Criminal Justice and Immigration Bill

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Clause 3

Transfer of youth rehabilitation orders to Northern Ireland
Question proposed, That the clause stand part of the Bill.
Mr. David Heath (Somerton and Frome) (LD): Welcome to the Chair, Sir Nicholas. I shall speak briefly and I will understand entirely if it turns out that my point would be more appropriate in relation to schedule 4.
I have a simple question. The clause and schedule 3 deal with the transfer of orders into the jurisdiction of Northern Ireland. Government amendment No. 44 will deal with Scottish jurisdiction. I simply wish to inquire why Scotland will be dealt with by a consequential order-making and revocation amendment and whether the provisions for Northern Ireland and Scotland are comparable. I find it difficult to understand Scots law, so I do not know whether the provisions for the two jurisdictions are comparable. If a young offender is subject to an order in England, will he be able to avoid the responsibilities placed upon him by crossing the Scottish border and, say, becoming a resident of Gretna Green?
Mr. Hanson: To clarify, clause 3 introduces schedule 3, which sets out the procedure for the transfer of a youth rehabilitation order to Northern Ireland when a young person either “resides or will reside” there when an order takes effect. Neither the Bill nor Government amendment No. 44 provides for the transfer of youth rehabilitation orders to Scotland.
Government officials have discussed the matter with Scottish Executive officials, who have concluded that they do not wish to have equivalent provisions. As the hon. Gentleman will be aware, the Scottish Executive have competence for these matters in Scotland and it is important that, in the spirit of devolution, we respect their wishes. That is my understanding of the position after the matter was discussed at official level.
The clause provides for Northern Ireland because my hon. Friend the Minister of State at the Northern Ireland Office, who holds a post that both my hon. Friend the Under-Secretary of State for Justice and I have held—this year is the year of the three Ministers of State in Northern Ireland—has agreed to and is content with the provision.
Mr. Heath: I am most grateful to the Minister but, importantly, he has confirmed my suspicions. I understand entirely the devolution arrangements and that there is an entirely separate Scottish jurisdiction, but a young person who is subject to an order in England will not be subject to it if he goes to Scotland. Is it correct that such a person will not be subject to an order unless he returns to English and Welsh jurisdiction?
Mr. Hanson: My colleagues in the Scottish Executive have been closely involved with the development of the youth rehabilitation order policy and have worked closely with the Ministry of Justice and the Home Office. Scottish Executive Ministers have decided that youth rehabilitation orders should not transfer to Scotland, but that will not make orders unworkable.
I understand the difficulties of border issues—I represent a constituency on the border between Wales and England, but provisions are easily transferred over that border. However, I do not believe that the arrangements will damage the workability of the orders because, potentially, the numbers involved are small. Where such a transfer does arise, I would expect the local youth offending team, the relevant Scottish local authority and the court to work closely to find a workable solution with the Youth Justice Board and the courts in England and Wales to ensure that we examine public protection issues.
However, the hon. Gentleman has raised a very important point and I will certainly reflect on it, because I would not wish someone who has an order placed on them in Berwick-upon-Tweed suddenly to decide that they are much more comfortable living in Galashiels or wherever is just over the border from Berwick-upon-Tweed. I hope that the hon. Gentleman will allow me to reflect on that matter, given the valid points that he has made today.
Question put and agreed to.
Clause 3 ordered to stand part of the Bill.

Schedule 3

Transfer of youth rehabilitation orders to Northern Ireland
1.30 pm
Amendments made: No. 34, in schedule 3, page 125, line 37, leave out from ‘authority’ to end of line 41.
No. 35, in schedule 3, page 126, line 4, leave out sub-paragraph (5).—[Mr. Hanson.]
Schedule 3, as amended, agreed to.

Clause 4

Meaning of “the responsible officer”
Mr. Garnier: I beg to move amendment No. 3, in clause 4, page 3, line 22, leave out subsection (3).
