those circumstances. They remain the responsibility of the state and I
think that they must come higher up the agenda.
We need a
layered approach from the courts and from administrative authorities
that deal with children. For example, the younger and less mature a
child is, the more welfare and development input he or she should get
from the state. That really is a point that Ministers should revisit.
Even when dealing with an horrendous offence, such as in the Jamie
Bulger case—we are getting some terrible cases now with
stabbings and gun crime—we should not bow to public pressure and
have those children tried in adult courts. We have a youth justice
system, and that is what should apply to such
cases.
The
Chairman:
Order. I say to the hon. Gentleman that I am
using my broadest discretion, but he is not really addressing his
remarks specifically to the amendment. I would be grateful if he did
so.
Harry
Cohen:
The Government have recently made it clear that
they will not revisit the age of criminal responsibility. Today we will
hear how they respond to the amendments. The point that I want to make
is that the welfare and development of the child need to be addressed
and not just left. Restorative justice, which was referred to earlier,
is a factor in that, as is education, and youth rehabilitation orders
include a provision for that. That must come higher up the agenda for
children in these circumstances.
I do not want to labour the
point. Clearly, as other members of the Committee and I have said, this
is not a debate about the age of criminal responsibility and where good
and evil start and such matters. However, I urge the Minister to
revisit the administrative processes and to put the welfare and
development of the child higher up the
agenda.
11
am
The
Minister of State, Ministry of Justice (Mr. David
Hanson):
Good morning, Sir Nicholas. I welcome you to the
Committee proper and assure you, on the record, that on all occasions I
will regard you as being right. If
I am to be accused of being the school swot, I should get it out of the
way immediately. I say to the hon. and learned Member for Harborough
that I have nothing against plum-duffs. It is simply that we never had
them where I came
from.
I am grateful to
hon. Members for the issues that they have raised. There are important
issues, which I hope to help clarify. In amendments Nos. 164 to 166,
the hon. Member for Somerton and Frome has raised issues that touch on
the age of responsibility and on the question of when and how the order
applies. I hope that I can offer him some clarification on those
matters.
First, I
assure the hon. Gentleman that the youth rehabilitation order will
apply only to young people over the age of 10. We have placed that as
the age of criminal responsibility. That is not an issue that I will
reopen today because it is a wider issue that is beyond the scope of
the Bill. However, I accept that the amendments have touched upon
it.
The order will
apply to individuals over the age of 10. To clarify the points made by
the hon. Gentleman, there are a couple of provisions within the order
that have a minimum age requirement. If he looks carefully at the
unpaid work requirement, he will see that it applies to individuals
aged 16 and 17 only. The issue relating to residence—if a place
is specified—applies also to age 16 and over. He also mentioned
the reference to attendance centre requirements and suggested that that
would be available only for those 14 years old and over. That
is not the case. The Bill includes a number of bands in respect of
minimum and maximum hours that must be spent in an attendance centre.
Those bands will vary according to the age of the
offender.
In
general terms, the order is available for individuals aged 10 and over.
That is for one reason in particular: the starting age for the youth
rehabilitation order must be similar to other juvenile sentences. It
would be inconsistent and lead to confusion for sentencers, offenders
and those delivering the requirements of youth rehabilitation orders to
have a separate age band for that order. As I have mentioned, we have
no intention of changing the age of criminal responsibility, which is
currently 10.
For the
help of the Committee—this point touches on that raised by my
hon. Friend the Member for Leyton and Wanstead—in 2004, the last
year for which we have complete figures, over 201,000 offences
by 10 to 17-year-olds were dealt with in the criminal justice
system. Of those, just over 6,400 were committed by 10 and
11-year-olds. That is about 3 per cent. of the total. I want those
individuals who come into the system aged 10 or 11, of which there is
only a small percentage, to be dealt with in a way that looks at the
welfare of the child and has the prevention of reoffending at its
heart. I hope that that reassures my hon.
Friend.
We
are having some success. Of the 6,400 who came before the courts,
approximately 5,500 received a reprimand
or final warning, with just over 800 receiving a court sentence. For the
reasons mentioned by the hon. and learned Member for Harborough, it is
in everybody’s interests that we capture these young people at
an early stage, that we look at what interventions are required to
prevent them from reoffending and that we make those interventions. My
concern is that they are the potential adult criminals of tomorrow.
Given the high levels of reoffending, we must try to have those
interventions at a very early
stage.
I am also keen
that children and young people are not prosecuted and that, wherever
possible, an alternative is found. To deal with the point made by my
hon. Friend, local multi-agency youth offending teams, with the help of
social services and health professionals, will ensure that we identify
the needs of these young people and that we put in place help and
support, not just for them, but to enable their parents to look at the
challenges that they
face.
The objective is
to prevent reoffending in the first place. Some of the methods might
include child welfare departments or child and adolescent mental health
services. We need to look at that holistic approach to tackling that
offending behaviour through the youth justice system because we must
ensure that we prevent reoffending. That is the key to helping to
prevent not just crime in our communities, but a wasted life for those
young people. I hope that that has helped the hon. Member for Somerton
and Frome. I will return to his other points in a
moment.
In amendment
No. 1, the hon. and learned Member for Harborough asks to remove the
words “or before” from subsection (1). I hope that I can
reassure him about the reason for their inclusion so that he will not
press the amendment. The drafting of clause 1 is consistent with the
precedent set by previous legislation and is similar to section 177 of
the Criminal Justice Act 2003, as I am sure he is aware, which
covers the adult community order, and to other sentencing legislation.
Let me explain the purpose behind it.
At present a young person or a
child may be convicted by a youth court, which is a form of magistrates
court. Alternatively, they may be convicted by a jury in a Crown court.
Once convicted by a jury, the young offender comes before the Crown
court for sentencing. The current form of words in the Bill provides
that whether convicted by a youth court or a Crown court, that court
may sentence the child or young person to a youth rehabilitation order.
I am not sure whether it was the intention, but the effect of amendment
No. 1 would be to remove the ability of the Crown court before which a
person is convicted to impose on the young person a youth
rehabilitation order. The wording is simply to retain the current
flexibility. I hope that that clarifies the
point.
Amendment No.
163 would place a maximum time limit of three years on each requirement
of a youth rehabilitation order under clause 1. If the intention of the
hon. Member for Somerton and Frome is to set an overall three-year
limit on the duration of the youth rehabilitation order, I hope he will
recognise that the amendment is unnecessary. He rightly pointed to
schedule 1, paragraph 31(1), which already imposes such a limit. It
states:
“A youth rehabilitation
order must specify a date, not more than 3 years after the date on
which the order takes effect, by which all the requirements in it must
have been complied
with.”
The
hon. Gentleman asked how that applied and to whom. The hon. and learned
Member for Harborough rightly pointed out that the order itself applies
to the young offender. It is for him or her to complete the order. The
Youth Justice Service must ensure that the requirements can be
completed within the three-year maximum and the court can also put an
expiry date on the youth rehabilitation order, which is no more than
three years hence. But it is ultimately for the individuals themselves
to complete that order within three years, under the supervision of the
appropriate authorities. I hope that that clarifies the point for the
hon.
Gentleman.
Mr.
Heath:
The Minister of State talks about expiry of the
order. I do not think that anything in the Bill talks about the expiry
of the order; it talks only about the requirement to complete
provisions within it. There is a subtle difference between the two. If
he is clear that there is capacity for an expiry date to be set by the
court, under what part of the Bill is the provision
made?
Mr.
Hanson:
We can debate the wording. I am basically telling
the hon. Gentleman that the order must be complied with within the
three-year period. It is for the individual who has the order against
him or her to comply with the order within that
period.
David
Howarth (Cambridge) (LD): I think that the confusion here
is whether it amounts to a breach of the order not to comply with it
within three years. If the order comes to an end after three years it
cannot be a breach of it not to have complied within that time. If the
obligation is on the offender to have done the various things in that
time, it is a breach not to have completed
them.
Mr.
Hanson:
I hope that I can clear up any confusion that may
exist. Youth rehabilitation orders must specify a date not more than
three years after the date on which the order takes effect by which
time all requirements in the order must be complied with. The
requirement for compliance extends to the person against whom the order
was made, so it is the offender’s responsibility to complete the
order within the three-year time scale, and failure to do so
constitutes a breach of the order. I hope that that clarifies the
position for the hon.
Gentleman.
I want to
refer to a further point that was mentioned in the debate, which
related to the reports in today’s newspapers. I am happy to
respond to that point, provided that it is in order, Sir
Nicholas.
Mr.
Hanson:
During the debate on amendments Nos. 164
to 166, the hon. and learned Member for Harborough mentioned
today’s report in The Daily Telegraph which bore the
headline:
“Ten-year-olds
‘to punish peer
offenders’”.
The
Daily Telegraph is not my daily reading, but I take an interest in
its jottings.
Mr.
Hanson:
I know. The project in question is a pilot project
in Preston which is being run by the National Association for the Care
and Resettlement of Offenders and which is for young people who commit
low-level crime. Instead of being given a reprimand, the young people
are referred to a peer panel, but they must admit guilt in order to be
referred. The peer panel discusses the crime and agrees what should
constitute an acceptable behaviour contract. If the individuals do not
complete the agreed contract, they are sent to the police for further
discussion.
