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If we take the area of youth justice, the need for those principles becomes even more evident. Where children and young people have broken the law, it is a combination of other factors, including inadequate parenting, poor life skills and familial and social causes that has led this person down the route that they have taken. The noble Lord, Lord Judd, reminded us of the stark statistics of deprivation and the speeches of several other noble Lords will indicate to the Minister how contested this area will be.
In dealing with measures on youth offending, the current approach is to have a range of measures of differing requirements. While the replacement of the previous orders with youth rehabilitation orders may be more straightforward, the prescriptive nature of several of the measures envisaged in Part 2 gives cause for concern. We will explore the rationale behind legislating in statute for certain areas, rather than allowing for the greater discretion to be built into the system, bearing in mind the circumstances of each individual case.
Moreover, at this stage, we are not convinced that the Bill incorporates adequate safeguards for children and young people to be treated as far as possible outside the custodial sentencing regime. As the report of the Joint Committee on Human Rights points out,
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We will also seek to explore the rationale behind elements of Part 6 of the Bill, which seeks to extend the adult conditional caution scheme to young people aged 16 and 17. It seems that the constructive engagement intended for young people in order not to criminalise them, which should be the basis of cautions, has, through the addition of “conditional”, turned into a sentence. We intend to explore whether the options available to young people through this measure will be proportionate, workable and suitable for that age group. Before I leave this area, I must say to the noble and learned Baroness, Lady Butler-Sloss, that we look forward to hearing more about her amendments—they sound intriguing—and seeing whether we can work with her on them.
Many noble Lords have expressed concerns about violent offender orders. My noble friend Lord Thomas foreshadowed our broad concerns with these orders, not least their extremely broad reach. As Liberty points out:
“At the heart of these is the extraordinary scope available for the imposition of restrictions on individual freedom”.
Restrictions for the type of offender envisaged here already exist within the current system, not least through imprisonment for public protection measures, licences and parole measures. If the scope of these orders in practice is wide—that is, overly generalised—and the conditions are overly restrictive, they may well be in breach of Article 7 of the ECHR. We would be back in the territory of relegislating, as we have had to do with terrorism. The JCHR report points out that these orders are analogous to control orders and serious crime prevention orders. In this case, to satisfy the requirement of legal certainty, at minimum an indicative list of the types of prohibitions, conditions or restrictions that might be imposed should be published. We intend to press Ministers on that point in Committee.
A further issue relating to violent offender orders is the danger of excessive use and the numbers that could be imprisoned. According to the Prison Reform Trust, when the proposal was announced, it was suggested that the orders would lead to an increase of 3,000 in the prison population. I understand that the Government contest this figure and expect smaller numbers of prison places being taken up. However, in the words of the Prison Reform Trust, ministerial estimates in past debates, such as on indeterminate sentences for public protection, made during the passage of the Criminal Justice Act 2003, have been confounded by reality and serve to demonstrate the importance of properly debated and drafted legislation.
I echo the disappointment of the noble Baronesses, Lady Howe and Lady Stern, that an opportunity to act on the report of the noble Baroness, Lady Corston,
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Many noble Lords have spoken today on many aspects of the Bill that we will have an opportunity to review further. We have had a considerable number of briefings and many hundreds of pages of advocacy. In the weeks ahead we will no doubt hear elegant and erudite perspectives on issues of concern. My noble friends have identified several areas where we will probe, question and debate the purpose and workability of the laws envisaged. As ever, it is our intention to work constructively with all sides to improve what seems yet again to be hastily prepared and ill-thought-through legislation. We hope that by the end of this process we will have law which serves both the criminal justice system and society better than the current system.
8.01 pm
Lord Kingsland: My Lords, in a characteristically graphic and entertaining simile, my noble and learned friend Lord Mayhew of Twysden, compared the contents of this Bill to those of an ironmonger’s shop. I think that he might have been slightly unfair to the profession of ironmongery. It seems to me, rather, that the Bill as it has arrived at your Lordships' House is a vast exercise in political displacement.
