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First, this instrument updates definitions related to childcare to bring them into line with recent legislation and to ensure that legislation from across Whitehall is consistent in this very important area; namely, the order changes the definitions of childminding and day care to make them consistent with the Childcare Act 2006. From 1 September 2008, childcare provision in England is regulated under Part 3 of the Act, and regulations made under it require enhanced CRB disclosures of those caring for children and others who may have contact with children on childcare premises. The exceptions order already enables those working with children to be subject to CRB disclosures, so there is no change to the scope of those covered; rather, it enables an existing scheme to be continued. In essence, this provision does little more than update a reference to an old piece of legislation and insert a reference to its successor. As such, I hope that it is an uncontroversial, if crucial, technical amendment.

The second feature of this amendment is that it extends the definition of conviction to include cautions, reprimands and final warnings. This will enable us to implement the corresponding provisions in the Criminal Justice and Immigration Act 2008, which some of us had the pleasure of seeing through the House. I should clarify from the start that the order has no impact

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whatever on the legal status of a caution, reprimand or warning, and that reclassifying them as convictions for the purpose of this order in no way escalates the seriousness of this disposal. Actually, it works in favour of those who have been issued with a caution, reprimand or final warning. Until now, the group of people issued with a minor disposal of this kind could never benefit from the provisions of the Rehabilitation of Offenders Act because, as these disposals were not convictions, they were never spent. This was an obvious and serious inconsistency, and we hope that the provisions to amend the Criminal Justice and Immigration Act 2008, which we now seek to implement, have the support of the Committee. However, before these provisions are implemented, it is essential that the exceptions order is updated in tandem. The reason, which I am sure is clear, is to ensure that, where there is good cause, cautions, reprimands and final warnings can still be disclosed under a full criminal records check.

Thirdly, the provision expands the list of sensitive positions which qualify for disclosure of spent conviction information to include the newly created position of non-lawyer “approved legal services body manager”. The Legal Services Act 2007 introduces reforms that will bring great benefits to consumers and the legal profession. However, it is essential that we do not allow the level of probity and integrity of the legal profession and the protection of consumers to be undermined. I remind the Committee that the Act will enable alternative business structures, allowing lawyers and non-lawyers to work together in new forms of business structures to provide a range of services. Full alternative business structures cannot come into force until the Legal Services Board, the new oversight regulator, is operational, which is expected in 2010. In the mean time, the Act enables a limited form of alternative business structure to emerge. These legal disciplinary practices will, for the first time, allow the collaboration of lawyers and non-lawyers in the ownership and control of law firms. Traditionally, a partner in a law firm was required to be either a solicitor or his equivalent, such as a registered foreign lawyer. The Solicitors Regulation Authority, the regulatory arm of the Law Society, plans to regulate these new forms of practice from March next year. This will of course be subject to the approval of rule changes necessary to regulate legal disciplinary practices.

Permitting non-lawyers to manage legal services bodies will place them in a sensitive position. They will potentially have access to sensitive client information and assets and will manage others with such access. They may also have access to the vulnerable individuals whom legal practices frequently represent. For these reasons, they must be assessed as suitable for such a position by the SRA, which will carry out the same vetting procedures for non-lawyer managers as they currently do for their lawyer counterparts.

This provision serves a simple purpose: to protect consumers of legal services and ensure that the recent reforms leave no loophole through which to escape the high standards or erode the public trust which characterises the legal profession. I hope the Committee will accept that there is nothing in the order that has not already been debated and approved by both Houses. However,

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it is essential that public protection keeps pace with other legislation, and for that reason the instrument serves an important purpose. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008. 30th Report from the Joint Committee on Statutory Instruments.—(Lord Bach.)