The
project is not directly within my responsibility, but I shall bring the
Committee up to speed on what I know about it. I understand that the
funding for the project has come from the challenge fund provided by
the Treasury to the extent of some £487,000. If the Committee
feels that it will help, I will happily write a note to assist in
informing the debate, which if appropriate could be referred to later
on wider issues concerning the Bill. I do not wish to mislead the
Committee in relation to information that I do not have at my
fingertips.
Mr.
Garnier:
I am sure that the Minister of State would never
mislead the Committee—at least, not on purpose. Let me ask him
whether the
scheme—
The
Chairman:
Order. We do not want a debate on the matter,
which is not directly connected with the amendments that we are
debating. I think that the Minister has given a fair reply. If it is
appropriate to refer to the matter later in our discussions, I shall be
happy for that to happen.
Mr.
Garnier:
I was simply going to finish the sentence, and
ask whether the scheme envisaged under clause 1 and schedule 1
contemplates the sort of thing that has recently been referred to. The
Minister of State says that the pilot scheme is not within his
responsibility, but I am concerned that there is no strategic overview
on youth offending and how to deal with it. If the Bill is designed to
address that, I should have thought that ideas such as the pilot would
have come before him. The fact that they appear not to be within his
remit is confusing.
The
Chairman:
If the matter is to be discussed, it would be
appropriate to raise it as part of the clause stand part debate,
provided that I am in a position to permit it, which depends on how
long it takes to scrutinise the
amendments.
Mr.
Hanson:
Thank you, Sir Nicholas. The provisions of clauses
1 to 5, in part 1 of the Bill, are designed to give a number of
opportunities to courts to exercise measures that will not only punish
but help prevent reoffending among young people. The project that the
hon. and learned Gentleman has mentioned, which was cited not just in
The Daily Telegraph but in a number of other journals this
morning, is a pilot project by NACRO that is, as I understand it,
funded from Government resources.
11.15
am
I will clarify
the position, but that project is not directly within my area of
responsibility. However, I am happy at least to examine anything that
can help to prevent young people from offending again. If we were to
undertake some activity in terms of young people themselves and examine
what has caused a young person to offend and that is proved by the
pilot to help prevent other young people from getting involved in
crime, I am happy to consider that activity as part of the wider
criminal justice
activity.
Mr.
Charles Walker (Broxbourne) (Con): This project could be
an interesting innovation. It could be useful in helping children to
feel empowered and in helping them to learn the difference between
right and wrong, and it is just a great shame that our national
newspapers have got hold of it and are perhaps distorting what could be
an interesting scheme. Perhaps it would have been nice if this project
could have been brought before Parliament at an earlier
stage.
Mr.
Hanson:
I am grateful to the hon. Gentleman for his
supportive comment. As I say, at the moment this scheme is not a scheme
for which I am directly responsible, but it is a scheme which I have
authorised and I am happy, given our discussions, to reflect upon it in
due course. I hope that the hon. Gentleman will pass on that message to
the hon. Member for Arundel and South Downs, who, in the same article
that I have before me,
says:
“Faced
with a rising tide of violence, the public deserves proper punishment
for young offenders”.
By
implication, the hon. Member for Arundel and South Downs does not mean
the scheme that is being undertaken in Preston on a pilot basis. So, I
hope that the hon. Gentleman will use his immense influence with his
Front Bench to ensure that that project receives a fair
wind.
Mr.
Walker:
Perhaps we could have avoided the anguish if this
innovative scheme had been announced to Parliament by the responsible
Minister so that it did not come as a surprise to certain people and
could have been debated
collectively.
Mr.
Hanson:
As I have said, Sir Nicholas, you are always right
and how can I not take that encouragement in the way that it was
meant?
If the
Committee feels that it will be of help, I will ensure that a letter
detailing the pilot project is sent to members of the Committee. As I
say, I wish that I could give more information on that project today,
but I am not party to it and I would not wish to give information that
was not complete to the Committee.
In responding to the debate, I
hope that I have provided clarity for the hon. and learned Member for
Harborough, the hon. Member for Somerton and Frome, and my hon. Friend
the Member for Leyton and Wanstead on the Government’s thinking
on these issues, and I also hope that, having given those assurances,
the amendments will not be pressed.
Mr.
Garnier:
I heard what the Minister had to say about
amendment No. 1. I am not entirely sure that I am convinced by his
response, but I am entirely convinced that I do not need to take the
matter further.
Mr.
Heath:
I am grateful to the Minister of State, and indeed
to other hon. Members who have contributed to the debate. He has given
me greater clarity than was provided before and I am grateful for
that.
May I also say
how pleased I am that the Minister of State is prepared to use the
“c” word—children—in respect of
10-year-olds? I got into trouble with one hon. Member on Second Reading
for daring to say that some of the people that we were dealing with
were children. They are children. They may have behaved badly, they may
need punishment, but they are children, and the way that the Minister
of State described his intentions was entirely admirable, in that he is
trying to deal with the problems these children face and the
unacceptable behaviour that they are displaying in an holistic way, if
I dare use that word “holistic”. One treats the whole
individual and finds the right avenues to help to correct some of the
problems that they face, which very often are environmental, or
developmental, in terms of the learning environment in which they have
lived. Sometimes, their behaviour is as a result of peer pressure of
all sorts.
Regarding the
scheme that was alluded to, although I think that it is of dubious
relevance to my amendments, this much is relevant: it is important to
find ways of dealing with offending behaviour that work. That is the
crucial thing. It underlines everything that I have to say about penal
policy. What works? What actually reduces reoffending? I could not give
two hoots for what the newspaper industry thinks about a proposal. What
is critical is whether a proposal works to reduce reoffending. It is
not an entirely novel process, because it has been explored elsewhere.
There is evidence that it works, and that young people are more
responsive to the views of their peers, who are certainly no soft
touches. Again, that is the evidence on dealing effectively with
offending behaviour. If it works, it is a model that we should build
on, and that is
all.
On my amendments,
I am grateful to the Minister for giving a clear indication of the age
range for the various elements of the rehabilitation orders. However,
there is still a suspicion of doubt in my mind as to whether the Bill
is explicit about a three-year expiry, as opposed to the conditions
that must be fulfilled within three years. Because some of those orders
are very resource intensive, I can see circumstances in which not the
individual on whom the order has been placed, but the authorities that
have a duty to provide a variety of things to that individual, will be
in breach of it. I am not clear what will happen if that is the
case.
As the Minister
is apparently satisfied that the Bill provides for such circumstances,
I will, for the moment, take his assurances as being a sufficient
answer, yet it worries me that there is perhaps still an ambiguity that
has not been addressed. Having said that, I thank the Minister for the
intended helpfulness of his replies and I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave, withdrawn.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 110, in
clause 1, page 2, line 17, leave
out paragraph
(a).
Amendment No.
115, in
clause 1, page 2, line 20, at
end insert ‘, or
(c) a youth
rehabilitation order with local authority residence (see paragraph 17
of Schedule
1).’.
Amendment
No. 111, in clause 1, page 2, line 21, leave out ‘(3)(a) or
(b)’ and insert
‘(3)(b)’.
Amendment
No. 116, in schedule 1, page 85, leave out
lines 15 and
16.
Amendment No. 113,
in schedule 1, page 85, line 31, at end
insert—
‘Intensive
supervision and surveillance
orders
2A (1) An intensive
supervision and surveillance order must contain the following
requirements—
(a) an
activity requirement (see paragraphs 6 to 8), in relation to which the
court must specify a number of days which is not more than
180;
(b) a supervision
requirement (see paragraph 9);
and
(c) a curfew requirement,
unless the court is satisfied that the requirements of the order will
involve sufficient surveillance of the young person without a curfew
requirement.
(2) An intensive
supervision and surveillance order may also contain any other
requirement mentioned in section
1(1).
(3) The total restriction
on liberty imposed by an intensive supervision and surveillance order
must be proportionate, taking into
account—
(a) the
severity of the offence and any offences associated with
it,
(b) the age, emotional and
intellectual maturity of the offender,
and
(c) the court’s
powers under section [Duty of court to inform the local authority where
child at risk of significant
harm].’.
Amendment
No. 112, in schedule 1, page 85, line 33, leave out paragraph
3.
Amendment No. 117,
in schedule 1, page 93, leave out line 10
and
insert—
‘Youth
rehabilitation order with local authority
residence
17 (A1) This
paragraph applies where paragraphs (a) to (c) of section 1(4) are
satisfied.’.
Amendment
No. 118, in schedule 1, page 93, line 30, at end insert
‘and that local authority has
agreed to the inclusion of the local authority residence requirement in
the youth rehabilitation
order.’.
Amendment
No. 119, in schedule 1, page 93, line 39, at end
insert—
‘(7) A youth
rehabilitation order which imposes a local authority residence
requirement is referred to in this Part of this Act as a “youth
rehabilitation order with local authority residence” (whatever
other requirements mentioned in section 1(1) or (2) it
imposes).’.
Amendment
No. 109, in schedule 1, page 94, line 30, leave out paragraph
19.
New clause
6—Preconditions to imposing a youth rehabilitation
order—
‘(1) A court may
not make a youth rehabilitation order in respect of an offender
unless—
(a) the offender
was legally represented at the relevant time in court,
or
(b) either of the conditions
in subsection (2) is
satisfied.
