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The Earl of Mar and Kellie: My Lords, I hope that I am allowed to comment at this time. I am concerned about the wording of the Commons amendment; it somewhat blows a hole in the definition of the difference between a sentence and an order with which I grew up. As a social worker in the criminal justice field, I learnt that the difference was that if one was sentenced, that was the end of it; if one was placed on an order, one had to complete a programme. If the programme was not satisfactorily completed, one could be referred back to the court and another punishment imposed. The Commons amendment seems to do away with that definition. Clearly someone who has been placed on a referral order can, under Clause 13, be referred back. Therefore, I make the simple point that if the Commons amendment is included in the Bill, the definition that we have grown up with will no longer be valid.

Lord Renton: My Lords, my noble friend Lord Windlesham has put forward the case fully and with great clarity, so one can be brief. Those of us who have had judicial experience know that mandatory sentences and even mandatory probation orders--anything mandatory--fetters the discretion and should be avoided especially when dealing with young first offenders where the circumstances can be very unusual and not necessarily warrant any kind of mandatory sentence.

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In case they are wrong I suppose that the Government are relying on Clause 2(3) which enables the Secretary of State to put the matter right and alter the provisions as regards mandatory sentences in Clause 1 by making a regulation. That is a sign of weakness. Bearing in mind the vast experience already obtained in the courts, it is far better that we avoid mandatory sentences and enable the courts, with all the facts before them, including the personality of the accused, to do the right thing. Under the Bill as it stands, a number of injustices occur and that is unfortunate. It would not be worth waiting for a regulation.

In any event, as I have said on previous occasions, it is far better that the Government should get the primary legislation right first time instead of using the power to fall back on regulations which neither House would have power to amend. Therefore, I strongly hope that what my noble friend Lord Windlesham said will be accepted by the noble Lord, Lord Williams of Mostyn. I remember very well the answer he gave at Report stage. I very often agree with him on legal matters. On this occasion I hope that he will realise that it would be unwise for the Government to fetter the courts in the way that the House of Commons was advised to do and to which he was then a party. One of the signs of greatness in our parliamentary system is the ability of Ministers to change their minds. I hope that on this occasion the noble Lord will believe it right to do so.

Lord Campbell of Alloway: My Lords, as I have supported this amendment with my noble friend Lord Windlesham on more than one occasion, I compliment him on the way he presented it today. There is very little more one can add. I know that the noble Lord, Lord Williams of Mostyn, understands the argument. We agreed long ago that he could not change his attitude towards it so that the matter should be put to the House. The argument is simply put. There should be some flexibility to avoid injustice, which must occur from time to time if one has a mandatory regime.

As I understand it, the issue brings to light a misconception perhaps on the part of the Home Secretary that inflexibility can be cured by Clause 2(3). I believe that the noble Lord, Lord Williams of Mostyn, will agree that it cannot. It relates to the referral conditions in Clause 2. We are essentially concerned with Clause 1. So we are landed with what is a mandatory regime.

As this matter has been to another place, I do not believe that it will be possible for the noble Lord, Lord Williams of Mostyn, to change tack. I wish that he could and would. I can well understand that he cannot and he will not. As a parting shot over the bows, one can say, as Sir Nicholas Lyell said in another place when my noble friend's amendment was rejected, it was a constructive amendment to an otherwise thoroughly sensible proposal. That echoes the way in which those who support the amendment put it forward. This matter has been fully debated in your Lordships' House in which the Opposition command no overall majority and in another place where the Government command a massive overall majority. The argument was narrowly

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won in fair debate in your Lordships' House, according to the Official Report. However, the amendment was rejected in the other place by 296 votes to 118.

I speak only for myself, as usual, but it would seem ridiculous to jeopardise a good Bill by insisting on the amendment today. But it leaves a slight on the magistracy. It calls into question their experience, dedication and general competence. If the matter were put to a vote, I would abstain. Your Lordships have done a great service through this amendment and in supporting my noble friend Lord Windlesham today. In the course of time and in the light of experience, the Home Secretary may wish to recognise that.

Baroness Carnegy of Lour: My Lords, on this occasion, as when your Lordships last discussed this issue, I disagree with my noble friend Lord Windlesham and other noble Lords and agree with the Government in their approach to this amendment.

In my view, the Government are not in any way casting a slight on magistrates, as my noble friend has just suggested. They are trying to widen the procedures we use beyond the present system. I believe that as the system develops, magistrates would understand that very well. Whether the new system will work, we do not know. That will be proved only over a period of time by trying it out. However, we do know that despite the best efforts of caring and experienced magistrates, who put everything they have into making judgments, the present system does not work as well as anyone would like, and far too many young people reoffend. Surely it is well worth trying a different approach.

The Government know that many young offenders continue to have what is the awesome experience of appearing in court. However, they will then have the very different experience of appearing before a panel. The panel will require a great deal of them and will involve such young people in committing themselves. If they fail in what they undertake, they will then return to the court.

My noble friends have explained that they are happy with the panel procedure itself but feel that the magistrates should have it simply as an option among other sentencing procedures. For most offences I would agree with that. Magistrates are the people on the spot. They have experience and skill and they should decide in their different jurisdictions. I have taken part in that procedure, and I have carried out a great deal of youth work. I know that while sometimes it does work, too often it does not.