The noble Lord, Lord Elystan-Morgan, argued that the fact that the Bill does not have a single theme should not be the basis for condemning it; and I agree with him. Many criminal justice Bills have miscellaneous provisions and inevitably have to cover a wide range of different offences. But I do not think that the core of the criticism of the Bill is its lack of a single theme; it is its failure to grapple with the central problems that the criminal justice system is facing.
One very good example exhibited today is that of youth crime. The Government had only to listen to the noble Baronesses, Lady Howe, Lady Stern and Lady Linklater, the noble and learned Baroness, Lady Butler-Sloss, and many other of your Lordships who have, in no uncertain terms, underlined the deep shortcomings of the Government’s approach to youth offenders and youth crime. The Bill contains many new dispositions for offences which carry imprisonment; and yet we know very well that there are no places for people to go to prison, let alone courses in those prisons to rehabilitate the prisoners who are sent there. Much of the Bill also makes disposition for community offences, but community offences are in a state of crisis. Not only is there underinvestment in them but there is also a deep lack of public confidence in community dispositions for a whole range of reasons which need facing up to in the immediate future. Our main criticism is the Bill’s failure to confront the reality that our society has to confront today in this sector.
My noble friend Lord Henley rightly pointed out to your Lordships that much of the Bill was unscrutinised in another place. The scale of this lack of scrutiny is staggering. I give just one example. At the Report stage of the Bill the following new clauses were introduced:
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Inevitably, I cannot look at every provision in this Bill, and so many of them have been so adequately dealt with by your Lordships that it is not necessary for me to do so. So, I will turn my attention to two or three issues, the first being youth rehabilitation orders. Under the Bill the court is given an immense menu of different requirements to impose on a young offender. It can impose an activity requirement, a supervision requirement, an unpaid work requirement, a programme requirement, an attendance centre requirement, a prohibited activity requirement, a curfew requirement, an exclusion requirement, a residence requirement, a local authority residence requirement, a fostering requirement, a mental health treatment requirement, a drug treatment requirement, a drug testing requirement and an education requirement. Are the Government confident that they have the resources to meet all these dispositions or, indeed, any of them? What analysis have the Government done on the availability of resources to underpin this very important new order? What kind of guidance will judges get on the hierarchy of these orders? Are they all of equal weight? Are some more important than others? Are some to be given in clusters or can they be given singly? What happens if there is a breach of an order? Is it one strike and you’re out or is the child sent back to do the particular task again? Perhaps the Minister can enlighten us on this. There appears to be no lower age limit for these orders. For example, could a 10 year-old be subject to a youth rehabilitation order? The Minister may not be able to answer all these questions now but I should be most grateful if he would respond as best he can. The most important point that has been made about youth rehabilitation orders and all the youth provisions in the Bill is that the Government have not sought to put them in their social and welfare context. That is the message that the Minister should take away with him tonight.
The noble Baroness, Lady Kennedy, the noble Lord, Lord Neill of Bladen, the noble and learned Lord, Lord Lloyd of Berwick, and others spoke about Clause 42 and, I believe, Clause 104. It is not necessary for me to repeat the substance of the argument on Clause 42; it was extremely well argued by those who spoke. However, I want to emphasise a point behind it. I believe that the noble Baroness, Lady Kennedy, underlined the crucial point about what I summarise as due process—that the Court of Appeal has a duty to ensure due process irrespective of the outcome of the trial. This duty rightly undermines the Government’s amendment.
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In a way I suppose we should not be surprised to find the Government seeking to undermine due process because, if we look back at their history in relation to the conduct of criminal trials since 1997, we see that there have been many attempts to undermine due process. For example, there have been sustained attempts to remove jury trial, not just from fraud cases—many of your Lordships will remember an earlier attempt to limit the number of defendants who had the right to opt for jury trial in the Crown Court. It was only because of the determination of your Lordships’ House that we saw that off—and rightly, too. One of the most terrible depredations of the criminal trial process was the change in the rules on propensity in the 2003 Act—changes that I hope will be reversed some day. Then, in another context, we saw the denial of the requirement to make a prima facie case by someone who faced extradition. Your Lordships may well remember the attempt to oust judicial review altogether in certain cases.