(2) Those conditions
are—
(a) that the
offender was granted a right to representation funded by the Legal
Services Commission as part of the Criminal Defence Service for the
purposes of the proceedings but the right was withdrawn because of the
offender’s conduct,
or
(b) that the offender has
been informed of the right to apply for such representation for the
purposes of the proceedings and has had the opportunity to do so, but
nevertheless refused or failed to
apply.
(3) In this section
“the relevant time” means the time when the court is
considering whether to make that
order.’.
New
clause 9—Intensive supervision and surveillance
order—
‘(1) Where a
person aged between 12 and 18 is convicted of an offence, the court by
or before which the person is convicted may in accordance with
paragraph 2A of Schedule 1 make an intensive supervision and
surveillance order.
(2) But a
court may only make an intensive supervision and surveillance order
if—
(a) the court is
dealing with the offender for an offence which is punishable with
imprisonment,
(b) the court is
of the opinion that the offence, or the combination of the offence and
one or more offences associated with it, was so serious that, but for
paragraph 2A of Schedule 1, a custodial sentence would be appropriate,
and
(c) if the offender was
aged under 15 at the time of conviction, the court is of the opinion
that the offender is a persistent
offender.
(3) Schedule 1 makes
further provision about intensive supervision and surveillance
orders.
(4) This section is
subject to—
(a) sections
148 and 150 of the Criminal Justice Act 2003 (c. 44) (restrictions on
community sentences etc.),
and
(b) the provisions of Parts
1 and 3 of Schedule
1.’.
New
clause 10—Restriction on use of detention and training
order—
‘(1) In the
Powers of Criminal Courts (Sentencing) Act 2000, after section
100(2)(b),
insert—
“(c) in
relation to an offence committed after the commencement of section
[Intensive supervision and surveillance order] of the Criminal Justice
and Immigration Act 2008, unless he has previously received an
intensive supervision and surveillance order under that
section.”.’.
I
call the hon. Member for Somerton and
Frome.
Mr.
Heath:
I have long determined that getting my constituency
right is not easy for many hon. Members. It is Somerton and Frome,
pronounced “Froom”; in fact, in Somerset it is pronounced
“Vroom”, with a hard “F”. Now that is a
challenge to Hansard, which I instantly
regret.
I wish to speak
to the large group of proposals standing in my name and that of my hon.
Friend the Member for Cambridge. The group is broken down into three
main areas of concern. Therefore, I will deal with those three areas in
turn, rather than the wording of specific measures in the
group.
The
first area comprises amendments Nos. 114 to 119, which deal with the
local authority residence requirement. As we know, that part of the
youth rehabilitation order allows for a range of disposals. One is the
intensive fostering requirement, where there are additional provisos
before a court can impose it. The other is the specified local
authority accommodation, where much more discretion is allowed to the
court to use that disposal. That is an anomaly in the context of these
amendments. If a child is to be taken away from their family home and,
in effect, placed in detention—although I accept that detention
is an inappropriate term for fostering, and I hope for much of local
authority residence—or in the care of the state in one form or
another, it seems appropriate that there ought to be at least some
provisos as to the circumstances under which that can be
used.
The suggestion
in these amendments is first that this disposal should be used only
where otherwise a custodial sentence might have been appropriate. That
is a proviso that applies as far as the terms of the fostering
arrangements are concerned and there seems no obvious reason why it
should not apply to the local authority placement. We have established
beyond doubt now that this can apply to a child as young as 10. We are
dealing with very young children for whom such an enforced move out of
the family home can be an intensely traumatic experience.
The second proviso is that the
local authority should have some opportunity to consent, rather than
simply being consulted, before that residential order is made. The
reason for that is twofold. First, the authority must ensure that the
appropriate facilities are available for the receipt of the child.
Secondly, social services within a local authority should be able to
have a strong say-so when it comes to whether that is an appropriate
disposal and whether the court is correct in its view. There are
already powers within the remit of the local authority to place a child
in care without any offence having being created, but that decision is
clearly made on the basis of the best interests of the child, which are
paramount. That is rather different from an order that is made, one
presumes, in the interests not only of the child but of
society—in the form of a part of a rehabilitation order. We
should consider whether the two disposals that require a change of
familial environment for the child should be brought into approximate
parity within the context of the Bill.
The second
broad area includes new clause 6 and its ancillary amendment No. 109.
New clause 6 deals with preconditions to imposing a youth
rehabilitation order. In effect, it lifts the present proviso, which is
there in relation to an intensive fostering order, to make it apply to
youth rehabilitation orders as a whole. That is an important condition:
that there is a right of representation before the court. A very wide
palette of powers is being given to the court under the youth
rehabilitation order. Many of them involve a significant, effective
reduction
in freedom of movement and of activity, or impose specific requirements
upon the offender. There seems to be a parallel with custodial
sentences. It seems odd that there is no right to legal representation
for the child in those
circumstances.
11.30
am
Mr.
David Burrowes (Enfield, Southgate) (Con): For those who
practise in the courts, such as myself, I welcome with interest the
principle of the extension of legal aid—one would never want to
persuade against that. Nevertheless, is there concern about how one
would deal with the clause’s approach to replicating adult
orders? Presently, legal representation is not available for those
orders regarding which the restriction of liberty is not at risk and
that therefore fall below the level of the interests of justice test
that is necessary to grant legal aid. How will we be able to square
that with orders that deal with youth
offenders?
Mr.
Heath:
There are two things to say. First, we are not
dealing with adult orders in this part of the Bill and it would
therefore be wrong to extend my comments on the present provisions for
offenders. Secondly, there are specific issues relating to children and
young people, not only with regard to their legal rights under the
conventions, which are arguably at least breached by a lack of
representation.
The
particular circumstances of a child or youth offender, not only in
environmental and parental terms, should be a key part of the
consideration that a court applies. For instance, we have considered
that the emotional maturity of the child and the consequences of some
of the orders should be properly explored by the court. I think that
legal representation of the young offender is a key part of a court
reaching a proper decision. I have no interest in making more work for
lawyers in that area, and I hope that the hon. Gentleman will not be
unnecessarily distraught about that view. Because this is an important
range of disposals, the court ought to have the opportunity of hearing
how the interests of the child might be properly represented before
making the order. That can only really happen through legal
representation.
The
third element—this also applies to adult cases, but it is
particularly important in cases involving children—is that if
the court makes an inappropriate disposal that encourages a breach
inadvertently, or by over-prescription, the sanctions can be ratcheted
up to custodial sentences. Therefore, a process is under way from the
point when the young person is given a rehabilitation order. That being
the case, there ought to be legal representation by right at each of
the stages of that process.
I am supported in that
view—having gone through the process of evidence-taking
sessions, we ought occasionally to refer to the evidence that we are
given. On Thursday 18 October, I put that point to Bob Reitemeier, who
replied:
“Yes,
we feel that that should be put into the Bill, that legal
representation should be provided before any YRO is put forward. So we
fully support that position.”——[Official
Report, Criminal Justice and Immigration Public Bill
Committee, 18 October 2007; c. 96,
Q209.]
That seems to me to be an important piece
of evidence from the chief executive of the Children’s Society.
If we are to make the evidence sessions relevant to our considerations,
that ought to be brought into the reckoning at this point. That is the
argument for new clause 6 and amendment No.
109.
The third
sub-group—amendments Nos. 110 to 113 and new clauses 9 and
10—deals with intensive supervision and surveillance orders. The
argument is about hierarchy and whether incorporating the intensive
supervision and surveillance order into the general ambit of the
rehabilitation order removes from the discretion of the court an
important element of hierarchy in
sentencing.
The
amendments would separate out again the intensive supervision and
surveillance order from the general rehabilitation order. That is not
to argue against either the rehabilitation order or the intensive
supervision order in themselves. We accept that there is a strong
argument for intensive supervision and
surveillance.
The
programme has been narrowly drawn, and I think that it has been used
effectively, although there has been concern that sometimes the courts
have used it as an alternative to community sentencing, rather than an
alternative to a custodial sentence, as was intended. However, the
programme does provide for a high level of supervision in the case of
an offender when there is an intention of ensuring that they are not
put in circumstances where they are likely to reoffend. It was
expressly designed as being a last chance saloon—to use a
clichÃ(c)—before a custodial sentence; it is the very last
disposal that is available. If it is included in the wider remit of the
rehabilitation order, the difficulty is that that step will be missing.
The YRO becomes the last resort. That, perhaps, forces the court into a
position in which it would not otherwise have
been.
ISS
programmes are good, but they are resource intensive. They will not be
appropriate for a large number of offenders before the youth court, and
they should be specifically tailored to those who will benefit most
from them as a way of keeping them out of prison because prison is not
likely to be an effective remedy to the offending behaviour they have
exhibited. We feel—we are supported by others—that by
incorporating ISS programmes into the youth rehabilitation order, there
is a compression of sentencing options that does not allow a court to
move up from a YRO to an ISSO to a custodial sentence. Those are three
clear steps, each of which are appropriate to particular
circumstances.
I will
be interested to hear what other members of the Committee and the
Minister have to say in response to that argument. I hope that there
are some constructive suggestions to make the orders work more
effectively.
Mr.
Garnier:
I begin by recognising the help that we have
received from the Standing Committee for Youth Justice, which I think
provided the briefing behind which the hon. Member for Somerton and
Frome framed his amendments. The standing committee is a membership
body that provides a forum for organisations—primarily in the
non-statutory sector—working to promote the welfare of children
who become engaged in the youth justice system. It advocates a
child-focused youth justice
system that promotes the integration of such children into society, thus
serving the best interests of the children concerned and the community
at large.
