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I therefore strongly recommend to the Government that the Bill be amended to include specific reference to the CRC’s requirement, which I quoted earlier, that children are dealt with in ways that are appropriate to their well-being and proportionate to their circumstances and their offence. To do otherwise would be to compound an already unhappy situation, as is the case with the child who is in low-level trouble, and create an infinitely unhappier one. It is surely wrong in principle that a non-imprisonable offence should lead to custody through breach, particularly for children, and more particularly for low-level offending and vulnerable children, whom, as the figures show, breach has rippled out to engulf. I beg to move.
Lord Hunt of Kings Heath: That was an interesting introduction to this question. The noble Baroness raised some interesting points about breaches. Her amendments would alter the powers available to courts for dealing with young people who breached their youth rehabilitation order. I shall not talk about robustness again, because the point has already been made. I hope that the noble Baroness will accept that I do not use the term in some macho sense of wanting to be seen to wield a big stick. It is more about getting the balance right between ensuring that custody is truly the last resort and that the new approach to YROs and community sentencing hangs together, is integrated and does for young people the kind of things that noble Lords have talked about. Within that, public confidence is important. It is important that they understand that it is not a soft option to place young people on community sentences. I think that we all agree on that.
The noble Baroness’s Amendments Nos. 36 and 41would remove the provisions which allow courts, both magistrates’ and Crown, when re-sentencing for the original offence, to impose a youth rehabilitation order with intensive supervision and surveillance, or custody if the young offender is already on a youth rehabilitation order with intensive supervision and surveillance and has wilfully and persistently breached their order. The provisions apply even where the original offence would not have warranted such a sentence.
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The amendment would mean that if a young person wilfully and persistently breached the terms of the youth rehabilitation order, they could be re-sentenced only to a further youth rehabilitation order, even if there were multiple breaches. The Bill makes it clear that the measures that we are discussing come into play only for wilful and persistent breach. I assure the noble Baroness that they would not do so for a minor infringement. That is why courts need to be able to raise the bar and use the youth rehabilitation order with intensive supervision and surveillance, or, ultimately, custody.
Of course, we want to look carefully at the powers that the court has to deal with those young people who have breached the order when they have not committed an imprisonable offence. When that is the case, custody is available in the following circumstances alone. There must have been a wilful and persistent breach of the first youth rehabilitation order. The court can then impose a youth rehabilitation order with intensive supervision and surveillance for that persistent and wilful breach. Custody is not available at that point, if the original offence was not imprisonable. The young offender then has to again wilfully and persistently breach the youth rehabilitation order with intensive supervision and surveillance imposed in the first place because of his wilful and persistent breach of the original order. Custody is then available to the court, which is then allowed to make a detention and training order for up to four months—the minimum period of such an order.
I emphasise to the noble Baroness that this provision really is to deal with wilful and persistent breaches and is not a charter for locking young people up for spurious reasons. The Government have absolutely no interest in wishing to do that. We are talking about what I hope will be a very low number of the worst cases in which, for the sake of the integrity of the whole system, it is important that the courts have that discretion.
Baroness Stern: The noble Baroness, Lady Linklater, mentioned the case of a 13 year-old in a child prison, on breach, who was going to continue to breach whatever happened because he wanted to stay at home with his sick mother. This was a child that the noble Baroness met, so we can assume that it is a real child. Is the Minister satisfied in that case that the breaching system and the enforcement—I am not going to say “robust” enforcement; just enforcement—was working as he would like to see it work? If not, what does he think went wrong in that case that we could put right through this Bill?
Lord Hunt of Kings Heath: I am not going to answer directly—and the noble Baroness would not really expect me to be able to comment on those particular circumstances. What is the guarantee within the Bill that in a similar case a person does not inappropriately end up in wilful breach and then in custody? I refer the noble Baroness to page 168 of the Bill. First, the responsible officer has to use his or her own discretion in making judgments. On page 168, at paragraph 3(1) of Schedule 2, the Bill says:
“If the responsible officer is of the opinion that the offender has failed without reasonable excuse”.
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We have already discussed the discretion that is available to the responsible officer within the guidelines that will be set down. Then there is the discretion given to the courts. In our previous debate, I referred to the court’s ability to substitute one rehabilitation order for another. It could well be that in the circumstances that the noble Baroness raised, one option would be to substitute the RO that the young person was on for another, which would enable that young person to attend to his sick mother. Those are the guarantees.
Baroness Linklater of Butterstone: I thank the Minister for his interesting reply. I had exactly the same thought in my head as the noble Baroness, Lady Stern. I wonder whether it would not have made quite a considerable difference if the child’s age and circumstances had been taken into account. He was, indeed, a wilful breacher—under very particular circumstances.
