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4.15 pm
Lord Kingsland: My Lords, in considering these clauses in Committee, your Lordships will have heard one of the most distinguished debates that has ever taken place in your Lordships' House, greatly enriching the pages of Hansard. It is a testimony to the self-discipline of all your Lordships this afternoon that your Lordships have restrained yourselves from repeating all those matters, but have taken them as a backcloth to the observations made on the amendments today.
What underlay those debates was the concern about the failure to give welfare its proper weight in the youth justice system. We know, to some extent, why that happened. Following Section 44 of the 1933 Act—a remarkable achievement for all those years ago—and then our international commitments to the United Nations convention, we had this curious clause in the 1998 Act, which seemed to retrace our steps all the way back to the 1920s and before. Ever since then, we have been striving to work our way back. The victim of all this has been the welfare of the child.
One has seen this outlined in so many ways. We have seen how children in trouble with the law are much more likely to have grown up in an environment of poor parental supervision and a lack of discipline—a factor that has been virtually ignored by the law in the past 10 years. We have seen how there are all too few opportunities for children in custody to get the kind of rehabilitation that they need in order to re-enter the world with a reasonable chance of not reoffending. I particularly remember the graphic incidents described by the noble Baroness, Lady Falkner, in which there have been serious breaches of human rights in young offender institutions.
This balance desperately needs to be redressed, which is what the three non-government amendments are about. I congratulate the noble and learned Baroness, Lady Butler-Sloss, as so many other noble Lords have done, on saying right at the beginning how pleased she was that the Government have moved on this matter. If I may say with great respect to the Minister, there was no doubt that the text in the Bill simply did not conform to our international obligations, and I am delighted to see that the noble Lord has come up with a text which is a substantial improvement to what was in the original Bill.
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We are presented with three different texts, which all have their merits. The great merit of Amendment No. 47 in the name of the noble Lord, Lord Thomas of Gresford, is that he confronts Section 37 of the Crime and Disorder Act 1998 head on in a way that none of the other amendments does. That is extremely attractive because the law began to go wrong following our United Nations commitments. It is therefore right that it should be confronted.
I share the concerns expressed my noble and learned friend Lord Mayhew of Twysden about proposed subsection (2) in Amendment No. 47, but my biggest hesitation about the amendment, which I do not have about either of the other two, is that it is not clear who should promote the welfare of the child under the amendment. Under Amendments No. 36 and 37, it is quite plain that the duty to protect the welfare of the child is on the court. The best that one can say about Amendment No. 47 is that the duty is on the system, but which part of the system will be responsible? I suppose the noble Lord, Lord Thomas of Gresford, will say that all parts of the system will be responsible, from the prosecution all the way to the moment when the child finally walks free from whatever institution in which he or she has been incarcerated. I say that not because I in any way question the spirit behind the amendment. Anyone listening to the noble Lord can be in no doubt whatever that he is coming at this problem from exactly the same place that I do; but as your Lordships will have to make up your minds this afternoon about what to do about the amendments, those, for what they are worth, are my hesitations about Amendment No. 47.
Amendment No. 37, in the names of my noble friend Lord Onslow, the noble Baroness, Lady Stern, and the noble Lords, Lord Judd and Lord Ramsbotham, has many attractions. It would place responsibility squarely on the shoulders of the court, which must be right. The only real distinction between Amendments Nos. 36 and 37 is one of emphasis.
When thinking about this, I have been in some considerable difficulty. The emphasis in Amendment No. 37 is much more strongly on the welfare of the offender than on the need to have regard to preventing offending or reoffending. I think that the noble Lord, Lord Ramsbotham, would agree that some of the criticisms that he made about offending and reoffending in Amendment No. 36 also apply to Amendment No. 37. The principal distinction between Amendments Nos. 36 and 37 is the weighting. The Government just get over the hurdle in Amendment No. 36. I am not very happy about the principal aim, but I have to confess that the court must have regard to the three factors equally. It is clear that the shackles that so heavily anchored welfare in the text of the Bill have been successfully unlocked.
Lord Thomas of Gresford: My Lords, the noble Lord has in his remarks pointed the way to the difference between Amendments Nos. 36 and 47. In Amendment No. 36, the court is the sentencing court. The principal aim of the youth justice system is a broad aim that affects every agency dealing with young offenders. I am sure that he would agree with that, as he has already pointed the way towards it.
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Lord Kingsland: My Lords, I hope that in making my observations about the noble Lord’s amendment I paid due tribute to the spirit that lay behind it. We are dealing with a sentencing system. Although welfare should infect every part of the youth justice system, for the purposes of this Bill the crucial institution is the court. Therefore, the judges must be absolutely clear what obligations lie on their shoulders, which is why I made my observations about the importance of having someone specific. I am sure, again, that the noble Lord, Lord Ramsbotham, with his experience in another existence, would agree that personal responsibility above all is central. I believe that it is central that the Bill, because it is about sentencing, points to the sentencing authority, which is what Amendments Nos. 36 and 37 do.