The
organisations that are members of the standing committee include
Barnardo’s, the centre for crime and justice studies at
King’s college London, the Children’s Rights Alliance for
England, the Commission for Racial Equality, Just For Kids Law,
Justice, the National Association for the Care and Resettlement of
Offenders, the Association of Youth Offending Team Managers—YOT
managers, as they are called—the National Association for Youth
Justice, the National Children’s Bureau, the National
Children’s Home, the NSPCC, Rainer, Save the Children, an
organisation called Soba, the Children’s Society, the Howard
League for Penal Reform, the National Youth Agency, the Prince’s
Trust and Voice. That is a wide selection of membership bodies. It is
important that we pay attention to what those people have to say. As
the hon. Gentleman mentioned in quoting Mr. Reitemeier, who
gave evidence last week, they have huge experience and things to say
that we must pay attention to, especially when we legislate on youth
justice.
I
broadly agree with some of the concerns that the hon. Gentleman
expressed. Where I part from him is on the over-prescriptive approach
that would necessarily follow from his new clauses and amendments. I
share with him an intense desire to see children kept out of the
criminal justice system and to reduce the amount of reoffending that
happens in our criminal justice system at all ages. I also share with
him a desire to see appropriate laws passed that give all public
agencies an input. Such agencies include the courts, but outside the
courts I would include social services, education services, health
services, the charitable sector and any number of other motivated and
sensible groups and people. I share with him and them a desire to
produce a system that makes our country more civilised and not only a
safer place to bring up children, but a safer place in which children
can grow up.
I
sometimes worry that politicians are influenced and bashed around and
buffeted by this or that fad, or this or that pressure group with a
particular axe to grind, and that that leads us to come up with
solutions that sound and look attractive during the immediate review of
the issue, but that fail when they are played out over the longer term.
That is what concerns me about some aspects of the Bill, which is why I
applaud the way in which the hon. Gentleman introduced his amendments.
While they might or might not get on to the statute book, they reveal
issues that we should carefully consider.
The hon. Gentleman identified
three areas of concern or debate: the local government residence
requirement, which includes intensive fostering; the issue of specified
local authority accommodation; and intensive supervision and
surveillance orders. Yesterday morning I was sitting as a recorder in a
court not far from here and I had in front of me a young man who was
17, but was 16 when he committed the offence for which he pleaded
guilty. He and another young man who has never been found mugged a man
at a bus stop at about 1 am. During the mugging, in which they stole
the victim’s laptop and briefcase, the other young man
brandished an imitation firearm. It is not hard to understand the fear
and state of mind of the victim of
this hideous crime. He was not available to give an impact statement,
but, none the less, it does not take much imagination to work out how
he must have felt that morning in October when he was
attacked.
11.45
am
When the young
man pleaded guilty in court in July, I remanded him in custody pending
pre-sentence reports. He was kept in Feltham young offenders
institution until yesterday, when he was brought before me for
sentencing. I could see that this individual, who was on the cusp of
adulthood, was, to all intents and purposes, a large child—a
very silly and badly behaved child. It struck me that to keep him in
Feltham would do more harm than good. I made it clear that the public
expected people such as him to be punished severely, and it required
some explanation to those listening to the sentencing process to make
them understand why I thought it inappropriate to return this young man
to custody, not least when the Court of Appeal, the sentencing
guidelines and other case law suggested that it would not have been
unjust or overly harsh to give this 17 year-old a custodial sentence of
at least 15 months.
It
struck me that the ISSP, the intensive supervision and surveillance
programme, was an apt way to deal with this particular individual. I
was grateful that the sentencing structure allowed me that discretion.
It is important that sentencers should be able to sentence a person
using the facts of the case and the circumstances surrounding the
offence, and that includes the impact on the victim. Although I did not
have an impact assessment from the victim, I was satisfied that, if I
had had no discretion to give an ISSP but had been required to send
this boy to prison, it would have been a
mistake.
That
defendant may let me down and reoffend. He may disobey the instructions
of the probation service officers who are going to be looking after him
for the next few years. Every now and then, however, I think that it is
appropriate for sentencers to take a risk. It is entirely appropriate
that the courts should be given discretion. That is why I, to some
extent, applaud what the hon. Gentleman has said and also why I do not
wish us to pass overly prescriptive legislation about the way that
sentences have to be passed. Each case is different, albeit that most
cases have many similar
facets.
I agree with
the hon. Gentleman that, if we are to take children away from their
families, we need to understand that the state is the worst possible
parent. I mentioned on Second Reading and during last week’s
evidence sessions in Portcullis House, that 27 per cent. of people in
custody have been in care. I have scarred on my mind the Beck inquiry
into Leicestershire social services’ handling of
children’s homes. A man called Beck, who is now dead, was
eventually arrested and convicted of huge numbers of offences against
children, including sexual and other abuse. Many of the abused children
who were in his care in the 1960s and 1970s ended up committing crime
themselves and some of them, certainly at the time evidence was being
given to the inquiry, were in prison.
It is hugely important to bear
it in mind that it is not ideal to take children away from their
natural parents and families and place them in state care. It does not
always work out best for the children. Therefore, if young people are
in front of the criminal justice system and the courts are provided
with the weapon, or process, to take them away from their natural
families and place them in local government or other state care, it is
important that the decision maker is given the best, most up-to-date
and appropriate information about the individuals concerned.
Whether that comes from legal
representation or some other source within the youth justice system
does not much matter. However, somebody who is trained, experienced and
who understands the difficulties that are often associated with this
sort of defendant, must be available to give youth courts and Crown
courts the best information about the circumstances of the child or
young person in front of them. That would include the family and
education circumstances of the individual, whether they go to school,
what their history is, and some understanding of their psychological
make-up.
I return to
the example of the boy in front of me yesterday. The individual in
front of the court may look like a young man: he may have started
shaving and be six foot two, but inside there may be a thoroughly
immature mind. I do not know if the Minister has recently visited
Feltham or any other young offender institution, but he will know, as I
do, that there are plenty of people in the 18 to 21-year-old custodial
estate who may look physically mature, but who are mentally children.
Equally, there will be 14, 15 and 16-year-olds who are both physically
and mentally mature beyond their years.
If end-to-end management and
humane and sensible sentencing are to mean anything, the courts must
know more about the individual and not treat people as categories of
person. If that means representation of the sort that I have described,
as opposed to the narrow, legal representation which was, for all sorts
of good reasons, described by the hon. Gentleman, then I applaud that
move.
Of course that
has immense resource implications. The legal aid budget is under
tremendous strain and giving state money to lawyers is an easy thing to
criticise. As a lawyer——my hon. Friend the Member for
Enfield, Southgate is in the same position——it is
difficult for us as legislators to stand up and say that we should give
more money to lawyers. However, if one can step outside that narrow and
obvious criticism about the vested interests of what we would describe
as a noble and decent profession, then we must understand that justice
costs money. It is not something that can be got on the
cheap.
Mr.
Heath:
I am grateful to the hon. and learned Gentleman for
giving way. As a non-lawyer, I have no difficulty in saying that legal
aid is one of the essential elements of the welfare state and one of
the greatest achievements of the Attlee
Government.
Mr.
Garnier:
I am grateful to the hon. Gentleman for saying
that, as that is the argument that I put forward in debating the
misnamed Access to Justice Act 1999.
In those days, I was the shadow Minister at the Lord Chancellor’s
Department. How things have changed. My opposite number, the
Parliamentary Under-Secretary in the Lord Chancellor’s
Department, was the current Government Chief Whip. He has moved around
a few times since then. I was interested, but certainly not amused, to
find myself arguing in favour of Attlee’s reforms that are now
being destroyed by a Labour Government. I said to the right hon. Member
for Ashfield (Mr. Hoon) that Attlee must be spinning in his
grave because they were dismantling a hugely important part of the
welfare
state.
Harry
Cohen:
I appreciate that the hon. and learned
Gentleman’s speech was both eloquent and informed, and thus
useful to the Committee, but he will know from our evidence-taking
sessions that what was being argued for was diversion and pre-court
processes so, if the matter comes to the court, that stage will almost
be a rubber stamp. Youth professionals would have reached an agreement
on how to deal with the youngster. In those circumstances, surely there
is no need for legal or major representation of one form or another for
the youngster. Can he put the diversionary approach into such a
context, because it should have
priority?
Mr.
Garnier:
It is not a matter of being exclusive. Of course,
diversion is hugely important. As I said, I want young people to be
diverted away from criminal activity whether they are under or over the
age of 10. That is not controversial. Nor, I hope, is what I am saying
now. I am talking about how we describe the court’s ability to
do things. It can do something better if it has good information. The
information does not necessarily have to be of a strictly legal
representative sort. For my purposes, if a responsible person could
speak for the young person and present to the court the fullest range
of information about the child, the offence and the victim, as well as
about the remedies and how the offence could be dealt with, the court
would be better informed and could make a more intelligent judgment
about what to do. Clearly, Parliament must set the ambit of the
sentencing powers of a court, but I do not want it to be stuck into the
nitty-gritty of saying, “If the following 15 sets of
circumstances arise, you must only do the following.”
