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Lord Williams of Mostyn: The referral to the YOP is a sentence, but, when speaking to the propositions put forward by the noble Lord, Lord Campbell, I was seeking to draw a distinction between the nature of the sentence. This takes us back to a slightly different aspect of what we discussed earlier. We want it focused and we want it to be the primary disposal for first-time offenders. We are quite clearly of the view that the most benefit will be directed to those who have not been involved in the youth court earlier, except on the basis of an absolute discharge. The whole ethos is to focus on first-time offenders so that we can break the cycle at the earliest possible opportunity. As I said, this is essentially another reflection of the earlier approach of the noble Lord, Lord Cope; namely, that a wider discretion ought to be left to the magistrates. They do have the discretion in Clause 1(1)(b) and (c). Other than that, we are convinced that we ought to focus as rigidly--and I use that word carefully--as we have intended in the Bill. I regret that I am unable to accept the noble Lord's amendment.

Lord Cope of Berkeley: I am grateful to the Minister for his response. As I said before, it seems to me that some flexibility and discretion is useful for the magistrates. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11, 12 and 13 not moved.]

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Lord Cope of Berkeley moved Amendment No. 14:

Page 2, line 32, at beginning insert ("One year or more after the coming into force of this Act,").

The noble Lord said: The amendment takes us slightly in the opposite direction to that of some of our earlier discussions, including some of the points that I made during our probing of the Bill's details. On the other hand, although the flexibility of legislation is desirable in some respects, I have made clear that it represents a difficulty in other respects. Certainty of the law is important.

The words in the amendment seek to delay the power of the Secretary of State to change the types of offender who can be subject to referral orders for at least one year. In that case there will at least be a steady year at the beginning before we start mucking about with this particular part of this law. It seems to me that uncertain law can only be a weak deterrent, because people do not get to know what it is. I think the Secretary of State should wait and be sure that he is right in what he is proposing to Parliament, including any modifications.

One effect of delay for a year--a modest period, it seems to me, in view of what I am trying to achieve--might be that we shall have fewer alterations. That is desirable in itself. As I said a few moments ago, the Bill is littered with orders and if some of them cannot come before us for at least 12 months there will be more stability in the Bill and in the law in this respect. I beg to move.

4.30 p.m.

Lord Renton: Subsection (3) of Clause 2 will give the Secretary of State power to alter the primary legislation: in other words, it is a Henry VIII subsection. My noble friend is suggesting that that power should not be used until 12 months have expired. I would have thought that that was reasonable. If we do it rather too often and if we are giving power to Ministers to alter primary legislation, I think it is right that there should be some restraint in terms of not being able to do it soon after the Bill has been given Royal Assent. I support my noble friend's amendment.

Baroness Carnegy of Lour: When the Minister replies, can he give some idea of the kinds of change to which the subsection would apply? It has been suggested that there might be a question of people who are close to the borderline of 18 years of age. What other kinds of changes might be made? If we knew that, we would be able to assess whether this is satisfactory or not.

Lord Williams of Mostyn: Certainly. If one looks at Clause 2(3), I think the answer to the noble Baroness's question is to be found there. It says:

    "The Secretary of State may by regulations make such amendments of this section as he considers appropriate",
then the defining words:

    "for altering in any way the descriptions of offenders in the case of which the compulsory referral conditions or the discretionary referral conditions fall to be satisfied for the purposes of section 1(2) or (3) (as the case may be)".
What could be done here is to alter the restrictions upon those persons who may or may not be sentenced to the referral order.

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The noble Lord's amendment says that that cannot be done for a year. I have to say to your Lordships that I think it extremely unlikely for there to be a wish that this power be taken after one year, but I do not see any virtue in forbidding such action by the Secretary of State if in fact it turns out--and it is possible even with this Government's legislation--that something has been got wrong. It is possible, though unlikely, and if it has been got wrong, then one really ought to have the availability of putting it right rather than waiting for a period of time which is purely mechanistic. It has no virtue in principle.

Clause 2(4)(c) states:

    "the offence (or offences) of which the offender has been convicted".
I do not see any virtue at all in the amendment. I have given the undertaking that we shall monitor the pilots; I have given the undertaking that we shall have independent evaluation and that we shall publish it. I really do not see the point of saying that you cannot alter something which you may have found to be wrong or misguided and that you have to wait a year to put it right. That seems not entirely consistent with what the noble Lord was asking for earlier: a flexible approach to the administration of the criminal law. I do not think that the power will be needed but I do not see the virtue of stopping it.

