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Much of the debate has concerned what action the Government have taken to improve the welfare of the child—which is important—to prevent reoffending and to help with rehabilitation. I believe that the Government deserve credit for the changes that have been made in the past 10 years. We have introduced the Youth Justice Board, which has given a separate focus to youth justice matters, as well as local youth offending teams. Since noble Lords are always happy

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to quote organisations’ criticisms of our efforts, it is worth noting that the Audit Commission described youth offending teams as,

I pay tribute to them.

The Youth Justice Board has delivered significant achievements; it has improved victim and community involvement and introduced new programmes to support interventions and court orders such as the intensive surveillance and supervision programme. I think that that is part of what the noble Lord, Lord Lucas, wanted in relation to the young men he referred to. We have reduced delays from arrest to sentence for persistent young offenders. Again, that is a very important early intervention, which tries to stop offenders from going down the wrong path. We have seen, in the 1998 Act, the introduction of parenting orders which acknowledge the key role played by the family in the development of young people.

Of course we need to do more, and surely the purpose behind the range of court penalties introduced by the youth conditional caution is an example of doing so. We are also seeking to extend the use of youth referral orders by allowing one to be made on a second conviction when the young person concerned pleads guilty and has not had a referral order before. We see that as a very effective community sentence.

The noble Lord, Lord Hylton, is right to emphasise the importance of restorative justice. I am a committed supporter of restorative justice, particularly for young people. Restorative justice and reparation is a thread running through the youth rehabilitation orders and can be included in the programme’s activity requirement as unpaid work. The reparation order will remain a separate sentence beneath the youth rehabilitation order. We will also be piloting a new out-of-court disposal—a youth restorative disposal which will also be below the YRO but allow a young person to apologise for committing an offence and to take responsibility for their actions.

We will debate in detail the construct of youth rehabilitation orders. There is no doubt that preventing offending in the first place is the best way of tackling youth offending. Preventing young people entering the criminal justice system has to be the cornerstone of the Government’s youth crime strategy. The noble Baroness, Lady Stern, asked me about the joint responsibility between my department and the Department for Children, Schools and Families—a very helpful development in government responsibilities. We are still at the early stages of making it work effectively but I have no doubt that it is a very important change. I hope it leads to ensuring that children’s services generally are co-ordinated and that the youth justice system works much more effectively.

Many noble Lords are interested in the issue of restraint in juvenile settings, a matter we debated some months ago when I brought the statutory instrument to your Lordships’ House. As noble Lords will know, an independent joint review is being undertaken and we have to await the outcome. The age at which young

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people can be brought into court is an issue we will discuss later. We will discuss the whole question of thresholds, and I welcome that.

As I listened to noble Lords’ comments, I found myself in agreement with the philosophy and sentiments they expressed. We are concerned about the number of young people currently in custody. When young people are in custody, we want to ensure that the emphasis is very much on the prevention of reoffending and on rehabilitation. We have seen improvements in some of the educational programmes, but we need to do more. We have to ensure that when a young person leaves a custodial setting there is proper liaison and integration with services back in the community. That is why the link with the Department for Children is so important. At the same time, we believe that we have got the principles of the system right, with the emphasis on reoffending. I have no doubt that we will come back to this as we go through the Bill, and at a later stage. At this stage, I thank noble Lords for a very helpful debate.

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Baroness Stern: I thank all those who have contributed to the debate for their kind remarks, and the Minister for his very helpful reply. Listening to the debate reminded me yet again what a privilege it is to be a Member of your Lordships’ House. I think that reading it will encourage those, such as those who work for youth offending teams, who work in this field. Many of them are, I know, yearning for a clear ethical statement and some aspirations for the children whom they are trying to help. They know, as the noble Lord, Lord Judd, reminded us, that the long-term protection of the public depends on successful rehabilitation.

I am grateful to the noble Lord, Lord Kingsland, for pointing out that if these principles are to be effective, we need to liberate the judiciary to use its discretion and its wisdom in accordance with those principles. He is of course absolutely right. I have been listening to him in this House for many years now, and it seems to me that he is always right. I have been encouraged to have some further tĂȘte-Ă -tĂȘtes on this so that I can consider how to take it forward. On that basis, and for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Youth rehabilitation orders]:

Lord Kingsland moved Amendment No. 2:

“( ) a reparation requirement (see paragraph 24A of that Schedule),”

The noble Lord said: In moving Amendment No. 2, I shall also speak to Amendments Nos. 22 and 64.

It is quite clear to all Members of the Committee that the philosophy that lies behind the youth rehabilitation order is to establish a generic order. The Joint Committee on Human Rights welcomed in principle the idea of a generic community sentence, which, it says,

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The youth rehabilitation order encompasses lots of previous low, medium and high-effect orders in a single unit. I am therefore perplexed by the Government’s decision to keep reparation orders out of this hierarchy. The Government’s argument behind the generic principle is that, for example, intensive supervision and surveillance orders should be part of a single generic order, and that there is an inbuilt hierarchy in the generic youth rehabilitation orders. Therefore, why do they want to keep the reparation order separate? If we are to move towards a generic philosophy, it is vital that it is all encompassing.

