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We have just been taking the Children and Young Persons Bill through this House. I have been struck by the fact that the contributions to this debate so far are very similar to those on the other Bill, which concerns

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another group of people of the same age going not into custody but into care and preventing them getting involved in the criminal justice system. I could not help wondering why there was a disconnect, with similar people with similar needs being dealt with by different ministries and different Bills. Why is that? It seemed to me symptomatic of this monster Bill, which I can only describe as the “and another thing” Bill because it looks as though everyone has dumped their in-tray into it and added a mass of incoherent subjects. However, if there is one subject that has coherence, it seems to be youth justice.

At the moment, I am also involved in helping a number of people to come up with ideas for an academy. It is an attempt to produce a new style of establishment for young offenders and young people where those who are homeless, those who are sentenced to community work and those sentenced to custody can come together on one site. There will be a custody element with something called a “foyer”, of which there are 100 in the country, dealing with the homeless, and there will also be people from the community so that the young people can be given work, education and other treatment locally on site so that they do not have to go too far.

Guiding this academy have been my former deputy—the person whom I mentioned earlier—and another former young offender establishment governor, who said that, before going any further, the principles of the establishment had to be clearly set out. To complement what the noble Baroness has proposed, I should like to read out the core principles that these two experienced people have come up with. They illustrate what is badly needed—coherence in the way that youth justice is administered at present and which is missing from too much in life. The core principles are:

Added to the voice of experience and wisdom, which is behind the amendment, I think that the management of youth justice in this country would be better if these principles were clearly laid down for the people who are responsible for producing the legislation.

Lord Lucas: I entirely agree with what the noble Lord, Lord Ramsbotham, has just said and I feel immensely privileged to have heard it. It tackles the only part of the amendment that I have any trouble with, which is proposed new paragraph (b). Deprivation of liberty has a function—at least to the extent that my noble friend Lord Onslow and I experienced it in our youth. You need to manage the peer group of some of these young men. In particular, a lot of young men look to their peer group for socialisation and for a lot of what they get out of life. They value themselves

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according to the way that they are looked at by their peer group. If a person has got into the wrong peer group, you need to find some way of breaking that. To put them into a situation where their peer group can be managed is important. If that is to succeed, you then need a way to take that experience and translate it to the lives of these children.

That is one of the main difficulties in having such a sharp divide between custody and life outside. They learn to survive inside; if it is a good place, they may well develop some good habits inside, but all their old mates and all their old ways are waiting for them when they get out. With something graduated, as the noble Lord, Lord Ramsbotham, has just described, there may be a real hope of using custody as a means of breaking a bad cycle with a child and then letting that child back out into their own community in such a way that they can take that learning with them. At least it is worth trying.

It is wonderful to listen to these conversations, but I have great doubts about whether the Government have any real interest in rehabilitation. In the main prison estate, they are expanding numbers and cutting budgets. Where do they think those budget cuts fall? On security? No way. Prison governors are judged by whether people escape or not. The budget cuts are falling on education and time out of cell. Prisoners are spending more and more time in front of television. If daytime television is a way to learn better habits, I do not know what the Government wish us all to become.

An emphasis on rehabilitation takes money, time and effort, which is not what the Government are giving the Prison Service. It would be wonderful to live in a world that is governed by the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham, but we do not have it at the moment.

The Earl of Listowel: It is a pleasure to listen to the noble Lord, Lord Lucas. He will be aware that the high level of churn in the youth justice system, meaning that children are kept a long way from where they are going to be resettled, makes it difficult to make that transition effectively. As the head of a teaching unit in a secure training centre said to me, “When these children leave here, it is as if they were walking off a cliff”. There is no follow-through.

May I ask three questions of the Minister? First, why is there this discrepancy between the practice of child custody in this country and that of our neighbours? Secondly, there have been a number of deaths of children in custody, but there has not been a single death of a child in a local authority secure unit—one of the small local units which have been discussed. If the amendment is redundant and the best interests of the child are already at the forefront of the Government’s mind, why has their policy not been to expand in this area? Is not the Minister concerned that so many 16 and 17 year-olds are kept at 60 young people to a wing, with just three officers managing them?

My final question relates to a recent conversation with a German forensic criminologist. I paraphrase, but he said: “We admire the research in the United Kingdom on outcomes for children”. I hear this from

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many quarters. We know in great detail, in a way that continental countries do not, how poorly, I am afraid, our most vulnerable children often perform. He says that he uses the evidence in speaking to legislators and authorities in Germany. He says to them, “Look, the more you imprison people, the more they reoffend. If you use community sentences, they reoffend less”. Is the Minister persuaded by the argument that an overheavy use of custody actually puts the public at more harm, as it encourages recidivism? These matters need to be thought through. I support the drive of the amendment and look forward to hearing the Minister’s response.