I am sure, as the noble Earl, Lord Onslow, has already indicated, that we will return to this whole issue. I hope that then, instead of keeping this separate, all the amendments will be grouped together and we will consider them as a whole because, although my amendment went slightly further, as the Minister pointed out, the core issues are exactly the same. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 to 41 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 42:
Schedule 2, page 183, line 26, after “area” insert “or (as the case may be) to a provider of probation services operating in that area”
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Clause 4 [Meaning of “the responsible officer”]:
Lord Hunt of Kings Heath moved Amendment No. 42A:
Clause 4, page 3, line 24, at end insert “or (as the case may be) an officer of a provider of probation services acting in the local justice area for the time being so specified”
On Question, amendment agreed to.
Lord Kingsland moved Amendment No. 43:
The noble Lord said: In moving Amendment No. 43, I will also speak to Amendments Nos. 44 and 46. These amendments are about a Henry VIII power in the Bill. The Secretary of State is being given power to amend other criminal justice primary legislation and, in particular, the Criminal Justice Act 2003.
The Criminal Justice Act 2003, as the Committee is well aware, is an extremely large Act. As my noble friend Lord Henley said so tellingly, when speaking to the first amendment to this Bill yesterday, much of that Act has not yet been implemented. This Bill
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However, the Delegated Powers and Regulatory Reform Committee did not find this clause inappropriate. That is sad, but not surprising. Distressingly, clauses such as this have become a permanent part of our political landscape and the Delegated Powers and Regulatory Reform Committee has, however reluctantly, accepted it. In those circumstances, once this amendment has been moved, I intend to beg leave to withdraw it. That is unless one or more Members of the Committee are prepared to be more robust than I have been. I beg to move.
Lord Bassam of Brighton: I have a long speech and I was going to give forth, but the noble Lord has given the game away: he is not intending to press these amendments. As the noble Lord said, the Delegated Powers and Regulatory Reform Committee made no comment about this and we think that these order-making powers are appropriate in the circumstances. I have nothing to argue against.
Lord Kingsland: On reflection, I am extremely sad that the Committee has been deprived of the noble Lord’s wisdom. Perhaps I spoke too soon. However, I will keep my promise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4, as amended, agreed to.
5.45 pm
Clause 5 [Responsible officer and offender: duties in relation to the other]:
Lord Kingsland moved Amendment No. 45:
The noble Lord said: I am not sure whether the noble Lord was in his place, though he may well have been, during the recent debate on the amendment tabled by the noble Earl, Lord Onslow. The amendment suggested that a specific criterion should be taken account of by a magistrate when considering a breach. This amendment raises a similar general point to the one made by the noble Earl and other Members of the Committee. It may, of course, invite a similar reply from the Government.
We are not seeking to have this amendment included in the Bill. We wish to draw it to noble Lords’ attention simply because there was a substantive debate on this issue in Committee in another place, which was, uncharacteristically, rather confused. The point here is very straightforward. I hope the Minister will agree that, for children who depend on their parents for the satisfactory fulfilment of their community disposition—transport is the most obvious, but not the only, example—the absence of parental support for religious reasons should be a complete answer to an alleged breach. The point is as straightforward as that. I beg to move.
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Lord Bassam of Brighton: I am grateful to the noble Lord for moving this more fully than he did his earlier amendment. I have a copy of the Commons debate on this. I suppose the noble Lord is right to say that there was some confusion in the debate. Certainly, on the face of it, this seems a not unreasonable amendment, except in its effect, which could be very confusing. This issue of immediate family, in particular, could cause considerable difficulty. I am not quite sure how one accurately defines “immediate family.” It is not clear to me from looking at the detail of the debate in another place. I certainly appreciate the sentiment behind the amendment, even though it is not something that we can agree with. It would not be practical to extend the consideration as the amendment does, in the terms that it does, because of the difficulties of definition.
We should properly be concerned about the duty of the responsible officer 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 as stated, before making a youth rehabilitation order. In practice, we would expect that the youth offending team would have regard to the young person’s family circumstances in so far as that is practicable. However, taking account of his or her family’s religious beliefs should not be a mandatory requirement imposed in the legislation. No doubt that is an issue that could be picked up in the round, and no doubt it is something that would be considered.
The Bill’s approach is consistent with similar provisions in Section 217 of the Criminal Justice Act 2003, which relates to the adult community order. I should add that interpreting so wide a duty could be fraught with problems of definition. I referred to one such problem in the concept of immediate family. Moreover, a situation could develop where there were conflicting demands or needs—where, for instance, parents are separated and have a different religious belief from the offender’s, or where parents as a couple have a different religious belief from the offender’s. That said, I hope that the noble Lord will withdraw his amendment.