4.15 pm

Lord Henley: I do not intend to talk about the merits of this new exception order, which I presume is one of a whole series of exception orders that have been put before the House since the original Rehabilitation of Offenders Act 1974. However, as a former member of the Joint Committee on Statutory Instruments, I should ask the Minister to address the point in the Explanatory Memorandum about the vires of the orders. They are dealt with in paragraphs 3.1 to 3.7, where the department confesses that it got wrong the drafting of the original 1974 Act—I presume that it was a Labour Government who passed it, but it has been around for a long time. The Ministry of Justice suggests in paragraph 3.7 that,

“it regrets the error, and will seek to correct the primary legislation at an early opportunity”.

Well, 1974 to 2008 is quite a long time. Will the Minister explain to the Committee—it is important that it is on the record—exactly what went wrong with the original drafting of the Act, why it was not spotted earlier, whether the department thinks that it has the powers to make the order and whether there is any doubt about the technical validity of any of the previous exception orders, of which there have been a number? The Minister said that the first order was made in 1975. As I said, I am perfectly happy about the merits of the order, but it is important that the Ministry of Justice gets the drafting of the legislation right. Back in 1974, of course, it was done by the Home Office. We hope that the department will seek, as it states, to correct that error in primary legislation at an early opportunity.

Baroness Falkner of Margravine: I have listened carefully to the Minister. The amendments in Article 3, which bring cautions, reprimands and final warnings into the scope of the exceptions order, are consequential to Section 49 of the Criminal Justice and Immigration Act, which brought cautions within the scope of the Rehabilitation of Offenders Act 1974. We supported that, saw it coming down the road and welcomed it when the Act was going through. I broadly welcome what is being done here, because we on these Benches have always argued for allowing these disposals to be spent in the spirit of rehabilitation—you cannot carry them with you for the rest of your life.

While I have the Minister trapped in the Room, perhaps I may move him on a little and ask him whether the Government are likely to implement the recommendations of the report of the review of the Rehabilitation of Offenders Act, Breaking the Circle, which was published in 2002. This report recommended a new disclosure scheme, including—and this is why I raise the matter in this context—a clean sheet at the

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age of 18 to help young people to put behind them minor crimes committed in their youth. Can the Minister indicate whether that document is still alive and is being given consideration or whether it has gone by the wayside? We would wish to see many of its recommendations implemented.

Lord Jones: Following my noble friend’s shrewdly judged introductory remarks on an order referring to convictions and concerning the processes of rehabilitation of offenders—that is, young people, men and women—in England and Wales, when will the justice department announce the location of new prisons? As to government plans for the north-west and Wales, where will the new prison or prisons be located? Will they be Titans or not, and how many will there be? How soon will Her Majesty’s Government’s decisions be announced—perhaps as part of an imminent capital building programme, perhaps next Monday? Can my noble friend deal with the queries I have raised?

Lord Bach: I am grateful to the three noble Lords who have spoken. First, in answer to my noble friend Lord Jones, I cannot give a date when announcements will be made about the prisons. I pay tribute to his interest in this topic over many years and, when a decision is made, he will be the first to know. I am grateful for his interest in this order.

As to the comments of the noble Baroness, Lady Falkner, about the Act, we committed to reforming it following the recommendations set out in the document that she mentioned. We have since had to review the position in the light of the Safeguarding Vulnerable Groups Act 2006, which was based on the Bichard report recommendations. As she knows, that made significant changes to the disclosure landscape. We remain committed to reform but no time has been allocated to it in this Parliament and no timescale has yet been set. We agree that this legislation now needs to be brought up to date but I cannot give her any clue as to when that might be. The issue is alive, but whether or not it is kicking I am not sure.

The noble Lord, Lord Henley, used his lawyer’s skill to put me on the spot about the misuse of the words “paragraph 3(3)” instead of “paragraph 3(2)”—or was it “paragraph 3(2)” instead of “paragraph 3(3)”?—but he makes an important point. However, let me put him right about one thing which I am sure will comfort him: this paragraph had nothing whatever to do with the Rehabilitation of Offenders Act. It was first introduced in the 2008 Act and deals with the exception of cautions which, as the noble Lord knows, was not part of the Rehabilitation of Offenders Act until this year. This is the first order made in relation to cautions and so there is no danger of any other amendment orders being ultra vires.

