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The terms of reference of the review will be to take stock of progress to date and I have no doubt that the review will identify where there are areas of patchiness and which areas need to be improved. My understanding is that the final report will be submitted to the Secretary of State for Children, Schools and Families and the Secretary of State for Health by the summer of 2008. That will fit neatly with the timeframe of my noble friend Lord Bradley in terms of the more specific review that he has undertaken on diversion into mental health services.

We have here an appropriate process through which to evaluate how well we are doing, what the gaps are and what needs to happen in a collaborative way, involving the Department of Health, the Department for Children, Schools and Families and my department. While I would never underestimate the challenges that we face in our mental health services, this measure should give us a great deal of optimism for the future.

It is difficult to overestimate the huge improvement that has taken place in the past few years in healthcare in custodial settings since the National Health Service took over responsibility for it. Not only has the amount of money spent on health doubled, but the quality and professionalism have improved as people have been brought from outside into the custodial setting. I pay tribute to my former colleagues in the Department of Health and the NHS. They give me confidence that we have ways of dealing effectively with mental health services for young people. While this is not a matter that falls to be dealt with statutorily, I clearly recognise the issues, the problems and the improvements that have taken place. I also recognise that there is much more to be done in the future.

Baroness Stern: My Lords, before the Minister sits down, perhaps I may ask a brief question for elucidation. Is he satisfied that the assessment tools used by youth justice workers are designed in a way that enables them to report to the court on emotional and intellectual maturity and immaturity and on mental health needs? I was given to understand by a large number of youth justice workers that the assessment did not enable them to do so and was deficient in that regard.

Lord Hunt of Kings Heath: My Lords, I am happy to consider that matter. If there are shortcomings that the noble Baroness can identify or point me in the direction of, I will be happy to look at them and see whether they can be played in to the work that I have mentioned. Where the assessment has taken place and a mental health need has been identified, it seems in most cases that a referral is able to take place and that the appropriate CAMHS team is able to undertake that assessment, which, one hopes, will lead to effective treatment. However, if there are specific concerns to which the noble Baroness can point me, I am happy to look at them.

Baroness Miller of Chilthorne Domer: My Lords, I am grateful to all noble Lords who have spoken, bringing to bear on this matter their greater expertise than mine. I am also grateful to the Minister for his full reply. We are lucky that he was in the Department

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of Health and then moved on to the Ministry of Justice, because that has left him well placed to comment expertly. As he rightly said, this is a work in progress.

The Minister spoke mostly to Amendment No. 14, because it addresses young people before they are sentenced. As he said, the sentencing guidelines will be brought to bear on that. Amendment No. 19 relates to a young person who is already in the system and is in breach of their order. His reply did not deal with that as fully. In some ways, the situation to which it relates is the more worrying, because the young person concerned, having been sentenced, is failing again.

However, as the Minister said, this is a work in progress. We will look forward to the Bradley report. I am sure that we will debate the issue further. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath moved Amendment No. 15:

On Question, amendment agreed to.

Schedule 2 [Breach, revocation or amendment of youth rehabilitation orders]:

Lord Bach moved Amendment No. 16:

The noble Lord said: My Lords, I shall speak also to government Amendments Nos. 17, 18 and 21. They relate to the breach process and we hope they find favour in this House.

We took away a clear message from our debate in Committee on this subject: that flexibility within the breach process is critical. It is right that the breach process should be in the legislation. We need to ensure that clear and consistent standards apply to the enforcement of a community order. Without effective enforcement, the whole system of community punishments may fall into disrepute, both with the courts and the public. However, as we made clear during the debate in Committee, by placing current national standards for youth justice for breach action into legislation we are not looking to change practice. That is why we have brought forward Amendments Nos. 16 and 17. They correct an unintended divergence from the current national standards.

Essentially, these amendments will re-instate the current additional flexibility that youth offending team managers have to stay breach proceedings in exceptional circumstances, even where there has been a third breach of a youth rehabilitation order, with no reasonable excuse, in a 12-month period.

Government Amendments Nos. 18 and 21 deal with the powers of the court when dealing with a young person for breach of their order. It is right that we should give credit where it is properly due. These amendments are identical to those tabled in Committee by the noble Lord, Lord Kingsland, and they reflect amendments tabled in another place.

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As currently drafted, the Bill states that where a youth rehabilitation order is still in force, a court must deal with an offender for breach of a youth rehabilitation order in one of three ways: by imposing a fine, by amending the youth rehabilitation order, or by re-sentencing. Contributions in Committee from all sides—not least of course from the noble Lord, Lord Kingsland, himself—were both informed and persuasive. Parliament sets the legislative framework within which the courts must work. Within that framework, we should not unnecessarily fetter the discretion of the courts.