Those examples would have been unthinkable before 1997 and I see Clause 42 in exactly the same context; it is yet another attempt to undermine due process. I am afraid that one of the difficulties we have to face is, curiously enough, the Human Rights Act, because this Bill has been certified as conforming to that Act. It is right that jurisprudence on the continent does not entertain the kind of criminal process that we have—jury trial—so there is no case law in the Human Rights Act. The Government have been quite cute in saying that all these provisions conform to the Human Rights Act. We badly need to fill that gap in our law and bring back the old common-law protections for the criminal process that the Government have sought to abandon, piece by piece.
Many noble Lords spoke to Clause 104 on the appearance of non-lawyers in contested cases in magistrates’ courts. The clause is astonishing. We spent most of last year considering a Legal Services Bill that was intended to improve the supervision of lawyers appearing in criminal or civil cases—whether they were barristers or solicitors. The strictest possible regulation is now imposed on a member of the profession. The next thing that the Government do is to say that it is perfectly all right for non-members of the profession to appear as lawyers; and, of course, they are not regulated. I regard that as rank hypocrisy by the Government and I do not understand what the origin of this can be, unless, as the noble and learned Baroness, Lady Butler-Sloss, said, it is economic.
Is it actually economic? Is it economic to take people out of the CPS, who would normally be doing the kind of things that they do in the CPS, and let them take a lot of time off to appear in the magistrates’ court? We had this battle during the Access to Justice Bill in 1999. Until then members of the CPS were not allowed to appear as counsel in criminal trials. The Lord Chancellor, the noble and learned Lord, Lord Irvine, took the Bill through your Lordships’ House and the Government decided to give the CPS rights of appearance in the Crown Court. I was very surprised that the Bar Council did not oppose that, but the Opposition certainly opposed it—and rightly, too—because there is a basic conflict of interest between being employed by the
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At the time, the noble and learned Lord, Lord Irvine, assured the House that an independent barrister would be unavailable only in a very few cases. In fact, it has become almost regular practice in certain parts of the United Kingdom. I wonder, quite apart from the principle, whether that makes economic sense. I am sure that the CPS says that it does. Does it really make sense for these people who are employed in an organisation that prepares the background to the trial then to appear in the trial, day after day, week after week? We may well need to test this matter in Committee.
Many other matters will be before us in Committee. Two will be of particular interest—blasphemy and homophobic hate. They are issues upon which the Opposition’s view is that we will have a free vote. I listened carefully to what my noble friend Lord Waddington said in his outstanding speech. I will not trouble the Minister any further on other issues at this moment, but will allow him to wait and see the amendments emerge. I wish him luck and look forward to hearing him.
8.15 pm
Lord Hunt of Kings Heath: My Lords, I look forward to receiving those amendments from the noble Lord. The noble Lord, Lord Low, challenged me to say that in general, despite a few positive comments and so on, the Bill has been warmly welcomed. I am not going to say that. We have had a serious and important debate and, of course, my noble friends and I who sit on the Front Bench look forward to intensive debate during the next few weeks on the important matters raised by noble Lords. A “hotchpotch”, “curate’s egg”, “ragbag”, “ironmonger’s shop” and other apt or not-so-apt phrases, depending on your point of view, have been used.
I am not going to trade on the number of Bills that my Government have passed in relation to criminal justice with the number that the Conservatives passed. That shows a certain familiarity with the way that criminal justice Bills have been developed over the years and the noble Lord, Lord Elystan-Morgan, had important points to make about that. I accept, of course, that a considerable number of clauses were introduced in the other place. Actually, the Bill was in Committee for 47 hours and a further eight hours were given over to the remaining stages so we should not underestimate the time taken. However, I fully understand that your Lordships’ House will bring its customary energy to scrutinising the Bill.
