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However, the effect of Clause 9 of the Bill is to subordinate the best interests of the child to the status of a secondary consideration below the primary consideration of crime prevention; in other words, to treat the welfare of the child as a mere supporting factor. In our view, the Bill should be amended to delete the provision which subjects the duty to have regard to the welfare of the child to the primary duty to have regard to the principal aim of the youth justice system. We also believe that the Bill should state that the sentencing court is required to have regard to the welfare of the child as a primary consideration as required by the convention.
I have a second point about the consistency of the Bill with our international obligation. If your Lordships glance at proposed new Section 142A(4) in Clause 9, which they will have already done, they will see the statement about the purposes of sentencing, which are:
- “the punishment of offenders ... the reform and rehabilitation of offenders ... the protection of the public, and ... the making of reparation by offenders to persons affected by their offences”.
These purposes seem to me to be indistinguishable from the purposes set out for adult sentencing. How do these purposes differ from the purposes of adult sentencing?
As the Minister is well aware, we are signatories to more than one international convention which make it absolutely clear that the approach to sentencing children is entirely distinct from the approach to sentencing adults. I find none of this in the proposed new section in Clause 9, despite these obligations. So what has driven the Government in setting out a series of purposes, as they have done?
Lord Hunt of Kings Heath: Like the noble Lord, Lord Kingsland, I think this has been a riveting debate and it has been a real privilege to have listened to the contributions of noble Lords. In one sense there was quite a profound disagreement; on the other hand, it is quite clear that all of us share the same aims. I will seek to reflect that in my response.
I am very sympathetic to the pressures on young people and to the many concerns that have been expressed about the condition of society in which many of them find themselves. Anyone who has been or is a parent will understand that. Call me old-fashioned but I think the great majority of people know the difference between right and wrong and that when someone has done something wrong, they should be punished for it. I do not think that is a knee-jerk reaction from the media.
The Earl of Onslow: The more we go on with this, the more I want to come back to what the noble Lord, Lord Ramsbotham, said about the child in the Bulger case having a mental age of four. Of course the knee-jerk reaction in a case like that, because one is so horrified by what has happened, is to tear the little brute to pieces and feed them to the cat, or whatever. That is what one’s immediate emotional reaction should be. But if the child has a mental age of four at the age of 10, that child cannot possibly understand the meaning of punishment. So the adult reaction
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Lord Hunt of Kings Heath: I am not going to comment on the Bulger case. Of course there will be situations in which a child cannot understand that what he or she has done is wrong. Clearly you need a system that will respond to that. I was just making the general point that most people understand and support the idea of punishment. In my early days as a councillor in Oxford, I represented—I am not going to call it a sink estate because that would be pejorative—a council estate that had many challenges. Notwithstanding the difficult circumstances in which some young people are brought up, it is striking how many of them manage to do the right thing. One has to bear that in mind when considering these matters.
This debate has taken place in the context of custody. The noble Earl, Lord Listowel, particularly focused on children who find themselves in custody. I hope I have made clear that this Government believe that custody is the last resort, that the construct of youth rehabilitation orders is to strengthen the whole community sentencing structure and that we see YROs and the general policy direction we wish to see embraced as one where punishment can be constructive.
Baroness Linklater of Butterstone: I am grateful to the noble Lord for letting me intervene. I just wonder what he means by punishment. It is such a wide-ranging word and notion. In what he is saying at the moment, what does he mean by punishment?
Lord Hunt of Kings Heath: I mean that people have to face up to the consequences of what they have done through the various sanctions that are in place. But as part of that sanctioning process, there can be constructive programmes, hence the emphasis on the prevention of reoffending. I agree with what the noble Earl, Lord Listowel, said about some of the issues around social care and fostering. We took part in the Children (Leaving Care) Bill a number of years ago which reflected on some of the very poor outcomes of children in care. There is much that we need to do for those children who end up in custody but we should not run away from the fact that punishment is part of the framework we are dealing with.
7 pm
Lord Judd: Language is important. Sometimes the way in which we use language suggests that the differences are greater than they are between us. My noble friend suggested very good terminology himself a few moments ago, when he said that sanctions might be necessary. Let us consider a loving parent bringing up a young child who is being very difficult—I think of my grandchildren at the age of 4 or whatever. It is not punishment that is required; it is spelling out to them that, if they behave in an
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Lord Hunt of Kings Heath: I understand that, but there is always a danger that, because in this day and age we are sometimes so frightened to call a spade a spade, we are disingenuous and people do not understand exactly what we mean. There is a real debate to be had about—
The Earl of Onslow: I take up what the noble Baroness, Lady Linklater, said. In certain circumstances, punishment means retribution. We are not, I hope, talking about punishment as retribution. If we talk about punishment as education or help, we can happily talk about it. Punishment also should have an element of deterrence. In an article on capital punishment Lord Gardiner, when he was Lord Chancellor, said that retribution, deterrence and reformation were the three points of punishment. One cannot use the word “punishment” only as retribution, and I slightly got the impression that the Minister was doing that. I am trying to help the noble Baroness, Lady Linklater, as well as the Minister. I am even sometimes thinking my own thoughts out loud to get to the bottom of this complicated matter.