The Chairman: With this it will be convenient to discuss amendment No. 4, in clause 4, page 3, line 30, leave out subsection (4).
Mr. Garnier: As you can see, Sir Nicholas, subsections (3) and (4) give the Secretary of State the power to amend legislation. However, they do not give him the power to amend only secondary legislation or even the Bill; he is being given the power to amend other primary criminal justice legislation. It is rather more than interesting that the Act that he is being given the power to amend—the Criminal Justice Act 2003—is, in terms of its implementation, the most ridiculous piece of legislation that it is possible to imagine.
In written questions, I have asked the Home Secretary how much of the 2003 Act is in force, how much has been repealed before even coming into force and how much is not yet in force. Although it is a big fat Act, it is incredible how many of its provisions are not in effect, have not been implemented, or have been repealed before being brought into force.
That point is reinforced, or at least I like to think that my arguments are reinforced, by a quick glance at schedules 4 and 23 of the Bill, in which great reams of amendments to recent legislation are identified. There is a constant cascade of legislation that is being amended before it is even brought into force, yet here we are giving the Secretary of State power to effect amendment by the writing of his name, rather than by any fully scrutinised legislative process.
I tabled amendments Nos. 3 and 4 because I believe that Parliament should amend the criminal law; Parliament should amend the Criminal Justice Act 2003. Parliament, not the Executive, should make the decisions on how we frame our criminal law, which deals with the removal of people’s liberties and the conduct of our police, courts and criminal justice system more widely.
Mr. Hanson: These amendments are the first of several that the hon. and learned Gentleman has tabled that seek to remove delegated powers from the Bill. The use of order and regulation-making powers is a well established means of removing unnecessary detail from primary legislation and of conferring a sensible degree of flexibility on the legislative scheme. It has been used not just by the current Government but by previous Governments.
We have set out the rationale for each delegated power in a memorandum that we published on the introduction of the Bill, and I hope that members of the Committee can reflect upon that rationale. I must say to the hon. and learned Gentleman that the parliamentary scrutiny element of that memorandum will be considered in due course by the Delegated Powers and Regulatory Reform Committee in another place. That Committee, as members of this Committee may know, is never slow to criticise any excessive use of delegated powers. In the event that the delegated powers aspects of the legislation are considered by the Delegated Powers and Regulatory Reform Committee and the Committee makes suggestions, I will certainly consider those suggestions in the normal way and give sympathetic consideration to recommendations that the Committee makes.
I believe that the order-making power is necessary and justified, and that it gives us the flexibility to adapt the interpretation of legislation, particularly relating to the responsible officer in this case. The order-making power will enable the Secretary of State to require courts to determine who should be the appropriate responsible officer where the order contains more than one requirement.
On that basis, I commend the order-making power in the Bill to the Committee. I understand the hon. and learned Gentleman’s concerns. I hope that the fact that the Delegated Powers and Regulatory Reform Committee will examine this legislation in detail reassures him. The Committee will make recommendations and those recommendations will be considered by the Government, and if it suggests changes, I give a commitment to consider them sympathetically, in the light of any comments that it wishes to make.
Mr. Garnier: I hear what the Minister says. It is seven-all in this Committee, and I gather that there may be other people interested in this debate who are not currently present. However, I will not disturb the hon. Member for Tooting and require him to go outside, because that would lead to a further delay of our proceedings. However, it is important that, as a matter of constitutional propriety, we are careful about what powers we give a Secretary of State.
This is the place where the Executive should be held to account. It may be said that this is a convenient and well used procedure to amend the detail of legislation, but just because it has been done before does not mean that it is right to do it again. I think that, from time to time, Committees of this House and the House itself should just check the Government, because Governments, if they are not careful, take power because they find it convenient to do so. The Government are not here for the convenience of anybody apart from the electorate of this country, as represented by us.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Heath: This is a minor point that I would just like to ask the Minister about; it is such a minor point that I did not think that it was worth an amendment. It is just a minor anxiety on my part. Subsection (1)(b) says that the responsible officer, in respect of an attendance centre, is
“the officer in charge of the attendance centre in question”.
