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In Committee, we raised fears of criminalising young people for failing to participate in education or training at the ages of 17 and 18, especially as some of them may be working but without their efforts being recognised by the Government because of the number of hours worked or because the training is not accredited. That any young person might receive a criminal record because of provisions that we pass in this Education and Skills Bill really should give pause for thought. Many organisations that work with young people share our concern.
At Second Reading and again in Committee, we persistently questioned the Government about the possibility that a young person who would not participate or pay their fines might, once they had reached the age of 18, be liable to a prison sentence. Despite his initial reassurances that that was not the case, the noble Lord, Lord Adonis, had to admit that it was a possibility, so we are grateful that the government amendments in this group will not allow that to happen.
However, we are still left with the likelihood that some young people will be criminalised by the Bill and we are unwavering in our view that this is wrong. If the Government insist on compulsion and the necessary sanctions they will need to impose this, the young people in question should be dealt with by the civil courts.
In Committee, the noble Lord, Lord Adonis, said that the Government had concluded that a civil endorsement system would not work in practice. He argued that civil penalties would be enforced in the civil courts, which are not geared up to deal with young people in the way that youth courts are. He said that judges who sit in the youth courts receive specialist training on dealing with young people and that the court is not open to the general public. I have to say that those comments have been met with incredulity by the judges to whom I have spoken. The civil courts
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One area in particular where the courts deal regularly with young people is when they issue ASBIs—their take on the ASBO. These are injunctions that a landlord can bring against anti-social behaviour, and quite often they are taken out against young people. The courts have the powers to appoint a litigation friend for a young person under the age of 18 and also to sit in private.
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The noble Lord, Lord Adonis, admitted:
“While debts may be enforced using civil recovery methods—for example, recovery by bailiffs—in practice such methods are rarely used against young people under 18”.
That is true. The courts can use other final sanctions, such as attachment of earnings or benefits, which are sensitively means calculated and which must not tip a young person into poverty. The noble Lord, Lord Adonis continued:
“In addition, the local authority would have to pay a court fee to pursue a civil enforcement method which, again, might not be appropriate in practice and would lead to mounting costs.—[Official Report, 3/7/08; col. 469.]
We are constantly being told that this sanction will apply to only a handful of people. If the Government are right, the costs cannot be that great. But the risk of incurring these costs may act as another incentive on the local authority to do all in its power to engage the young person in training rather than launch proceedings against them. I cannot tell your Lordships how strongly we on these Benches feel about this. I beg to move.
Baroness Perry of Southwark: My Lords, I shall speak briefly to my amendments. The fact that I hope to speak only briefly does not at all reflect how passionately I feel that the Government are on a totally wrong course in criminalising any young person who remains outside education and training. I feel deep despair that all the work done to make education attractive and positive for young people, to turn it into something that offers pleasure, joy and satisfaction, could so easily be damaged by the sharp alternative, which will be seen as, “Either you stay in education or training, whether you want to or not, or you may end up going to prison and having a criminal record”.
I cannot believe that the Government are going down that route. People of all political views and occupations find it impossible to believe. They say, “Surely this cannot be right”. They say that they heard the item on the radio about raising the school leaving age and thought it a splendid idea, but nobody mentioned that the alternative to someone staying on in training or education was to turn them into a criminal. If the Government change nothing else, I beg them to reconsider this extraordinary provision. To my knowledge, we would be the only country in the civilised world with such a provision.
There is absolutely no evidence that compulsion of any kind makes a difference. Six out of the top seven countries on the OECD table showing the percentage of young people staying on in education and training
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I beg the noble Baroness to think for a moment of the success that her Government’s policies have already demonstrated in providing what I called in Committee the carrots: the educational maintenance grant, the new curriculum, and so on, which I support and of which I wholly approve. They have begun to turn the statistics round and more young people are staying on. Why spoil it now by making this horrendous sanction? Even if the Minister says that it will be in extreme cases only and will probably never happen or will be a last resort, nevertheless the message is there, which is crucial to young people. The message it conveys is that education is something that you have to do or you will be criminalised. I beg the Minister to please think again before she and the Government go down that route.
