Criminal Justice and Immigration Bill

Public Bill Committee, 23 October 2007.

Further written evidence to be reported to the House

Nicholas Winterton (Conservative, Macclesfield)

I welcome the members of the Committee to a more traditional Committee room for deliberation and scrutiny of this important Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 164, in clause 1, page 1, line 5, after ‘aged’, insert ‘over 10 and’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following amendments: No. 165, in clause 1, page 1, line 5, after ‘aged’, insert ‘over 12 and’.

No. 166, in clause 1, page 1, line 5, after ‘aged’, insert ‘over 14 and’.

No. 1, in clause 1, page 1, line 5, leave out ‘or before’.

No. 163, in clause 1, page 1, line 8, at end insert

‘for a maximum of 3 years’.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you, Sir Nicholas, and other hon. Members to the Committee. I do not whether it is because mine is a deeply reactionary nature, but I feel more comfortable in these surroundings than I did in the other room.

This series of probing amendments is intended to gain a clear view from the Government about the precise age range that the orders will cover. Amendment No. 164 suggests a lower age limit of 10, amendment No. 165 one of 12, and amendment No. 166 one of 14.

From reading the latter parts of the Bill, it is clear that the Government intend the orders to be used for children under 14. In schedule 1, on page 91 of the Bill, and in the Government amendments in that respect, we see that attendance centre requirements can be used for an offender aged 14. We must therefore assume that there is a Government view of the suitability of that sort of attendance. I have no quarrel with that; I just want clarity. Many criminal justice Bills ago, we had many learned debates about the age of criminal responsibility. A Latin phrase, which has now completely gone out of my head, was used to describe what was until then the age of criminal responsibility. I see puzzled looks in the room—everyone has now forgotten the phrase; it has been consigned to history.

Alun Michael (Labour, Cardiff South and Penarth)

Is the hon. Gentleman referring to the debates on doli incapax?

David Heath (Liberal Democrat, Somerton and Frome)

I am so grateful to the right hon. Gentleman. He remembers the phrase because we were both dealing with Home Office affairs at the time. It is always good to have classical erudition added to the debate. Doli incapax is exactly the phrase that I was trying to recall. We had long discussions about whether it was right to extend to a lower age the assumed capacity of a child to know that they had done wrong.

That is an historical debate, however. The law was changed. Doli incapax was removed as a legal concept and children are now brought before the criminal courts at a much younger age. I tabled amendments Nos. 164 to 166 to enable the Government to state clearly at what age they expect the new orders to apply.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. Gentleman says that the amendments are probing. There are many difficult judgments to be made about the capacities of individual children in various circumstances, so I should have thought that he would accept greater flexibility for the courts to make sensible decisions. However, I wonder what his view is. Is it that a specific age should be nailed down? If so, what is it? He has tabled a number of amendments in what might be described as a typical Liberal Democrat approach. Considering his knowledge of the subject, I am sure that he has an opinion.

David Heath (Liberal Democrat, Somerton and Frome)

It is unfortunate that the right hon. Gentleman put in that little barbed comment towards the end of his speech.

Alun Michael (Labour, Cardiff South and Penarth)

I could not resist.

David Heath (Liberal Democrat, Somerton and Frome)

He says that he could not resist, but it is a fairly well worn track for Opposition amendments to offer a range of options so that the Government can argue for or against each one, so I do not think that that method of questioning can be seen exclusively as a Liberal Democrat attribute.

I would find it very difficult to accept that what is essentially a criminal law sanction should be used for a child under the age of 10. We have very well founded systems within our social services for dealing with children who misbehave at that age. Although I do not dispute for one moment that there are processes—sanctions is perhaps the wrong word—which a child who misbehaves at a young age ought to undergo in order that they might be taught a better standard of behaviour, I am not sure that this is the process by which that should be done. I hope that that answers the right hon. Gentleman. There is nothing on the face of the Bill to indicate any lower age limit and that is why I thought that it would be useful for the Minister to have the opportunity to say what he thinks.