4.30 pm

Lord Kingsland: I rise to respond to the amendment so brilliantly introduced, as the noble Baroness, Lady Howe of Idlicote, said, by the noble Baroness, Lady Stern. I do not think that anyone in the Committee, least of all the Minister, would dissent from any of these three principles. As the noble Lord, Lord Elystan-Morgan, said, that the best interests of the child should be the paramount consideration has been part of our legislation since 1989. The idea that the,

has appeared in countless official reports and is a standard part of guidance to magistrates and judges. Proposed new paragraph (c) states that,

Well, we are signed up to many international conventions that require us to follow this line.

If this measure were to reach the statute book, its quality might be added to by a provision (d) that dealt with reoffending, a point emphasised by the noble Lord, Lord Judd. As my noble friend Lord Onslow said, we incarcerate more children than any other country in western Europe; he might have added that we do so less successfully than any other country in western Europe. At least 75 per cent of children in custody, as all your Lordships know, offend again.

The question is what the real value would be of having such a set of principles on the face of a statute. We all know that these principles are, as principles, binding on the Government. The problem is that the principles are undermined by the details of our legislation on youth offending. The Government’s great mistake has been to attempt to micromanage the judges. However well disposed a judge might be to the principles and however much he might wish to apply them to an individual in front of him, he is stuck with an obligation in an Act, a direction from the Lord Chief Justice or an obligation deriving from some other source to act contrary to the principles.

If these principles are to bite, the amendment tabled by the noble Baroness, Lady Stern, will need more than she has put in it. It will need an extra provision that allows the judge to override the specific details of the statute by the principles if he or she considers them appropriate in the circumstances. As all your Lordships know, judges can, when considering evidential points in criminal trials, exclude evidence if its prejudicial effect on the trial will outweigh its probative value. If the noble Baroness, Lady Stern, added to her amendment

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a similar power that a judge could override a specific statutory provision which went contrary to these principles if he considered that the principles in this case were overriding, that might have some real effect in our system.

Later we shall be dealing with the question of what happens if a youth rehabilitation order is breached. At present there is a certain flexibility that even if an order is breached three times within 12 months, a discretion can still be exercised by the court not to resentence. Often when someone is resentenced, he is sent to custody. What do the Government want to do now? They want to remove that discretion. If there have been three breaches in 12 months the judge is obliged to do it, and more children will end up in custody. Those principles, splendid though they are, will be of no help to the judge unless he can override the details of the legislation.

I am not saying that if the noble Baroness were to introduce an amendment with that kind of force that I would necessarily support it.

The Earl of Onslow: Surely the solution to my noble friend’s problem is for him and the noble Baroness, Lady Stern, to get together. The amendment could be withdrawn at this stage and they could jointly table an amendment on Report that would solve the problem that my ever observant noble friend has pointed out.

Lord Kingsland: I am always extremely tempted by the idea of getting together with the noble Baroness, Lady Stern, and I would certainly be delighted to talk to her about this amendment. But I was feeding her with a thought on which she might like to capitalise later. The issue is about the detail of the Bill. Courts need enough clear water to apply those principles properly and they do not have that. It is not just this Government; previous Governments have been similarly obsessive about refusing to let go of the detail. How can any legislation anticipate a set of circumstances that may confront a judge? That is why the courts need as much discretion as possible. That is true for sentencing generally, but above all it is true for youth sentencing.

Lord Hunt of Kings Heath: This has been a very interesting debate. I shall not intrude on the conversation between the noble Lord and the noble Baroness, Lady Stern, although no doubt we will see the outcome on Report.

I welcome the opportunity given to us by the noble Baroness to debate the general principles. She has been ingenious in how she has done it, and it will be helpful to our later discussion. I must reiterate that the Government see custody as a last resort. The reasons in the Bill, particularly in the first part, are entirely consistent with that approach. We believe in rehabilitation—clearly that has to be an incredibly important part of what we seek to do in the youth criminal justice system.

I understand the desire to set out principles at the front of the Bill. That is usually the desire of noble Lords for any Bill on which I have taken part. As it is now nearly 10 years since I first took a Bill through

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your Lordships' House, it is a debate that I have frequently witnessed. I did not agree with the line of argument of the noble Lord, Lord Kingsland, because I think that there will always be a balance in terms of discretion on sentencing. When we come to the breach question, we will discuss that further, where the Government consider that there needs to be some mandatory action to show people that there is a bite against breaches. However, the noble Lord pointed out one of the problems in putting a set of principles in the Bill without understanding what impact it might have on other legislation where principles are also set out. I know that that sounds like a rather techie detail, but it is an important consideration.

The Government's view is that the principal aim of the youth justice system is set out in Section 37 of the Crime and Disorder Act. The Act imposes duties on anyone involved in youth justice to have regard to that aim. There are issues about how the set of principles proposed by the noble Baroness would fit with that, and with Clause 9, which says that the principal aim of sentencing is the prevention of offending. I have no difficulty whatever in defending that as the rightful aim. We will debate later the question of the best interest of the child. That is clearly vital. There can be no question about that, but there are other factors to be taken into account, such as the interests of victims and the public—not in the pejorative sense, as was used in what was described earlier as media frenzy, but a reasonable view of the public.

I fully understand the concerns about the number of young people in custody. We have also heard from the Committee concerns about particular aspects of experience within custody. I respect those views.

