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Viscount Tenby: The introduction of trial periods into the criminal justice system, which we have seen in the past few years, is to be welcomed. Trial periods have to be evaluated. Accordingly, there must be a necessary discipline and audit to establish whether the new procedures are working. Therefore, I believe that it would be desirable to have on the face of the Bill a provision specifying that there should be a period of

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accountability. I am not sure how long such a period should be, but a period of two years does not seem unreasonable.

Lord Harris of Greenwich: I fear that I shall be the one discordant voice. I see little merit in the proposal.

First, to echo what the noble Baroness said, looking at the matter seriously, as it deserves, a period of two years is inappropriately short to carry out a detailed evaluation.

Secondly, I want to raise questions about the alleged advantages of the affirmative resolution procedure. I must admit that, over the years, I have spent many hours in the House urging governments to accept affirmative resolution proposals, but, realistically, one knows that in the House of Commons many affirmative resolutions are agreed without any debate. There is a view in this House that we should not vote against affirmative resolutions. The Government have a majority of 179, which raises a number of other questions about how effective such a provision would be.

Apart from anything else, I agree with the noble Viscount, Lord Tenby, that trial periods are desirable. Community service orders were introduced by the then Mr. Carr, now the noble Lord, Lord Carr of Hadley, when he was Home Secretary in Mr. Heath's Government of 1970-74. The community service orders began as an experiment in, I think, six probation areas. Thereafter, they were extended to the rest of the country by the succeeding Labour Government. There was no affirmative resolution and no parliamentary procedure; the government of the day took the view that community service was a success and extended it to the rest of the country. I do not think that it is a good idea to insist that Parliament should have another look at all such experiments within a period of two years. I must confess that I do not find that a convincing argument.

Viscount Brentford: I believe that the principles that the Government want to introduce are very important. I have been looking for some time for an opportunity for restorative or relational justice to be introduced. Like, I believe, all other Members of the Committee, I am very supportive of referral orders. I think that we need a system whereby a report on progress is placed before the House. However, a period of two years is rather short in view of the time that it is likely to take the pilot schemes to report back. Perhaps the period should be three years. I am not sure whether the affirmative resolution is the right procedure, or whether the Government should undertake to report back to the House in, say, three years. The Minister may say that it is up to any Member of the House to raise a question on it. I believe that it is much more important than that and that the Government should inform us of the progress being made. I hope that in time, after the provisions have proved valid for youth cases, these principles will be applied more widely. I hope that we shall see more examples of victims and offenders, by agreement, being brought face to face. We must reconsider this and not just forget all about it.

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4.15 p.m.

Lord Williams of Mostyn: In answer to the specific question asked by the noble Lord, Lord Renton, pilot schemes will be taking place in a limited number of court areas--petty sessional areas--in England and Wales where such schemes are available for the disposition to be made.

I am happy to give an undertaking once more about our intention to pilot the referral orders. We want to conduct an independent evaluation of the pilot schemes. I am happy to undertake that that will be done. Again, I am happy to undertake that reports of the evaluations will be published and made available for discussion.

Under Clause 3, a referral order may run for not more than 12 months. The noble Lord's amendment would mean that this part of the Bill would entirely cease to have effect two years after coming into force. One could not carry out any sensible or useful evaluation in such a period.

There is another point of principle here. I entirely endorse what the noble Lord, Lord Harris of Greenwich, said. One does not introduce a new form of disposal, a new sentence, and immediately say, "If it doesn't work within two years, it falls", or, "If it is not brought back to Parliament within two years, it falls".

I note the points that have been made. This is an extremely important advance. I am most grateful to the noble Viscount, Lord Brentford, for his support for a principle which I know that he has advocated for a very long time. I am trying to meet the Committee's reasonable concerns. An independent evaluation, which I promise will be published in full, is the proper mechanism for raising questions and concerns as and when the pilot schemes are running.

The point is not simply that a period of two years is too short--although plainly it is--but that the public and your Lordships should know exactly how the schemes are working. I do not believe that it is necessary to require the House to consider the procedure afresh after two years. One would be in danger of this extremely bold, effective initiative being followed by a gloomy period of two years of uncertainty. That would not help anyone because we need to ensure that people disposed of in this way understand that they are not being let off. I believe that in many fundamental ways taking part in restorative justice is a much more effective and burdensome disposition: the offender has to recognise the wrong done and do something to remedy it. That is much more difficult and onerous than a simple financial penalty, and it is capable of being more effective and long-lasting.

