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(b) treatment as a non-resident at such institution or place.
Where are these residential treatment places? Where are these day place treatment services? Middlegate Lodge is the only residential place for adolescents in the whole of the country that will be giving effect to this new intoxicating substance treatment requirement. That illustrates a concern that exists about the whole of part 1 of the Bill: that the resources will not be in place to deliver, and that increasingly the probation service and youth offending teams, whose resources are focused on managing prolific offenders, and dealing with public protection expectations and the serious end of offending, will not be able to deal with the other end of offending, as all our communities want them to do.
Although part 1 has many worthy intentions and although it is commendable that the Government have moved to recognise flexibility and discretion, as well as introducing treatment requirements for intoxicating substances, the concern is that there will not be the resources to match those intentions and that we will see more promises with little in return. I would be interested to hear the Ministers response to those concerns, if there is time, and I commend the move that has taken place.
John McDonnell: I want to address new clause 18, which is tabled in my name and that of my hon. Friend the Member for Walthamstow (Mr. Gerrard). I shall be brief, as we have less than two hours to deal with another 10 groups of amendments.
We have tabled the new clause to place on record the concerns expressed by the Childrens Rights Alliance for England, the National Association of Probation Officers and a number of organisations that are concerned about the increase in the number of antisocial behaviour orders used against children. When the original ASBO legislation was introduced, it was not envisaged that it would be used extensively as part of a system of youth justice or against children. The original guidance notes for the use of ASBOs specified that they would not be used against young people unless they committed antisocial behaviour in the company of adults. The new clause reminds the House of those original proposals.
Since that time, more than half the ASBOs that have been applied have been applied to young people. There is an alarming breach rate of 60 per cent. Half those who breach their ASBOs wind up incarcerated as a result. We see example after example of tragic cases when ASBOs are used against young people with mental health problemsyoung people who suffer from autism, Tourettes syndrome or attention deficit hyperactivity disorder and require help and support rather than ASBOs, which drag them into the criminal justice system and have a long-term effect on their standing in the community. I tabled the new clause to enable us to put those concerns on the record. I urge the Government to stand back and consider the growth and development in the use of ASBOs against children, as now is the time to do so. They should consider alternative approaches that are more effective and supportive than dragging those young people into the criminal justice system.
Mr. Heath: The hon. Member for Hayes and Harlington (John McDonnell) raises an important issue. He may be pleased to note that it was frequently echoed in Committee, not least by the right hon. Member for Cardiff, South and Penarth (Alun Michael), who was, of course, the progenitor of the ASBO. It was clear that ASBOs were not intended to be part of the youth justice apparatus, which they have mutated into. It is important to remind ourselves of that, because of the way in which they have been used.
The record of todays proceedings ought to show that Report stage started at 5.40 pm, when the Minister of State stood up and, for the first time, addressed what we had done in Committee and the Bill that left Committee as opposed to what the Government have decided to interpolate since. The ridiculous nature of todays timetable is highlighted by the fact that we have only now started to deal with part 1 and the proposals to deal with youth offending.
Mr. Gummer: Does the hon. Gentleman agree that some of these matters deserve considerably greater discussion, which we cannot have because other subjects will come up later with which we will have to deal before this short timetable comes into operation? We will not, therefore, hear the answers to the important points put forward by my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes), because the Government will not have time to give them.
Mr. Heath: The right hon. Gentleman is right. I have tabled a number of the amendments in this group and I intend to speak to them, as I believe that they raise important matters to do with youth justice. I apologise in advance to other hon. Members who are waiting their turn to speak on other groups, but discussion cannot be attenuated to accommodate an insufficient programme motion.
I want to put forward various points suggested by the Standing Committee for Youth Justice, an organisation that has taken a considerable interest in the first part of the Bill, which deals with youth rehabilitation orders. At the outset, let me say that the Public Bill Committee generally supported those orders and the principles that underlie them, and that hon. Members saw them as a better focused alternative option. However, the hon. Member for Enfield, Southgate (Mr. Burrowes) expressed real concern that the necessary resources must be made available so that the orders could function as intended.
I begin by thanking the Minister of State for what he said in his remarks opening the debate on this group of amendments. I note that Government amendments Nos. 82 and 83 respond directly to points raised by me and my hon. Friend the Member for Cambridge in Committee, and by others on Second Reading. It must be right to add an intoxicating substance treatment requirement to the provisions, and I am grateful to the Minister for recognising as much.
In addition, I welcome Government amendment No. 86, which effectively replaces my amendment No. 173 and limits the effect of tariffs for indeterminate sentences for people under 18 years of age. He promised me in Committee that he would look at the matter, and he has been as good as his word. I am grateful to him for that.