The right honourable Mr Hanson, the Minister in another place, said:

But the menu of options set out in the Government’s list contains many low-level interventions that magistrates can use, and it is not clear how one can distinguish a hierarchy of measures, such as a limited attendance centre requirement or a limited activity requirement, and a reparation order. That is particularly true if the Government’s position is that intensive supervision and surveillance orders fall within generic youth rehabilitation orders. By implication, if I understand the Government aright, there is a hierarchy starting at the bottom and moving right up the scale to intensive supervision and surveillance orders. Surely it makes sense to have all the options available in a clear and methodical manner.

The points raised by the other two amendments are slightly different. They concern restorative justice, and I am sorry that the noble Lord, Lord Hylton, is not in his place—he has left the Chamber just at the crucial moment. One thing we know about restorative justice, or at least what we know from the experience we have had with it so far, is that it has been successful. The intervention works in what are often surprising ways. For example, it works not just for property crime, which is what people normally think of with restorative justice, but it also works for some sorts of violent crime. Moreover, it is capable on many occasions of helping the victim who has been the subject of a crime. My concern is that in practice some of the reparation orders do not go as far as they should, which is properly to address the issues of the offence with the victim. Quite often it simply means that there is an obligation on the offender to write a letter to the victim and do no more. That is the purpose behind the provision in Amendment No. 22 of a definition of what the reparation requirement should be.

Amendment No. 64, which is an amendment to Schedule 1, defines the reparation requirement in relation to a youth rehabilitation order as meaning,

I beg to move.

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Lord Bach: I am grateful to the noble Lord, Lord Kingsland, for outlining his amendments so clearly. I shall deal first with Amendment No. 2, which follows closely an amendment debated in Committee in another place. We believe that adequate provision is already made in the Bill and in existing law for reparation by the offender. It is our view and, I think, will be that of the Committee generally, that young people who have offended should accept responsibility for their actions. As part of this, where possible and depending on the nature and circumstances of the offence, the offender should be required to do something practical in reparation that will benefit the victim or alternatively the community as a whole. Offenders can be required to do things such as cleaning up graffiti, repairing community facilities or conservation work.

Making reparation to the victim of a crime is a central part of the youth justice system because it can assist with the rehabilitation of the offender and help the victim. That is precisely why we have made provision for reparation in the requirements of the youth rehabilitation order. Paragraph 8(2) of Schedule 1 to the Bill provides that as part of an activity requirement, a specified activity,

by the crime. Indeed, the Committee will have noticed the similarity between the words in paragraph 8(2) of Schedule 1 and the amendments tabled by the noble Lord, Lord Kingsland.

But what of the suggestion that reparation cannot be made available with other requirements? First, an activity requirement will always form part of the youth rehabilitation order, with intensive supervision and surveillance. It could feature as part of a programme requirement or, in the broader sense, take the form of an unpaid work requirement. Secondly, if reparation was wanted in addition to some other requirement, the court could impose an activity requirement the sole purpose of which is reparation.

Let me explain why we propose to retain the reparation order as a separate sentence beneath the youth rehabilitation order. It is to give the courts flexibility so that they do not have to resort to a youth rehabilitation order simply to ensure that reparation is made. During oral evidence to the Public Bill Committee in the other place, both the Youth Justice Board and the Children’s Society strongly supported retaining the reparation order as a separate sentence. The chief executive of the Youth Justice Board told the committee that,

A reparation order provides a separate sentence below the youth rehabilitation order in the sentencing hierarchy. Like reparation as part of a youth rehabilitation order, it is designed to reinforce personal responsibility and learning about the consequences of the damage the offender has caused to the individual and the community. We believe that the reparation order can be effective in preventing the escalation of offending behaviour before there is a need for the court to consider a youth rehabilitation order and, as such,

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should be retained as a free-standing disposal in its own right. I remind the Committee of what I am sure it knows well, that it can typically be combined with a fine.

As the amendments are drafted, the new reparation requirement would duplicate the provisions for reparation already built into the youth rehabilitation order, and I have referred to the part of Schedule 1 in which this appears. The amendments are not necessary in our view and do not go as far as the provisions already in the Bill. They risk causing some confusion to the courts, to the supervising authorities and, crucially, to the young person who is to be sentenced. For those reasons, I invite the noble Lord to withdraw the amendment.

On the noble Lord’s other amendments, reparation is a form of restorative justice. The youth rehabilitation order includes provision for reparation and therefore covers those amendments.

Baroness Carnegy of Lour: From the way in which the Minister has spoken, it sounds as though the reparation order can be made without the person being found guilty of an offence. Is that right?

