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Baroness Verma: My Lords, this amendment would restrict the data-sharing powers introduced in the Bill in a manner that would help ensure the security and privacy of personal data.

Clause 119 allows the bodies replacing the Learning and Skills Council-the chief executive of the Skills Funding Agency, the YPLA, a designated person, a member of the chief executive's staff, a member of staff of a designated person, or a person providing services to any person out of those-to share information with each other and with a local education authority or a person providing services to a local education authority. It does not extend local authorities' power to share information with each other. This latter was a concession, for which we are grateful.

Nevertheless, we are concerned about the safety of private and personal information that can be shared among this very large number of bodies and people. We understand that it may sometimes be necessary to share information across different bodies that are responsible for different areas of the same service. This would seem to be an unfortunate consequence of the Government's desire to introduce more quangos. Perhaps the Minister could indulge the Committee by providing a few examples of times when this would be necessary. Is this to aid the day-to-day workings of these new bodies, or is it to analyse the effectiveness of the Government's policies as suggested in another place? If it is the latter, surely the heading,

is somewhat misleading.

Perhaps the Minister will inform us that the data will need to be shared to help or to secure suitable education and training. We understand that this may be the case. However, in such an instance, does the Minister agree that it would still be more appropriate to ask permission of the individual? Given this Government's appalling record on data safety, this would be a fitting amendment. Furthermore, as it is rather a standard safety device, it would appear to be difficult for the Minister to object to it. I beg to move.

Baroness Garden of Frognal: My Lords, we support the amendment. The clause refers to a great many people who share the data, and in line with people having an entitlement to know who is getting their personal data and who it is being shared with, this amendment seems entirely sensible.

Lord Ramsbotham: My Lords, I am very glad that this amendment has come forward. I hope, yet again, that the position of those in custody is not forgotten. Not only is there bad passage of information between different institutions in the custodial system, but it is terribly important, considering that something may have been started which needs to be carried on after people have left custody, that the information is available to those who are responsible for carrying out that transition practice.

Lord Lucas: My Lords, I quite agree with what the noble Lord, Lord Ramsbotham, said. I have not located the part of the Bill that allows that to happen. I was looking at the other end of things on page 32, at

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proposed new Section 562E. My understanding is that the clause we are looking at does not affect page 32, because this part has sufficient powers within itself to allow the transfer of information inwards towards the Prison Service. Reading it in detail, my concern is that the right it gives is to ask information of a local authority. The host authority or those involved with the education of the prisoner can get at the relevant local authority to find out information that it has, but the local authority has no right to go back to the school or other educational establishment that has been providing education for the prisoner before then. How does the clause we are looking at now affect that transfer between the school and the local authority? How do the mechanisms provided in proposed new Section 562E in conjunction with the clause we are looking at now work to allow for efficient transfer of information? I do not need an answer now if it is not immediately to hand.

Lord Young of Norwood Green: My Lords, officials in the Information Commissioner's Office have reviewed the department's plans for how data sharing will operate and are reassured that we are committed to developing a reasonable and proportionate system. In addition, they have confirmed that, as currently drafted, they can see nothing that is likely to cause concern, and they will continue to work with us as we move towards implementation and beyond.

Clause 119 does not provide any new data collection powers nor introduce any additional databases. It simply changes the partners with whom information is shared. The information is both for operational purposes and analysis, and it will help to secure appropriate training, which was one of the concerns expressed by the noble Baroness, Lady Verma.

Introducing consent as a precondition of this data sharing would result in agencies having incomplete data for planning and funding purposes. It would also add enormously to the costs. We have been assured by the Information Commissioner that we are doing nothing that undermines individual liberties. All agencies will, as now, operate in accordance with the provisions of the Data Protection Act, which contains the necessary safeguards. In addition, there will be a specific data-sharing protocol, developed in consultation with the Information Commissioner, covering what and how sharing of information will take place between these agencies. As is already required by the Data Protection Act, all information gathered from learners will operate under a fair processing notice, setting out for learners who will see their information and why. Under current arrangements, where appropriate-for example in relation to the learner being contacted for surveys-the learner's consent is sought. This will continue under the new arrangements.

