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We also have not discussed what form that custody will take. We have not discussed, for example, Amendment No. 44, which will allow us to debate what sort of secure accommodation there should be. I do not think that we will get any closer in terms of the basic philosophy that is dividing us tonight, and I am sure that we will come back to it. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath moved Amendment No. 21:
On Question, amendment agreed to.
[Amendments Nos. 22 and 23 not moved.]
Lord Hunt of Kings Heath moved Amendments Nos. 24 and 25:
“(c) an intoxicating substance treatment requirement.”On Question, amendments agreed to.
9.30 pm
Clause 5 [Responsible officer and offender: duties in relation to the other]:
Lord Kingsland moved Amendment No. 26:
The noble Lord said: My Lords, I tabled this amendment in Committee and have brought it back on Report partly because the noble Lord, Lord Bassam of Brighton, said that he would go away and think about it. I have received a letter, for which I am extremely grateful, setting out the results of his cerebrations between Committee and Report.
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As currently drafted, Clause 5 places a duty on the responsible officer to ensure that, in giving instructions in pursuance of the youth rehabilitation order, they should not, so far as is practicable, conflict with the offender’s religious beliefs. My amendment suggests that we should extend the requirement to cover the religious beliefs to the young offender’s immediate family.
My reasons for doing so are the following. You might find a situation in which a young offender could fulfil his or her community disposition only if there were transport facilities available to him, that they were provided by his parents, and that on certain days of the week—for religious reasons—his parents were unable to fulfil those obligations. I think that I said to the noble Lord, Lord Bassam, that I would be perfectly content with a statement from the Government Front Bench in lieu of a provision in the Bill.
The letter from the noble Lord, Lord Bassam, talks about the important role played by the responsible officer in dealing with an individual who is subject to a particular disposition. He wrote:
“The responsible officer will be able to take into account the full range of issues that may have contributed to an episode of non compliance. This can include issues which are beyond the young person’s control, such as hospitalisation and the actions of their parents”.
He goes on to suggest that the particular situation that I raised in Committee is one of the factors that the responsible officer would normally take into account. I am looking for the last piece of the jigsaw puzzle from the Government; if they told me that the religious beliefs of the parents would be a factor that would exonerate a young person in those circumstances, I would be quite content. I beg to move.
Lord Bach: My Lords, I hope that by the time I finish speaking, the noble Lord, Lord Kingsland, will think that I have made the necessary statement. His amendment seeks to broaden the responsible officer’s duty to consider an offender’s religious needs to include those of the offender’s immediate family. He is again exploring whether a young person would be in breach of a youth rehabilitation order where he was prevented from meeting the terms of the order by issues which had arisen that were beyond his control. In that event, and if that was proved to the satisfaction of the relevant officer—I am not talking about formal proof—then there would be no breach. There can be a breach only if there is no reasonable excuse. If there is a reasonable excuse, as I understand it, it follows that there can be no breach.
The noble Lord went on to ask whether a young person would be in breach of an order if he was dependent on his family to fulfil the terms of the order—for example, for transport—and this was not forthcoming due to the religious beliefs of his family. The noble Lord kindly mentioned the letter that my noble friend Lord Bassam wrote to him. The letter emphasised, as we have tried to do consistently in debates on YROs, that the Bill assumes that local management discretion is essential if we are to deal fairly with issues surrounding breach.
We cannot say that in all cases where an offender claims that a breach of a requirement was a result of
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We have ensured that the responsible officer has the flexibility to deal with the full range of issues that can arise when dealing with young people. The crux of the matter is that this includes the power to assess what constitutes a reasonable excuse for non-compliance. We have deliberately placed the responsible officer at the heart of the process. He knows the young person and his family and is able to exercise his professional judgment to take into account the full range of issues which may contribute to non-compliance. He can, and will, take into account those issues which may be beyond the control of the young person.
Moreover, the parents of a young person will be involved in making the arrangements for the interventions under the YRO. The responsible officer will have contacted the parents and gained their agreement where they are required to play a significant role.
Of course, it is right that the religious beliefs of the young person should be taken into account in the delivery of the requirements within the YRO. That is why the responsible officer must have regard to them when delivering those requirements. However, we do not believe that we should extend, in the statute, such a consideration to include the religious beliefs of the family of the offender.
It is common sense that the duty of the responsible officer is to the young person. When sentencing, the court has to take into account the young person’s family circumstances, as well as the offender’s religious beliefs, before making a YRO. In practice, we would expect the youth offending team also to have regard to the young person’s family circumstances, in so far as that is practicable.
I hope that I have done enough to satisfy the noble Lord that, in practice, what he wants will happen, provided that the claim made by the offender who has not turned up—to use his example—is genuinely based on something such as his parents’ beliefs.
Lord Kingsland: My Lords, I think every responsible officer should have a copy of the speech of the noble Lord, Lord Bach, in his knapsack. I am most grateful to the Minister and I promise that I shall not bring this matter back at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 27:
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The noble Lord said: My Lords, this amendment was dealt with on 6 February in Committee at col. 1092. It concerns the obligation to have an audit trail for community orders. The government position in Committee was that it is not necessary to specify in the Bill what is basic case management and that the level of detail demanded by our amendment was inappropriate.
