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I am certainly not an expert but in the new approach to targets for local government, apart from giving much greater discretion to local authorities about which targets they choose, there is a much greater effort to get much greater consistency of approach because of the duty of partnership now laid on the partners of local government at local level. You cannot wave a magic wand and have that happen overnight, but it is part of our aims. It is the reason why joint responsibility between my department and the department for children on youth justice matters is so important.
On Amendment No. 5, the Government's view is that custody is already a last resort for young people. The Judicial Studies Board, in the Youth Court Bench Book issued in March 2005, emphasised that. I assure the Committee that we will be seeking the help of the Sentencing Guidelines Council to issue guidance on sentencing, especially on youth rehabilitation orders.
I refer the Committee to Section 152(2) of the Criminal Justice Act 2003, which states:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence”.
The Bill makes it even clearer that custody is a last resort. I must say that we do not think that our approach is out of step with what is envisaged under the new clause contained in Amendment No. 5. I cannot offer an absolute undertaking, but I can agree to take this back to see what the Government can do with it.
I hope that that shows that I do not disagree with many of the philosophical viewpoints that have been put forward. Also, on the question about people being placed in custody for minor offences, sometimes the tables are a little misleading. I offer to write to the Committee with a broader explanation. Many offences in the table, which may include robbery, for instance, would not be listed as violent. There are issues about the description and categorisation on which I offer to provide an aide memoire, if noble Lords would find it helpful.
6.30 pm
Turning to Amendment No. 6 I accept that, in every case where a court is contemplating a custodial sentence for a child or young person, the court ought to consider whether a youth rehabilitation order with intensive supervision and surveillance or intensive fostering is appropriate before resorting to the sentence of ultimate severity. I agree with the noble Baronesses, Lady Linklater and Lady Falkner, over the importance of that option for the courts.
The problem that we have, which was hinted at by the noble Lord, Lord Kingsland, is accepting the proposition that the court cannot impose a custodial sentence unless the young offender has previously received a youth rehabilitation order with intensive supervision and surveillance. Of course, we see ISS as a last step before custody. Indeed, it has been designed for those young offenders who would, if it did not exist, be subject to a custodial sentence. We are at one with the noble Baronesses on that.
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We believe that the Bill provides adequate safeguards to ensure that ISS is used as a direct alternative to custody. The points raised about experience by the noble Baronesses are interesting. The aim of ISS was to reduce the frequency and seriousness of subsequent offending among persistent offenders. Research shows that the frequency of offending in the intensive supervision and surveillance sample went down by 39 per cent over two years. I know we can all trade figures and I am always urging caution in that regard, but that must have some encouragement for all of us.
I am discovering that “uptariffing” is the word used in criminal justice circles. I understand what is meant by that and it is not good. It is to be avoided but we know what we mean. We are obviously concerned about that and our hope is that sentencing guidelines will assist sentencers in ensuring that penalties are appropriate.
There has been a very interesting debate about the balance between micromanagement, to which the noble Lord, Lord Kingsland, referred, and discretion to the judiciary. It depends which argument we want at any one time and we all have to be cautious and recognise that there is always a balance. There are times when the Government consider it is right to be prescriptive, and there are circumstances in which discretion needs to be given to the judiciary. We will argue about that.
However, we have the problem that the detention and training order is the only custodial order available to the youth court. Generally, it is the sentence available to the courts for a juvenile who has committed an offence which, if committed by an adult, would be liable to a maximum sentence of less than 14 years’ imprisonment. All the same, as the noble Lord, Lord Kingsland, suggested, it means that it is available for some very serious offences. For example, an offender may have committed several violent offences previously and not received a youth rehabilitation order with intensive supervision and surveillance or intensive fostering. The clause as drafted would preclude the courts from imposing a custodial sentence where it deemed it necessary. For that reason, we have problems with Amendment No. 6, although I hope noble Lords will recognise that we do not have any disagreement at all with the general principle of it being used as a last resort for custody.
Lord Thomas of Gresford: These are not philosophical musings on this side of the Committee, as the Minister seems to suggest. We are dealing with practicalities and realities. “Last resort” is always mouthed. It has been mouthed for the last 15 years that prison is the last resort, but political pressure has driven the judiciary, whether at the magistrates’ court or the Crown Court, to increase sentences over and again. “Retariffing”, or whatever word the Minister used—
Lord Thomas of Gresford: Uptariffing, which sounds like something to do with swans, has been going on due to political pressure from both governing parties over the last 15 years. We look to this Government to
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Lord Hunt of Kings Heath: I wish I had never used “uptariffing” and I will now never be forgiven or forgotten for it.