I want magistrates to have the
freedom, as I like to think that I had yesterday, to match the sentence
that is appropriate to the circumstances of the individual case, but
they can do that only on the basis of the best possible information.
Such information need not just come from a lawyer, but from some other
person who can speak. The Latin phrase doli incapax has been mentioned,
but “amicus” is the Latin word for
“friend”. There is a system whereby people have McKenzie
friends or the courts asked for an amicus to advise it. I am looking
for a fund of knowledge to inform the court so that it can make a
sensible
decision.
David
Howarth:
Is not another response to the point made by the
hon. Member for Leyton and Wanstead that, with the best will in the
world, the pre-court processes and the discussions between
professionals will not always work? They will not always be perfect in
respect of the information on which they have acted or
in the conclusions that are reached. There is still a role for the court
at the end of the process to make decisions. It is the court that makes
the final decision, not the professionals and, for that, the young
person needs some
representation.
12
noon
Mr.
Garnier:
Again, I do not disagree with the hon. Gentleman.
I am trying to create within a legislative framework a mechanism by
which the court can make sensible decisions. I am in danger of
repeating myself. While I always welcome interventions from people who
know a lot about the subject, or, indeed, from those who do not, we
seem to have a well-meaning set of clauses, introduced by a Government
who no doubt want to do good in this aspect of public policy, but which
are not necessarily apt to achieve the end that we all want. Clearly,
the Government have been doing a lot of thinking. One only has to look
at the amendment paper to see the huge number of Government amendments
designed to perfect an imperfect Bill. I hope that they will think
about what is going on and ask themselves whether what they have so far
put into the Bill is the best way of achieving their
objectives.
I do not
need to say any more. I hope that I have made the points that I want to
get across to the Committee. I certainly shall not chase these
amendments to a Division, even if the hon. Gentleman were to press
them. They are almost too important for a binary discussion and an
argument that is entirely plus or minus. There are lots of things in
the Bill that probably will work and lots that probably will not. I
simply congratulate the Standing Committee for Youth Justice, and the
hon. Gentleman who has used its briefing to start this line of debate,
for bringing the matter to a marginally public forum in this Standing
Committee.
The
Chairman:
I am sure that the Committee is grateful to the
hon. and learned Gentleman for his succinct contribution. May I ask
members of the Committee whether they feel that the room is warm
enough? [Hon. Members: “It is positively
arctic.”] May I tell my Clerk that I hope that between the end
of this sitting and the afternoon sitting the authorities will be
approached, not only to replace two bulbs in the lights above, but to
ensure that the room is a little
warmer.
Mr.
Walker:
I listened with great interest to the debate,
particularly that on intensive fostering, which I feel should be a call
of last resort. Like most hon. Members, I believe that all children are
born good and some turn bad, often through no fault of their own.
Intensive fostering is almost the wrong way round. Many children who
find themselves on the wrong side of the law come from very difficult
homes. They come from what could be called dysfunctional families,
where the adults put their needs before those of their children. One
could argue that in many cases these children have largely uninterested
parents.
It worries me
that children as young as 10 will be made to pay the price for their
parents’ failings. They will be plucked from a home that may
have given them very little support, direction, love and care and sent
into intensive fostering. It may well be that for the first time
in their lives they will be in homes where they are
the centre and their welfare and needs are put first. But when this
period of intensive fostering is over, they will be returned to the
same dysfunctional environment they came from, where the problems of
drug and alcohol abuse, lack of proper nutrition and so on still
exist.
I hope that in
debating this, and when the Minister goes away to think about it, that
as well as focusing on the child, we will focus on the background and
the home that they have come from to ensure that those responsible for
creating the child, and who I believe are largely responsible for the
problems that the child is experiencing and bringing to society, are
given the support, instruction and guidance that they need to become
people who are fit to raise and care for the next generation. Unless we
do that, I fear that this legislation will be a mere sticking plaster
and that for decades to come we will have children who start off
good—all children start off good—and, due to their family
circumstances and through no fault of their own, are turned
bad.
Mr.
Hanson:
I am grateful to hon. Members for their
contributions and their amendments. There are two sets of issues. The
first relates to the use and type of order and whether to deal with the
intensive supervision and surveillance order in a different way. The
second aspect of the debate relates to the forming of legal
representation. I will start with legal representation because I hope
that that is the area where it is simplest to come to some
consensus.
The
existing arrangements for the provision of legal representation provide
sufficient safeguards for young defendants. Although I understand the
motivation behind amendment No. 109 and new clause 6, I do not believe
that they are necessary. I hope that ultimately I will be able to show
the hon. Member for Somerton and Frome that that is the case. The hon.
and learned Member for Harborough also touched on this issue and
helpfully reminded us of the Access to Justice Act 1999, which was
taken through this House by my right hon. Friend the Member for
Ashfield (Mr. Hoon), the current Government Chief Whip.
Unlike you, Sir Nicholas, he is right on all
occasions.
Mr.
Hanson:
Just for the record, my hon. Friend the Member for
Tooting (Mr. Khan) concurred with that
assessment.
Hon.
Members will recall—particularly the hon. and learned Member for
Harborough—that the 1999 Act ensured that all defendants must
satisfy what was called the interest of justice test to qualify for
publicly funded representation. The Act set down a number of criteria
for the court to take into account in deciding on that. Among other
factors was whether the defendant may, for
example,
“suffer serious
damage to his
reputation”
and whether
the charge is punishable with imprisonment. Under that Act, the court
must also give consideration to whether the defendant is of a young age
and to the defendant’s ability to understand the proceedings or
state their own case.
Mr.
Burrowes:
Under the Access to Justice Act 1999, the issue
is not so much whether the defendant is likely to receive a sentence of
imprisonment, but whether their liberty is at risk. It is that issue
that is of crucial significance in relation to the youth rehabilitation
orders. It can be argued that in certain of those orders their liberty
is being deprived and that the interest of justice then merits legal
representation.
Mr.
Hanson:
Again, the condition in the 1999 Act is whether
the charge is punishable with imprisonment. I believe that it sets out
the criteria for the potential for publicly funded
representation.
As I
was saying, since 2 October 2006, defendants appearing before
magistrates courts and youth courts have also been required to pass the
financial eligibility test to qualify for publicly funded
representation. From 1 November 2007, all defendants under the age of
18 will be passported through that means test. That announcement has
been welcomed by professionals, the judiciary and the Law Society. I
take the view that whatever our arguments around the question of
publicly funded support, under the 1999 Act and the amendments to it,
from 1 November, there will be sufficient safeguards to ensure that
those individuals who require publicly funded support will get it.
Irrespective of our views on that, the blanket assessment of public
funding for all young people proposed by the hon. Member for Somerton
and Frome would not only have wide consequences for the legal aid
budget, but set precedents for other aspects and effectively undo the
Access to Justice
Act.
David
Howarth:
Perhaps what the Minister of State is saying will
provide the basis of some sort of later compromise. It is a
technicality to talk about imprisonment, because certain combinations
of the orders would amount to quite a serious deprivation of liberty.
Combining requirements in relation to prohibited activities, exclusion,
curfew, and, crucially, residence, is a pretty severe restriction on
liberty. On the other hand, what the Minister of State has said about
other sorts of order might well be true, in that they might not require
any sort of serious consideration or legal representation. That might
be a way
forward.
Mr.
Hanson:
As ever, I am always happy to reflect on what has
been said in Committee; I am simply giving my current assessment and
judgment. Schedule 1, paragraph 19, requires young offenders to have
received or had the opportunity to receive legal representation before
a youth order or a local authority residence or fostering requirement
is made. That is stipulated because the requirement will enforce
residence away from the family home. It provides a safeguard in such
cases.
David
Howarth:
That is precisely the point that we are trying to
make. There are circumstances in the Bill in which legal representation
is required. The Government have made the opposite judgment in the
present instance to that which they have made in relation to other
sorts of order. We suggest that the Government think about the dividing
line between the types of case, and whether they have drawn the line in
the right place.
Mr.
Burrowes:
I am willing to accept that the Chairman is
always right, Sir Nicholas, but I am not willing to accept that the
Minister of State is always right—certainly not in relation to
the access to justice provisions. I should particularly like
clarification on whether we are indeed concerned only with risk of
imprisonment rather than deprivation of liberty because, if so, that
would preclude many adults and young people from entitlements that they
currently have.
On
resources, the Solicitor-General, the hon. and learned Member for
Redcar (Vera Baird) indicated that, given the amount of legislation
that has affected the legal aid budget, an impact statement would be
made in relation to budget implications of further legislation.
Schedule 1, paragraph 19, provides for legal representation when there
is a requirement for local authority residence or fostering, so has
there been an assessment of whether the hard-pressed legal aid budget
will be pressed further in relation to that provision? There is a case
for that, obviously. In addition, does not the new generic order
necessitate guidance for courts and practitioners on when legal aid
should be
available?
Mr.
Hanson:
I am happy to reflect on the points made by the
hon. Gentleman on the interpretation of the 1999 Act. From my
perspective, that Act concerns situations that are punishable by
imprisonment, but that will be checked, and I shall reflect and clarify
if necessary.