I also want to answer the question about transfer of information on young offenders. I am assured that they are covered by Part 2. If we have not picked up every aspect of the concern of the noble Lord, Lord Lucas, we will respond in writing. That should also address the concern of the noble Lord, Lord Ramsbotham. With those assurances, I hope that the amendment can be withdrawn.

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Baroness Verma: My Lords, I thank all noble Lords for their contributions. I have listened carefully to the Minister, but I am not sure that he has satisfied the concerns of the House. I will read his response very carefully in Hansard. For now, I beg leave to withdraw the amendment.

Amendment 215 withdrawn.

Clause 119 agreed.

Clause 120 agreed.

Schedule 6 agreed.

Clause 121 agreed.

Schedule 7 agreed.

Clause 122 agreed.

House resumed. Committee to begin again not before 2.32 pm.

Crime and Disorder Act 1998 (Youth Conditional Cautions, Code of Practice) Order 2009

Copy of the Order
21 Report from the JCSI

Motion to Approve

1.32 pm

Moved By Lord Bach

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach):My Lords, I shall speak also to the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. I hope that it will be for the convenience of the House that these two orders are debated together.

The orders implement codes of practice which govern the use of the adult conditional caution and the youth conditional caution. I have asked for these orders to be debated together because of the similarities between the two schemes. I will speak first about the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. Its sole purpose is to implement the revised code of practice for conditional cautioning, which will come into force the day after the order comes into force.

Part 3 of the Criminal Justice Act 2003 allows the Crown Prosecution Service and other specified prosecuting authorities to administer a conditional caution in certain circumstances. The basic requirements are that the offender is an adult-18 or over-admits the offence, and that there is sufficient evidence to prosecute. It is also necessary that the offender should agree to the caution. Where it is possible to set appropriate conditions, the public interest may be met more effectively by the

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offender carrying them out than by being prosecuted. If the offender fails to comply with the conditions he may be prosecuted for the original offence.

Conditional cautioning has been available for adults throughout England and Wales since March 2008. It is currently operating under a code of practice approved by Parliament in 2004. We now want to update that code to provide for amendments to the Criminal Justice Act 2003 made by the Police and Justice Act 2006. These amendments allow for punitive conditions to be attached to a conditional caution-specifically a financial penalty. We have also taken the opportunity to make further amendments in the light of operating experience and to improve the structure and readability of the code.

The Secretary of State is required to publish the code of practice in draft, and this was done as long ago as 6 March 2007. Public consultation took place between then and 29 May 2007; 42 responses were received. Further revisions to the draft code were made in light of these responses. The revised code was approved by the Justice Secretary, Home Secretary and Attorney-General, and the draft order was laid before Parliament in July this year.

The key changes to the revised code of practice are: first, the extension of the conditional cautioning scheme to allow for a punitive condition, specifically a financial penalty, to be attached to a caution; secondly, guidance on the power of arrest and detention; thirdly, removal of the requirement for an admission to be made in a PACE interview before a conditional caution can be administered; and fourthly, additional safeguards to ensure that this disposal is used appropriately.

The House will have noted the delay between the consultation exercise and the laying of the draft order introducing it. Following the machinery of government changes in 2007 we decided to delay the introduction of a revised code of practice until national rollout of the conditional caution had been completed in March 2008. The subsequent timetable has taken into account our decision to test the financial penalty for the adult conditional caution at the same time and in the same areas as the new youth conditional caution.

If the order implementing the revised code is approved by Parliament, it will be implemented across England and Wales next month. The key new element-the financial penalty condition-will be available in only five specified areas: Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk. This was set out in relevant commencement orders for Section 17 of the Police and Justice Act 2006. Following a review of the pilot, a decision on national implementation of the financial penalty condition will be taken.

The purpose of the other order is to implement the code of practice for the youth conditional caution. The code of practice will come into force the day after the order comes into force. Section 48 of the Criminal Justice and Immigration Act 2008 extended the use of conditional cautions to young people aged between 10 and 17 by amending the Crime and Disorder Act 1998, although we agreed during the passage of the legislation that the youth conditional caution would be introduced in stages, beginning with its use for 16 to 17 year-olds.