We will consider very carefully the points made by the noble Earl, Lord Onslow, and the noble Baroness, Lady Stern, on the Joint Committee on Human Rights. I am sure that during our debates on amendments we will discuss the recommendations made by that committee. On the issue of lessons to be learnt from the legislative process, of course we want to learn lessons from legislation that has not fulfilled the purpose for which it was designed. Noble Lords have referred to the Governance of Britain Green Paper and the intent of the Government to rebalance the role of Parliament
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The noble Baronesses, Lady Howe and Lady Stern, were disappointed that the Bill is not being used as a vehicle to put into practice the report of my noble friend Lady Corston. The timing is not right for that, but two valuable debates will come up in the next 10 days on women’s justice issues and the report of my noble friend Lady Corston. The Government have largely accepted the recommendations of my noble friend’s report. I say to the noble and learned Lord, Lord Lloyd, while not repeating our debate of last week on the structure of murder offences, that I hope that he will accept that this is not shelving. We are attempting to look at the partial defences first and then to come back to the overall framework.
Since I have been in this position, we have had a number of interesting debates on youth justice. I know that this subject is dear to the hearts of all noble Lords. We are all concerned about the rate of offending and reoffending. The position at least is stable, with rates of reoffending by young people having fallen by 3.8 per cent since 1997. Of course, that is no excuse for complacency. I understand the points raised by noble Lords about the use of custody for young people, and about the intent of the youth justice system in general. I assure the noble Baroness, Lady Stern, that we are responsive to the concerns expressed about the use of physical restraint in under-18 establishments. We debated the statutory instrument and set up an independent joint review. That is currently taking evidence and is due to report to Ministers in April.
On the wider question of youth justice, we accept the need to look at this in a comprehensive way—to consider what more can be done to prevent children and young people coming into the criminal justice system, to make more effective use of the time that they spend in the system and to reduce reoffending. There is nothing between us on these matters and proposals on how to tackle this will be set out in a youth crime action plan, to be published in the summer. I listened with interest to the noble and learned Baroness, Lady Butler-Sloss, and I am sure that whatever the fortunes of the many amendments that she is going to put down, they will certainly feed into this wider review and be very useful.
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On the question of youth rehabilitation orders, I will respond in detail to noble Lords in writing. The intention is that the requirements, which will apply to 10 to 18 year-olds, will be flexible enough for each youth rehabilitation order to be more onerous than the last and to address directly the offending behaviour. I agree with the right reverend Prelate about the need for proper tailoring. We expect youth offending teams to work with the courts to provide them with appropriate information that they can use to help them decide which requirements should be attached to the orders. I do not know whether that has convinced the right reverend Prelate but the intention is certainly to have a kind of hierarchy with the emphasis on preventing reoffending.
I well understand that we shall have a debate on the threshold, although I point out to noble Lords that the courts already have to have regard to whether a custodial sentence is justified. We will also debate the purpose of juvenile sentencing. The Bill makes it clear that, when dealing with young offenders, the court must primarily have regard to the principal aim of the youth justice system, which is the prevention of offending by young people. It also makes it clear that the court must have regard to welfare needs. However, when a court is sentencing a young offender, welfare needs never have taken, and in our view should not take, priority over the prevention of offending. We shall come back to that matter and also to the UN Convention on the Rights of the Child.
I turn to the subject of the Prison Service, about which we had a lot of very interesting comments. The allegation is that, through various legislative programmes, the Government are engaged in knee-jerk reactions to media attention on the problems that we have with the prison population. I have started to visit prisons again over the past few months and, although the Prison Service is under considerable pressure at the moment, I pay great tribute to the improvements that have taken place. I have seen an enormous improvement in healthcare in prisons. There is more to be done and that is why we have the review of mental health issues, but we have also seen much more effort being made in relation to educational and housing support for those leaving prison. There is much more to do but let us pay tribute to what has been achieved.
I know that we will be discussing Titans, although they are not subject to legislative provision. I emphasise that the noble Lord, Lord Carter, proposed large campuses, which could benefit from investment in good design and management but could also have smaller units where the benefits of smaller-scale institutions could be brought to bear.
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