I hope that the assurances that I have given about an independent evaluation and, more importantly, its publication will satisfy your Lordships' reasonable concerns.

Lord Cope of Berkeley: I am grateful for the promise which the Minister has just given us and the way in which he has expanded it.

In response to remarks by other noble Lords, I am by no means wedded to a period of two years. Indeed, I am quite willing to reconsider that element.

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However, the noble Lord, Lord Harris of Greenwich, poured scorn on affirmative resolutions, partly on the grounds that he did not think they were effectively treated in the other place. I can assure the noble Lord that they are frequently debated there and often lead to votes. Of course, in the nature of things, the Government normally win those votes, but nevertheless that is the case. As far as concerns this Chamber, I agree that it is the habit at present for this place never to vote against orders, whether affirmative or negative. I believe it is unlikely that that particular area of restraint will survive any reform of your Lordships' House. After the Chamber has been changed in its composition, it is likely to exert its powers in that respect much more frequently. I do not think that the agreements of the past on the matter are likely to survive.

However, I also believe that the affirmative resolution procedure is an important brake on the habit which has been growing among governments, none more so than the present Government, of inserting into Bills all sorts of flexibilities, which can be altered later at the whim of the relevant Secretary of State. Indeed, the Bill before us has many parts in it which can be altered by the Secretary of State, including some of the most fundamental provisions. In one sense, I believe that such flexibility can be useful but, in another sense, it makes the law uncertain and, therefore, less desirable. It also makes it much more difficult to consult the law because one reads the Act of Parliament as it was passed and it states throughout that certain provisions may be varied by the Secretary of State. Unless one consults the necessary reference books to find out if any variation has been made or any order passed in that respect, one cannot be sure that that is how the law stands. It makes it much more difficult for people to understand the nature of the law.

Therefore, a brake on such orders, provided by the necessity for affirmative resolutions, would also be useful in that respect. However, the amendment is all about whether or not there should be a review of the matter. We have been promised a fairly full review and I am certainly alive to the danger outlined by the Minister of appearing to put a kind of black spot on what we all hope will be a useful experiment. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

The Deputy Chairman of Committees (Viscount St. Davids): Before I call Amendment No. 9, I should point out to Members of the Committee that if this amendment is agreed to I shall be unable to call Amendment No. 10.

Clause 2 [The referral conditions]:

[Amendment No. 9 not moved.]

Lord Cope of Berkeley moved Amendment No. 10:

Page 2, leave out lines 16 to 19.

The noble Lord said: In moving the above amendment, I shall speak also to Amendment No. 13. One of the factors which prevents a referral order being made by a court on an offender is if the latter has in the past been

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bound over to keep the peace. As the Bill stands, if that has happened such an offender cannot be given this new sentence, although I suppose we should refer to it as "this new disposal". I understand that magistrates find the power to bind over useful from time to time. I do not want them to be inhibited from using it by the thought that, whenever they do so, they might be ruling out this disposal for future use.

In any case, it seems to me that the fact that someone has been bound over in the past should not necessarily disbar him altogether from restorative justice, which, after all, is what this Bill is about. In a way, the power to bind over, which is an ancient power as far as I know, was of a similar character to the present experiment that we are implementing with the Bill. It was not restorative justice in the full sense that we now understand it, but thoughts have developed on the matter. Where magistrates thought that a young person had done wrong but might not do so again, they could bind him over in the hope that that would bring him to heel and make him think twice before committing the same offence again, without imposing any actual sentence upon him. If that has happened to someone before the Bill comes into force, or before it comes into force in the area in which the young person resides because of the pilot nature of the earlier schemes which we have already discussed, it seems to me that it should not necessarily rule out the use of youth offender panels in the way provided by the Bill.

I do not think that such measures should be compulsory. However, it would still be within the discretion of the magistrates as to what they did in such circumstances. It seems to me that it would be useful to leave the power in place where an individual had been bound over in the past. I beg to move.

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