Lord Hunt of Kings Heath: I do not disagree with what the noble Earl said. I hope that I did not give the impression that I saw punishment simply as retribution. I think that I said earlier that it could be part of a constructive approach to helping young people move away from the circumstances in which they commit crimes and helping them to rehabilitate and not to reoffend. On a technical point, I wish to make it clear that, although punishment is listed first, it is not a hierarchical list. The purposes of sentences have equal weight, but they are subject to the principal aim of the youth justice system.
One of the glories of these debates is that Members of the Committee read out my answers because they have already been placed on the record. I do not want to bore the Committee by repeating that. However, I shall speak a little on Clause 9, which is designed to clarify the current law in order to remove confusion and to bring sentencing into line with the rest of the youth justice system. It is interesting that this has been welcomed by a number of relevant organisations. The Magistrates’ Association welcomes the clarity that the clause will introduce for magistrates when they are sentencing youths in the court. The Youth Justice Board welcomes this clarity, which would further emphasise the principal aim of the youth justice system. Interestingly, the Nacro response, is that, in view of the principal aim of the youth justice system to prevent offending, as set out in the Crime and Disorder Act 1998, it is congruent to make this more clearly the purpose of sentencing. It is also interesting that, in December 2006, the Standing Committee for Youth Justice, said that it believed that
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Members of the Committee have again referred to Article 3 of the UN Convention on the Rights of the Child and the need to ensure that in all actions undertaken in a court of law the best interests of the child are a primary consideration. The Government believe that, while of course that is the position, it should not be “the” primary consideration. I realise that there is a bit of problem of semantics between “a primary” and “the primary”. The noble Earl knows what I mean, even if he thinks that it is an incorrect use of English.
The Earl of Onslow: If we have got any sense, we cannot put into law something that is not crystal clear. All that does is give my learned friends larger pay cheques, and we surely do not need to do that.
Lord Hunt of Kings Heath: We certainly do not want to do that if it will drain my legal aid budget.
I accept that clarity is very important, and we hope that the clause provides clarity. In the first instance, when sentencing a young offender, the court should have regard to and the primary consideration should be the prevention of reoffending. We have a justice system that exists to tackle crime and, at its heart, needs to address offending or reoffending behaviour. Of course, it is the duty of the court to take into account the needs and interests of victims and the wider community, as well as those of the offender. We remain convinced that work to prevent offending must be in the young person’s best interests. A young person’s welfare must be considered in the sentencing process, which is why the courts are required to have regard to the welfare of the young offender. The courts are required to do that at present, and they will continue to do that.
Much of the primary responsibility for the welfare of young people lies with the youth offending teams and service providers who have day-to-day responsibility for the child. In practice, it should be the responsibility of the youth offending teams to provide the court with the welfare background as part of the information provided in the pre-sentence report required before a community sentence may be made. The pre-sentence report is a key to effective working of the youth rehabilitation order, as it will act as a source document for the court’s decision-making process. The pre-sentence report needs to include all relevant details on the young person and put forward recommendations to the court on appropriate interventions.
On the youth rehabilitation order, the recommendations should cover which requirements are appropriate and what their duration should be on the basis of an assessment of the individual young person’s needs. While I accept that it is fundamental that a criminal court, when sentencing a child or a young person, should have regard, as one of the primary considerations, to the welfare of the child, we cannot accept that that should override other considerations that a criminal court must take into account.
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I know that the noble Lord, Lord Kingsland, asked me about Clause 9. The advice that I have received is that new Section 142A(3)(b) in Clause 9 is not subordinate to the purpose of sentencing, the principal aim of which is to prevent offending. Having considered what the noble Lord said about our international treaties, we said to the JCHR—we believe that we were right—that we thought that we were compliant with our international obligations.
Baroness Butler-Sloss: The Minister will forgive me for interrupting. In family cases and in others, the phrase “best interests” has very frequently been equated with welfare. It is a primary consideration under Article 3. Does the Minister really think that new Section 142A(3)(b), which refers to having,
is the equivalent of a primary consideration? My interpretation is that it is coming a long way down the scale. I accept what the noble Earl, Lord Onslow, says, but it is certainly not up the scale, as a primary consideration would be.
Lord Dholakia: There seems to be a considerable difference of opinion between the Minister’s understanding of Clause 9 and what is interpreted by many of us on different Benches. Does he intend to produce a code of practice that will give some substance to what he is saying, in terms of the interpretation of Clause 9 for sentences? If so, would it be possible to see a draft of such a document before Report?
