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On Question, Motions agreed to.

Pension Protection Fund (Pension Compensation Cap) Order 2008

Occupational Pension Schemes (Levies) (Amendment) Regulations 2008

Occupational Pension Schemes (Levy Ceiling) Order 2008

Baroness Thornton: My Lords, with the leave of the House, I beg to move the three Motions on the Order Paper standing in the name of my noble friend Lord McKenzie of Luton.

Moved, That the draft orders and regulations laid before the House on 7 and 27 February be approved. 11th and12th reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.—(Baroness Thornton.)

On Question, Motions agreed to.

Offender Management Act 2007 (Consequential Amendments) Order 2008

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 6 February be approved. 10th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.—(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

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Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008

Baroness Royall of Blaisdon: My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend Lord Adonis.

Moved, That the draft regulations laid before the House on 5 March be approved. 13th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.—(Baroness Royall of Blaisdon.)

On Question, Motion agreed to.

Baroness Royall of Blaisdon: My Lords, I beg to move that the House do adjourn during pleasure until 5.30 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 3.40 to 5.30 pm.]

Criminal Justice and Immigration Bill

5.30 pm

Report received.

Clause 1 [Youth rehabilitation orders]:

Lord Kingsland moved Amendment No. 1:

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

The noble Lord said: My Lords, this amendment is in identical terms to the one tabled in Committee on 5 February and debated between cols. 978 and 981. I have no intention of repeating my opening remarks, but I shall summarise them. The youth rehabilitation order embraces a number of previous low, medium and high-effect orders in a single unit. I expressed my bewilderment at the Government’s decision to keep reparation orders out of the hierarchy and, in reply, the noble Lord, Lord Bach, drew my attention to paragraph 8(2) of Schedule 1, which provides that as part of an activity requirement a specified activity,

I accept that, within the framework of a youth rehabilitation order, it is possible, inter alia, to require reparation. However, I say with great respect to the Minister that that is not the point of my amendment. The point of my amendment is to ensure that all possible dispositions open to the court should be within the framework of the youth rehabilitation order; yet the legislation clearly provides that a reparation order can be made in its own right. I think that the noble Lord, Lord Bach, justified that by saying that the reparation order was a low-level sentence and that the courts ought to have the option of making a low-level order without engaging the mechanisms of a youth rehabilitation order.

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If that is so for a reparation order, surely it should also be so for other low-level orders, such as a limited attendance centre requirement or a limited activity requirement. What is it about reparation orders that distinguishes them from other low-level orders and entitles them to have a classification that is quite distinct from that contained in a youth rehabilitation order? I am a great supporter of the youth rehabilitation order and the amendment is in no way intended to undermine that excellent initiative. However, I believe that, having made that initiative, the Government should have the courage to include all the dispositions within its framework. I beg to move.

Lord Bach: My Lords, we return to the issue of reparation and this amendment, which was debated in Committee. I note that the noble Lord was “dismayed” by the response that I gave during the debate on the amendment. I am a little confused about what could have prompted such a strong reaction because I believe that our position is straightforward. This amendment is not needed. As I attempted to make clear last time and as was made clear by my honourable friend in Committee in the Commons, provision is already made for reparation to be part of a youth rehabilitation order. Apart from that, reparation is also available as a separate order where a youth rehabilitation order is not imposed.

The value of reparation within the youth justice system is well known; indeed, it was alluded to in Committee. We all agree that young people who have offended should accept responsibility for their actions. As part of that, the offender may be required as part of the activity requirement of the youth rehabilitation order to do something practical—ideally, something that will benefit the victim or the community as a whole. Examples were given of things that offenders could be required to do, such as graffiti cleaning, repairing community facilities or conservation work.

As the noble Lord said in moving his amendment, we have made provision for reparation in the requirements of the youth rehabilitation order. Paragraph 8(2)(b) of Schedule 1 to the Bill—at page 115 of Volume II—provides that an activity requirement,

If what is needed is for the young offender to take part in a specified activity such as attendance on a Prince’s Trust programme and the court would also like to include a reparation element, the court can achieve that by imposing a youth rehabilitation order with an activity requirement. Under paragraph 8(2) of Schedule 1, that may include an activity whose purpose is reparation. The court may also use the activity requirement solely for the purpose of reparation while including another requirement, such as a curfew order, in the youth rehabilitation order. The amendment would achieve nothing more than that.