The JCSI, to its credit, found a drafting error in the primary legislative provision. The reference in the second line of paragraph 4(a) to “paragraph 3(2)” should be to “paragraph 3(3)”. The erroneous cross-reference has arisen because paragraph 3(2) was inserted after the original draft clauses were drafted and the cross-reference has not been updated to reflect that. The JCSI is of the opinion, as is the department,

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that this is a clear case of a simple drafting error. The reference can be properly read as referring to paragraph 3(3) and thus provides the proper vires for this order. The noble Lord will be glad to hear that when the opportunity arises we will correct the drafting error. Parliamentary counsel are, as we speak, making inquiries as to whether the House authorities might be willing to issue a correction slip, given that the error is clearly a mere typographical error. I hope that it will not be necessary to debate the issue.

On Question, Motion agreed to.

Youth Justice Board for England and Wales (Amendment) Order 2008

4.25 pm

Lord Patel of Bradford rose to move, That the Grand Committee do report to the House that it has considered the Youth Justice Board for England and Wales (Amendment) Order 2008.

The noble Lord said: The last decade has seen a complete reform of the way in which the justice system deals with young people who offend. At every stage of the process, the Government have introduced measures aimed at steering the young person away from offending behaviour and into more worthwhile and positive activities. At the pre-court stage there are now, depending on the seriousness of the offence, a range of alternatives to prosecution in the criminal courts for those under 18, which involve principally reprimands and warnings. When the young person does go to court, we have introduced the referral order and a new range of community interventions, which will be replaced with and, I believe, improved by, the youth rehabilitation order under the Criminal Justice and Immigration Act 2008. When custody is unavoidable, we have brought in the new two-part custodial/community order, the detention and training order; and we have transformed custodial provision for under-18s, setting up discrete custodial estates for boys, in 2000, and girls, in 2006.

At the heart of all these changes has been the Youth Justice Board; it was established by the Crime and Disorder Act 1998 with a wide remit to advise the Secretary of State on matters relating to youth justice. Its role was expanded in April 2000, when it assumed responsibility for purchasing and commissioning custodial places and general oversight of the secure estate for children and young people. Section 41(6)(b) of the Crime and Disorder Act provides that the Secretary of State may by order provide that any function of his which is exercisable in relation to the youth justice system shall be exercisable concurrently with the board. To enable the board to exercise effectively its new functions in relation to the secure estate, the Youth Justice Board for England and Wales Order 2000 designated a wide range of concurrent functions. These included, for example, power to contract for the provision and running of secure training centres and a number of the powers in the Secure Training Centre Rules relating to the day-to-day running of centres.

Secure training centres are not the only form of contracted-out secure accommodation in the under-18 estate. There are also two contracted-out young offender institutions—Ashfield, near Bristol, and Parc, near

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Bridgend. The contracts for these establishments have been managed by the Office for National Commissioning on behalf of the Secretary of State. In the case of Parc, we intend to continue that arrangement, as the establishment also accommodates young adults, by which I mean those aged 18 to 20, as well as adult offenders, although the Committee should be aware these offenders are kept separately from the under-18s. It makes sense for the ONC to retain the lead, with input from the Youth Justice Board on the management of the under-18 accommodation.

Ashfield is a different case, because it accommodates only those serving juvenile sentences and remanded young people under 18. We believe that the Youth Justice Board is better placed to oversee management of the contract of a purely under-18 establishment and the main immediate purpose of the order is to give the board the necessary powers to do that effectively. Article 2(3)(c) fulfils that purpose, among other things. In that article, the concurrent powers given to the board in respect of contracted-out young offender institutions mirror the powers which the board can exercise in relation to contracted-out secure training centres. It will of course enable the board to let and manage contracts for contracted-out young offender institutions.