I did not mean to imply that the debate was a meandering of pleasantries that had no impact on the reality of young people in custody or going through the youth justice system. If noble Lords thought that, I apologise. I take this issue very seriously indeed.
As far as political pressure is concerned, inevitably we are all conditioned by public opinion and there has been a debate for some years about the appropriateness of custody. However, I think I have made it clear from what I have said today that we regard custody as the last resort. The development of youth rehabilitation orders is a reflection of that, and intensive supervision and surveillance programmes are part of that philosophy.
I have said that I have a problem with Amendment No. 6 because we think it would unduly fetter the discretion of the judiciary. I am very willing to take back Amendment No. 5 to see whether the Government could support it or something like it.
Lord Elystan-Morgan: I express my joy and gratitude at what the Minister has said concerning the intention that there should be a directive issued by the Sentencing Guidelines Council in relation to youth sentencing. As the Committee will well know, it is a most high-powered body presided over by the Lord Chief Justice.
Under the Criminal Justice Act 2003, a breach of the guidelines does not render a sentence unlawful, but it is within a whisker of that result because the clearest hint is given to the Court of Appeal that the sentence would be unsupportable. For that reason, what the Minister has said has come very near to everything that would have been achieved by the amendments we have been discussing on a declaration of custody being the last resort. In other words, I regard the Minister as being almost totally rehabilitated. I wonder whether he could give us some idea whether the publication of such a guideline would coincide roughly with Royal Assent.
Lord Hunt of Kings Heath: I cannot answer that because it is not for me to dictate to the guidelines council. It will have to give careful consideration to it. Of course, I can well understand why the noble Lord wishes to see the guidance available as soon as the Act was brought into operation.
Baroness Carnegy of Lour: When the Minister talked about my remarks about the Government giving a lead, he seemed to think that what I was asking for was a lead on the subject of how most people are all right. What I was asking for was a lead on whether custody actually works for young people. Does the Minister think that the Government would be prepared to say that custody is damaging for most young people? That is what I was asking.
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Lord Hunt of Kings Heath: Clearly we are not satisfied with the outcomes of custody for many young people. Alongside the statement I have repeated that this should be seen as a last option, the introduction of youth rehabilitation orders and the other programmes, it is clear that we need to do much more in terms of educational programmes and reintegrating into society young people who have been in custody. That is where our joint work with the Department for Children, Schools and Families is so important.
I am afraid that custody, although a last resort, is a necessary option. We recognise that we have to do much more for those young people who are placed into custody.
Lord Ramsbotham: Once in a young offender establishment, an elderly senior officer admitted to me that until a speech and language therapist had explained to him how he could deal with young people, he and his colleagues had been damaging them because they had been treating everything as bad behaviour and punishing them accordingly, rather than getting to the root of what was wrong. I believe that that goes to the heart of the administration of young people’s justice.
Baroness Falkner of Margravine: Before the Minister loses his train of thought on Amendment No. 6, I should like clarification on something he said that confused me. He suggested that Amendment No. 6 would rule out the ability to bypass the system on the sentencing of certain offences. Does he not accept that Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000, or “dangerous offender” sentences under the Criminal Justice Act 2003, cover all the serious and potentially serious violent and sexual offences? Examples are murder, manslaughter, arson, rape, sexual assault, GBH/wounding with intent, firearms/prohibited weapons use/possession/distribution and robbery/assault with intent to rob, domestic burglary/aggravated general burglary and drugs class A to C production/supply/possession with intent to supply. All those things would still stand where they do.
Lord Hunt of Kings Heath: My understanding is that the amendment applies to detention and training orders. They can still be given for some serious offences, such as inflicting grievous bodily harm and even racially aggravated grievous bodily harm. I am happy to write to the noble Baroness with more details, but the advice I have been given is that what most people regard as serious crimes could be encompassed within her amendment.
The Earl of Onslow: We have gone on for more than an hour and I thank all noble Lords who have spoken. In the debate on a previous amendment, I quoted the Benefit of Clergy and the general confession. On this amendment, we will move from the Book of Common Prayer to the King James Bible, which says something about there being no joy in heaven greater than that of a sinner that repenteth. I thank the Minister; it is a bit unkind to put him in the position of a sinner—perhaps he is a minor misdemeanourer. He has said that he will take the amendment away, for which I am extremely grateful.