Viscount Tenby: Can the Minister say whether the provision entitles a Minister at a future date to go beyond the present restriction which confines referrals entirely to first offenders who have pleaded guilty.

Lord Williams of Mostyn: I believe that the answer to the noble Viscount's question is yes. That is one of the useful purposes of having monitoring, evaluation and published evaluation, so that if the scheme is working well it can depart from its precise focus and be extended to others who might be assisted.

Lord Cope of Berkeley: I am grateful for the assurance of the noble Lord the Minister that it is extremely unlikely that the amendment would actually stop the Secretary of State from doing anything he might otherwise wish to do. However, the intervention of my noble friend Lady Carnegy has drawn attention to the fact that the powers are extremely wide and that the orders could alter anything to do with them. Certainly, they could mean that the provision was not only applied to first offenders and those who have pleaded guilty regardless of previous convictions or how they have previously been dealt with. It could be made compulsory in every case, with the criteria altered in any way. The power to alter or widen the conditions under which it is compulsory on magistrates are just as wide as a result of the clause as the power to widen the discretion was, but in view of the fact that it is extremely unlikely that the Secretary of State, as we have just heard, is going to use the power within the year, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

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Lord Cope of Berkeley moved Amendment No. 17:

Page 2, leave out line 41.

The noble Lord said: The amendment would remove the offender's age from matters which the Secretary of State could alter by order. My purpose is partly to probe why the Government think that it might be necessary to alter the offender's age, particularly in the light of the discussion we had earlier about those under and over 18 at certain periods of time. The noble Lord seemed firm about that at the time but here we are asked to give powers to the Secretary of State to vary the offender's age at which these things can apply.

There is absolutely no restriction. We could, for example, delete 18 and insert 19, should the Secretary of State so wish. Certainly, he could insert 25 and widen it very considerably. Maybe that is why other magistrates' courts are to be given these powers as well as youth courts. It did not seem to me that the Minister's explanation regarding the inclusion of other magistrates' courts, giving them powers under this Bill, was very satisfactory. He said words to the effect, if I recall correctly, that that was to show that youth courts were also magistrates' courts. I do not know whether it is necessary for that purpose, but adult magistrates' courts are to have these powers and so presumably that means that at some stage the offender's age is anticipated as probably going to be lifted above 18. Maybe the reason for line 41 on page 2 being included is so that the offender's age can be altered by the Secretary of State in the future. The amendment probes the reason for including this provision in the Bill. I beg to move.

Lord Williams of Mostyn: As I said earlier, the referral order is intended to be targeted at the group we think it is most likely to benefit; namely, first time offenders aged 10 to 17 who plead guilty. However, we are aware that in the light of experience of piloting the new arrangements it may become apparent that our description does not precisely catch the group that is most likely to benefit. As we discussed on the previous amendment, Clause 2(3) empowers the Secretary of State to make changes by regulation if we decide in the light of experience to alter the description of those who are eligible for the referral order either on a mandatory or discretionary basis. Clause 2(4) sets out a list of factors that the Secretary of State should particularly consider. I emphasise that point. The noble Lord's amendment would remove the offender's age from the list contained in Clause 2(4) on page 2 of the Bill. It is possible that the youth offender panel approach may be found to be less effective with younger children within the age range of 10 to 17. If that were found to be the case in practice, we would not wish to continue to include them among those for whom a referral order would be mandatory. We need to have a degree of flexibility to respond to experience.

However, I take the noble Lord's point that all his amendment seeks to achieve is to remove age from the list of factors to which the Secretary of State must pay particular regard. It would not however preclude age from being a factor that might be altered by regulation. There is no hidden purpose here. It is simply a matter

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of offering flexibility in the light of the experience of the pilots. I believe I have dealt with the noble Lord's point on flexibility.

In some circumstances an adult magistrates' court may deal with a juvenile where he is tried with an adult on the same charge or--I concede this is much rarer--where there may be a genuine error as to age. As I said, there is no hidden purpose here. We want to retain a degree of flexibility. The criteria set out in Clause 2(4) are not prescriptive or restrictive criteria. They do not rule out other approaches.

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