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Viscount Brentford: My Lords, I have found this a difficult question to which to return. However, I have been fully persuaded by my noble friend Lady Carnegy of Lour that the amendment proposed by my noble friend Lord Windlesham should not be accepted.

Referral to a youth offender panel should be obligatory in the circumstances and situations set out in Clauses 1 and 2 because I fear that magistrates might be unwilling to use the new scheme to the full. As I have said previously, I am very keen on this new proposal. It has been in the pipeline for several years and, at last, we are placing it on the statute book. Every encouragement needs to be given for the referrals to be made.

Magistrates do not always make the right decisions. I was in a police car earlier this year and watched a criminal event taking place. I recently heard that what I regarded as criminal behaviour was not so accepted by the magistrate and the person was let off. Therefore, I come down strongly on the side of acceptance of the Commons amendment, which I back, for the reasons more fully and eloquently explained by my noble friend Lady Carnegy.

Viscount Runciman of Doxford: My Lords, I shall be brief. I was mainly in agreement with the noble Lord, Lord Windlesham. However, I wholly accept that there are arguments on both sides and I am sure we all support the objective of the legislation. I merely want to ask the Minister whether he will make clear what seems to be the strongest grounds on which the Government are insisting on maintaining their position; namely, not that they do not trust magistrates to do what they are there to do, but that in this particular instance the Minister is afraid that for some reason magistrates will be unwilling to use a power that has been placed in their hands precisely to meet the kind of cases in which we all agree that it should be used. It has not been clear to me in any of the previous discussions why it is the Minister's belief--which must be the case to be consistent with his position--that he does not think that magistrates will do what he feels the interests of justice require.

Lord Cope of Berkeley: My Lords, the main issue is the simple one of the discretion of magistrates. We all support restorative justice and concur with the setting up of the new panels. We hope that they will be as successful as we all believe they may be. We should have preferred magistrates to preside over the panels and for the police always to be represented on them. However, we are not arguing about those matters today.

The noble Earl, Lord Mar and Kellie, pointed out that the description in the amendments before the House has altered slightly, so as to make this an act of sentencing, which previously it was not. That seems to be a secondary order point or, if anything, lower in the hierarchy of points that might be made. Nevertheless, I welcome the change of wording. Being sent to a panel, which can result in a loss of freedom for the young

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offender, or in that person having to pay money, will be seen by the young person as a sentence, and that is the correct description. The question that we are considering today is whether magistrates should be obliged to send young first offenders to the new panels in most cases, subject to the exceptions that have been set out. We should much prefer it to be an option for magistrates.

There are two arguments in the opposite direction. The first is that some magistrates will not be happy with the idea of panels and will use any option that is given to them so as never to send young offenders in this category to the panels. Personally, I doubt that that will happen. My noble friend Lady Carnegy is right to say that we cannot be sure at this point whether the panels will do the job that we hope that they will do, or whether they will work as well as we hope in the form in which they are being set up. But if they do work, I believe that magistrates will be keen to send young offenders to them. They will not hold back from doing so if it is in the general interest that they should; namely, if it leads to less offending, particularly among youths--and we are all worried about the amount of youth crime and the way in which some youths move from small to larger crime. I do not believe that magistrates will in general hold back, provided that the process is seen to work. Of course there will be Benches of magistrates who will be keener on the idea from day one. If the process does not work very well, other magistrates will hold back from sending youths to the panel. But if the process works as we hope it will, magistrates will use it. That is one of the reasons why it is important to provide an option.

The second argument is about sending a message to those who are likely to offend for the first time. I doubt whether the question of whether it is statutorily essential for magistrates to send young people to a youth panel or have an option to send them to the panel will be weighed in the balance with an first offender. I do not believe that appearing before a panel would be so much of a deterrent as would a conventional sentence. In any case, I do not believe that the nice point with which we are dealing will be weighed heavily in the balance.

We on these Benches prefer this to remain an option in the way in which your Lordships changed this aspect of the Bill. This is not a party point. We support my noble friend Lord Windlesham.

Lord Williams of Mostyn: My Lords, once more I am most grateful for the way in which the noble Lord, Lord Windlesham, introduced this matter with his usual courtesy, accuracy and lucidity, which makes my task much easier. He set out the store so plainly that there is nothing I need add about the consequences of the order.

I have thought carefully about these matters. It is plain that there is a division of approach. Fundamentally, on all sides of the House everyone is agreed that the new referral order should be supported. Therefore, the question on which we disagree is what should be the triggering mechanism. The more I have reflected on what has been said the more I have concluded how lamentably little sentencers know in an area where they could know more. When one is at the point of sentence, the material available will necessarily

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be limited. That is not the fault of magistrates but a necessary consequence of the way that we sentence young people.

It was said that a number of your Lordships who had spoken, from the former Lord Chief Justice down, for whom I have the greatest respect, had had great legal experience as sentencers. I agree. However, that body of past sentencing experience has not been enormously productive in the outcome experience of young first-time offenders who plead guilty. One needs to focus with great care on the component population of which we are speaking. We are concerned with young first-time offenders who have pleaded guilty. If we fail that component we know what will happen. Those young people will have arid and wasted lives, the prison population a few years later will rise and they will end up with unproductive, unhelped lives.

The heart of the dispute has already been defined. The question is whether or not this target group should have referral orders in virtually every case. The exceptions have been properly described: custody; obligatory sentences in the circumstances described by the noble Lord, Lord Windlesham, or absolute discharge. In answer to the noble Lord, Lord Runciman, we want to ensure that every one of the target group I have defined is given the opportunity that attendance at a youth offender panel offers. We say that in those circumstances it should be virtually automatic.

Very often the court system, particularly for young children who enter it for the first time, does not assist at all. The processes, structures, delays and procedures often militate against a young first time offender having the informed assistance and help that he or she wants. It is said that the magistrates have all the facts at their disposal when they come to pass sentence. In a deeper sense I do not believe that that is true. They are aware of the immediate circumstances of the offence, and they should retain responsibility in terms of proportionality in deciding whether custody or an absolute discharge should be imposed. As indicated earlier, they decide the length of the order.

We believe that the present system denies sentencers the deeper understanding of the needs of children and young people. As a consequence, sentences have not been appropriate. Sometimes, the sentences have not been firm enough, not in the sense of being punitive but in the sense of giving directed assistance and support, which is the critical aspect of the new scheme. The referral order has built-in flexibility, as the noble Lord, Lord Dholakia, pointed out. It requires the offender to attend meetings and agree a programme of activity. Many of them have never had any structure to their lives at all. The terms of the contract can be infinitely flexible so that it is suited to different offenders and offences. We seek to take away the present limiting straitjacket from the sentencing process.

It is interesting to see how views have crystallised. Everyone who has spoken has a deep involvement and interest in these matters, and there has been a virtually even--not in numerical terms--division in the way that we propose to proceed. The more I have thought about it the more certain I have become--not because we have

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said it once and, therefore, to say it three times makes it acceptable--that the views expressed by the noble Baroness, the noble Lord, Lord Dholakia, and the noble Viscount, Lord Brentford, among others, are right.

There is one other minor point. It is always the one that is not of the greatest importance. I must remind the House that the amendment to Clause 1, which we agreed by a majority of four, was flawed in that the references to compulsory referral orders remain throughout Part I of the Bill. I simply put that to the House because it is my duty to do so. It does not bear on the validity of the argument. The more I have reflected on this matter the more I am convinced that the views expressed by the noble Lords I have mentioned are right.

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