I turn now to new clause 40. In the main, our discussions in Committee on this section of the Bill were extremely positive and sensible. I am grateful to all who contributed, and considerable expertise was brought to our deliberations. In particular, I should like to thank the hon. Member for Enfield, Southgate, who I thought made an excellent contribution.
unless he has previously received a youth rehabilitation order with intensive supervision and surveillance.
That is an important point. When we were talking earlier about the overcrowding and other inadequacies of our prison system, I made the point that prison is very often ineffective in dealing with young people. It can be a very inappropriate disposal, and better
options exist. We maintain that custody is the last resort for young offenders, and that courts should not use it as an earlier option.
David T.C. Davies: Does the hon. Gentleman agree that prison is so ineffective because very little in the way of rehabilitation, education or vocational training is done in most custody environments? All too often, the offenders human right to sit in his cell with his Playstation and colour TV is given priority over the need to furnish him with skills of the sort that just might make him a useful member of society on his release.
Mr. Heath: The hon. Gentleman is well known for his antediluvian views. I do not think that they are shared by hon. Members on his own Front Bench, let alone in the rest of the House. My starting point always on matters of deterrence and rehabilitation is to ask, What works? I agree with the hon. Gentleman to the extent that prison can work for some people, as long as the proper requirements in terms of rehabilitation and education are met. But it is transparently the case that for many young people prison is not the best disposal if we want to deter them from future criminality. There is abundant evidence for that, and that is why most sensible people realise that putting childrenthe hon. Gentleman will start to chunter about that in a moment, because he thinks that they are yobs, as he said last time we had this discussionin jail is not necessarily the answer.
New clause 40 tries to ensure that the ISS option is available and that custody is genuinely the last resort. The Governments view that the ISS option is only available for offences punishable with imprisonment and where the court is of the opinion that the offence was so serious that custody would otherwise have been appropriate is not a sufficient safeguard to ensure that it is used appropriately. If we are sensible about youth penal processes, we will prevent the unnecessary use of short custodial sentences that do not work. We will recognise that some young people are a danger to the public and therefore have to be kept in custody. The new clause provides a bypass for serious offences, but it would also make it clear in statute that custody should be the last resortand it is time that that was done.
Amendments Nos. 176, 210, 212 and 213 reflect a discussion that we had in Committee. The Standing Committee for Youth Justice made comments that I was happy to repeat to the Committee, welcoming the proposal in the Bill to introduce a youth version of the conditional caution. However, it expressed the concern that the provision would be extended only to young people aged 16 and 17, and there is indeed little logic in doing so. Children younger than 16 are coming to the attention of the criminal justice system more and more, and the youth conditional caution should be available for anybody over the age of 10 years, provided there are certain safeguards. The child should be able to
understand the implications of the conditional caution, and that would require an adult to be present and able to explain it. That could be accommodated within the proposed code of practice. The Minister had at least a glimmer of sympathy for that view in Committee and suggested that he would at least consider extending the age range at a later stage. I cannot see any particular argument for not taking this opportunity to do so.
The intention of amendments Nos. 201, 202, 203, 204, 205, 207 and 208 is to ensure that proceedings on a breach of a youth rehabilitation order commence in the youth court, rather than the Crown court. I do not want to repeat the debate that we had in Committee, but the youth court is especially well informed on the progress or otherwise of a youth rehabilitation order. It would be a misuse of the Crown courts timewhich is a very expensive resourceto spend it unnecessarily on such proceedings. If proceedings start in the youth court, the amendments would allow them to move to the Crown court if it first applied the order. Allowing the youth court to start such proceedings would not undermine the ability or authority of the Crown court to deal with serious instances of non-compliance. It would also allow the young person to be sentenced rapidly and with some sensitivity, and that would be appropriate.
Amendments Nos. 206 and 209 would preclude the court from imposing an intensive supervision and surveillance requirement, or a custodial sentence, for breach of a youth rehabilitation order in cases in which the original offence did not warrant custody, or was non-imprisonable. That is simply a case of ensuring that the final disposal is commensurate with the gravity of the original offence. It simply is not right that a minor offence should become an imprisonable offence by virtue of a breach of order, although the original offence was not of sufficient gravity to warrant that sentence. I ask the Minister to consider the value of those amendments.
I now come to the two most important sets of amendments that I am proposing in this group. The first set is amendments Nos. 196 to 200, which would ensure that a child or young person was legally represented before a youth rehabilitation order was imposed. The Government have moved some way in that direction in the Bill; there is already a proposal for legal representation when a custodial sentence is effectively being imposed by means of a youth rehabilitation order. However, because serious restrictions are involved, and because the young person is making serious undertakings that must be clearly understood and that should be properly argued through before the court, legal representation is appropriate, as it would be in most other circumstances. The Minister said that he would reflect on debate on the issue and would consider the points made, where the lines were drawn, and compatibility with human rights legislation. I invite him to give me the results of his contemplation and to say whether he would be amenable to further amendment at a later stage.