Lord Hunt of Chesterton: There would be the intention of producing sentencing council guidelines, which would not be ready before Report, but I will certainly see whether I can provide further information to noble Lords in this area.
I take seriously the comments of the noble and learned Baroness, Lady Butler-Sloss. The advice I have received is that the construction of the clause meets the requirement. I will certainly have a look at it between now and Report to double check that that is so. I have to take her very seriously—
Lord Kingsland: The noble Lord is being interrupted inordinately, but he did make a point about my construction of the convention. I disagree with the advice that the noble Lord has received about the CRC. The only way in which Clause 9 can possibly conform with the CRC is if new Section 142A(2) reads, “The court must have regard to the principle aims of the youth justice system, which are to prevent offending or re-offending by persons under 18, and have regard to the welfare of the offender”.
Lord Hunt of Kings Heath: I understand what the noble Lord is getting at. It will be helpful if I reflect on this in the light of those comments and come back. The clear intent is that the welfare of the child, as enacted in the 1933 Act, has the effect that I have stated. Clearly, it would be helpful if I had a look at that.
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The Earl of Listowel: Could the Minister say when, as a matter of course, as the YOTs are preparing these reports, a clinical psychologist is involved? That goes back to the earlier debate about the maturity of the child. That is the key professional, as I understand, who is turned to, to decide what level of development a child has reached. YOTs are well respected, but there is some concern that they do not have the welfare emphasis that they might have. It is welcome that the Minister is going to consider whether the welfare aspect of this could be reinforced in some way.
Lord Hunt of Kings Heath: I did not say that. I said that, in view of the comments of the noble Lord, Lord Kingsland, and the noble and learned Baroness, Lady Butler-Sloss, I will double check to make sure that the clause meets the requirements on the Government in relation to the consideration that needs to be given to the welfare of the child, which is a primary consideration but not the primary consideration.
On the question of the availability of different professionals to youth offending teams, I cannot say that every YOT will always have access to a particular professional. If the noble Lord, Lord Ramsbotham, had intervened, he might have asked for a speech and language therapist as well. It is clear that it is right that YOTs should have access to proper advice, guidance and help. That is one of the aims that we seek to achieve.
The Earl of Listowel: I hear what the Minister says, and I am grateful for his response. I do not know if the noble and learned Baroness, Lady Butler-Sloss, would agree with me, but, if we are dealing with vulnerable children and are looking for good professionals, I would be grateful to hear a little bit more about the involvement of clinical psychologists in giving advice to the teams. The reports are clearly crucial to getting the right response. If there is not sufficient availability of this, it would concern me.
7.15 pm
Lord Kingsland: There was a second issue that I raised about the conformity of Clause 9 with our international obligations, and that related to new Section 142A (4), on the purposes of sentencing. As I recall it, I asked the noble Lord how those four categories differed from the purposes of adult sentencing. On the face of it, there is nothing here that is specific to children, despite the fact that we have accepted in a number of international conventions that the principles of sentencing for children are quite distinct from those for sentencing for adults. I would be most grateful if the Minister could respond on that matter.
Lord Hunt of Kings Heath: Surely the response is in new Section 142A(3), on the regard that the court must have to the welfare of the offender. We have debated exactly what that means, but surely that is the distinction: it is contained there, and therefore it is a consideration?
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Lord Kingsland: Those are the principles, but these are the purposes of sentencing. It is quite a distinct matter from the previous clauses. What I am interested in is how these purposes differ from those for adult sentences.
Lord Hunt of Kings Heath: I may be dense—
Lord Kingsland: No one could accuse you of that.
Lord Hunt of Kings Heath: The point that I am making is that the court must have regard to a number of matters. It has to have regard primarily to the aims of the youth justice system, so that that in itself is surely a distinguishing mark. Secondly, it must have regard to the purposes of sentencing mentioned in new Section 142A(4) and Section 44 of the Children and Young People Act. That is surely what gives it its distinction.
Lord Thomas of Gresford: I am most grateful to all noble Lords who have taken part in this interesting and crucial debate.
I underline the fact that we are dealing with offenders under 18. I became a recorder in 1974. That is probably the lowest rung on the ladder of judicial preferment. When, in 2002, I received a letter from a civil servant in the Lord Chancellor’s Department, I was still standing on the same rung. During those 28 years, I had experience of the Crown Court as a sentencer, and I had experience of the problems of the people who were brought before the court—
Lord Thomas of Gresford: I am most grateful to the noble Earl. He is always very helpful to me.
The Earl of Onslow: Is the noble Lord just about to withdraw his amendment? If so, there is one thing that I would like to say before he does. A look of despair crosses the face of the noble Lord, for which I apologise.
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