Baroness Walmsley: My Lords, it follows from our view about the argument on compulsion versus entitlement that we would enthusiastically support the noble Baronesses on the Conservative Benches as the noble Baroness, Lady Perry, was kind enough to support me in that earlier discussion. It is quite clear from the meeting we had yesterday afternoon with Jim Knight MP, the Minister in another place, that the Government accept that there will be a criminal offence in some cases. He told us that he thinks this is right if young people decide that, despite all the help they are given and despite all the barriers being taken away, they will not comply with the law the Government wish to introduce.
We do not agree with that. We think it is wrong to criminalise young people. There is no doubt that this offence will be revealed in CRB checks—soon to be ISA checks—and that young people will be obliged to disclose it under certain circumstances when making job applications. It is quite wrong: a criminal offence should be something that is anti-social and that hurts other people. The Government would say that this hurts only the young people themselves. In a free country, people should be free to hurt themselves if they really must. We would rather they did not, but in a liberal democracy they should be free to do that, as long as it does not hurt anybody else. If young people conscientiously believe that now is the wrong moment for them to pursue their education, they should have the freedom to do that as long as they have an entitlement to go back to education later on.
The Minister, Jim Knight, told us yesterday that, at the end of all these procedures, young people could be accused of contempt of court if all attempts to persuade
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Baroness Howe of Idlicote: My Lord, there is no point in taking any further time on this because it goes without saying that what has just been said has my entire support and both myself and a number of Cross-Bench Members would back it. It is inevitably going to be those who are least able to look after themselves and the more deprived who will be hit by this provision. It is appalling that the Government are prepared to take this responsibility. We have all made our views clear on previous occasions.
Lord Dearing: My Lords, I strongly support full-time education to 18 but I beg the Government not to introduce a criminal offence. The people who are likely to be caught by this are the people who are likely to be the most disadvantaged in life. To add that to their problems is intolerable.
Baroness Morgan of Drefelin: My Lords, as we have discussed previously, enforcement action will always be a last resort. The focus of the policy is firmly on ensuring there is an appropriate and engaging learning opportunity for all young people and with the right support for them to stay in learning and succeed so that all who want to participate can do so. Successful implementation will depend on achieving this. If a young person is not participating, the emphasis will always be on help and support to address problems and re-engage the young person in learning long before any enforcement action is even considered. Looking specifically at Amendments Nos. 50, 52, 55 and 57, the presence of sanctions is necessary to make a reality of the new requirement to participate. If the new requirement is to be a serious one and to have the impact that we want in practice, we need to be clear that it is possible to enforce it as a last resort if absolutely necessary.
Similarly, local authorities are used to holding in reserve a range of powers which they rarely, if ever, use, but which help to make a reality of requirements that they are responsible for implementing. As the representative of the Association of Directors of Children’s Services said in evidence sessions held in another place,
- “as a director of children’s services, I have a range of powers that I never use. However, if I did not have them, I would have different conversations with a range of people ... without them, my leverage on the activity would be much reduced”.
Numerous safeguards are built into the system to ensure that a young person does not face enforcement action unexpectedly and inappropriately. There must be no reasonable excuse for their non-participation, and they must have been given appropriate support to participate. They must be given 15 days’ notice of the authority’s intention to begin the first stage of the enforcement process, as noble Lords are aware. There is a route of appeal to an independent panel at every stage and if at any point in the enforcement process the young person returns to learning, formal action will stop.
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So a young person will be given an attendance notice only after all other attempts to engage them have failed, and there are a number of checks and balances to ensure that they are used only appropriately. However, in introducing the process of attendance notices, we need to be clear what will happen if they are not complied with; otherwise they will be ineffective.
It is this set of clauses that clearly lays out the consequences of failing to comply with an attendance notice. As I think everyone in the House accepts, it will be extremely rare for a young person actually to reach this stage in practice, but it is absolutely necessary to make the rest of the system work. For this reason, these clauses must stand part of the Bill.