The draft order also makes small additions to the concurrent powers that the board can exercise in relation to secure training centres. For instance, each centre is required to establish systems of privileges, incentives and sanctions appropriate to the classes of trainees and their ages, characters and circumstances. Each centre must also have a library and every trainee is allowed to have library books appropriate to his or her age and to exchange them. The systems of privileges, incentives and sanctions must be approved by the Secretary of State and the right to receive and exchange library books is subject to any directions he may give. These are operational functions for which the board is generally responsible and in relation to which it is well placed to exercise judgment.

4.30 pm

The draft order also makes two changes to the board’s responsibilities for placing young people in custody. It already decides placements for the great majority of under-18s sentenced to custody—those who receive detention and training orders. The order will permit the board, additionally, to make placements of offenders sentenced to be detained during Her Majesty’s pleasure under Section 90 of the Powers of Criminal Courts (Sentencing) Act 2000 and to long-term detention under Section 91 of that Act.

In addition, under subsection (7A) of Section 23 of the Children and Young Persons Act 1969, young people whom the courts remand to the care of a local authority with a requirement that they be placed in secure accommodation may be placed in a secure training centre. Such placements at present require the Secretary of State’s consent. As the expertise on placements lies with the Youth Justice Board, it makes sense for the board to be able to give the necessary consent, so the order does this.

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Article 3 of the draft order is very similar in effect to Article 2. It expands references to “the Secretary of State” in Rule 13 of the Young Offender Institution Rules, which specifies to whom the governor of a young offender institution may disclose certain information relating to trainees, so as also to refer to,

“an officer of the Youth Justice Board”.

We were advised that, as Rule 13 concerns the functions of the governor rather than of the Secretary of State, it was not a potentially concurrent function under Section 41(6) of the Crime and Disorder Act. It is therefore a consequential change. The effect of the change, however, is the same in that the information may be disclosed to the board in place of the Secretary of State.

Finally, the Youth Justice Board for England and Wales Order 2000 contains a number of references to provisions in the Crime and Disorder Act 1998. These have subsequently been consolidated into the Powers of Criminal Courts (Sentencing) Act 2000. Paragraphs (1), (2) and (3)(a) and parts of paragraph (3)(c) of Article 2 update those references. Article 2(3)(b) makes a similar updating in relation to Section 16 of the Criminal Justice Act 1982, where the provisions have been consolidated into the Criminal Justice Act 2003. I commend the order to the Committee.

Moved, That the Grand Committee do report to the House that it has considered the Youth Justice Board for England and Wales (Amendment) Order 2008. 29th Report from the Joint Committee on Statutory Instruments.—(Lord Patel of Bradford.)

Lord Henley: I start by welcoming the noble Lord, Lord Patel of Bradford, to what I think are the first statutory instruments that he has put before a Committee. I also welcome him to Ministry of Justice affairs. I trust that he will enjoy it over the years, and I hope that he understands the proceedings as well as I sometimes do—if I do manage to understand them.

I have only one question for the noble Lord. He drew a distinction between Her Majesty’s Ashfield young offender institution, which the Youth Justice Board will be able to take on and in respect of which it will be able to do the job of the Secretary of State in due course, and Parc young offender institution. Parc is also contracted out but, because it also deals with over-18s, he stated that it would not be suitable to be looked after by the Youth Justice Board. If other young offender institutions were created in the future that were similar to Ashfield and not conducted on the same lines as Parc—that is, as part of an over-18 institution—would the Youth Justice Board also be able to take them on, would we need a further order at that point or would this order deal with that? I can see why the noble Lord draws a distinction between the two contracted-out institutions, Ashfield and Parc, but I want to know what the position would be for a second Ashfield, rather than a second Parc.