Reparation can also form part of other requirements attached to the youth rehabilitation order. First, an activity requirement will always form part of the youth rehabilitation order when it is linked with intensive supervision and surveillance. It could also form part of a programme requirement or, in the broader sense,

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take the form of an unpaid work requirement. In addition, I repeat that we propose to retain the reparation order as a separate sentence beneath the youth rehabilitation order. That will provide the courts with flexibility so that they do not have to resort to a youth rehabilitation order simply to ensure that reparation is made. The reparation order represents a proportionate response to a low-level offence—of minor criminal damage, for example—where the more serious sentence of a youth rehabilitation order would be excessive. That ensures that there is still a hierarchy of community disposals and retains the emphasis for sentencers that the youth rehabilitation order is the highest community sentence. During oral evidence to the Commons committee, both the Youth Justice Board and the Children’s Society strongly supported retaining the reparation order as a separate sentence.

As drafted, the new reparation requirement in the amendments would duplicate the provisions for reparation already built into the youth rehabilitation order. They are not necessary and do not go as far as the provisions already in the Bill. It was never intended that all court dispositions should come within the YRO. We are combining all the previous youth community orders, such as the supervision order and the activity order, into one community sentence. Other dispositions remain outside the YRO, such as referral orders, financial compensation orders and fines. Our position is logical and maintains reparative activity as a key theme within the youth justice system. For that reason, we invite the noble Lord to withdraw his amendment.

Baroness Miller of Chilthorne Domer: My Lords, I am sorry that my noble friend Lady Linklater is unable to be with us, which is, as the House will know, for health reasons. Will rejecting the amendment mean that the position of reparation orders in the hierarchy as the Minister has explained it has less bite in relation to funding? One of the difficulties of supervising reparation orders is that there is just not the funding for supervisors. In a scheme fairly local to me, the young offenders were engaged in almost exactly the sort of activity that the Minister described: cleaning up a wall. The person who had initiated the activity ended up having to do some of the basic things himself, such as providing lunch. Will the Minister comment on the funding of reparation orders? Is he satisfied that there is sufficient funding in place for them to be a practical provision?

Lord Bach: My Lords, as I understand it—I have no specific advice on the important point that the noble Baroness raises—there are, in general, no funding problems with such orders. If the noble Baroness does not object, however, I will take away her question and send her a letter, with a copy to the Library and any other noble Lord who is interested.

Lord Kingsland: My Lords, I thank the Minister for his full reply. He has striven hard to convince me of the error of my ways and I at least appreciate the effort that he has put into it. However, I remain totally confused as to why the Government should

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have picked out one low-level requirement—reparation —rather than a number of others, such as, as I said, limited attendance centre requirements or limited activity requirements, and given it a status on its own, independently of the YRO.

I had understood the Government to be marketing the YRO as a new beginning: a generic order that effectively embraced all the disparate orders that applied to young people in one provision, where the justices and the judges could specifically select a menu for the offender before them. I accept that, because of paragraph 8(2) of Schedule 1, one item in that menu, via the activity order, would be a reparation order. Under the YRO, you can indirectly make a reparation order. However, that reinforces my concern about why there should be, quite independently of the YRO, a separate, distinct provision for the reparation order.

I am aware that the various organisations that take an interest in this matter are not entirely of one mind about the desirability of the Government’s approach. For example, the Magistrates’ Association shares my view, but one or two other organisations take the Government’s point of view. Given this division of view among real experts in the field, I am not inclined to press the amendment to a vote. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

5.45 pm

The Earl of Onslow moved Amendment No. 3:

(a) the offender has already been the subject of a youth rehabilitation order, or orders, which falls within section 1(3), or(b) the offence, or the combination of the offence and one or more offences associated with it, and the risks the offender poses to the public are so serious that, notwithstanding the age of the offender, a youth rehabilitation order which falls within section 1(3) cannot be justified for the offence.

The noble Earl said: My Lords, we are back to the custody of children. I am afraid that noble Lords will not hear from me the eloquence we heard in the Royal Gallery. My French is certainly not as good as Monsieur Sarkozy’s, and I do not have the hard neck to try to charm the Government Front Bench in the way that he charmed us. I shall just bang on in my old-fashioned way to try to persuade the Government of the error of their ways.

The point of this amendment is that we should not be sending children to prison or giving them a custodial sentence unless it is absolutely unavoidable. This amendment attempts to introduce a threshold. We went over this matter in considerable detail in Committee, and in the Committee stage in the House of Commons there was an implication that something could be done about this. The Government have used

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Section 152 of the Act—I cannot remember which Act it is—and say that it is the guiding body behind how sentencing should be carried out. The youth justice people think that is not good enough, the JCHR thinks it is not good enough and I do not think it is good enough. The Government must have a much better reason for objecting to this amendment than the one they introduced in Committee.

There is one flawette—if that is the right word—in that subsection (2) is, I am told, probably unnecessary for the simple reason that all courts have everything they say recorded. Subsection (2) is otiose, but if we were to agree this amendment there would be no difficulty in taking it out at Third Reading. I beg to move.