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The youth conditional caution has been designed to operate in a way consistent with the adult scheme. However, there are by necessity a number of differences. First, as is the case with other out-of-court disposals for young people, a youth conditional caution will not be available to a young person who has previously been convicted of an offence. There is no such restriction for the adult scheme. Secondly, the youth code sets out the role of the youth offending team-the YOT-in advising on the appropriateness of a conditional caution and overseeing the completion of the conditions. There is no equivalent in the code for the adult conditional caution. Thirdly, punitive unpaid work is available for the youth conditional caution, as the facility for this is established, and it allows a punitive condition to be put in place and a conditional caution offered in the likely event that the young person might not have the ability to pay a financial penalty. Fourthly, the adult code allows for a condition to be attached to a caution requiring the offender to pay for the course he is attending. A young offender cannot be required to meet the costs of a course he is attending as a condition of a caution.

The Secretary of State is required to publish in draft the code for the youth conditional caution, and this was done early in March this year. Public consultation took place between then and the end of May; 32 responses were received. As a result of the consultation a number of detailed amendments were made to the code to remove perceived ambiguities. The code was subsequently agreed by the relevant Ministers and draft orders were laid in July.

If the order implementing the code is approved by Parliament, we will pilot the youth conditional caution in the same areas as the financial penalty condition for adults. A decision about national implementation will then be taken. I commend the draft statutory instruments to noble Lords.

Baroness Seccombe: My Lords, I thank the Minister for explaining, with his usual clarity, the details of these orders. I was privileged to be a magistrate for more than 30 years, but I was never involved with youth justice.

One code of practice before us deals with cautions for 16 and 17 year-olds. Youth crime today is a symptom of a broken society, and any approach to fix it must address prevention as well as appropriate punishment for any offence. Cautions have traditionally been an alternative to punishment, and used to encourage a person not to reoffend. Conditional cautions, however, tag on to the caution what amounts to a punishment. Would a better approach not be to have cautions on the one hand, and punishments administered by a court on the other?

There is not enough room in the justice system to deal with crime effectively, as so many magistrates' courts have been closing-at the rate of seven a year since 1997. Is the risk with conditional cautions that we further reduce access to the courts, while at the same time restricting the efficacy of interventions prior to punishment? Could the end result of the process be to increase the pressure on the criminal justice system by funnelling young people into it? The

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point made by my honourable friend the Member for Enfield Southgate, David Burrowes, is worth reiterating. He said:

"The fast track to punishment does not necessarily lead to a fast track to justice".-[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 22/11/07; col. 477.]

A youth conditional caution can be given only where the youth has not previously been convicted of an offence. However, the adult conditional caution is available at any point in an offender's career. Therefore, an 18 year-old young adult with a single previous conviction might be given a conditional caution in circumstances where the criteria for a 17 year-old would require prosecution. Will the Minister explain the inconsistency between the youth and adult conditional caution schemes? The Government are willing to resort to conditional cautions where they are not appropriate, and deny people, both under and over 18, access to justice. However, cautions are also used where they are not appropriate because they are not strong or strict enough.

There is a caution culture in the country that gets the balance wrong. Earlier this year, it was revealed that four in 10 serious offenders are being let off with a caution. The number of cautions given to violent criminals has risen by 82 per cent in five years. Does the Minister agree with my party that anyone carrying a knife without a reasonable excuse should expect to be prosecuted rather than to receive a caution? Does he further agree that those convicted of carrying a knife should expect to receive a custodial sentence? The Government use cautions to pre-empt justice. This can be too strict for some and too lenient for others.

Conditional cautions can also be used for multiple offences that individually would not result in the offender being sent to court. This sends the message that, once you have committed a crime, you might as well commit others of a similar nature, because the punishment will not change. Is this what the Government mean by being tough on crime?

It has emerged recently that inaccuracies with Ministry of Justice data are preventing the release of the latest offender management statistics. Does this mean that the Minister is unable to provide the House with up-to-date figures on reoffending rates among those given conditional cautions, or is he able to give them to us today?