Lord Bach: No. I am sorry if I gave that impression. Of course not; a reparation order is a part of the sentence of the court, as I understand it, for someone who has been convicted or pleaded guilty to a criminal offence. It cannot be imposed just because the court feels like it.

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Baroness Carnegy of Lour: I asked that question because there is a basic weakness in the whole concept of the orders in the Bill. To be found guilty of an offence very often makes the child more likely to reoffend, not less likely. We all know what children are like and, if they are found guilty, very often they come back and do it again. That is our experience of children and a lasting experience in the criminal justice system.

Many years ago I was on the visiting committee of a borstal. Borstals had very high aims and did a lot of very good youth work while people were in them, but the reoffending rate was enormous; only 11 per cent at that time did not reoffend. It simply did not work. I learnt at that time that to be found guilty does not necessarily make you less likely to offend again.

The menu of possibilities that the court may impose under the Bill contains many measures that one would hope might be taken regarding a child without them being found guilty of an offence—but in this context they are guilty of an offence. There is a basic problem in how to meet the Government’s aspirations through the order. The reparation motion is excellent and works better than most things, but again it applies only because you are guilty of an offence and you have to do it.

In thinking about all this, we have to realise that unless we can find a way of getting children to do some of these things without being found guilty of an offence, we will not get terribly far. I would have liked to have said that in the previous debate but I had to go to a meeting and knew I could not be in the

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Chamber for the whole thing, so I did not speak. We have a basic weakness in our thinking in England and Wales about this issue.

Lord Bach: I will come back to the noble Baroness. I am glad she made her intervention. She asked about reparation orders under Clause 1. As always, in my experience, she has a point. Youth conditional cautions are provided for in the Bill, and they are part of a pre-court disposal. In effect, as I understand it, the offender has admitted the offence and the discretion is used not to bring him or her before a court but to caution them. As part of the youth conditional caution, and this should please the noble Baroness to some extent, there can be an element of reparation or restorative justice. I hope that clarifies the issue. I have been addressing the amendment in the name of the noble Lord, Lord Kingsland, about reparation in the context of the Bill.

Baroness Linklater of Butterstone: I have great sympathy with the amendment. I read from around the House that there is a lot of support for both reparation and what the discussion has then slipped into, which is restorative justice. In order to retain clarity, it is important to realise that there is a real distinction between reparation and restorative practices, not least when, as happens quite often, victims are not at all keen on meeting the person who has offended against them. Restorative conferences require a great deal of work to be done with both the victim and the offender. I have had the good luck to be able to sit in on one or two restorative conferences and they are extraordinarily interesting and helpful, but they are not necessarily applicable in all cases. A lot of work has to be done. They are part of a continuum but they are definitely distinct and separate. I understand the Government’s position on keeping reparation separate because it has a role, but it is none the less part of a continuum of possibilities that should be available to the courts. There should be no confusion between the two.

Lord Kingsland: I thank the Minister for his reply. He suggested that one of the influences on the Government in taking this step was advice that had been proffered from outside. However, the Government will have had advice also from the magistrates, who have suggested that it would have been much better if reparation had been expressly included in Clause 1(1), as I have argued.

The Minister, like the right honourable Mr Hanson in another place, placed great emphasis on the reparation order being a low-level intervention. However, there are many other low-level interventions which are an inherent part of Clause 1(1). One can think, for example, of a limited attendance centre requirement or a limited activity requirement, which are just as low-level as a reparation requirement. What distinguishes them from the reparation requirement? What makes it appropriate for them to be incorporated, in circumstances where the reparation requirement is not?

I was dismayed by the Minister’s response, but, at this stage of the Bill, I do not intend to bring the matter to issue and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Kingsland had given notice of his intention to move Amendment No. 3:

“( ) an alcohol treatment requirement (see paragraph 24B of that Schedule),”

The noble Lord said: The amendment is grouped with Amendments Nos. 23 and 63. Your Lordships may have observed that we will come in a little while to similar amendments tabled by the noble Lord, Lord Avebury, which I have studied carefully and concluded are better drafted than mine—as I have frequently done in the past. In those circumstances, I shall speak to the matter as a humble hewer of wood and drawer of water when the noble Lord, Lord Avebury, introduces his own amendments in a little while.

[Amendment No. 3 not moved.]

Lord Kingsland moved Amendment No. 4:

The noble Lord said: The amendment raises intensive fostering, which is not to be confused with the normal fostering obligations that lie on a local authority for general welfare purposes. The evidence we have so far suggests that intensive fostering has great potential to keep a child out of custody, but does that only when it is properly implemented. The Government have pilot projects in, I think, three counties, the results of which are being analysed by the University of York. So far, the results are extremely encouraging. The real issue is the cost, because although intensive fostering is potentially very successful, it is extremely resource-consuming and therefore very expensive. What is more, the expense falls not on the criminal justice system and its budget, but on the local authority in the area where the child is located.

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