Of course, I know that it is normal practice for instructions to be given in writing. Given the importance of the consequences of breach in this new regime, surely it must be in the interests of the authorities to have a complete record in relation to every individual of the various stages that they have gone through in the process. I think the noble Lord, Lord Bassam, suggested that in about 90 per cent of cases the national standards elicited an appropriate written record. I did not think that percentage was satisfactory and it added weight to my desire to have in the Bill an obligation that the history of any individual case should be, as a matter of law, in writing. That is why I have brought this amendment back again.
Perhaps I can put the point another way. A person against whom an allegation of breach is made in court would be perfectly within his rights to say that there was no record of it and no written instruction was sent to him. The Government are acting against their own interests by resisting what I am proposing. I beg to move.
Lord Bach: My Lords, I shall attempt to answer the noble Lord’s persuasive case—persuasive as far as the officers are concerned, not as regards the offender. I want to separate those two. It is not so persuasive that I shall take it away for consideration. It is persuasive in the sense that there must be a complete record, of course, and I understand why the noble Lord says that. The real issue is whether that needs to be in the Bill.
We believe that these matters are satisfactorily dealt with already in guidance. As I am sure was pointed out in Committee, I point out that the National Standards for Youth Justice Services set out what a responsible officer is required to do in respect of instructions to a young offender made subject to an order. Those instructions state that an agreement must be produced with the offender which should be in writing and signed and will include acceptable and unacceptable absence criteria, the right to be treated fairly and with respect, the requirement to behave acceptably, and time-keeping.
The noble Lord may come back to me and say that those standards are not legally binding if they do not appear in statute, and therefore may not be followed on all occasions. Of course, that point is taken, but we believe that properly monitored and enforced guidance offers both a robust and flexible approach to this issue. The Youth Justice Board will monitor and ensure compliance and, importantly, guidance can be changed or tweaked to allow for future variations. If an officer does not do that and the case goes pear-shaped—if I can use that expression in your Lordships' House—which has been known, it is not likely that that officer will ever do it again. He will have breached the national standards and I understand
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9.45 pm
On the matter of young offenders, the argument is different. Many noble Lords in Committee and on Report have suggested that the real problem with breaches and all these orders is with those who are underprivileged and have not had the opportunity of a full and successful education, among other things. They may well have literacy problems—that exists in a much wider range of defendants than we sometimes like to believe, as has been said by many noble Lords throughout the House. To make a young offender notify his responsible officer of a change of address “in writing” is asking too much. It must be done, but not necessarily in writing. It could be done by telephone, which is probably the most likely way that it would be done today—by mobile phone or text message. You could oblige every offender to notify changes in writing, but some might not be capable of that. That is why we do not accept the noble Lord's amendment on that.
Nor do we believe it appropriate to specify on the face of the Bill the need for a responsible officer to keep written records of their instructions. Not everything has to be in law for officials to comply with it. Responsible officers are required to keep case management records. If they fail to do so, there is a risk that any action for breach might fail—perhaps deservedly so. I repeat that they would have to face up to the consequences of failing to comply. All responsible officers must keep valid and accurate records, as they may be required in court. If a young person wants to see details from their case record, they may apply under existing data protection procedures and we do not believe that it is appropriate to repeat those in the Bill. I have attempted to dissuade the noble Lord from pressing his amendment.
Lord Kingsland: My Lords, I am most grateful to the Minister for his reply, but I cannot disguise my dismay at hearing it—and my surprise. As I said, given the Government’s concern about breach and the likelihood of certain offenders coming back on several occasions to be confronted with the consequences of breach, in my submission the absence of a proper written record would undermine their individual cases, and if there were many examples it would undermine the system.
I am perfectly prepared to accept that my drafting may have been overbureaucratic and some things could be omitted; but I did not notice the Government suggesting that they themselves might lend a hand to find a version that would integrate seamlessly with their other legislative drafting. I shall go away and think about what the Minister said. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 28 and 29 not moved.]
Schedule 4 [Youth rehabilitation orders: consequential and related amendments]:
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Lord Hunt of Kings Heath moved Amendment No. 30:
The noble Lord said: My Lords, I also speak to government Amendments Nos. 49 to 51. These amendments tidy up the drafting of Clause 12 by removing duplication and an inconsistency. They make no changes to policy.
Clause 12 currently substantively restricts the availability of the community order as a sentence for imprisonable offences. It does this by inserting new Section 150A into the Criminal Justice Act 2003. That remains unchanged. Consequential to new Section 150A are minor changes to Section 151 of the same Act. This section allows a court to impose a community order where a persistent offender has previously received three or more fines. Section 151 is not new—it has been in the 2003 Act from the start.
These amendments tidy up the changes to Section 151 that are already in the Bill and make it operate consistently with the new restriction on the use of the community order. The amendments remove some duplicated wording in Section 151, as amended, and amend Section 151 so that it clearly states situations in which a court can give a community order to persistent offenders who have been previously fined. As I have said, they do not alter the policy introduced by Clause 12 or the policy set out in Section 151. The amendment to Schedule 4 is consequential upon these other changes. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendments Nos. 31 to 34:
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“79 (1) Section 174 (duty to give reasons for, and explain effect of, sentence) is amended as follows.
“93A In section 330(5)(a) (orders subject to the affirmative resolution procedure), omit the entry relating to section 161(7).”
On Question, amendments agreed to.
Clause 7 [Youth rehabilitation orders: interpretation]:
Lord Bach: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
- House adjourned at 9.52 pm.
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