The Government have operated a managerial, centrally driven approach to justice, which has failed young people, both as victims and offenders. Central Government have moved the deckchairs of responsibility for youth justice between the Ministry of Justice, the Home Office and the Department for Children, Schools and Families. Meanwhile, the youth justice system, which should be directed primarily by local communities, has been sinking. We on this side of the House have argued for greater responsibility for the custodial budget to be devolved to local communities, so that local decisions can be made about the numbers in custody. The Government should pause before another experiment with the justice system fails the British people. The future of our country depends on the young people of today. I believe that it behoves all of us to ensure that we have a justice system that is seen as fair and responsible.

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1.45 pm

Lord Thomas of Gresford: My Lords, I, too, thank the Minister for his statement in support of these orders. In 2003, we on these Benches welcomed the introduction of the conditional caution, which at the time could contain conditions relating to rehabilitation and reparation. My noble friend Lord Dholakia spoke in favour of it at the time. However, in 2006, we opposed the introduction of conditions that were punitive, and also the provision that the police could arrest a person on suspicion of non-compliance with the conditions that had been made.

The basic objection in principle to the punitive element is that it puts into the hand of the prosecutor the job of being both judge and jury as well as prosecutor. Where we have fixed-penalty fines, the amount of the fines, which can be handed out by police officers for various minor offences, is fixed by Parliament, or by regulations that have gone through Parliament. However, when it comes to the punitive condition that is now to be attached to these cautions, the onus passes to the prosecutor to decide all sorts of things. He can decide the amount of the fine, for example. He can decide what amount is to be paid, when and how. When it comes to youth justice, he decides much more than that-there is quite a menu for him to pick from. He can be involved in choosing his conditions. The guide says:

"Conditions may be included to reflect and secure the interests of the victim and neighbourhood or community (for example by requiring the youth to stay away from a specific area)".

There is reference to opportunities to provide unpaid work that benefits the community and the use of a,

We now have a system whereby the prosecutor rather than a court determines matters of discretion-the type and amount of punishment. The Magistrates' Association has written to a number of us-we may hear more about this-expressing opposition to the idea that the principle that has governed our justice system until now, that a court with independent judges or magistrates should determine punishment, should now be abandoned so that a prosecutor can do what he likes, within the limits that the Bill sets down. A very large discretion is given to the prosecutor to determine how to punish a particular person. As I have already said, when you add to that the power of the police to arrest someone and hold them in custody merely on suspicion of non-compliance with conditions which a prosecutor, not a court, has set down, it can be seen how far the principle has been breached.

Therefore, we do not welcome the orders. We think that the provisions of the 2006 Act were wrong. We always agreed with the provisions of the 2003 Act which kept people out of prison, although we dislike the idea that people who have a caution should also have a criminal record. Since then, of course, not only previous convictions but a list of cautions that have been administered to a person are produced in court on the conviction and sentencing of that person. The danger is that a person will always be inclined to take a caution, which will avoid him having to stand in front

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of a court, rather than take a punishment from the court. Therefore, there was a great intrusion of principle in the 2006 Act and we still oppose it.

The Earl of Listowel: My Lords, I, too, am grateful to the noble Lord, Lord Bach, for presenting these instruments, but I share the concerns expressed by the noble Baroness, Lady Seccombe, and the noble Lord, Lord Thomas of Gresford. I see there being a risk of injustice. I have read the letter from the Magistrates' Association and it causes me concern. I agree of course that it is appropriate to use this sort of instrument for minor offences, as long as we can be sure that they are minor offences. However, as the Magistrates' Association points out, there is very little monitoring of these out-of-court disposals, so we do not know whether they are being applied to minor offences, and the association's own study indicates that there is wide disparity in their use. These fines do not take account of the means of the offender to pay. As a result, more than 50 per cent of all fines imposed out of court are not paid, so there is the additional disadvantage that magistrates' courts end up having to tidy up, which produces a drain on their already stretched budget. Can the Minister say what support is being offered to magistrates' courts to deal with this additional burden?

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