Given that the responsible officer has a particular relationship to the offender, it may not always be the case that the person who is nominally in charge of the attendance centre is the person who has that relationship in care to the offender in question. I just wonder whether that wording raises any possibility of causing difficulties or confusion. If it does not, my anxiety is allayed.
Mr. Hanson: I am advised that it will not cause problems, in that the officer in charge will maintain responsibility. I understand the point that the hon. Gentleman makes, but I hope that I can assure him that there will not be a problem.
Question put and agreed to.
Clause 4 ordered to stand part of the Bill.

Clause 5

Responsible officer and offender: duties in relation to the other
Mr. Garnier: I beg to move amendment No. 5, in clause 5, page 3, line 45, after ‘offender’s’, insert ‘, or his immediate family’s,’.
The amendment relates to the wording in subsection (3), which states:
“In giving instructions in pursuance of a youth rehabilitation order relating to an offender, the responsible officer must ensure, as far as practicable, that any instruction is such as to avoid...any conflict with the offender’s religious beliefs”.
It seems to me that when an young offender’s religious beliefs are placed in a position of conflict as a result of the making of the order, it will, or it could, impact equally on his family. Under the Bill as drafted, the court may well say that the offender’s religious beliefs are incorporated in his wider family’s beliefs in any event, but I think that the court ought to be careful to inquire about the nature of the family structure of the individual offender. If the offender is 13, 14 or 15, the court should consider whether they cannot go to an attendance centre on a Friday evening, a Sunday morning or at some other time. If the offender is a minor, as he surely will be, the ability of the family to co-operate with the court and to ensure compliance with the order is something that we ought to consider. That is the simple point, and I hope that the Minister can address it.
Mr. Heath: I support the hon. and learned Gentleman’s contention. It has some force in the case of the youngest offenders—those under 16—as it would seem entirely appropriate to take into consideration the family’s religious beliefs. We ought to assume that young persons aged over 16 have formed their own religious beliefs and are capable of answering the question properly themselves, but it is not unreasonable for an inquiry to be made about the family’s religious background in the case of younger offenders. I hope that the Minister will be sympathetic to that view.
Mr. Hanson: I want to make two points in discussion with the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome. First, the responsible officer’s first duty is to the young person. As the hon. and learned Gentleman has pointed out, under subsection (3)(a), potential conflicts with an offender’s religious beliefs should be discussed as part of the consideration of such matters.
The amendment states “family”. It is possible for a family—however that is defined—to have different religious beliefs within it. It is quite possible for Catholic to marry Protestant, for Jew to marry Catholic and for Muslim to marry Church of England, and it is also possible to have different emphases within that. That might be confusing to the individual. The individual who is before the responsible officer may have strong religious beliefs, and they will be taken into account. We must avoid the potential for confusion.
The hon. and learned Gentleman’s amendment refers to the family, but I do not have a definition of what the family means in that context—
Mr. Garnier: It says “immediate family”.
1.45 pm
Mr. Hanson: I am still not sure what that means. I am making two points. The first is about the definition of family and the second is about the fact that a family may have different religious beliefs within it, and that the duty of the responsible officer is to the young person. I do not believe that it is practical to extend clause 5 to include the religious beliefs of the offender’s family. The point that I would also make—I referred to this earlier—is that when sentencing, the court has to take into account the young person’s family circumstances before it makes a youth rehabilitation order. In practice, that means that a youth offending team would have to make an examination of the offender’s family and some of the consequences and details that might impact upon the offender and sentence in that regard. If, as the hon. and learned Gentleman suggests, we impose a mandatory requirement in the legislation, it would cause some difficulties. The approach in the Bill is also consistent with similar provisions in section 217 of the Criminal Justice Act 2003 relating to the adult community order. I hope that those points have some resonance with the hon. and learned Gentleman.
Mr. Charles Walker (Broxbourne) (Con): Will the Minister give some examples in which the offender’s religious beliefs would need to be taken into account? What sort of circumstances would come into play?