The Earl of Onslow: Will the Minister find out—because I am sure that he will not have the answer now—the difference in reconviction rates between children in Finland, where the locking-up rate is 0.02 per 100,000, and the United Kingdom, where the rate is 23 per 100,000? That would surely tell us something. It would be a guide as to where we can get some information.

Lord Hunt of Kings Heath: I do not have that information, and I would always caution noble Lords against too simplistic comparisons between different countries. In the end, we have to decide our own destiny, taking account of the experience of other countries. I am very happy to go away to see what information I can find and will be happy to circulate it to noble Lords who have taken part in the debate and put it in the Library of the House, if the noble Earl would like me to do so.

The Earl of Onslow: I accept that one is not comparing complete like with complete like, but I do not think that one is comparing apples with pears. It would tell us if we are doing it wrong, which, to my way of thinking, with 23 per 100,000 locked up as opposed to 0.02 per 100,000, we probably are.

Lord Hunt of Kings Heath: I accept the noble Earl's point. It is difficult to make direct comparisons, but I will see what we can do. I also said that we are

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concerned about the number of young people in custody. We recognise that there need to be changes. That is what the first part of the Bill is about. We also recognise that we have to do more for those young people who find themselves in custody. There is no argument about that at all. However, we cannot ignore the need to address the concerns of victims and the wider general public to provide assurance that effective action is being taken to prevent and reduce offending by young people. The contrast between debates in your Lordships’ House and in another place is interesting. We have to take note of the views of elected Members in many regards, but I reiterate that we see custody as the last resort for young people. It is a requirement that sentencers must already ensure that where custody is imposed it is of the shortest length necessary and commensurate with the seriousness of the offence. I say to the noble Lord, Lord Kingsland, that we hope that gives discretion to sentencers. None the less, in their capacity, they have passed those custodial sentences.

Of course, any child in the youth justice system should be treated with humanity and respect. That is their fundamental human right and it is already enshrined in human rights legislation. Nobody who was a Minister in my department could wish otherwise for the people who are, in a sense, in our care.

I know that we will debate the question of human rights, the United Nations and whether this country meets the requirements of that charter. The fact is that we think we are consistent with it. We believe that the requirement to use custody as a last resort ensures that the court must not pass a custodial sentence unless the offence or offences are so serious that neither a fine nor a community sentence can be justified.

4.45 pm

Lord Elystan-Morgan: I am most grateful to the Minister. I am sure he will accept that, some 25 years ago—it may be longer; I cannot remember the exact date—this House passed a criminal justice Bill that ordained, among other things, that imprisonment should never be used save in circumstances where a court certified to the effect that the offence was so serious that no other form of disposal would be justifiable in the circumstances. I think that those are the exact words, though they might not be as it is some years since I retired. As that is the case for imprisonment generally, I have two questions. Is that a thousand miles away from what is proposed in paragraph (b) of the amendment? If it is, would the Government be prepared to insert the general words of the statute to which I referred to apply now to children and young persons as well?

Lord Hunt of Kings Heath: The noble Lord has a remarkable memory, as I am discovering. His contributions are always apt. But I think that the answer must be no, because we consider that the current legislative provisions already meet the case in point. As I said earlier, there is a genuine problem about simply enunciating principles in the Bill, however attractive, because of the implications they could have for other legislation.

A number of noble Lords, including the noble Lord, Lord Ramsbotham, raised the question—I am sure we will return to it later—of what the noble Lord

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described as the “disconnect” between criminal justice legislation and legislation relating to children and young people that often refers to the responsibility of local authorities. I fully understand the issue. There is no question but that the child’s welfare should be the court’s paramount consideration. Nor can there be any doubt that certain bodies should have regard to the need to safeguard and promote the welfare of children. That is provided for, for instance, in the Children Act 2004. However, the Children Acts were not intended to apply to a criminal court when sentencing a young offender, because we believe that the court also has other considerations such as the protection of the public. That is why we believe that the prevention of offending has to remain the principal aim of the court when sentencing a young person. However, courts do and should continue to have regard to the welfare of a young person, which is where the 1933 Act is so important.

When a court is sentencing a young offender, it never has given, and in our view it never should give. The welfare of the child priority over the prevention of offending.

Lord Mayhew of Twysden: How does what the Minister just said about the welfare of the child remaining the paramount consideration chime with the passage in new subsection (4) in Clause 9 on the purposes of sentencing? Those are:

If what the Minister said is really the Government’s intention, should there not be some amendment of that list to incorporate reference to the welfare and well-being of the child?

Lord Hunt of Kings Heath: I do not think so because other legislation relates to that point. I have already referred to the Children and Young Persons Act 1933, which deals with the welfare of the child. It is difficult to put a set of principles in the Bill when other legislation relates to the overall points I have made. I know that this is complicated, and it is sometimes frustrating that not everything is in one place in the legislation. That is probably the very point that the noble Baroness, Lady Stern, seeks to make. New subsection (2) in Clause 9 states:

In addition, new subsection (3)(b) in Clause 9 refers to the Children and Young Persons Act 1933, which takes into account the welfare of the child.

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