To each
of the hon. Member for Cambridge, the hon. Member for Enfield,
Southgate, the hon. Member for Somerton and Frome, who originally
proposed the amendment, and the hon. and learned Member for Harborough,
I say that we have had to try to make a judgment. We have drawn the
line where we have drawn it. Legal representation will be available in
relation to local authority and residential requirements. The position
under the 1999 Act remains the same. On the basis that I shall reflect
on our debate, I hope that the amendment will be
withdrawn.
Mr.
Heath:
Will the Minister of State reflect specifically on
whether the provisions meet article 6 of the European convention on
human rights, because at present I am not
convinced?
12.15
pm
Mr.
Hanson:
I shall reflect both on the points that have been
made about where the lines are drawn and about compatibility with human
rights legislation. Just for the record, my understanding is that the
Bill is compatible. However, outside of this Committee sitting, I will
examine those issues with
colleagues.
We have
made a judgment on where we draw the line in terms of legal
representation. I cannot accept the amendments that the hon. Member for
Somerton and Frome has tabled today. As ever, I will certainly reflect
on what has been said in the Committee, because it is my duty as a
Minister to do so. However, I would urge the hon. Gentleman not to
press the amendments.
Harry
Cohen:
It is very good that my right hon. Friend is going
to reflect on these issues. Will he also pick up the point that was
made about a friend, such as a McKenzie friend, being in the court if
need
be?
Mr.
Hanson:
The McKenzie friend principle is a sound one, and
again I will examine that matter outside the Committee today. I am
grateful to my hon. Friend for raising that
issue.
I simply say to
hon. Members who have raised the question of funding that the position
that I have outlined with the access to justice regulations, along with
the comments that I have made on subsequent changes in October 2006 and
from 1 November 2007, provide the basis on which we have made the
judgment. Therefore, I would ask the hon. Member for Somerton and Frome
not to press the amendments in relation to those particular
areas.
The other
aspect of the debate concerned the nature of the youth rehabilitation
order. Once again, from my perspective I hope that I have been clear,
in Committee, on Second Reading and in evidence sessions, that we
believe that the YRO offers courts a robust community sentence. We want
courts to think long and hard before they send a young person to
custody, for the very reasons that my hon. Friend the Member for Leyton
and Wanstead has discussed in the past, as indeed the hon. Member for
Broxbourne has discussed in his contribution today. We wish to ensure
that custody is the last resort, which is why we have included reserved
intensive supervision and surveillance and intensive fostering orders
as the final hurdle before custody.
It is important to note that,
when we have been developing these programmes, they have been
specifically designed to deal with young people whose offending is so
serious that they would have received a custodial sentence but for the
existence of the particular high intensity
programmes.
Ms
Sally Keeble (Northampton, North) (Lab): Will my right
hon. Friend clarify—he might do so in writing—whether the
intensive foster parents will be managed by the Ministry of Justice or
by the local authority, and how will the funding arrangements work,
because those places are horrifically expensive and also very hard to
find? It would be helpful to have that matter clarified, if not now,
then
afterwards.
Mr.
Hanson:
The intensive fostering, which I will come on to
in a moment, will be organised and managed by the Youth Justice Board,
who will be responsible for that element of any potential order that is
agreed in due course.
What we have been trying to do
is use the YRO with intensive supervision and surveillance, which will
provide a very stringent and difficult order for individuals to
undertake. It will involve at least 25 hours a week of purposeful
activity, directly addressing offending behaviour. It will include a
curfew, usually with electronic monitoring organising that curfew. Our
objective is that it will provide an alternative to custody, but for
those individuals who are at very serious risk of entering custody. The
idea is to ensure that, within the youth order that we have before us,
we have that separate requirement
accordingly.
Mr.
Nick Hurd (Ruislip-Northwood) (Con): Will the Minister
confirm that intensive supervision and surveillance arrangements are
already in place? Also, will he enlighten the Committee as to what
levels of reoffending arise from those existing orders, and perhaps
also enlighten the Committee as to why those orders will make any
difference?
Mr.
Hanson:
As was mentioned earlier, the level of reoffending
for those individuals who enter the youth justice system is extremely
high. I do not have particular figures in front of me at the moment
about those orders, as they are currently operated, but they do exist
already. If the opportunity arises, I will give the hon. Gentleman
those particular figures in due
course.
Harry
Cohen:
When my right hon. Friend presents the Committee
with those figures—not just the hon. Member for
Ruislip-Northwood, I hope—will he look at the estimated figures
of those who need that last resort before custody of intensive
supervision? Will he also look at the number of such foster carers, so
that we can see that there are sufficient to meet the estimated need?
When he presents those figures, will he include
us?
Mr.
Hanson:
I refer again to the figures for 2004. In that
year, as a general figure, over 201,000 10 to 17-year-olds were dealt
with by the criminal justice system. Within that, there were a number
of different aspects of order: reprimands, final warnings,
prosecutions; but over 200,000 young people came into the criminal
justice system in the last year for which figures are available. That
is a significant number of young people going through the youth justice
system in one form or
another.
My objective
is to reduce that number, to prevent those who are in the system from
reoffending, and to find effective means to have strong interventions
with the family and individuals by looking at the range of options
available under the youth rehabilitation order, and, in order to
prevent final custody, to have intensive supervision and surveillance
and intensive fostering as the final
hurdle.
In response to
the intervention from the hon. Member for Ruislip-Northwood, the aim of
the intensive supervision and surveillance programme is to reduce the
frequency and seriousness of subsequent offending among persistent
offenders. I have some figures, thankfully, that will help to indicate
some of the impact of that. Youth Justice Board research indicates that
the frequency of offending in the intensive supervision and
surveillance sample declined by 39 per cent. over a two-year period,
which shows that the impact of the ISSOs has been quite significant in
the
past.
In
relation to the proposals, the reason that I do not share the views of
the colleagues who have brought forward the amendments today is that we
are trying to ensure that we have a youth rehabilitation order with
intensive supervision—meaningful, difficult operational activity
within that; purposeful activity, electronic curfew
monitoring—because that will be an opportunity to reduce the
level of potential reoffending and will not lead to custody, as it
could do if incorporated in the main order.
Intensive fostering is an
intensive programme of work, with specially trained foster carers
working to a Youth Justice Board specific programme model, with
constant support. Again, the programme is designed specifically to
provide high intensity care for young offenders for a specified period,
up to 12 months, and also includes work with the young person’s
family, which is important in terms of what both the hon. Member for
Broxbourne and my hon. Friend the Member for Leyton and Wanstead said.
That is important because, whatever we do with an order, if individuals
return at the end of it and are sucked back into an atmosphere that has
possibly helped to create some of the offending behaviour issues in the
first place, that is not a way to help prevent reoffending. In that age
old phrase, we need to look at the causes of crime as well as crime
itself. The purpose of the fostering order is to ensure that we work
not with only the young person but also with their family, to look at
whether there are interventions that might help prevent
reoffending.
Alun
Michael:
It is very easy for us to misunderstand, because
this is quite a complex area. I wonder whether it was merely a slip of
the tongue, but I thought that my hon. Friend referred to fostering
being organised by the Youth Justice Board. Surely it would be
organised by the youth justice teams at a local level, would it
not?
Mr.
Hanson:
The intention is that we organise it via the Youth
Justice Board and that it will commission work from youth justice teams
at a local level as well. The Youth Justice Board retains overall
responsibility for the exercise and funding of the programme, and for
commissioning and monitoring standards. Those are the board’s
responsibilities within the
programme.
Alun
Michael:
If my right hon. Friend is referring to the
setting of standards, clearly that must be done at a national level by
the board. However, the organisation of fostering
activity—perhaps we are arguing about words without a
difference—has to be done at a local level, not at a regional or
national
level.
Mr.
Hanson:
The overall work of the Youth Justice Board
is to specify and monitor the standards that are undertaken, to work
with the commissioning network, and to work with local authorities and
others that are delivering a fostering service on the ground. I hope
that that is clear for my right hon.
Friend
Mr.
Walker:
Just briefly, will the Minister describe—if
he does not have such information to hand, perhaps he will send me a
note—the type of environment in which such fostering will take
place because some youngsters are very troubled and difficult. Will it
be a normal or secure fostering environment? Will there be extra
security or will the home be as normal as
possible?
Mr.
Hanson:
My objective is for the individuals to have as
normal a life as possible and to have that intensive work done by the
foster carers who are allocated by the Youth Justice Board with the
local
fostering network. We want to lift individuals out
of the problem areas which, the court has deemed, has led to some of
their offending behaviour. We are putting the individuals into foster
care with intensive support. We are potentially doing extra work with
their family for when they return home. The whole purpose is to improve
behaviour by adding some of the things that may have been missing in
their life before, such as love, care, attention, interest, aspiration,
role models and leadership—all the things that foster care can
provide for those young people. We are trying to ensure that we have a
great deal of support to prevent
reoffending.
The local
authority residence requirement, the subject of the amendments tabled
by the hon. Member for Somerton and Frome, does not offer this level of
restriction and intensive work to address often entrenched
behaviour.
Under
amendment No. 114, elevating the local authority requirement to an
alternative would risk, in my view, undermining core and public
confidence in the youth rehabilitation order because of that very lack
of intensity. The purpose of the local authority residence requirement
is to impose stability on a young offender who will be living in
accommodation provided by or on behalf of the local authority. It is
not intended to address more serious offending, nor was it ever
intended to do so. For that reason, I cannot accept amendment No. 114.
With regard to amendment No.