I will now speak to Amendments Nos. 47, 48 and 49, which seek to classify as a civil offence the offence of breaching an attendance notice. I appreciate the strength of feeling opposite. We have previously considered this option in some detail and concluded that it would not be in the interests of the young person or the local authority for the offence to be a civil offence, with a civil enforcement system. As the noble Baroness has said, civil penalties are enforced in the county courts, which are not set up to deal with young people in the way that youth courts are. I know that she takes issue with this, but, importantly, for example, judges in youth courts receive specialist training. We see it as important that as a matter of course youth courts are closed to the general public.
I hear what the noble Baroness is saying and I am very interested in her views and in what she has brought to the discussion. However, a civil enforcement system for those under 18 could lead to greater financial costs to them. In a county court, the amount of debt for which a person is liable can increase as interest, court costs and recovery costs are added. In addition, the local authority could face mounting costs of pursuing the action.
But that, for me, is not the issue. Let me also remind noble Lords that the criminal sanction comes only at the very end of the enforcement process. Civil sanctions alone do not present a realistic means of enforcing an attendance notice. I appreciate the noble Baroness’s strength of feeling, but I hope that she will withdraw her amendment today.
On the government amendments, during Committee important points were raised in relation to the enforcement system for young people who fail to participate in education or training, and we did listen. That is why we have taken the incredibly unusual steps that we have. On 17 July in Committee, detailed questions were raised about the fine enforcement process for adults, as opposed to the youth courts system, and my noble friend Lord Adonis committed to come back on them. It was agreed that there was a need for amendments to ensure that a young person could not enter into custody as a result of defaulting, after the age of 18, on a fine imposed on him for failing to participate in education or training. As noble Lords are aware, it is the clear position of this Government that no person should enter custody as a result of committing the offence of failing to comply with an attendance notice without reasonable excuse. I appreciate the point made by the noble Baroness, Lady Walmsley, but if someone
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However, my department has been working with the Ministry of Justice to consider this matter. While we do not believe it is realistic in practice that a court would impose a custodial sentence for non-payment of a level 1 fine on someone aged over 18, we would like to remove the possibility to achieve greater certainty on this point, about which the House was so concerned. It is particularly important for all those affected by this legislation that we are absolutely clear about this. The government amendment achieves greater certainty by transferring from the magistrates’ court to the county court the enforcement of a fine imposed for this offence only once the individual turns 18.
Similar provisions already exist under Section 87 of the Magistrates’ Courts Act to enable the magistrates’ court to transfer enforcement of a fine to the county court. However, in the case of this fine, if the court felt that it was appropriate to continue with enforcement action, it would be required to do so once the young person had reached 18. These provisions do not alter fine enforcement in general. They apply only in the specific case of a fine imposed for the offence in Clause 45 of failing to comply with an attendance notice without a reasonable excuse.
I hope that noble Lords will welcome these reassurances and that the noble Baroness will withdraw her amendment and support the government amendment.
Baroness Morris of Bolton: My Lords, I thank the Minister for her answer, but I am deeply disappointed by it. I did not once say that local authorities should not have within their armoury sanctions or powers to use against people who fail to undertake education or training. I just simply do not buy into the argument that the civil courts are not set up to deal with young people. I was speaking to a group of civil judges at the weekend, and they deal with young people every day on a range of issues. I should like to speak to the Minister between now and Third Reading because I do not understand the Government’s thinking on this. One does not have to be a mathematical genius to work out that the combined forces of the Conservative, Liberal Democrat and Cross Benches mean that we could hold the Bill up for a while on this point. Nobody really wishes to do that because we have got to get it on to the statute book as there is a lot of work to be done. We are not saying that there should not be a sanction. We are simply saying that we do not want to take part in any legislation that criminalises a young person simply because, as the noble Baroness, Lady Walmsley, said, he has chosen, without hurting anybody else, not to participate for whatever reason. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 to 50 not moved.]
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Clause 46 [Restrictions on proceedings for offences under section 45]:
[Amendments Nos. 51 and 52 not moved.]