Amendment No. 163 deals with the slightly different matter of the length of currency of such an order. The amendment suggests that the words

“for a maximum of 3 years”

be inserted into the clause relating to the making of the orders. Again, we find that schedule 1 gives an intimation of the Government’s thinking, but no more than that. Schedule 1, part 4, deals with provisions applying where the court makes youth rehabilitation orders. Paragraph 31(1) states:

“A youth rehabilitation order must specify a date, not more than 3 years after the date on which the order takes effect, by which all the requirements in it must have been complied with.”

That suggests that the Government intend a currency of three years as a maximum for an order.

The difficulty that I have with that wording—the Minister might like to comment on this—is that it is not clear to whom the words

“must have been complied with”

are addressed. Does that apply to the authorities or to the individual who is subject to the order? It is not clear to which of the two those words apply. What is to happen if the authorities are in breach, as opposed to the individual? Are the authorities to be brought back to the court to show why they have not complied with the order within three years—presumably in that instance with regard to provision that should have been made within that time—or is the provision really intended to ensure that the currency of the order is no more than three years? If that is the case, I suggest to the Minister that the amendment would make the Bill more explicit, would state the case better and would be a valuable addition to the Bill. If that is not the Government’s intention, the Minister can explain exactly what is intended and why paragraph 31(1) gives that slightly ambiguous statement.

Those are the four amendments that stand in my name and that of my hon. Friend the Member for Cambridge. I do not intend to divide the Committee on three of them, but, if I have divined correctly what the Minister intends by the current drafting, the fourth is a serious suggestion for making the Bill more explicit. The hon. and learned Member for Harborough may now wish to expand upon the remaining amendment in the group, amendment No. 1.

Edward Garnier (Conservative, Harborough)

When the hon. Member for Somerton and Frome tabled the amendments, I thought that he wanted to have a debate about the age of criminal responsibility, but I see that that is not the case. I am happy that we will not be having such a debate this morning, because I am not sure that it is necessarily what we want to do when discussing the Bill. None the less, the amendments provide us with an opportunity to invite the Government to be a little clearer in their response to the speeches from Opposition Members about the general policy behind clause 1 and schedule 1, and to see if we can tease out some details and the intentions behind them, so that the Bill may be better understood.

Amendment No. 1 is very simple; it requires the Government to explain why the words “by or before” are necessary. Surely the person is convicted by a court and he will also be before that court, unless he is an absent defendant. Surely clause 1(1) would perfectly easily and sensibly read

“Where a person aged under 18 is convicted of an offence, the court by...which the person is convicted may in accordance with”—

and so on, or

“the court...before which the person is convicted may in accordance with”.

I may be being not unusually obtuse, but for the present purposes, I cannot see the point of having both prepositions. No doubt, the Minister will explain the thinking behind that.

Again, it is not for me to answer for the Government, and I realise that much of the Bill is pretty muddled, but in relation to the three-year point with which amendment No. 163 deals, inserting

“for a maximum of three years”

into clause 1(1), I suspect that if one looks at schedule 1, one will conclude that the sentence must be on the defendant, so the order, which is the sentence, is on the defendant, and he must comply with that within three years. The court does not sentence anyone other than the defendant. I think that I have probably made my point. Although the language of the Bill may be inelegant and somewhat opaque, I think that most of us would be able to understand that the defendant—the offender—must have completed the requirements imposed upon him within a period of three years. That strikes me as being reasonably clear.

I do not have much to say about amendments Nos. 164 to166, which deal with the bottom age of the person convicted of the offence, other than that there is reference, as the hon. Member for Somerton and Frome pointed out, in schedule 1 to the age of 14 in relation to an attendance requirement. That reference to the age of 14 is not replicated in all or any of the other requirements. That may be an oversight or it may be deliberate, but it is certainly susceptible to clarification.

I do not want to have a stand part debate at this stage, but it is important, at least from my party’s point of view, that we set out our general concerns. The Bill is very ill drafted in all sorts of ways; it has been pulled together. I do not like to tease the Minister of State with stories of plum-duff, because he finds that offensive. It appears that he had a neglected childhood and did not have any plum-duff—that was the evidence he gave during the course of the hearings in the Boothroyd room. I will leave that aside.