My other concern about Clause 9 lies in the purposes subsection. As I think I observed in Committee, there is nothing to distinguish the purposes of sentencing under Clause 9, which are referred to in proposed new subsection (2)(c), from the purposes of sentencing adults. I do not know whether at this stage the Minister would care to look at that again, but it underlies many of the observations made by many of your Lordships. I pick out again the noble Baroness, Lady Stern, only because, in Committee, she led the debate on this issue. Time and again, she has been at pains to say that children are different from adults. Therefore, it is very difficult to talk about the purposes of sentencing for children in a way that is identical to the purposes of sentencing for adults. I would very much like the Minister to say something about that.
Having made those observations, I should like once again to congratulate the Minister on making—given the rhetoric of the Government in another place—a remarkable advance in sympathetic thinking on this most important matter of all in our justice system.
4.30 pm
Lord Hunt of Kings Heath: My Lords, I echo the noble Lord, Lord Kingsland, by acknowledging the quality of debate both in Committee and today in reflecting on our discussions and taking the argument forward. We are clear on the considerations that will now come to your Lordships’ House if these amendments are put to the vote. I also thank particularly the noble Lord, Lord Thomas of Gresford, for his generous welcome for the government amendment, although clearly he thinks that it does not go far enough; nevertheless, his welcome is appreciated. I have not seen the film “Parenthood”, although it sounds interesting. Those of us who are parents can always learn more. The use of the phrase “do no harm” reminds me of the injunction made by Florence Nightingale to the health service: “First, do no harm”. I suggest that that is not a bad principle for many public services.
I accept that we are talking about those who are in many cases very troubled young people. As the noble Lord, Lord Neill, and other noble Lords graphically illustrated, their lives are often wretched, short of love, deprived and open to many temptations. The internet was mentioned. I agree strongly with the sentiments expressed, especially in relation to extreme pornography, which we shall debate later. Equally, it is
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We warmly welcome the expertise of the noble Lord, Lord Ramsbotham, in this House. However, I think that it is useful to have the words “prevent offending” as well as “prevent reoffending”, because that underlines the holistic aim of the whole criminal justice system. I am afraid that I use health service analogies from time to time, but it is rather like the noble Lord saying that the only responsibility of a hospital is to cure sick people. I would argue that a hospital not only provides a sickness service but forms a part of our health service. It is important that we are able to reflect on the overall aims of the system.
We are all concerned about the number of young people entering custody and some of the outcomes; again, I reflect the concerns about self-harm among those young people. The noble Lord, Lord Thomas of Gresford, mentioned restraint. He will know that we are undertaking a review of the issue following the debate on the statutory instrument. Clearly, we are keen to see the outcome of that review in the next few months.
However, we should not ignore the improvements that have been made in the youth justice system. There is much greater co-ordination and the youth offending teams are doing a good job. Yes, they could do better, and the annual report of the inspection of their work indicates that there are areas where improvements need to be made, but we should not ignore the advances that have been made or the additional resources that are being put into education. I have seen for myself in a number of places the real dedication of those working with young people serving in custodial settings to improve their lot and their lives.
The youth crime action plan is due to be published in the summer. It will set out cross-government arrangements for tackling the level of crime and reoffending rates while also recognising the significant personal challenges faced by young people and the fact that the system has been criticised for not going far enough to meet their needs or protect their welfare. The plan will pick up and develop the very ideas that my noble friend Lord Judd and the right reverend Prelate have talked about today, but it must also consider public concern about youth crime.
On welfare, to which we devoted much discussion, I welcome the intervention of the noble and learned Baroness, Lady Butler-Sloss, with all her experience. Part of the job of the courts in taking account of pre-sentence reports will be to assess welfare. The pre-sentence report will be based on what is called an “asset assessment”, which will take account of any existing child protection plan, pastoral support, individual education plan, care plan, children in need assessment and pathway plan. So the mechanism is there.
On the noble and learned Baroness’s comments on whether the courts understand welfare, one would think that they ought to. She says that more must be done and, given all her experience, I accept that. We
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There can be no doubt that welfare must be a key consideration for young offenders. That is the purpose behind government Amendment No. 36. However, we must also look beyond the needs of the young offender and address the needs of their victims and the public. That is why we must ensure that the courts consider the need for reparation and financial compensation. We must acknowledge that the public also expect an offender to be punished for their wrongdoing. The public may be accepting of the view that a young person should not be punished as severely as an adult but they are unlikely to accept that punishment should not be considered at all.
There has been great discussion on the convention, what it means and the definition of a primary consideration. I am grateful to the noble Lord, Lord Kingsland, for his remarks on the drafting of the amendment, which he said just about passed muster; I will accept that. In our work between Committee and Report, we have looked at volume 1 of the Legislative History of the UN Convention on the Rights of the Child. It says that,
- “a number of delegations questioned whether the best interests of the child should be a primary consideration in all actions. It was generally noted that there were situations in which the competing interests, inter alia, of justice and of the society at large should be of at least equal, if not, greater importance than the interests of the child”.