Mr. Hanson: Let me give one example. The individual might have to work on a religious holiday. It might be a religious holiday for one individual but not for another. That is one example of how that could work in practice. I do not think that the amendment is workable because there could be different religious beliefs in the family. It is also possible in these sad and troubled times that there could be divorce and separation within the immediate family. There could be conflicting requirements within the religious beliefs of the family in that circumstance. I accept that the hon. and learned Gentleman may not find such arguments helpful, but I am proposing—as I hope I have done with my remarks—that the interests of the young person are central, and that the assessment will be made around those interests and the family circumstances. In doing so, that requirement will be brought forward, but not in a mandatory legislative capacity.
Mr. Walker: Am I right in assuming that the court will determine whether these religious beliefs are genuine? It would be quite easy for someone to say, “I don’t do Sundays because I am a Christian,” when, in actual fact, they have never been seen in church and never worshipped before. It is just a good get-out clause.
Mr. Hanson: The assessment has to be that the requirements are reasonable. The Bill states:
“In giving instructions in pursuance of a youth rehabilitation order relating to an offender, the responsible officer must ensure, as far as practicable, that any instruction is such as to avoid—
(a) any conflict with the offender’s religious beliefs,”
For example, if the offender is an orthodox Jew and the rehabilitation order says that community work should be undertaken on Friday, that might be in conflict with the offender’s religious beliefs. That may be something that the court wants to take into account. We want to build the order around its deliverability to ensure that the offender’s beliefs are taken into account. If we extend the measure to the wider family, we could have a circumstance in which the offender might be an orthodox Jew who has lapsed, but the parents may be orthodox Jews who wish to see their religious beliefs taken into account. There are discussions that we can have around that, but the key thing is that the duty of the responsible officer is to the young person. We are trying to avoid conflict with religious beliefs but not, as the hon. and learned Member for Harborough has put it, to extend that to the wider family.
Mr. Garnier: The Minister’s responses were brave. The suggestions that the measure would cause problems with families of mixed religion and that the Minister does not really understand what the words “immediate family” mean are bordering on desperate. Anyhow, I shall take the Minister at his word and assume that when the Bill becomes law the words
“any conflict with the offender’s religious beliefs”
will require a court to take into account the religious circumstances surrounding the individual presented before it.
The Minister mentioned a lapsed orthodox Jew whose parents none the less were still observing orthodox Jews. I do not want to get too silly about this. Let us assume that this lapsed orthodox Jew under the age of 16 was not worried about working on the Sabbath, but his parents could not physically take him in their car to the place where he had to work on that day. We need to think about such a practical problem. Whether we think about it via the vehicle of subsection 3(a) as currently drafted or, as I have suggested, through inserting “or his immediate family’s”, I do not much mind, so long as somebody thinks about it.
On that basis, and given that I do not want to spend too much time on the Minister’s response, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Garnier: I beg to move amendment No. 6, in clause 5, page 4, line 5, leave out subsection (4).
The arguments behind the amendment, which would delete subsection (4), are exactly the same as those I made in relation to amendments Nos. 3 and 4 to clause 4. I have no doubt that the Minister’s answer will be exactly the same as well.
The Chairman: We will have to wait and see.
Mr. Hanson: In the spirit of co-operation and speed, may I refer the hon. Gentleman to the reply that I gave some moments earlier?
Mr. Garnier: I refer the Minister to the request that I made to him in relation to amendment No. 3, which was that I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Garnier: I beg to move amendment No. 7, in clause 5, page 4, line 8, at end insert ‘written’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 8, in clause 5, page 4, line 11, after ‘officer’, insert ‘in writing’.
No. 173, in clause 5, page 4, line 11, at end insert ‘within a reasonable period of time’.
No. 15, in clause 5, page 4, line 11, at end insert—
‘(5A) Any instructions given in accordance with subsection (5)(a) must be recorded in the offender’s probation records.