We accept the argument advanced by noble Lords that requiring the court to take one of the three forms of action I mentioned would have done this. That is why we have tabled the amendments. They remove the requirement for a court to take a specified action for breach where the youth rehabilitation order is still in force. In effect, these amendments will allow the court to give the offender a verbal warning, if appropriate, and allow the original order to continue, if that is considered to be the right thing to do.

We have listened carefully to the concerns expressed about how the Bill currently deals with breaches. We hope that the House will agree that these amendments fully address those concerns. We think that the breach process now offers the right level of flexibility, alongside the necessary need for robust enforcement. I commend the amendments to the House. I beg to move.

Lord Kingsland: My Lords, I thank the Minister not only for the amendments but for the extremely generous way in which he introduced them. We are absolutely delighted that they are now in the Bill.

On Question, amendment agreed to.

Lord Bach moved Amendments Nos. 17 and 18:

On Question, amendments agreed to.

[Amendment No. 19 not moved.]

Baroness Miller of Chilthorne Domer moved Amendment No. 20:

The noble Baroness said: My Lords, with this amendment we return to the issue of the original offence not warranting custody or being non-imprisonable and whether the court should be precluded from imposing an intensive supervision and surveillance requirement for breach of the rehabilitation order. We appreciate that the Bill provides that in the event of a wilful and persistent failure to comply, the court has various options.

As the Minister will be aware, the Standing Committee for Youth Justice has concerns about these proposals. It points to the number of cases that have returned to court for breach in recent years. We would not have these provisions before us if the system was working perfectly. The Bill is supposed to improve the position but the Standing Committee for Youth Justice feels that it is likely to exacerbate the trend.

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I am sure the Minister has the relevant figures but in 2005-06, 2,738 young people were returned to court for non-compliance with ISSPs, which was almost half of those commencing the intervention. Therefore, this issue gives rise to serious concern. The committee is also concerned that to allow the use of custody in cases where the original offence was not sufficiently serious to warrant it is not consistent with the purposes of sentencing in the Bill. I feel even more strongly about that issue following the debate we have had about the purposes of sentencing. Therefore, I would appreciate hearing whether the Minister feels that without this amendment the Bill sufficiently reflects the fact that the purpose of the sentence needs to read across into what happens if there is a breach. I beg to move.

9.15 pm

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness and I welcome the opportunity to debate again the breach provisions, which we believe are necessary. One would hope that the YRO system is so successful that there are no breaches and that therefore it is not necessary to use the relevant provisions. However, we should not be naïve about that. Except in what we hope will be exceptional circumstances, officers will be able to use appropriate discretion when operating the breach system. Warning systems will be in place and are designed to ensure that a breach is dealt with at an early stage without the consequences that the noble Baroness mentioned. She is concerned that the measure will lead to a lot of breaches, which will result in more young people ending up eventually in custody. I understand those concerns. However, I have noticed in my visits around the country that on the other side of the fence, if you like, community sentences can be seen as a soft option. They have not been viewed as a vigorous option and some believed that breaches were not pursued as effectively as possible. That view is changing but it is very important to have effective breach mechanisms to ensure that what we are seeking to do retains its credibility. I am clear that the general thrust of youth justice in the Bill has received a lot of support from noble Lords. I am in no doubt about that whatever. The breach provisions ensure that there are appropriate sanctions if young people do not fulfil the terms of the orders.

Lord Thomas of Gresford: My Lords, does the Minister consider it to be absolutely contrary to principle that you should have a more severe punishment for breach of a civil court order than for the offending conduct which caused that order to be made in the first place? Surely, we are concerned with a fundamental principle here. Breach of the civil order is being elevated way above the original offence. That must be contrary to Article 14 of the European Convention and, I am sure, to other articles in other conventions to which this country is party. I do not see how it can ever survive a challenge in the European Court.

Lord Hunt of Kings Heath: My Lords, that is not the view of the Government. The context of YROs is that they are there to provide the courts with a

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community sentence, which includes, with a high intensity of requirements, viable alternatives to custody. It is critical that that has the confidence of sentencers and of the general public. That means that there must be adequate enforcement and appropriate sanctions for those young people who wilfully and persistently refuse to comply with the terms of an order. Having appropriate sanctions is critically important to the credibility of what we are seeking to do.

Lord Thomas of Gresford: My Lords, is the Standing Committee for Youth Justice correct when it says that a more serious punishment cannot be inflicted on an adult offender for breach of a community order and this is confined to under 18s? That is ridiculous. Why should there be a distinction when you are dealing with children; that they can have a more serious punishment for this—can be sent to prison and can lose their liberty—when they could not be sent to prison for the original offence? If it is different with adults, as I am instructed it is, surely that must be wrong.