Clause 47 [Failure to comply with attendance notice: penalty notice]:
Baroness Morgan of Drefelin moved Amendment No. 53:
The noble Baroness said: My Lords, I am grateful to the Delegated Powers and Regulatory Reform Committee for its careful scrutiny of the Bill and for its report and recommendations. I tabled these amendments last week to give effect to those recommendations, as my noble friend Lord Adonis committed to do in his letter to the noble Lord, Lord Goodhart, on 14 July.
Government Amendments Nos. 53 and 54 ensure that the maximum amount that can be set in regulations for the financial penalty given to a young person could never exceed the maximum fine that a young person could receive in the court in the final stage of the enforcement system, as recommended by the committee. The maximum sentence that a young person could receive in the youth court is set at a level 1 fine, which is currently a maximum of £200, although the exact amount is determined in each case by the court depending on the individual’s means and circumstances. Of course, in practice, we have already said that the financial penalty for young people would be significantly less.
Further government amendments in this group ensure that any regulations made setting the financial penalty that a local authority can give to an employer who has failed to comply with their duties would be subject to affirmative procedure, except where those regulations reduce the penalty. The committee in fact recommended that the affirmative procedure would only be needed for the first use of the regulation-making power and for any subsequent regulations that raised the penalty by more than inflation. However, it has proved difficult to link the provisions to inflation in this way and we have therefore gone beyond the committee’s recommendation and propose the affirmative procedure for every use of these regulations, except where they reduce the amount.
I hope that, on that basis, noble Lords will feel able to consider these amendments, and I beg to move.
Baroness Morris of Bolton: My Lords, I am pleased that the Minister has been able to announce this concession, notwithstanding what I said on the last group, which still stands. The issue of fines has been a sore one, and not simply because noble Lords have sought to make life difficult for the Government; it is because we have heard from groups outside the House—such as the Z2K Trust, which puts in long and thankless hours trying to help young people who find themselves in difficulty—that have been utterly dismayed at the prospect of fines being imposed. It would be quite ruinous to start slapping large fines on the very people who need help the most—teenagers who have few
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Baroness Walmsley: My Lords, I welcome these amendments but want to ask the Minister a few questions, which were suggested to me by Barnardo’s. I think that she has been briefed about these. Barnardo’s welcomes the Government’s amendment to impose an upper limit on the fines that can be imposed, but seeks assurances on a number of issues.
First, any penalty should be set at a level that reflects the financial support available to the poorest young people. Can the Minister reassure us on that? Secondly, could we be assured that young people would be able to make payment of any penalties in instalments, and would not be financially penalised for doing so? That should really be an option at the first issue of the penalty; the young person should not have to come back later to make an extra appeal to be able to pay by instalments.
We also need assurance, thirdly, that the amount payable will not escalate like a congestion charge penalty if the notice is not paid within a certain period—especially where there is evidence of financial hardship. Fourthly, will the department work closely with voluntary organisations like Barnardo’s to review financial support for 16 to 18 year-olds and in developing financial incentives to encourage participation? The EMA is helpful for a number of young people, but a lot of organisations hope that the Government will be able to go somewhat further than that.
Baroness Morgan of Drefelin: My Lords, I am looking for inspiration on one of the questions. In considering and consulting with others about the appropriate penalty, we will take into account the wider context of the income available to young people at the time, including through financial support. On instalments, we have said that that should be possible and that we will use our regulation powers to provide for it. As I understand it, it is not possible for fines to escalate in the way the noble Baroness is concerned about. I stress for the record that we will be happy to work with Barnardo’s and all stakeholders concerned about the interests of young people to ensure that the system works and is fair and appropriate given the financial resources of young people.
On Question, amendment agreed to.
Baroness Morgan of Drefelin moved Amendment No. 54:
54: Clause 47, page 27, line 20, at end insert—
“(6) The amount of any penalty payable by virtue of regulations under subsection (4)(b) must not exceed the amount for the time being specified as level 1 on the standard scale of fines for summary offences.”
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