However, we must look at this matter from the point of view of young people themselves. When they talk over with their friends what happens when one is caught for the first time, the change, if the magistrate is to decide what happens, will not be great. Young people will know that another possible sentence will be added to the existing possibilities they will face. For the scheme to work, young people will need to see certainty in it--the certainty of appearing in court and then, for most of them, before a panel. The panel will have a list of unattractive elements to which those young people

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will have to agree and stick over a period of time. The news will soon get out among young people likely to offend as to what happens when one appears before the panel and if one fails to do what one has agreed to do. One will go back to court and even worse will follow.

Whether it is left to the magistrates to choose the panel most of the time, one cannot tell. One simply does not know. However, what is important is that young people should know that the automatic procedure for most people will be to appear in the court, then face the panel and agree to all the elements set down by it. If they do not succeed, such young people will have to go back to the court. I do not call that mandatory sentencing. It is an extension of the possibilities for dealing with young people. I am sorry that great lawyers are so conservative that they cannot see this measure from the point of view of young people. They cannot admit that the present system does not work and they are being difficult about it. I hope that on this occasion the Government will stick to their guns.

5 p.m.

Lord Renton: My Lords, before my noble friend sits down, does she realise that we are not trying to defend the present system? We are saying that the Government are not correcting the present system in a rational way.

Lord Campbell of Alloway: My Lords, before my noble friend sits down, we are not trying to be difficult merely because she disagrees with us.

Lord Dholakia: My Lords, I listened with great care to the noble Lord, Lord Windlesham. He brings to the debate his vast experience of the criminal justice system. I have always admired his work in this field but on this occasion I part company with him. I support very much the views expressed by the noble Baroness, Lady Carnegy of Lour.

Noble Lords will recall that during the passage of the Youth Justice and Criminal Evidence Bill through your Lordships' House, I said that there was a need to introduce a little flexibility to the lower tariff of sentencing in the magistrates' courts. When at that time I spoke of flexibility, I sought not simply to restrict the provision to cases of absolute discharge. I was trying to ensure that people conditionally discharged were not referred to the youth offenders panel. The purpose of the amendment was to avoid, in almost all cases, the need for referral to the youth offenders panel. The amendment tabled by the noble Lord, Lord Windlesham, is designed to introduce a discretion in the process. I believe that discretion at the lower end of the sentencing process was, and perhaps is, appropriate. Unfortunately, that is not being offered today.

As on previous occasions, I cannot support the total flexibility proposed by the noble Lord, Lord Windlesham. That would completely negate the primary aim of this imaginative new development by starving the new panels of referrals. I believe there is clarity in Clause 1. It clearly describes offences which do not require referral to the youth offenders panel:

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sentences that are fixed by law, sentences where a custodial option or a hospital order is envisaged or where an absolute discharge is appropriate.

There is considerable variation in sentencing in magistrates' courts. Some are more punitive than others, despite sentencing guidelines which have been recommended by the Magistrates' Association. Such variation often brings the sentencing process into disrepute. For example, a court in East Anglia may sentence a young person to a conditional discharge whereas a London court may give an absolute discharge for the same offence. The effect of that is striking. In one case the individual will be referred to the youth offenders panel, while in the other that would not be required. The weakness of the present provision lies in the way magistrates exercise sentencing discretion, thus allowing some to form part of a contract with the young offenders team while others are exempted under Clause 1 of the Bill. A law is a bad law if it does not treat individuals with equity when they commit the same or a similar offence.

The Government should look seriously at these variations in practice. Of course I appreciate that there is no single yardstick by which one can establish a uniform method of working in the courts and so allow trivial cases to be dealt with without having to refer them to youth courts. A little leeway at the lower end of the sentencing tariff will allow the use of discretion and thus introduce a more balanced approach to sentencing. Furthermore, it will reduce the workload of the youth offenders team. We must accept that some offences do not require youngsters to enter into a contract. I shall watch carefully the working of that part of the Act, and, if appropriate, shall return with amendments to future criminal justice legislation.

I accept that it is not the intention of the noble Lord, Lord Windlesham, to undermine the youth referral panels. However, there is a real risk that more magistrates than we care to imagine will dislike the idea of losing control of the disposal of young offenders to a panel, and may not use the referral process as envisaged in the Bill. If that were to happen, it would undermine the aim of Clause 1, which is to provide a more suitable form of sentencing for most young offenders who appear in court for the first time than could be provided in court.

Let us remind ourselves again of what would be lost if the proposed youth panel system were to be jeopardised by magistrates choosing to keep most cases in the youth court. The panel would be better able fully to involve the young person and the parents in discussing the offence, its impact on the victim and the steps that should be taken to make amends and ensure that there was no repetition. In the formal proceedings of the youth court, young offenders and their parents often fail fully to understand what is happening. The legal procedures can hinder the process of young people and their parents speaking and contributing fully to the discussion. A contract could be drawn up to concentrate on the best course of action to prevent reoffending, including attention to the welfare needs of the young

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person and his or her family; for example, family counselling, educational measures, and help to overcome drug abuse.

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