The Earl of Onslow: My Lords, I will help the noble Lord out by saying that the Government have form on this; it is called ASBOs. If you breach an ABSO, you can be sent to prison for breach of the ASBO on hearsay evidence of doing something that may not in the first place even have been a crime. If that is of any assistance to the Minister, it is a fairly poisoned chalice. But that is the track down which we are going; and it is going to come up with violent offender orders as well.

Lord Hunt of Kings Heath: My Lords, the heart of the argument is that if we were to accept the amendment, in practice it would mean that if a young person wilfully and persistently breached the terms of a youth rehabilitation order, they could be re-sentenced only to a further youth rehabilitation order. So you have a potential revolving door, with the young people who persistently breach feeling that in the end there are no sanctions. That is why we need the provisions. Noble Lords are ignoring the fact that there has to be a wilful and persistent breach of the first—

Lord Thomas of Gresford: My Lords, am I not right in thinking that a YRO is imposed where a criminal offence has been committed? If there is a breach, it should be open to the court to punish the person for the criminal offence that is the subject of the order. Am I wrong?

Lord Hunt of Kings Heath: My Lords, I am not sure that I follow the noble Lord.

Lord Thomas of Gresford: My Lords, let me explain. The noble Lord said that all you can do is impose another YRO. But you could go back to the original criminal offence and impose another penalty for that criminal offence.

Lord Hunt of Kings Heath: My Lords, the court can deal with failure in any one of the following ways. As a result of government amendment, it has the discretion to order the offender to pay a fine, or amend,

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It can also deal,

That sets out very clearly the options that are laid before the court.

I do not see how that undermines the point that I am making; that we are surely all agreed that youth rehabilitation orders seem to be a very sensible way to deal with many young people. To make sure that the YR system works effectively, it is a very good idea if young people recognise that persistent breach has serious consequences. That is why the provisions for breach are there.

Lord Thomas of Gresford: My Lords, this question is based on the briefing of the Standing Committee for Youth Justice. I am seeking clarification here—in case the noble Lord, Lord Bach, gets a bit worried about it. The briefing states that you cannot do this with an adult in relation to a community sentence. Why should you do it in relation to a child?

Lord Hunt of Kings Heath: My Lords, my advice is that the standing committee is wrong on that. I am happy to set it out in more detail for the noble Lord, but that is the advice that I have received. I have also received advice that we consider that the provisions are, as he would expect, compatible with the ECHR. It is notable that the Joint Committee on Human Rights did not take issue with this aspect of the Bill. We think that we are covered in this regard. The point I was making was that for custody to happen, there has to be a wilful and persistent breach of the first youth rehabilitation order. The court can re-sentence and impose a youth rehabilitation order with intensive supervision and surveillance for that persistent and wilful breach. At that stage, custody is not available.

The young offender then has again wilfully and persistently to breach the order. This time the sentence is imposed for the original wilful and persistent breach of the youth rehabilitation order for intensive supervision and surveillance. Only then is custody available to the court. The court can then impose a detention and training order for a minimum period of up to four months, but it does not have to.

Perhaps I may refer in more detail to the comparison with adult community offenders. My understanding is that there is an equivalent provision on breach of adult community orders in Schedule 8 to the Criminal Justice Act 2003. Paragraphs 9 and 10 of the schedule provide the magistrates’ court and the Crown Court respectively with the power to impose a custodial sentence of up to six months on an adult who wilfully and persistently fails to comply with a community order imposed for a non-imprisonable offence. So similar provisions are available.

In all of this, the emphasis is on what is specifically described as a “wilful and persistent breach”. That phrase is critical and should reassure noble Lords that we are not proposing to penalise young people

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disproportionately for minor misdemeanours, which was one of the issues raised in our debate in Committee. We are talking about the worst cases where the young offender is clearly and repeatedly not responding to or engaging with their community sentence. Ultimately, the thrust of all our debates has been to ensure that custody is the last option. The YRO structure is designed to ensure that that is the position. That is why it is important to have a vigorous approach to breaches. It is the justification for this structure, particularly in relation to wilful and persistent breaches. On that basis, I invite the House to accept that the proposals are indeed proportionate and acceptable.

Baroness Miller of Chilthorne Domer: My Lords, there is unfortunately a parting of the ways and the philosophy here and we will not overcome it tonight. We still do not believe that custody will ever be the right answer, however wilful and persistent the breaches—for a series of what are still minor albeit highly irritating and antisocial offences. As the Minister will appreciate from previous debates, it has not been proven that custody solves anything in terms of causing reoffending rates to decline.

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