In an ideal world—and I appreciate that being in government is not necessarily ideal—this Bill would have been deconstructed and reduced into several separate Bills. As it stands, it is totally devoid of a theme. Part 1 and schedule 1 are examples of that. There are lots of confusions. If one were to sit down with a hot towel on one’s head, one could probably get to the bottom of them. What concerns me is that when the Bill is implemented and practitioners and courts have to find their way through it, there will be the sorts of difficulties that the hon. Member for Somerton and Frome has raised.

The other relevant matter is a proposal that appears to have Government support. It was reported in this morning’s newspapers. I will take one example from The Daily Telegraph, which was the first to come to my attention on the internet. It stated:

“Children as young as 10 will be given the power to punish young offenders as part of a new Government experiment to reform troublemakers...

The so-called children's court will deal with lesser offences such as graffiti, under-age drinking and anti-social behaviour.

It will hand out minor sentences, for example asking the offender to clean up litter, or working on tidying up a garden.

A pilot scheme is running at the Restorative Justice Centre in Preston. If it is successful, it will be brought in across the country. Ministers believe that peer pressure from the youngsters’ own age group will encourage them to reform their ways, and the court aims to punish up to 300 children in its first year.

As part of the controversial project, which began this week, some of the youngsters sitting on the jury will have been identified by police as potential troublemakers themselves.”

Apparently, the initiative has been funded by a £487,000 grant from the Treasury, which was agreed by the Chancellor. The scheme has been criticised by magistrates. John Fassenfelt of the Magistrates Association—a body that we heard from in the evidence sessions last week—said:

“Children do not have the balance or maturity to make a judicial decision. We are very much against this and we are amazed that such a meaningless exercise should have been given so much taxpayers’ money.”

My hon. Friend the Member for Arundel and South Downs (Nick Herbert) said:

“Faced with a rising tide of violence, the public deserves proper punishment for young offenders to deter them from a life of crime.

Cleaning graffiti or forcing thugs to apologise to their victims should be an additional penalty, not a weak substitute for justice in the courts.”

That is a newspaper report and it may be wholly inaccurate. The Government may have no such plans and there may be no such activities going on in Preston or anywhere else. However, we need a degree of clarity in Government thinking on how to deal with youth crime.

Alun Michael (Labour, Cardiff South and Penarth)

I am listening to the hon. and learned Gentleman with interest, but I wonder whether we will be asked to look at every newspaper report that contains fairly light discussion of some very serious issues, rather than at the considerable body of evidence on reparation and at the different experiments in engaging young people with the process?

Edward Garnier (Conservative, Harborough)

The right hon. Gentleman misunderstands me. I am a keen supporter of restorative justice, in the right cases, whether it involves young offenders, children or adults. What I am concerned about—if I consider it necessary, I shall produce newspaper reports that reflect on the amendments under discussion—

Nicholas Winterton (Conservative, Macclesfield)

Order. May I suggest that we do look at the amendments we are discussing? I say to the hon. and learned Gentleman, who is a very distinguished lawyer, that he is going rather wider than the amendments under consideration.

Edward Garnier (Conservative, Harborough)

Sir Nicholas, you are probably right—in fact, I am sure that you are right.

Nicholas Winterton (Conservative, Macclesfield)

I have to say to the hon. and learned Gentleman that I am right.

Edward Garnier (Conservative, Harborough)

As our hon. Friend the Member for Congleton (Ann Winterton) frequently says, no doubt.

To return to my neat and thoroughly coherent argument, how we deal with children who commit crimes is an important matter. It is hugely important because if you do not prevent them from getting into the criminal justice system, if you do not prevent them from committing crimes before the age of 10, the chances are that they will get stuck on the conveyor belt of minor and then increasingly serious criminal behaviour. They end up before the courts, they end up in custody, they end up in young offender institutions, and they end up in adult prisons.