Baroness Falkner of Margravine: My Lords, we support this amendment, as we did in Committee. As the noble Earl, Lord Onslow, pointed out, we went into considerable detail when we discussed it there, so I shall not repeat the arguments. I note that in their letter of 19 March, the Government’s explanations for their amendments that are grouped with this amendment go some way towards raising the custody threshold, which is what we sought in Committee. They place a requirement on the court when sentencing a young offender to custody to consider whether it could pass a sentence consisting of a YRO with intensive supervision and surveillance or with intensive fostering. The key to the amendment is that it also requires the court to set out the reasons why those alternative disposals cannot be used so custody becomes the default position. We believe that there is a difference between what the Government are trying to do and our amendment in that our amendment adds greater clarity to the circumstances in which custodial sentences are to be handed down. It particularly highlights the requirement to consider not just the offence committed but also the risks to the public. That seems entirely reasonable because, as we have said at length, a child should not be locked up just to mark what he has done if he does not pose a significant risk to the public. The risk test is a more relevant test of need for the very serious step of locking up a child—in other words, sending him into custody. If the court does choose custody, the fact that it will now have to set out its reasons, not just in general but also by reference to the specific tests set out in the new clause and to its assessment of the risk, would also add a great deal of clarity. On that basis, we argue that our amendment is superior to the Government’s amendment.

Lord Elystan-Morgan: My Lords, the noble Earl deserves thanks for and congratulations on having brought this matter before the House again. He need not, in his most Francophile, chivalrous moments, apologise in any way for any lack of comparative eloquence. He put his case as strongly and effectively as possible. That case is meritorious. We have been told over and over again—the matter cannot be overemphasised—that in the incarceration of children, compared to the other countries of Western Europe, we are again at the head of that unmeritorious league. We incarcerate more children than Germany, France, Holland and Norway put together. The same is true of

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the incarceration of young people and adults, so there is a damnable consistency, if I may say so, in our attitude to incarceration and loss of liberty in general.

That is a wider point. I concede that the Powers of Criminal Courts (Sentencing) Act 2000, to which I think that the noble Earl, was referring, and the Criminal Justice Act 2003 between them contain very considerable restrictions on the incarceration of children—and of young people, for that matter—but they are not working. That is the strength of the noble Earl's amendment. Anything that brings home to the mind of a sentencer the necessity of using incarceration —by that, I mean the loss of liberty in general—more effectively than at present will be very much to the benefit of the community.

I urge the Minister to consider that this matter deserves further consideration. After all, all that has really been asked for is that practically the same wording as is contained in many criminal statutes passed over the past 15 to 20 years in respect of adults is applied to children. The exact words of those statutes seem to have been incorporated in the amendment.

Lord Ramsbotham: My Lords, I put my name to the amendment for the exact reason that the noble Lord, Lord Elystan-Morgan, has just given. I was very grateful for a meeting with the Minister last night in which he explained that the provision to have reasons put in writing was irrelevant, as the noble Earl, Lord Onslow, said.

In fact, of interest to me, very much following on what the noble Lord, Lord Elystan-Morgan, said, is a remark made earlier by the noble Lord, Lord Bach, in reply to the noble Baroness, Lady Miller. It concerned resources. One thing that has always concerned me, underpinning the sentences awarded to young people, is whether the resources are there to do what is in the mind of the sentencer when the sentencer decides that that is appropriate. The amendment therefore goes rather wider in its ramifications than the mere wording. In order to make the youth justice system as effective as the public deserve, there ought to be more coming together between those responsible for the sentencing, those responsible for administering the sentence and those responsible for providing the resources. There is a serious disconnect at the moment, which is undermining the ability of the youth justice system to do what is required of it.

Baroness Howe of Idlicote: My Lords, I, too, support the amendment. I also had the benefit of attending the very helpful meeting with the noble Lord, Lord Hunt, last night and I, too, took on board the point that it is not essential to provide for the recording of what has been going on in a juvenile court, because that is done automatically and is done anyhow in an adult court.

However, I take the points made by my noble friend Lord Elystan-Morgan, apart from the graphic opening description of the noble Earl, Lord Onslow, of why this is back on our agenda. These points are absolutely crucial. We lock up a number of youngsters rather than seek again and again to give them time to develop and to change their ways. With that very much in mind, I hope that the Minister will see that there is a point in putting this into the Bill on Report.

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Lord Mayhew of Twysden: My Lords, will the Minister say when he replies to what extent the formula in the amendment would inexpediently fetter the discretion of a sentencing court?

Baroness Stern: My Lords, I shall add a little to what has been said in support of the amendment, which we discussed at some length in Committee. It is quite difficult to discuss custody being used as a last resort, because “last resort” is a relative term. Obviously the last resort is very different in Finland, where five boys under 18 and no girls are in custody, from the last resort here, where I think around 2,800 juveniles are currently in custody. It might be helpful if we could all agree on some idea of a last resort.

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