(5B) A copy of instructions recorded in accordance with subsection (5A) shall be provided to the offender on request.’.
Mr. Garnier: In amendments Nos. 7 and 8, I seek to add a requirement that the instructions should be given to the offender in writing. I made this point a moment ago. The Minister has indicated that the normal practice is that such instructions should be given in writing. I am not one for over-legislating but, if it helps, let us stick it in. If we can be assured that written instructions are given, we need not bother.
Under amendment No. 15, which is of greater substance, first, I wish to ensure that
“Any instructions given in accordance with subsection (5)(a) must be recorded in the offender’s probation records.”
Secondly, a copy of the instructions should
“be provided to the offender on request.”
I am not trying to over-bureacratise the system and add more paperwork to it, hence my suggestion that a copy of the instructions should only be given to the offender if he asks for it. If we are to have end-to-end management of offenders, which was the philosophy behind the setting up of the National Offender Management Service and which was touched upon during our discussions on the Offender Management Act 2007, it is important that we have an audit trail. In that way, a supervisor—whether from within the national probation service or from one of the commercial or third sector organisations that will be involved following the passing of the 2007 Act—should be able to see the records and say, “This is what he has been asked to do; this is what he has not done.” We need an audit trail of breaches and so forth—a trail of instructions and of the offender’s behaviour.
Too often, as we know from the current state of the prison estate, records do not follow prisoners, and there is a tremendous amount of churning of prisoners from one prison to another. Those on remand in prison can be taken to court in the morning, with no guarantee of being returned to the same prison. Nor is there any guarantee that the records attached to that person will follow—and if they do follow they are frequently late, which means that medical and other forms of rehabilitation are that much more difficult to achieve. That results in a waste of money, because the people looking after the prisoners have to start all over again.
That is the broad point that I want to ensure is catered for by amendment No. 15.
David Howarth (Cambridge) (LD): I shall speak briefly to amendment No. 173. It seeks to add to the requirement in subsection (5)(b), that the offender
“must notify the responsible officer of any change of address”,
the rider that it should happen
“within a reasonable period of time”.
The underlying problem has to do with the chaotic lives of many young offenders. I am sure that many hon. Members have come across such problems in their advice surgeries. Those young persons who are subject to the criminal justice system will not always have a particularly clear address—they might live with one parent for some parts of the week and the other parent for the remainder of the week, or move between hostels and other sorts of accommodation.
Our concern is that because the clause is enforceable under subsection (6) as if it were part of the order, and therefore subject to all the enforcement procedures of clause 2, it may become a sort of “gotcha” clause for a particular group of young people. Because of the way that they live their lives, it is a provision that they are almost bound to violate. For example, requirements can be imposed under antisocial behaviour orders that the defendant cannot but violate, which will trigger enforcement. I would not want the clause to have a similar characteristic for a particular group of offenders.
Mr. Hanson: I shall deal first with amendments Nos. 7, 8 and 15. I hope to reassure the hon. and learned Member for Harborough that his desire for matters to be placed in writing is already covered by the guidance issued to the Youth Justice Board on the national standards. They already require a responsible officer to produce an agreement with the offender, in writing and signed. It will include a number of conditions, such as the criteria for acceptable or unacceptable absence, the right to be treated fairly and with respect, and the requirement to behave acceptably and to have adequate and proper timekeeping. The Youth Justice Board national standards cover the point raised by the right hon. and learned Gentleman, and I hope that he will withdraw the amendment.
As for notification by an offender of a change of address, the priority must be the immediacy of the notification. In my view, it is essential that the responsible officer knows as soon possible of any change of address. That is best done by telephone or text message. Placing a requirement to notify the change of address in writing would also potentially be difficult for young people who have literacy problems.
2 pm
The hon. and learned Gentleman also tabled an amendment that would require instructions to be recorded in offenders’ records and would require those records to be disclosed upon request. Youth offending teams and other responsible authorities already routinely keep records pertaining to young people, not least because they need to be produced by the court. If the hon. and learned Gentleman wishes that young people should be able to see their records, that could be dealt with quite properly under current data protection procedures and does not need to be reiterated in the Bill.