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When I give speeches to schools, I always start by saying, “The youth of today show no respect for their elders. They have no manners and they are idle and feckless”. One watches the faces becoming angry. One then says, “Don’t worry, that was written on clay tablets in Sumeria 2,500 years ago”. We must not, at our advanced age, think that the youth of today are any worse or better than we were. I wince with embarrassment when I think of some of the things that I and my friends did as children, or even slightly older—actually, yesterday, now I come to think of it. Having said that, I really am pleased that the Minister will take this away. I have not bounced this by the noble Baronesses, Lady Linklater and Lady Stern, but before he brings it back, perhaps we could see him and decide whether we can have an input. I am pleased that the noble Baronesses are acknowledging this.
I was very impressed by the comments of the noble Lord, Lord Ramsbotham, about targets. I do not think that that is totally germane to the amendment, but it is germane to what is going on behind it. That is something for policy rather than amendment—I do not quite see how it could be worked into an amendment. I thank the Minister for what he has said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 pm
Baroness Linklater of Butterstone had given notice of her intention to move Amendment No. 6:
In section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (offenders under 18: detention and training orders), after paragraph (b) insert—
The noble Baroness said: I have already spoken to this amendment. I thank all those who participated in a debate which I think is central to the Bill. I am particularly grateful to my noble friend Lady Carnegy of Lour—she is indeed a friend. There has been no dispute, except perhaps with the Minister, who appears still to think that our amendment would in some way curtail options. Perhaps once he has read Hansard, he will review his position.
Lord Hunt of Kings Heath: I do not think I am allowed to reply.
The Chairman of Committees (Lord Brabazon of Tara): If there is to be a debate on the amendment, it must be moved.
Baroness Linklater of Butterstone: I beg to move.
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Lord Hunt of Kings Heath: This is Committee stage, and I take the opportunity to say that I believe that the advice I have received is right. However, I will write to the noble Baroness setting out in detail the reasons for that, so that there can be further consideration.
Baroness Linklater of Butterstone: In that case, I thank the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Further provisions about youth rehabilitation orders]:
Lord Bach moved Amendment No. 7:
Schedule 1, page 150, line 10, leave out “or an officer of a local probation board” and insert “, an officer of a local probation board or an officer of a provider of probation services”
The noble Lord said: In moving Amendment No. 7, I shall also speak to Amendments Nos. 8 to 11, 18, 21, 24 to 27, 42, 42A, 50 to 62, 63A, 64A, 179 and 180. These are miscellaneous, minor and technical amendments, but, out of courtesy to the Committee, I intend to speak briefly to them. They come in two batches: I will deal first with Amendments Nos. 24, 63A, 64A, 179 and 180, which make up the smaller batch.
Amendment No. 24 ensures that the provisions in Part 1 are properly aligned with Armed Forces legislation and vice versa, and that the provisions fully reflect the new probation arrangements in Part 1 of the Offender Management Act 2007, which are to come into force in phases from 1 April 2008. Amendments Nos. 63A and 64A to Clause 7 simply remove definitions which we have concluded are redundant in this context. Amendment No 24 to Schedule 1 ensures that the schedule reflects the special sentencing powers of service courts. Amendments Nos. 179 and 180 to Schedule 36 ensure that the Armed Forces Act 2006, which applies the Criminal Justice Act 2003 for certain purposes, reflects the amendments made by the Bill to that Act. The amendments ensure that the civil and military sentencing frameworks remain in balance.
The remaining amendments in this group, starting with Amendment No. 7, are necessary to make reference to Part 1 of the Offender Management Act 2007. They ensure that the duties and responsibilities that the provisions on youth rehabilitation orders place on local probation boards are also placed on other providers of probation services. Noble Lords know that the Offender Management Act 2007 places the statutory duty for the provision of probation services on the Secretary of State. The Secretary of State may make provision himself, or may contract with other organisations to provide those probation services. Any other organisation, whether public, private or third sector, that is so contracted will be referred to as a provider of probation services. The staff delivering these duties will be known as officers of a provider of probation services.
During its passage through Parliament, the then Offender Management Bill was amended to ensure that probation services delivering assistance to courts would be carried out by public-sector providers. This measure can only be repealed by an order, subject to the affirmative procedure. An order subject to the
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Phased implementation is planned for the introduction of Part 1 of the Offender Management Act 2007, with the first phase being implemented from 1 April this year. There will be references to both local probation boards and providers of probation services on the statute book in the short term. These amendments update the Criminal Justice and Immigration Bill to reflect the dual references to both local probation boards and providers of probation services. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendments Nos. 8 to 11:
Schedule 1, page 151, line 2, leave out “or an officer of a local probation board” and insert “, an officer of a local probation board or an officer of a provider of probation services”
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