We already know—this is not controversial, the Minister will agree—that the reoffending rate for youngsters is in excess of 70 per cent.; and some figures suggest that it is as much as 75 per cent. For adults, the rate is in excess of 65 per cent. That is an awful waste of life and an awful waste of public money. I am as determined as the Minister is to bear down on the amount of reoffending, and as keen as he is to ensure that youngsters, whether below or above the age of criminal responsibility, are diverted from becoming involved in crime and the criminal justice system.

I used the illustration of the children’s courts referred to in this morning’s edition of The Daily Telegraph as an indication of my concern that when we look at the amendments and when we look at schedule 1 and clause 1, we do not see a coherent pattern of approach to the issue. I am not accusing the Government of being ill motivated; I am just accusing them of being somewhat disorganised. When the Minister of State responds to the amendments on behalf of the Government, I would appreciate it if we can extract from him a little more about the philosophy behind the Government’s approach. Having said that, I will leave the matter there and I look forward to hearing others who may wish to contribute.

Harry Cohen (Labour, Leyton and Wanstead)

I am grateful to the hon. Member for Somerset and Frome—

David Heath (Liberal Democrat, Somerton and Frome)

Somerton and Frome.

Harry Cohen (Labour, Leyton and Wanstead)

I am grateful to the hon. Member for Somerton and Frome—we need a screen, like we have in the Chamber—for giving us the opportunity to talk about the age of criminal responsibility. I do not think that the Committee wants a major debate on the morals of that question, but we have at least a chance to say a few words about it. By the way, we were squeezed for time at the end of the debate on Second Reading, and I got five minutes to speak in which I think I referred to the age of consent. That was one example where I was clearly wrong, Sir Nicholas, although I later corrected it.

It is interesting, however, that the age of consent is 16. There are all sorts of inconsistencies about when children reach adulthood. For example, I do not know whether the Government have done this already, but they were talking of increasing the age at which a person can buy cigarettes to 18. In that respect, the presumption is that one is still a child until the age of 18, when one can decide to buy cigarettes.

Alun Michael (Labour, Cardiff South and Penarth)

As my hon. Friend says, this is an extremely interesting topic, and he may be interested to know that the Minister for the third sector, our hon. Friend the Member for Corby (Phil Hope), was one of those who worked with the National Youth Bureau to unpack some of these issues in a project known as the process of enfranchisement. That project demonstrated that far from there being one point at which a child moves into adulthood, there is a series of steps running over some 15 to 20 years, through which different aspects of how a child is able to do things or is treated change over time.

Harry Cohen (Labour, Leyton and Wanstead)

That is a very good point, which should be recognised where it can be; if not in the law, then in administrative arrangements. Some people, including some MPs perhaps, never grow up, or in some aspects of their lives never grow up, but I will not go down that path, or you will cut me off, Sir Nicholas.

We have the lowest age of criminal responsibility in Europe, at 10. However, it is lower in Scotland at eight, which I think is not a long way off from being barbaric and I hope that the Scottish Parliament will revisit that at some point. We still have one of the lowest ages of criminal responsibility and it came out of the Jamie Bulger case. The Government understandably responded to the public reaction, and that is why that measure was brought in. However, I have been to conferences of, for example, young offender team managers, and they do not like it. They do not agree with the age of criminal responsibility being set at 10—they think that is too low. Other professionals who work with children also think that.

The Government have said that they will not revisit the matter, but I think that they should look, if not at the age itself, at the process of dealing with children in those circumstances. On Second Reading I said—and the amendment provides an opportunity for me to say it again—that the welfare and development of the child must remain the paramount concern of the state. Most of the offences committed by children are not horrendous, but even in cases such as that of Jamie Bulger, once a child has been taken into custody, the welfare and the development of that child must remain an important principle for the state.