The hon. Member for Cambridge spoke to amendment No. 173, which is a reasonable amendment. Although I wholly endorse the sentiments expressed in the amendment, if the hon. Gentleman refers to subsection (5)(b) he will see that there is a requirement for the responsible officer to be notified of any change of address by the young person. As he mentioned, if such notification were not provided, that would be a prima facie case for a breach of order. I wish to see speedy notification of changes of address, but if we set out a time scale in the Bill it may lead to the consequences that the hon. Gentleman has mentioned. I would like to allow the responsible officer to have discretion. They will have to set out for the young person the obligations contained in the clause and make it clear that notification of any change of address is a key part of the order that could lead to a breach. Any instruction given must be carried out as quickly as is practicable by the young person, but I am not persuaded that putting a time scale in the Bill will assist the process.
David Howarth: I am glad that the Minister understands the underlying problem. There needs to be some indication, by using a word such as “reasonable” or “practicable”, which were used by the Minister, that the notification requirement should not be enforced in a rigid way. That indication does not have to be in the Bill, but it could be; I presume that there will be some guidance for that enforcement at some point and perhaps it should go in there. However, either through the Minister’s remarks today or through a change to the Bill, the Government’s precise intention should be made clear. I take the hon. Gentleman’s point about strict timetables.
Mr. Hanson: As ever, I am happy to reflect on these matters. However, the Bill has been framed to make it clear to the responsible officer—and I hope, through the responsible officer talking to the offender—that the offender has a clear duty to provide notification of a change of address. Obviously, it is a duty that, if delayed for several weeks or months, would be a clear breach of the order and would require action to be taken, which would create difficulties for the offender. Putting a time scale in the Bill might militate against the flexibility that the hon. Gentleman wishes to see. At the same time, the Bill must put a duty on the offender and the responsible officer to take account of the need to have an up-to-date address for the offender.
Mr. Hanson: The hon. Gentleman and I are more or less in agreement that it is important that the responsible officer knows where the offender lives and has a record of that, and is informed straight away if there are any changes to that address. The hon. Gentleman suggested that we insert a time scale. We note that issue as a potential breach, but we have that common-sense discretion whereby if a long period of time were involved, the judgment could be made accordingly.
Ms Sally Keeble (Northampton, North) (Lab): May I urge caution the other way? I am thinking of a pregnant girl of only 15 who moved house at extremely short notice and nobody knew about it, including her midwife. There is a real need to ensure that young people understand that they must tell people where they are living.
Mr. Hanson: I accept that. The Committee is as one on the need to have up-to-date addresses because communication is important; the responsible officer needs to know where the offender is. That is a clear duty; there will be a breach of the order under subsection (5)(b) in the event of a change of address not being notified. There should be discretion to ensure that the circumstances are managed, and to decide within the guidance, and with knowledge of the offender, whether a breach has occurred. That is important because I can think of circumstances in my constituency in which individuals have had to move at short notice because of domestic violence, drug abuse at home or other circumstances that are sometimes beyond their control.
Under the Bill, the offender is obliged to notify the responsible officer of any change of address and, self-evidently, that means within a reasonable time. The amount of time can be judged by the responsible officer based on circumstances, as my hon. Friend the Member for Northampton, North indicated, or on guidance and advice given at the time.
In the light of those helpful comments, I hope that the hon. and learned Member for Harborough will withdraw the amendment, useful though it has been to have the exchange, and that other hon. Members will not press their amendments to a vote.
Mr. Garnier: I heard what the Minister had to say and I listened with interest to the hon. Member for Cambridge. I will not ask the Committee to express an opinion about my argument, or even the Minister’s; at present, it is sufficient for me to have placed my concerns before the Committee and for the Minister to have considered them. Perhaps he will also consider them on another occasion. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 ordered to stand part of the Bill.
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