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Lord Williams of Mostyn: There are two categories involved here, and we should not allow one to muddle over the other. As has rightly been observed, by virtue of Clause 6(2) of the Bill:
- "A youth offender panel shall--
- (a) be constituted,
(b) conduct its proceedings, and
(c) discharge its functions under this Part (and in particular those arising under section 8),
- in accordance with guidance given from time to time by the Secretary of State".
I take the noble Viscount's point. Indeed, if the Secretary of State thinks that it is appropriate, there is no reason at all why the criteria for the panels should not include questions of ethnic origin and perhaps of gender division. Moreover, in certain parts of the country, the ability to speak more than one language may be required. Those requirements ought to be national and we believe that they ought also to be statutory.
We now come to quite a different concept; namely, general guidance on how the panels should operate. As regards the particular point raised, they will incorporate national standards but they will also set out advice on guidance--for example, how one approaches a victim about reparation. There are also mediation skills to be considered, handling a meeting run on group conferencing and lines (which are quite discrete skills that not everyone possesses) and any activities which may be included in a contract.
We propose to draw up comprehensive guidance. Once we have done so in draft, we intend to subject it to a very wide consultation process. Therefore, it will not be a case of private guidance; indeed, it will be the subject of wide consultation. We shall then review the matter in the light of the experience of the pilots and, thereafter, we shall do so on a regular basis.
The noble Lord, Lord Renton, put his finger on the point. The Home Office is determined to proceed on evidence-based practice--the jargon--or, as the Home Secretary prefers, on what works. He is quite right. Such guidance is likely to change and, therefore, it is quite different to the sort of statutory criteria I alluded to earlier. That is why we think that guidance ought to be
able to change in the light of changing experience, in the monitoring of experience, and so on. We do not want to set the guidance too rigidly in stone at the outset because it is likely that experience will show either that the guidance is too flexible or too inflexible, and that is why we have made the division in this way, which I commend to your Lordships as being a perfectly rational and justifiable practical difference.
Lord Simon of Glaisdale: The noble Lord the Minister always answers a debate with precision and candour, but I think on this occasion he has not quite matched the point made by the noble Lord, Lord Renton: namely, what is the point of the guidance? We now get it very frequently in statutes. My recollection is that it originated in planning, but now it seems it is obviously something less than regulation. Indeed in a Bill that we shall consider tomorrow the noble and learned Lord the Lord Chancellor is enjoined to make regulations as to X and then in the next paragraph to give guidance as to Y. Another formula also comes up, saying that a body to whom instructions, or possibly guidance, are given must take it into account. I confess I have never understood what exactly that means. Does the body to whom guidance is given have to take something into account or does it merely read what has been given and then throw it into the wastepaper basket? In other words, what exactly is the sanction?
The noble Lord the Minister, I think, suggested that if the guidance was not accepted alternative guidance would be given, but what happens if that is not accepted? Do we then move on to regulation? As I say, this extends beyond this particular provision, but I think it would be helpful if the Minister could give us some assistance on that matter.
Lord Williams of Mostyn: The noble and learned Lord, Lord Simon of Glaisdale, is quite right of course. One has guidance documents of different sorts in different contexts. He is right in saying that they have a particular importance in the planning regime. I believe that the planning guidance notes are quite different in their consequence from the kind of guidance one will set out to these panels. One does not need to think in terms of sanctions because people who are put on panels, in the nature of things, will be chosen for their willingness to follow the guidance which will be available. It is quite different from planning guidance notes, which are really of much greater legal consequence to those who are applicants or appellants in the planning context, and indeed to local authorities who have to adjudicate and determine those matters.
After all, the Secretary of State for Home Affairs frequently sends out guidance to chief constables about how to disseminate material concerning convicted sex offenders who may need to be resettled in a particular area. He sends out material for the guidance of chief probation officers, but one does not immediately reach for one's revolver and wonder what happens if they do not obey it. There are a range of sanctions of course. There is further advice and in the end, I suppose, legal action if the breach is so gross or if the panel actually did not obey or adhere to any of the guidance. I do not think that "taking account of" is as limited a concept of the human mind as simply to read a document and throw it in the bin.
I would be happy myself to submit to the noble and learned Lord judicially that that could not actually in law be regarded as "taking account of". This is not intended to be rigidly binding but it does have a place in public law, and if a public authority entirely departed from guidance without justification it could be impugned on the basis of irrationality. But one is, I stress, looking here for a co-operative concept, and most people in this kind of position--chief officers of police, chief officers of probation, probation committees and the whole gamut of this type of organisation--generally are found to abide by the guidance if the guidance is sensible. And the noble and learned Lord will know that the guidance that comes from the Home Office--or which has done since May 1997--has always been perfectly helpful, rational and wholly to be applauded.
6.45 p.m.
Lord Renton: I hesitate to prolong this rather interesting discussion, but I think one must regard this in the light of what is said in Clause 8. We have not come to it yet but we have to bear it in mind--and not only Clause 8, but Clauses 9, 10 and 11 as well. We find there that these youth offender panels can virtually impose codes of conduct upon possible offenders which govern the whole of their lives, going into great detail. If one looks at page 7 at subsection (2)--I will not read it out because your Lordships can see it for yourselves--it is a tremendously comprehensive way of governing a person's life.
One wonders if the Home Secretary will give guidance and, if so, what the guidance will consist of. The Home Secretary will not be able to depart from what is in the Bill as to what the panel has to do. One wonders therefore what guidance he will be giving. Will it be simply as to the way in which they may conduct their meetings? The Bill has already said quite a lot about that. I think we really do need to get a comprehensive view of the functions of the panel and the functions of the Home Secretary. There must be a division of functions here, and we do not want any of them overlapping.
Lord Williams of Mostyn: There is nothing unusual in concept about this. After all, the noble Lord will have sentenced people to probation and he will have had to explain in ordinary language appropriate to the offender trembling before him that he will be subject to all reasonable and lawful requirements given to him by his supervising probation officer and the probation officer has a very large margin of discretion. What we are doing here--and this is entirely the point of this legislation--is to give these powers to the youth offender panel precisely to control an unruly life which has not had parental stability or family discipline and which does need some focused and quite strict guidance very often about how that young person's life is to be guided, not overlooking the fact--since the noble Lord asked me to look at Clause 8--that the words of Clause 8 are these:
- "At the first meeting ... the panel shall seek to reach agreement with the offender ...".
So all these matters are subject to the agreement of the offender. Of course they are wide ranging because
quite a number of people actually need to be told, alas, and directed, unfortunately, along the lines of "You've got to go to school or you've got to go to work, and if you do not you are in breach." It is true that most decent parents will have ensured that that hardly needs to be said, because the example is there and it is more eloquent than direction, but there are a great many young offenders who become the recidivists that we all know so well in their teens and early twenties and thirties, who need to be told "This is the order that your life must follow."
There is no difficulty at all in the Home Secretary giving guidance to panels: not "What conclusion do you come to in a particular case", but "These are the sorts of indicators you may need to look at; these are the mediation skills you need to know." I come back to the point that I made earlier. We are going to put the consultative proposals out for public discussion and to allow input from anyone who wishes to take part in the debate. One does not need to be too prescriptive; one wants to have general guidance and one trusts the panels with the very important functions entrusted to them. Of course this is wide ranging--that is why it is there--but it is all subject to the agreement of the offender, as one sees in the second sentence of Clause 8(1).
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