116—
Ms
Keeble:
Will my right hon. Friend provide a practical note
of how that requirement will work? Issues that need to be addressed
include the pressure on resources and how all of this is to be managed.
In the interests of us seeing it through once the legislation is in
operation, it would be helpful to have a practical note telling us how
it will work and how the financing and procurement will
work.
Mr.
Hanson:
As with all of these matters, the youth
reoffending order and all its elements are under the jurisdiction of
the Youth Justice Board. In all of these matters, the Youth Justice
Board will, as we mentioned in a previous discussion, set the
standards, look at resource elements accordingly and work with the
deliverers of those services to provide appropriate
support.
Ms
Keeble:
I would like to impress the point. I had to deal
with such a person when I was a council leader. It took six social
workers and 24-hour supervision to try to keep one difficult person out
of custody. The girl lived in a specially adapted house, which she
wrecked, costing another £100,000. That was way back in the
early 1990s, so goodness knows what the cost would be now. It is really
important that such implications are addressed by the local authorities
and the people providing the care. The measures are really important,
but there are practicalities to
consider.
Mr.
Hanson:
I appreciate and understand the points that my
hon. Friend makes. Obviously, issues need to be addressed once the
legislation has been
agreed.
12.30
pm
David
Howarth:
I thank the Minister. I felt that he was moving
on to a different point. Will he clarify the precise purpose of the
local authority residence requirement, given what the hon. Member for
Northampton, North described, which is the experience of many in local
government? Often, putting people into local authority care is far more
expensive than people on the outside think. If that expense is not
undertaken, little of any good happens to the young person. What do the
Government intend these orders to do? Will he give examples of the
kinds of cases
envisaged?
Mr.
Hanson:
I hope that this will help the hon. Gentleman.
When a court seeks a residential requirement, it must primarily take
into account the immediate living conditions of the young person. If
they are such that they may be the cause of the offending behaviour,
the court may well determine that it is appropriate to look at an
alternative living condition for that young person. That may be
fostering and an important element may be to place an individual with a
family because it is the most appropriate source of alternative
residential accommodation. Equally, because of the offending behaviour,
the nature of the individual’s offence or the danger of the
individual to the community at large, consideration may be given to
local authority residential care.
The key to this is making an
assessment, with pre-sentence reports being undertaken, as to what is
the best way to ensure that the offending behaviour is challenged.
Residential accommodation might be necessary because the
individual’s home circumstances are a contributory factor to
that offending behaviour. I could go through a string of potential
scenarios. The key thing is that the assessment is made that removal
from the current residential requirement and transfer into an
alternative residential requirement is needed, be that fostering or
residential local authority services. The purpose of the order would be
simply to ensure that the young person has an alternative form of
residence that will help them to address their offending
behaviour.
Mr.
Burrowes:
The concern is deliverability, as well as
clarity on the issues. In the letter that has been circulated to
members of the Committee, the only direct costs arising from provisions
in part 1 of the Bill to have been identified are the one-off training
costs of £600,000. There is a concern about the resources that
will be required as a result of the order. Will it be local authority
resources and by implication local authority residence, which we all
know from our own experience is very thin on the ground? Will the order
make it clear that it is a local authority direction in respect of
accommodation? It does not have to be the resource of the local
authority. As in the case of bail conditions, perhaps the local
authority will direct that accommodation is provided by the father or
the mother. It may well be that kind of order that is meant. We need
clarity on this before we proceed much further down the road of
legislation.
Mr.
Hanson:
As stated in the letter that I circulated to the
Committee, and as I mentioned when I gave evidence to the Committee,
there is on the overall
youth rehabilitation order and its compliant parts, a training
requirement of just over £600,000, which will be included in the
legislation. The order itself, and the orders on residential
accommodation and fostering, are part of the existing system of youth
offending work. I am bringing together under the new youth
rehabilitation order a range of existing provisions with some
additional new requirements. The provision and funding that are
currently in place will still apply for the new orders. I do not have
to hand a figure for the cost to date on a global basis in England and
Wales, but we are already using fostering and residential accommodation
for young people. The new order brings together the one generic order
with some new additions that we will discuss later in the Bill. That
resource element is already in
place.
I move briefly
to the points made by the Standing Committee on Youth Justice. Much
like the Standing Committee, I also expressed a wish to see a reduction
in the use of custody for young people. I welcome both the Standing
Committee’s contribution and the evidence given by the
Children’s Society during its witness session. Both groups wish
to remove intensive supervision and surveillance programmes from the
YRO, and create a new intensive supervision order that will sit above
the YRO.
I am not
persuaded that that is an appropriate way forward or that we need a
separate intensive supervision and surveillance order. The current
drafting of the Bill clearly establishes an ISS order as the last step
before custody. That will be clear to practitioners and the courts, and
in due course will be underpinned by guidance. We have deliberately
drafted the ISS order separately from other requirements within the YRO
as can be seen in clause 1(4). The legislation reflects the higher
level of intensity of these requirements, and it is an important step
in preventing individuals from going into custody and will be clear for
both the courts.
The
Bill shows a clear difference between a normal youth rehabilitation
order and one with ISS. I again refer hon. Members to subsection (4) in
which the criteria for the offence are set out. The offence must be
imprisonable and so serious that only custody would be appropriate. If
the offender is under the age of 15, the court must be of the opinion
that they are a persistent offender.
Moving that into a separate
section would not affect that measure and I hope that the hon. Member
for Somerton and Frome will withdraw his amendment. I understand and
appreciate the reasons why he tabled it, but, on finance I believe that
provision is already there. I will however reflect on what has been
said in Committee.
With regard to the orders in
the Bill, we have clearly set out how we can handle residential,
fostering and intensive support. From the Government’s
perspective, that is done in order to prevent reoffending, and I ask
the hon. Gentleman to withdraw his
amendment.
Mr.
Heath:
In light of earlier housekeeping remarks, can I say
that as a countryman, I do not find it too cold in here, unlike my
thin-skinned colleague. However, I
am very concerned about the Government Benches being dimmer than they
need to be, and I hope that will be rectified.
We have had an interesting and
important debate. This is one of those pleasant occasions where the
entire Committee is united around an intention and seeking the best
outcome. We have had some well-informed comments and we are beginning
to tease out some of the issues about the precise drafting of the
legislation.
I am
grateful to the Minister for his response to my amendments, but I am
not entirely persuaded. Let me deal first with legal representation. I
accept that there are circumstances in which a youth rehabilitation
order could be framed in such terms so as not to introduce a
substantial reduction in liberty. In such cases, it may be argued that
legal representation is not required. However, there are undoubtedly
circumstances in which YROs represent a significant reduction in the
liberty of the offender.
Later in his comments, the
Minister was at pains to emphasise how much the intensive supervision
and surveillance orders represented an alternative to custody that put
a heavy burden upon the offender in meeting the requirements. It seems
to be impossible to reconcile the two views that this matter is so
unimportant that it does not require representation, but at the same
time so burdensome that it would be an effective sanction. I think that
the truth probably lies somewhere between the two. However, it is
important as far as the individual is concerned and as far as the court
is concerned. The hon. and learned Member for Harborough made the point
that it is important for the court to understand the full circumstances
of the case.
One
other point that we have not yet addressed is that it is important that
an offender who is in receipt of a YRO fully understands the
implications of that, because otherwise, as sure as eggs is eggs, they
will be in breach and will move inexorably towards a custodial
sentence. For all those reasons, it is entirely appropriate that
someone can represent that person at the point when a YRO is made. We
need to look further at that, not only because the reasons put forward
merit it, but because I am prepared to look at whether a narrowing of
the scope of our amendments would be satisfactory to the Government,
while still allowing, in the circumstances where a substantial sentence
is imposed with a large number of requirements, an opportunity for the
offender’s case to be properly heard, their circumstances to be
properly exposed to the court and the consequences of the order fully
explained to that individual. It is a matter that we may have to return
to.
In the case of the
residential requirement, it is a misfortune for the Minister that
several people who have taken senior roles in local government happen
to be dotted around the Committee and are only too well aware of the
consequences of such an order for local authorities and social services
departments. His responses to his hon. Friend the Member for
Northampton, North were utterly unconvincing in allaying the fears of
some members of the Committee that this will end up with a substantial
financial resource burden upon local authorities that will not be met
by the Youth Justice Board or his Department.
I was trying to point out the
implications, in any case, of local authority placement. I am not
referring to the intensive fostering—we had a discussion about
that and I think that we all understand it. There is a difficulty with
the lesser placement envisioned in the Bill, which provides for a
person to be taken away from their family home to a place of stability,
as the Minister put it, on the ground that that environment is part of
the circumstances that encouraged them to offend. I wish that I could
be persuaded that every local authority home was a place of stability
that did not encourage offending. In some cases, of course, that is the
case, but we all know that the incidence of youth offending for those
in care is sadly far too high, and that is a concern in
itself.
I did not
hear from the Minister the argument that that will be done in the
interests of the child or young offender, in which case it could be
done outside the criminal justice context. There are good arguments for
taking people out of dangerous environments that cause them harm, but
that has nothing to do with a criminal sentence. If the view is that
that is generally part of the sentence, I would want there to be
provisos in its use, because it will effectively take someone out of
their family home as part of a punishment regime. There is a
distinction between the two and I am not entirely convinced that I have
heard from Ministers what that distinction is, what the circumstances
are in which they envisage this sort of order being applied or where
the resources will come from to ensure that such orders are a success.