My last point is on new clause 42, which is on a matter of real principle. It has to do with custodial sentences for offenders aged under 18. It seeks to reintroduce the situation that pertained some years ago, when there was a statutory custody threshold that had to be met
before a child was sentenced to custody. The aim is to ensure that children are locked up only as a last resort for reasons of public protection, except when a mandatory custodial sentence applies. The Minister quite properly told me when we discussed the matter in Committee that he did not think it appropriate to override the mandatory custodial sentence, in respect of the threshold, and I accept his advice on that. The new clause has therefore been reworded to except the mandatory custodial sentence, and to accept his view on such sentences for serious crimes.
However, to go back to the point on which I started my contribution, it is appropriate that there should be a high threshold for custodial sentences for young people because short custodial sentences for children are shown not to be effectivefar from it. They actually appear to encourage recidivism, and there are other disposals that are much more effective at deterring offending. That is the crucial point. We have far too many young people in our prisons. They are taking up valuable resources, to no effect. Given that the recidivism rate is so high for youth offenders, we have to question whether it is value for money, quite apart from anything else
Mr. Heath: No, I will not. We have to question whether it is value for money to lock up young people if the result is that they offend more than they would have done if they had been dealt with by other means.
That is why a great number of people believe that a proper custody threshold for young offenders is appropriate. We used to have it, it was abolished, and it is time that we reintroduced it. That would be consistent with the Governments policiesnot just their policies introduced through the Ministry of Justice, but the policies represented by the Home Office strategy paper and the childrens plan. The Minister told us in Committee that he is working closely with childrens Ministers in order to formulate a revision of the strategy for dealing with young offenders. I hope that part of that strategy will be the sort of proposal that I have put before the House today.
Mr. Hanson: We have had a useful debate following my opening consensual acceptance of amendments that were tabled in Committee. We have relived part of the debate in Committee, which I am sure has been of interest to other Members who have come into the Chamber for the discussion of later parts of the Bill.
I shall respond briefly to some of the topics that were raised. The hon. Member for Enfield, Southgate (Mr. Burrowes) mentioned amendment No. 129, which would allow a court to give a second referral order to an offender on the recommendation of a youth offending team, probation officer or social worker. As he knows, the referral order operates on a restorative justice principle, with offenders being required to face up to their responsibility for their actions and to make redress to their victim. It is currently restricted to
first-time offenders who plead guilty. In the Bill we are seeking to allow a referral order to be available to those who plead guilty on a second conviction, where they have not received a referral order previously.
It is a step too far to broaden that out to a second referral order. The hon. Gentleman raised the matter in Committee. What we must do is address the offending behaviour of the young person. If they have not gained from the original referral order process, it is right that the court should consider other sentences. It is important that we retain the integrity of the referral order, which achieves the lowest reconviction rate of any juvenile court-awarded sentence44 per cent. I do not wish to undermine that, and I cannot accept the amendments that the hon. Gentleman tabled.
In his welcome for the new clauses and amendments that I tabled to deal with substance misuse, the hon. Gentleman mentioned funding. All youth offending teams are funded to provide substance misuse workers to support screening, early intervention and referral to specialist services. There is also funding via the National Treatment Agency pooled treatment budget, to which the hon. Gentleman referred. Funding is sufficient to meet the needs of the order.
The hon. Gentleman mentioned the work of the hon. Member for Kettering (Mr. Hollobone) on volatile substance misuse. I am pleased that he did so. In a former life I was involved in dealing with individuals who engaged in volatile substance misuse, and I welcome the fact that the generic examination of substance misuse will cover all aspects of that.
My hon. Friend the Member for Hayes and Harlington (John McDonnell), on behalf of himself and my hon. Friend the Member for Walthamstow (Mr. Gerrard), proposed that we remove the antisocial behaviour order as an option for agencies to tackle antisocial behaviour if the person is under the age of 18, unless it is also proposed to make an order on an adult co-perpetrator. I know that my hon. Friends feel strongly about the matter. They know that the main purpose of an ASBO is to protect victims, many of whom are young persons.
In addition, ASBOs, especially when used with individual support orders, have proved very beneficial in helping young people to tackle their antisocial behaviour. This is not about criminalising young people; I want to do quite the opposite. I want to ensure that young people, via the ASBO, have a last opportunity to mend their ways before entering the criminal justice system proper. Without ASBOs, that option would not be available to agencies tasked with protecting local communities. They are an important option available for tackling antisocial behaviour. I understand why the amendments were tabled, but I am not able to accept them today. Our approach has been commended by the National Audit Office, as well as by the Home Affairs Committee, the Audit Commission and the Youth Justice Board, and it is important to ensure that we retain that part of our armoury, while if possible limiting its use.
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