It says that, in the light of those concerns, it was agreed that the convention should refer to the child’s best interests as “a” primary consideration, to reflect that there are others as well. That is why we have been resistant all along to the suggestion of their being “the” primary consideration and why our amendment is constructed as it is.
I have noted with interest the comments of the noble Lord, Lord Kingsland, on the purposes of sentencing in the clause, which are not to be amended by the government amendment. I do not think that there is anything untoward in the purposes of sentencing as expressed in the Bill, albeit that they are directed at young people. They seem to be entirely reasonable matters that should be considered, although I have no doubt that we could have a further debate on them.
In conclusion, in resisting the other amendments that have been tabled, and in hoping that the House will accept the government amendment, I re-emphasise that we fully understand the importance of the welfare of the child, of ensuring that it is fully considered, understanding some of the circumstances in which young people have got into trouble and wanting to do everything that we can to get them out of trouble. We also think that wider issues will be concerned with the criminal justice system. That is why I hope that the government amendment will commend itself to noble Lords.
Lord Kingsland: My Lords, on that last point, the Government would have made their task on the purposes substantially easier if, in proposed new
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Lord Hunt of Kings Heath: My Lords, I am ever eager to ponder the wisdom of the noble Lord, Lord Kingsland. I followed what he said. All that I would say to him is—I think that he is saying the same thing—that you cannot look at subsection (4) in isolation. It has to be read in conjunction with the amendment. He will say that I am making his case for him; I do not intend to, but I understand what he is saying and I agree that we need as much clarity as possible here. The referral for sentencing guidelines will be one way in which we can do that.
On Question, amendment agreed to.
Lord Kingsland moved Amendment No. 38:
The noble Lord said: My Lords, this amendment came upon me a little more swiftly than I expected; I apologise. This is a short matter compared to previous ones or compared to most matters in the Bill. I have only brought it back to your Lordships because of the very generous offer that the Minister made at the end of his reply to me in Committee:
“I am happy to take away the provision to see whether anything more could be done to encourage more use of the order in the future ”.—[Official Report, 6/2/08; col. 1134.]
The amendment is about financial compensation orders. The view that I advanced in Committee was that this could be an effective way of impressing on offenders the significance of their crime. We are talking here about fairly low order offences; primarily but not exclusively vandalism. It would be a way of bringing home the reality of the damage that is being done by vandals to law-abiding householders and shopkeepers. I went on to express my surprise that only limited use appeared to be made of the orders in the courtroom.
The Minister, fairly, came back to me and made a number of observations. First, he said that a provision in the Bill was not necessary because adequate powers already existed under Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000, where it is clear that a compensation order can be made in favour of a victim. Secondly, he said—and again I entirely accept the reason why the Government made this observation—that quite often the courts take the view that it is so unlikely that the offender would be able to pay that passing such a sentence would in effect be futile. However, the Minister concluded that, because he himself undoubtedly accepted the principle that lay behind the amendment, he would give the matter some thought and come back to your Lordships on Report. That is why I retabled this amendment. I beg to move.
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Baroness Butler-Sloss: My Lords, I wonder whether there would be a person under 18 who had any money unless they were drug dealers—in which case they will probably have spent it. I am thinking particularly of couriers, because they are supposed, on some housing estates, to make a lot of money.
I had the unhappy experience of being twice burgled by an 18 year-old who had once been the friend of one of my sons and therefore knew the layout of our house. She was ordered to pay £450 compensation by magistrates, at £10 a week. She paid twice, I think; I got £20. Eventually the probation officer got in touch with me and asked if I would mind if the magistrates set that order aside. I said I could not understand why they had made it in the first place. Although I understand that this would give all the powers to the court for under-18s, I wonder whether anyone has ever come across someone who had the money to pay compensation.
Lord Hunt of Kings Heath: My Lords, I have had an opportunity to consider this between Committee and Report. I am grateful to the noble Lord, Lord Kingsland, for raising the matter with me, and to the noble Baroness, Lady Butler-Sloss, for her interesting comments. I am afraid I cannot take the debate much further than at our last discussion. In 2005-06, the figures I have show that 15,492 compensation orders were made out of 96,000 sentences made in court. That suggests to me that courts find compensation orders are appropriate in a significant number of cases. It also presumes that they consider it feasible for the young person to pay that fine—not, I hope, through criminal practices because clearly that would go against the spirit, and indeed the letter, of the law in terms of the purpose of the criminal justice system.
The courts have discretion here, although they also have to give reasons for not making an order when they are empowered so to do. I have no hard evidence that this is not working satisfactorily. I agree with the principle of compensation where it is appropriate. In view of this interesting discussion, I undertake to discuss the matter with the Youth Justice Board to see whether, either through guidance or through other actions, more needs to be done in this area.
Lord Kingsland: My Lords, I could not have asked for a more generous reply from the Minister. I am most grateful to him, and of course I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath moved Amendment No. 39:
Clause 9, page 7, line 24, leave out “226 or 228 of this Act (dangerous offenders)” and insert “226(2) of this Act (detention for life for certain dangerous offenders)”
On Question, amendment agreed to.
Lord Hunt of Kings Heath moved Amendments Nos. 41 to 43:
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