That is one reason why I suggested that it might be a good idea to have
the agreement of the local authority in advance, so as to ensure that a
proper and appropriate placement can be made. We will return to this
matter in a later group of amendments, so I do not need to take it
further.
Harry
Cohen:
What does the hon. Gentleman envisage would be the
situation in which a local authority would say that an appropriate
placement could not be
made?
12.45
pm
Mr.
Heath:
That is a very good question and one best put to
the Minister. If we have that situation, how is the court to provide
for a proper disposal? It could be argued that under other legislation,
such as the Children Act 2004, the local authority has a duty to
provide for it. In that case, it is because it is in the interests of
the child and for the prevention of harm to the child, not as part of a
criminal justice sanction. That is the distinction that I am making. It
is not clear that the duty falls on the local authority to make this
provision under circumstances in which the duty of care does not apply.
If it is to be conceived of as a duty, I think that there has to be
some statutory backing for it and that is not currently in the
Bill.
Last, I move to
intensive supervision and surveillance orders. Again, the differences
that we have with the Government are not substantial because we support
the existence of such orders as a last resort. What the Minister did
not tell the Committee is why the view of the Government has changed
since 2004 when they brought in the orders with a very broad consensus
that it was an essential level in the hierarchy. It was very clear that
it should be a separate disposal for the court: one that would be used
only as an alternative to a custodial sentence and not in other
circumstances. It was clear that it would be the last
point that the offender could come before the court without a custodial
sentence being
applied.
The argument
in 2004 was about the separate nature of the ISSP. That distinction was
an important ingredient in its nature and its potential success. Now,
the Minister’s argument is that it can be subsumed within this
wider category. Although it is described separately within the
legislation, it nevertheless forms part of a broader youth
rehabilitation order and he argues that we do not need that separate
rung in the hierarchy of disposals. If the Government have changed
their mind, they are perfectly entitled to do so, but they should
explain why their reasoning is now so very different from three years
ago and why it is so much at odds with the very broad range of
interests that the hon. and learned Member for Harborough described in
terms of the provenance of some of the proposals before
us.
There is one
further point. I do not want to overstate this, but article 37 of the
United Nations convention on the rights of the child comes into play
here. Are the Government honouring what they signed up to in those
conventions about ensuring that custody is genuinely a last resort?
There is a strong argument that having an ISS order as a separate level
of remedy for the courts provides for the United Kingdom to be in
accordance with the convention duty, and that without it, it is not. I
would be grateful if the Minister would advise me at some later stage.
I asked him earlier to look at the provisions of the human rights
convention; I now ask him to look at the UN convention on the rights of
the child to see whether he is satisfied that this arrangement meets
that requirement.
Having said all that, we have
had a valuable debate. The Minister has, at various points, indicated
that he will give further consideration to some of the points that we
have raised and I hope that he will do so. I hope that at a later stage
we will have the opportunity to return to some of those issues, but at
this point I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
David
Howarth: I beg to move amendment No. 167, in
clause 1, page 2, line 10, after
‘Schedule),’,
insert—
‘(ma) a substance
treatment requirement (see paragraph 23A of that
Schedule).’.
No. 168, in
schedule 1, page 98, line 18, at
end
insert—
‘Substance
treatment requirement
23A
(2) In this Part of the Act, “substance treatment
requirement”, in relation to a youth rehabilitation order, means
a requirement that the offender must submit, during a period or periods
specified in the order, to treatment, by or under the direction of a
person so specified having the necessary qualifications (“the
treatment provider”), with a view to the reduction or
elimination of the offender’s dependency on or propensity to
misuse substances.
(3) A court
may not include a substance treatment requirement in a youth
rehabilitation order unless it is
satisfied—
(a) that the
offender is dependent on, or has a propensity to misuse, substances,
and
(b) that the offender’s dependency on or
propensity is such as requires and may be susceptible to
treatment.
(4) The treatment
required during a period specified under sub-paragraph (1) must be such
one of the following kinds of treatment as may be specified in the
youth rehabilitation
order—
(a) treatment as
a resident in such institution or place as may be specified in the
order, or
(b) treatment as a
non-resident at such institution or place, and at such intervals, as
may be so specified, but the order must not otherwise specify the
nature of the treatment.
(5) A
court may not include a substance treatment requirement in a youth
rehabilitation order
unless—
(a) the court
has been notified by the Secretary of State that arrangements for
implementing substance treatment requirements are in force in the local
justice area in which the offender resides or is to
reside,
(b) the court is
satisfied that arrangements have been or can be made for the treatment
intended to be specified in the order (including, where the offender is
to be required to submit to treatment as a resident, arrangements for
the reception of the
offender),
(c) the requirement
has been recommended to the court as suitable for the offender by a
member of a youth offending team or by an officer of a local probation
board, and
(d) where the
offender is aged 14 or over at the time that the requirement is
imposed, the offender has expressed willingness to comply with the
requirement.
(6) In this
paragraph “substance” means any substance, whether in
liquid, solid or gaseous
form.’.
No.
182, in
clause 7, page 5, line 48, at
end insert—‘“substance treatment
requirement”, in relation to a youth rehabilitation order, has
the meaning given by paragraph 23A of Schedule
1;’.
David
Howarth:
The amendments come together to form one
proposal: to add a substance treatment requirement to the orders
available to the court. The purpose of that is to address a particular
and rather odd gap in the way in which the Bill has been drawn up. At
present, the Bill says that the court can impose a drug treatment
requirement and drugs are defined in schedule 1 part 2 paragraph 22(5)
as
“a controlled drug as
defined by section 2 of the Misuse of Drugs Act 1971 (c.
38).”
That means that to
qualify for a drug treatment requirement, the young person has to be
abusing illegal drugs. As everyone involved in youth justice knows, the
fact is that illegal drugs are only a small part of the picture. The
most obvious aspect of substance abuse that is not addressed in the
Bill is alcohol.
Like
many other hon. Members, especially on this Committee I am sure, I have
visited the youth offending team in my area to ask what lies at the
heart of current problems with youth offending. They were very clear
that at the heart of a lot of the problems is the abuse of alcohol, not
the abuse of illegal drugs. There is broad agreement among experts
that, if we want to look for the causes, especially of violent
behaviour, there is at least an association, if not a cause, of violent
behaviour with alcohol abuse and problem drinking in general. Alcohol
is at the heart of many of the problems that we
face and that young people themselves face, and the order should allow a
treatment requirement for alcohol and not just for drugs.
It is not only alcohol. There
are all sorts of other substances that are not in themselves illegal
that can be abused and cause serious problems and damage to young
people, with serious behavioural consequences. The most obvious one is
glue. Glue is not illegal and glue-sniffing or abuse of glue is not
covered by the Bill, but it should be. Every few months, we read in the
newspapers of another substance that people have somehow got hold of
and started to abuse, whether it be prescription drugs or something as
simple as nitrous oxide—laughing gas. All sorts of developments
in youth culture will not be covered by the Bill. There is a need for
flexibility and a broader
approach.
We must also
consider the interaction between the abuse of illegal drugs and the
abuse of alcohol and other substances. Experts in the area will tell
anyone who wants to hear that alcohol abuse is often associated with,
or leads to, the abuse of illegal drugs. To deal simply with one aspect
of a young person’s problem with drugs, without addressing other
aspects that might include the abuse of alcohol and other substances,
will not get to the heart of the
problem.
There has
been scepticism in some quarters about the effectiveness of court order
treatment. It does not always work. I accept that, but my amendment
suggests that, if we are to have court order treatment—which we
should—it should be much broader than simply covering illegal
drugs. It should cover a wide range of substances, both those known now
and those that young people might abuse in the future, to their own
detriment as well as to that of the
community.
Mr.
Philip Hollobone (Kettering) (Con): I support the
amendment tabled by the hon. Member for Cambridge. I have the privilege
and honour of being a trustee of an organisation based in Kettering
called Solve It. It is a national charity dedicated to promoting
awareness, particularly among young people, of the dangers of volatile
substance abuse, some of which the hon. Gentleman highlighted. Volatile
substance abuse is an extremely dangerous pastime. One of the problems
is that the matter falls between several departmental stools. The Home
Office, the Department of Health and what was the Department for
Education and Skills have responsibility for tackling the issue. An
attempt has been made at a co-ordinated response to the
problem.
I welcome the
hon. Gentleman’s amendment because volatile substance abuse is a
particular habit in which young people are engaged. When talking about
youth misbehaviour, it is therefore appropriate to introduce such a
provision. A frightening aspect of volatile substance abuse is that
many participants die the first time that they engage in it and, often,
there is no warning. About 52 young people a year die of volatile
substance abuse.
Two
main organisations are dedicated to tackling the problem: Solve It and
Re-Solv. They both undertake similar work to promote awareness among
young people, particularly in schools, of the danger of substance
abuse. I think that I am right in saying that most hard drug users
start by abusing volatile
substances, especially lighter fuel and butane gas. The amendment would
make a terrific improvement to the Bill and I hope that the Minister
will agree to its inclusion. The Bill is about youth misbehaviour, and
the proposal would be a welcome addition.
It being One o’clock,
The Chairman
adjourned the Committee
without Question put, pursuant to the Standing Order.
Adjourned till this day at
Four
o’clock.
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