Alun Michael (Labour, Cardiff South and Penarth)

I am sorry to disagree with my hon. Friend, and I do not disagree that the protection of the child’s welfare is an important principle for the state, but I thought that the Crime and Disorder Act 1998 clarified that the prime purpose of the youth justice system is to reduce and prevent reoffending, not least because offending damages not only the victim and the community, but the family and the individual offender themselves. That is why it is such an important principle. I understand my hon. Friend’s point, but it must be seen in context when we deal with youth justice issues.

Harry Cohen (Labour, Leyton and Wanstead)

I bow to my right hon. Friend’s terrific expertise and I accept that that is a key issue. However, I still return to what may in some cases be deemed to be the paramount point: that the welfare and the development of the child do not go away in those circumstances. They remain the responsibility of the state and I think that they must come higher up the agenda.

We need a layered approach from the courts and from administrative authorities that deal with children. For example, the younger and less mature a child is, the more welfare and development input he or she should get from the state. That really is a point that Ministers should revisit. Even when dealing with an horrendous offence, such as in the Jamie Bulger case—we are getting some terrible cases now with stabbings and gun crime—we should not bow to public pressure and have those children tried in adult courts. We have a youth justice system, and that is what should apply to such cases.

Nicholas Winterton (Conservative, Macclesfield)

Order. I say to the hon. Gentleman that I am using my broadest discretion, but he is not really addressing his remarks specifically to the amendment. I would be grateful if he did so.

Harry Cohen (Labour, Leyton and Wanstead)

The Government have recently made it clear that they will not revisit the age of criminal responsibility. Today we will hear how they respond to the amendments. The point that I want to make is that the welfare and development of the child need to be addressed and not just left. Restorative justice, which was referred to earlier, is a factor in that, as is education, and youth rehabilitation orders include a provision for that. That must come higher up the agenda for children in these circumstances.

I do not want to labour the point. Clearly, as other members of the Committee and I have said, this is not a debate about the age of criminal responsibility and where good and evil start and such matters. However, I urge the Minister to revisit the administrative processes and to put the welfare and development of the child higher up the agenda.

David Hanson (Labour, Delyn)

Good morning, Sir Nicholas. I welcome you to the Committee proper and assure you, on the record, that on all occasions I will regard you as being right. If I am to be accused of being the school swot, I should get it out of the way immediately. I say to the hon. and learned Member for Harborough that I have nothing against plum-duffs. It is simply that we never had them where I came from.

Edward Garnier (Conservative, Harborough)

I will have one sent to you for Christmas.

David Hanson (Labour, Delyn)

I look forward to it.

I am grateful to hon. Members for the issues that they have raised. There are important issues, which I hope to help clarify. In amendments Nos. 164 to 166, the hon. Member for Somerton and Frome has raised issues that touch on the age of responsibility and on the question of when and how the order applies. I hope that I can offer him some clarification on those matters.

First, I assure the hon. Gentleman that the youth rehabilitation order will apply only to young people over the age of 10. We have placed that as the age of criminal responsibility. That is not an issue that I will reopen today because it is a wider issue that is beyond the scope of the Bill. However, I accept that the amendments have touched upon it.

The order will apply to individuals over the age of 10. To clarify the points made by the hon. Gentleman, there are a couple of provisions within the order that have a minimum age requirement. If he looks carefully at the unpaid work requirement, he will see that it applies to individuals aged 16 and 17 only. The issue relating to residence—if a place is specified—applies also to age 16 and over. He also mentioned the reference to attendance centre requirements and suggested that that would be available only for those 14 years old and over. That is not the case. The Bill includes a number of bands in respect of minimum and maximum hours that must be spent in an attendance centre. Those bands will vary according to the age of the offender.

In general terms, the order is available for individuals aged 10 and over. That is for one reason in particular: the starting age for the youth rehabilitation order must be similar to other juvenile sentences. It would be inconsistent and lead to confusion for sentencers, offenders and those delivering the requirements of youth rehabilitation orders to have a separate age band for that order. As I have mentioned, we have no intention of changing the age of criminal responsibility, which is currently 10.