Lord Kingsland: I hope the noble Lord will forgive me if I say that I found his response somewhat suffocating. The point is really very simple. Let us suppose that the definition of “immediate family” is father or mother. I am not seeking to have this provision in the Bill; I would simply like to have a statement from the government Bench in relation to the religious beliefs of the child’s father and mother. If, for plain religious reasons, the father or mother is unable to transport the child to undertake a disposition, would the Government agree that that is a complete answer to any allegation of breach? The Minister looks perplexed.
Lord Bassam of Brighton: I am not sure that it is; that is why I am perplexed. I am not sure that would be the case. It is an answer, but there may be surrounding circumstances that one might need to take into consideration. Let us reflect on this one. I do not want to have an elongated argument about it,
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Lord Kingsland: I was about to say that I was moving from suffocating to suffocated, but just in time the Minister came with a suitable cylinder of oxygen to save me. I am most grateful for the Minister saying that he will come back on this point and, in those circumstances, I gratefully beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 47:
The noble Lord said: I think I can make this point very briefly, but it has gained added importance since our various discussions this afternoon about the consequences of breach. I know that it is normal practice that instructions are given in writing, but now it seems to me to be crucial that they are. Of course, it is always useful to have proper records of what the offender has been asked to do, but now it is vital. Harsher breach consequences will demand much greater clarity about what the child was or was not asked or required to do. In any case, it seems, if the Government are going to get their way in this Bill on the general question of breach, then the audit trail of what is going on in the world of community orders must be as precise and full as possible. Those are the ideas that have lain behind the amendment. I beg to move.
Lord Bassam of Brighton: I ought to say at the outset that I understand the noble Lord’s point perfectly well, and given the line of argument that we have listened to before, I can see why noble Lords opposite might feel that this is a sensible and practical amendment. I realise that it has been aired in another place and I have read that debate. I was interested and intrigued that Mr Garnier was anxious to avoid, as he described it, over-legislating and over-bureaucratising the system. The allegation is often made that the Government are seeking to do that by legislating in the style and manner we do.
Our contention is that these matters are already dealt with satisfactorily in guidance. The amendments are therefore not necessary. As many noble Lords will attest, the Youth Justice Board’s national standards set out what the responsible officer is required to do in respect of instructions to young offenders made subject to orders. Those standards state that an agreement must be produced with the offender and that it should be in writing and signed. It should specifically include acceptable and unacceptable absence criteria, setting the terms under which a breach might follow. The standards include a right to be treated fairly and with respect, something that we would all endorse. There is also a requirement to behave acceptably, which goes to the core of why such orders will be in place in any event, and the importance of time-keeping is dealt with. As will be
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As for the young offender notifying his responsible officer of a change of address, a matter addressed in part in the proposal, immediacy of notification must be the priority. It will be essential for the information to be got to the responsible officer as soon as possible. It could be done by telephone but, in this day and age, it will most probably be by mobile phone or even text message. A requirement to notify a change of address in writing could present difficulties for young people with literacy or learning deficiencies, a feature which we acknowledge is present with many of those who are caught up in the criminal justice system at a younger age.
I do not believe that it is either necessary or right for the Bill to specify that a responsible officer needs to keep written records of the instructions. This is, after all, basic case management. As we have already outlined, the Youth Justice Board’s national standards require instructions to be put in writing and provided to the young offender. All responsible officers must keep valid and accurate records as these may be required subsequently in court. If a young person wants to see details from their case record, they may apply under existing data protection procedures. In our view, it is not appropriate to repeat those in the Bill.
The amendment is not necessary. The instructions are already clearly set out in national standards. We would fall foul of Mr Garnier’s proscription if we were to accede to this amendment.
Lord Kingsland: I am always reluctant to fall foul of my honourable and learned friend in another place. If the Government are going to take the approach to breach that they have said they have, how can they not require in every case the details of the breach to be before the magistrate or judge in writing? The Minister says that national standards require it; but national standards are not always followed. Indeed, there is no legal obligation to follow them. We seek to make it a legal obligation. A person against whom an allegation of breach is made in the court would be perfectly within their rights to say that there was no record of it and that no written instruction was sent to them. That undermines the case for breach. Is this not then in line with what the Government are seeking to do? I am actually trying to help the Government here. Is it not in line with the philosophy on breach outlined earlier today that, correspondingly, the Government ought to have obligations that instructions, and records on the failure to respond to those instructions, are in writing?
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