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Lord Cope of Berkeley moved Amendment No. 2:

Page 2, line 12, leave out from ("conditions") to end of line 19 and insert ("shall be such conditions as are set out in regulations made under subsection (3).").

The noble Lord said: My Lords, I beg to move Amendment No. 2. Contrary to the suggested groupings, it may be wise to consider also Amendment No. 3 because that is consequential on Amendment No. 2. As we discussed in relation to the previous amendment, I wish to leave it to the discretion of magistrates, or the Crown Court in some cases, whether to impose the new referral in various cases. However, the Minister does not really trust magistrates in this respect and wants an element of compulsion. This amendment has a purpose similar to that of my more radical amendment moved in Committee, but it does not go so far.

The amendment provides that there should not be an automatic referral in the first place under the Bill but allows the Secretary of State, in pursuance of his order-making power, to introduce compulsory automatic referral at a later stage. I believe that that would permit a more gradual introduction of the compulsory element rather than to start with that element on the day that the Bill becomes an Act. I believe that it is desirable to start the compulsory element in a gradual way, if it is to start at all, rather than write it in firmly on day one. We all know that the Secretary of State has power to vary these matters and to move offenders with certain characteristics from "discretionary" to "compulsory" or, for that matter, in the opposite direction. I suggest that the whole of the compulsory part of it should be introduced in a more gradual way. Amendment No. 3 widens the definition of "discretionary" to include all of the guilty pleas in the early stages as part of the re-writing of the Bill in this respect. I beg to move.

Lord Williams of Mostyn: My Lords, I shall follow the example of the noble Lord and speak to Amendments Nos. 2 and 3 together. I deal first with Amendment No. 2. This amendment would remove the compulsory referral conditions from the face of the Bill. As the noble Lord indicated, it introduces a power for

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the Secretary of State to set compulsory conditions by way of regulations. The flaw here is that Clause 2(3) provides the Secretary of State with the power to alter the conditions set out in Clause 2(1), but this amendment removes those conditions from the clause. Therefore one would be left with a provision which might be regarded as undesirable. We would have in the Bill the power to amend compulsory referral conditions without any compulsory conditions to be amended. I do not think that that would be a useful step forward. That is an important point. It is not simply cosmetic drafting.

I do not think that I can expand on what I said in the quite lengthy debate on the first amendment. We have deliberately targeted this new disposal at the group of offenders we consider most likely to benefit: young, first time offenders, pleading guilty. We believe that we should limit it in that way. We want to direct resources effectively to tackle offending behaviour. That focus has been deliberately chosen, we believe rightly, to fall on first time offenders to have early intervention as soon as possible to break the cycle of offending behaviour.

Amendment No. 3 would have little practical effect, but it would add further to the words in the Bill which have already been criticised as not entirely clear--although I do not accept that. At present the Bill allows the court some discretion to make a referral order where the compulsory referral conditions have not been met. They are specific circumstances which are set out in the Bill.

The court has a discretionary power to make a referral order when dealing with a young person charged with multiple associated offences and entering not guilty pleas on one or more of them provided he enters a guilty plea on at least one of them.

The noble Lord's amendment would take from the Bill the fact that not guilty pleas can be entered and a referral order made under the discretionary referral conditions. It would not alter the power to make orders in such cases since it would only require that the young person plead guilty to one or more offence without ruling out the possibility of pleading not guilty to any other associated offences.

The only consequence of Amendment No. 3 that I can foresee is a degree of confusion created by doubt as to whether not guilty pleas do or do not preclude a discretionary referral order. I am convinced (for what that is worth) that the present drafting is preferable to the alternative formulation proposed in Amendment No. 3.

Lord Cope of Berkeley: My Lords, Amendment No. 3, which I had thought consequential upon Amendment No. 2, brought out a fuller response than I had anticipated. If one were altering the Bill as proposed in Amendment No. 2 it seemed to me essential to alter the wording of subsection (2) to make clear that even though it was not compulsory for the offender to plead guilty to one of the offences nevertheless he could be referred.

The Minister also said that I should have put forward a consequential amendment to subsection (3). I take into account the legal advice that he was kind enough to give

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me. However, it does not seem to me that the amendment is all that faulty. Subsection (3) states:

    "The Secretary of State may by regulations make such amendments of this section as he considers appropriate for altering in any way the description of offenders".
The description of offenders which would remain in the Bill if my amendment were carried would provide that the compulsory referral conditions,

    "shall be such conditions as are set out in regulations".
Perhaps the drafting is somewhat repetitive and no doubt could be improved if the Minister were prepared to accept the spirit of the amendment. However, clearly he is not so prepared because he wants to keep the compulsion inherent in the Bill and in the scheme. We have already suggested that compulsion is a matter to which we may wish to return. But for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Cope of Berkeley moved Amendment No. 4:

Page 2, line 33, after ("section") insert ("or of the age limit in section 1(1)").

The noble Lord said: My Lords, the amendment makes clear that the Secretary of State could vary the conditions for compulsory or discretionary referral to include an age limit.

At present the age limit occurs in Clause 1(1) and is not able to be altered by regulations, as are all the other conditions. Therefore all the conditions must apply to a person under 18. It is possible, perhaps likely, that in future the panels may work differently for younger offenders--perhaps those under 16--than for older offenders. The Secretary of State may wish to make referrals compulsory in more cases of those under 16, or some other age. Alternatively, he may wish to remove some of that age limit from the compulsion element.

The amendment seeks greater flexibility with regard to age subject to the fact that the Secretary of State will have to make regulations which would be subject to the affirmative procedure before Parliament. I beg to move.

5.15 p.m.

Lord Williams of Mostyn: My Lords, 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. That is why the Bill makes it plain in the Long Title--it refers to the referral of offenders under 18--and in the conditions for making a referral order, to which noble Lords have referred, that it is only available for those under the age of 18.

We are expanding the principles of restorative justice into the youth court. We believe that that is the proper approach in the Bill. We think that young people early in their criminal careers are more likely to respond positively to the panel approach and to be successfully diverted from crime, as I indicated earlier today.

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One could not manage the referral order in the way in which we envisage it in terms of adults since the youth offender panel will be organised and serviced by the local youth offender team. I take the noble Lord's point that there may come a time on some other legislative occasion when one might wish to extend that opportunity to adults, but in its Long Title and structure, the Bill is deliberately focused on those who are not over the age of 18.

Lord Cope of Berkeley: My Lords, I am not clear from what the Minister said whether the Secretary of State will have the power to have different conditions for different groups of young offenders under the age of 18--those under 16, or perhaps over 16. Can the Minister indicate whether the Secretary of State will have the power to differentiate within the under-18 age group?

I understand the Minister's argument that he does not wish the youth offender panels to have to deal with those over 18. We had a discussion earlier as to what happens where the offence is committed when the offender is under 18 but during the passage of perhaps a considerable number of months between the commission of the offence and coming to trial the offender passes his 18th birthday and the apparatus of youth panels becomes impossible to use. However, I understand the Minister's assertion that we should not extend this machinery to those over 18. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Making of referral orders: attendance of parents etc.]:

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