For the help of the Committee—this point touches on that raised by my hon. Friend the Member for Leyton and Wanstead—in 2004, the last year for which we have complete figures, over 201,000 offences by 10 to 17-year-olds were dealt with in the criminal justice system. Of those, just over 6,400 were committed by 10 and 11-year-olds. That is about 3 per cent. of the total. I want those individuals who come into the system aged 10 or 11, of which there is only a small percentage, to be dealt with in a way that looks at the welfare of the child and has the prevention of reoffending at its heart. I hope that that reassures my hon. Friend.

We are having some success. Of the 6,400 who came before the courts, approximately 5,500 received a reprimand or final warning, with just over 800 receiving a court sentence. For the reasons mentioned by the hon. and learned Member for Harborough, it is in everybody’s interests that we capture these young people at an early stage, that we look at what interventions are required to prevent them from reoffending and that we make those interventions. My concern is that they are the potential adult criminals of tomorrow. Given the high levels of reoffending, we must try to have those interventions at a very early stage.

I am also keen that children and young people are not prosecuted and that, wherever possible, an alternative is found. To deal with the point made by my hon. Friend, local multi-agency youth offending teams, with the help of social services and health professionals, will ensure that we identify the needs of these young people and that we put in place help and support, not just for them, but to enable their parents to look at the challenges that they face.

The objective is to prevent reoffending in the first place. Some of the methods might include child welfare departments or child and adolescent mental health services. We need to look at that holistic approach to tackling that offending behaviour through the youth justice system because we must ensure that we prevent reoffending. That is the key to helping to prevent not just crime in our communities, but a wasted life for those young people. I hope that that has helped the hon. Member for Somerton and Frome. I will return to his other points in a moment.

In amendment No. 1, the hon. and learned Member for Harborough asks to remove the words “or before” from subsection (1). I hope that I can reassure him about the reason for their inclusion so that he will not press the amendment. The drafting of clause 1 is consistent with the precedent set by previous legislation and is similar to section 177 of the Criminal Justice Act 2003, as I am sure he is aware, which covers the adult community order, and to other sentencing legislation. Let me explain the purpose behind it.

At present a young person or a child may be convicted by a youth court, which is a form of magistrates court. Alternatively, they may be convicted by a jury in a Crown court. Once convicted by a jury, the young offender comes before the Crown court for sentencing. The current form of words in the Bill provides that whether convicted by a youth court or a Crown court, that court may sentence the child or young person to a youth rehabilitation order. I am not sure whether it was the intention, but the effect of amendment No. 1 would be to remove the ability of the Crown court before which a person is convicted to impose on the young person a youth rehabilitation order. The wording is simply to retain the current flexibility. I hope that that clarifies the point.

Amendment No. 163 would place a maximum time limit of three years on each requirement of a youth rehabilitation order under clause 1. If the intention of the hon. Member for Somerton and Frome is to set an overall three-year limit on the duration of the youth rehabilitation order, I hope he will recognise that the amendment is unnecessary. He rightly pointed to schedule 1, paragraph 31(1), which already imposes such a limit. It states:

“A youth rehabilitation order must specify a date, not more than 3 years after the date on which the order takes effect, by which all the requirements in it must have been complied with.”

The hon. Gentleman asked how that applied and to whom. The hon. and learned Member for Harborough rightly pointed out that the order itself applies to the young offender. It is for him or her to complete the order. The Youth Justice Service must ensure that the requirements can be completed within the three-year maximum and the court can also put an expiry date on the youth rehabilitation order, which is no more than three years hence. But it is ultimately for the individuals themselves to complete that order within three years, under the supervision of the appropriate authorities. I hope that that clarifies the point for the hon. Gentleman.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister of State talks about expiry of the order. I do not think that anything in the Bill talks about the expiry of the order; it talks only about the requirement to complete provisions within it. There is a subtle difference between the two. If he is clear that there is capacity for an expiry date to be set by the court, under what part of the Bill is the provision made?

David Hanson (Labour, Delyn)

We can debate the wording. I am basically telling the hon. Gentleman that the order must be complied with within the three-year period. It is for the individual who has the order against him or her to comply with the order within that period.