Baroness Falkner of Margravine: I, too, join in welcoming the noble Lord, Lord Patel of Bradford, to his new role. Perhaps I may also thank him for the time he took last week, when we thought we would be discussing the order, to speak to me briefly about our

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concerns with it, or lack thereof, which is a perfectly valid interpretation to put on it as well. I do not have any great concerns with the order, but there are two or three things which I wonder whether I might be able to flesh out.

The Explanatory Memorandum to the order, as well as the Minister in his remarks, refers to Ashfield and explains how it is currently contracted out, but says that the Youth Justice Board wishes to take it under its remit. It says that it will be,

“more appropriate for management of the contract to transfer to the Board”.

That is vague terminology. For those of us familiar with the history of Ashfield—and it was only 2003 when the Youth Justice Board in shock and horror walked away from it, given its extremely alarming track record at that point in time—this seems to be rather cryptic. What does “more appropriate” for the management now mean? Why is it more appropriate now when it was not appropriate then?

Since we had a little bit of additional time, I took the trouble to look up the Ministry of Justice’s NOMS Nationally Commissioned Services annual report. The key performance targets for Ashfield show that of the targets missed, serious assaults cause most concern and continue to be actively monitored at the establishment. So there are still issues. We are not all there with Ashfield. Given the vagueness of how this provision is worded, and with the knowledge of Ashfield’s history, one wonders what is appropriate about doing this now.

Moreover, to be specific, in reading the literature around this, I cannot see the obvious benefit of this transfer. I say that with some reason. Previously, when we have had problems in Ashfield the accountability and the responsibility—particularly in terms of answering here, but generally the accountability—seems to have fallen between the cracks. Each body would say that that particular area concerned was not their responsibility and that it was the other body’s responsibility, whether it was the Probation Service, NOMS, the private contractors running it, or so on. Can the Minister tell us who will now be responsible and accountable the next time something goes wrong?

That was my broad point, and then I have one or two specific smaller queries. They concern Article 3, which makes a consequential change to the Young Offender Institution Rules. Where the board has entered into a contract for running young offender institutions for people under 18, it allows for the director of that establishment to make a disclosure of certain information to an officer of the board. That is a pretty wide purview. What is the relevant interest? Why do they need to be able to disclose this information to an officer of the board? It seems rather macro, individual level information. Why do the people whom the information concerns have to be identifiable? That is the way I read it—they are identifiable. What I am trying to say is, since you are identifying the individual, would this information be for statistical monitoring purposes? In that case, should it not be anonymised so that it is not evident who the particular individual was? Who is an officer of the Secretary of State?

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Again, there are concerns about data and privacy information here. Would it be any civil servant? If so, why would they need to have access to this information? What evades me in general is why somebody so far removed from the running of the estate should need to have that kind of information. Why would an officer of a young offender institution, rather than that particular youth offender institution, be involved in requiring and possibly storing this information, and how long would that information be kept?

We look forward to hearing what the Minister has to say. We have some sympathy with the broad outlines of what he is trying to do.

Lord Patel of Bradford: First, I thank the noble Lord, Lord Henley, and the noble Baroness, Lady Falkner, for their kind remarks in welcoming me to the Dispatch Box. After I finish answering their questions, I will probably be a bit calmer.

The noble Lord and noble Baroness both raised helpful points. Before I answer the noble Lord’s specific question about whether we need another order, it is probably worth putting it on record that despite the fact that Parc is not entirely run by the Youth Justice Board, the board will work closely with the ONC in respect of the under-18s estate. So while it does not have the power completely to manage Parc it still has a key role to play for the under-18s. We do not have to lay another order: this would do for any institution similar to Ashfield, should one come on board.

On the point raised by the noble Baroness, Lady Falkner, up to now Ashfield has been managed by the Home Office and NOMS. Until 2005, as I mentioned earlier, it accommodated over-18s, but now it has only under-18s. We feel that given all the Youth Justice Board’s expertise and work over the past number of years, it is the right organisation to oversee that contract. The noble Baroness rightly referred to accountability. The Youth Justice Board will be accountable to Ministers for Ashfield’s performance.

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