David Howarth (Liberal Democrat, Cambridge)

I think that the confusion here is whether it amounts to a breach of the order not to comply with it within three years. If the order comes to an end after three years it cannot be a breach of it not to have complied within that time. If the obligation is on the offender to have done the various things in that time, it is a breach not to have completed them.

David Hanson (Labour, Delyn)

I hope that I can clear up any confusion that may exist. Youth rehabilitation orders must specify a date not more than three years after the date on which the order takes effect by which time all requirements in the order must be complied with. The requirement for compliance extends to the person against whom the order was made, so it is the offender’s responsibility to complete the order within the three-year time scale, and failure to do so constitutes a breach of the order. I hope that that clarifies the position for the hon. Gentleman.

I want to refer to a further point that was mentioned in the debate, which related to the reports in today’s newspapers. I am happy to respond to that point, provided that it is in order, Sir Nicholas.

Nicholas Winterton (Conservative, Macclesfield)

The Minister of State will no doubt ensure that his response is in order.

David Hanson (Labour, Delyn)

During the debate on amendments Nos. 164 to 166, the hon. and learned Member for Harborough mentioned today’s report in The Daily Telegraph which bore the headline:

“Ten-year-olds ‘to punish peer offenders’”.

Edward Garnier (Conservative, Harborough)

It takes an interest in you.

David Hanson (Labour, Delyn)

I know. The project in question is a pilot project in Preston which is being run by the National Association for the Care and Resettlement of Offenders and which is for young people who commit low-level crime. Instead of being given a reprimand, the young people are referred to a peer panel, but they must admit guilt in order to be referred. The peer panel discusses the crime and agrees what should constitute an acceptable behaviour contract. If the individuals do not complete the agreed contract, they are sent to the police for further discussion.

The project is not directly within my responsibility, but I shall bring the Committee up to speed on what I know about it. I understand that the funding for the project has come from the challenge fund provided by the Treasury to the extent of some £487,000. If the Committee feels that it will help, I will happily write a note to assist in informing the debate, which if appropriate could be referred to later on wider issues concerning the Bill. I do not wish to mislead the Committee in relation to information that I do not have at my fingertips.

Edward Garnier (Conservative, Harborough)

I am sure that the Minister of State would never mislead the Committee—at least, not on purpose. Let me ask him whether the scheme—

Nicholas Winterton (Conservative, Macclesfield)

Order. We do not want a debate on the matter, which is not directly connected with the amendments that we are debating. I think that the Minister has given a fair reply. If it is appropriate to refer to the matter later in our discussions, I shall be happy for that to happen.

Edward Garnier (Conservative, Harborough)

I was simply going to finish the sentence, and ask whether the scheme envisaged under clause 1 and schedule 1 contemplates the sort of thing that has recently been referred to. The Minister of State says that the pilot scheme is not within his responsibility, but I am concerned that there is no strategic overview on youth offending and how to deal with it. If the Bill is designed to address that, I should have thought that ideas such as the pilot would have come before him. The fact that they appear not to be within his remit is confusing.

Nicholas Winterton (Conservative, Macclesfield)

If the matter is to be discussed, it would be appropriate to raise it as part of the clause stand part debate, provided that I am in a position to permit it, which depends on how long it takes to scrutinise the amendments.

David Hanson (Labour, Delyn)

Thank you, Sir Nicholas. The provisions of clauses 1 to 5, in part 1 of the Bill, are designed to give a number of opportunities to courts to exercise measures that will not only punish but help prevent reoffending among young people. The project that the hon. and learned Gentleman has mentioned, which was cited not just in The Daily Telegraph but in a number of other journals this morning, is a pilot project by NACRO that is, as I understand it, funded from Government resources.

I will clarify the position, but that project is not directly within my area of responsibility. However, I am happy at least to examine anything that can help to prevent young people from offending again. If we were to undertake some activity in terms of young people themselves and examine what has caused a young person to offend and that is proved by the pilot to help prevent other young people from getting involved in crime, I am happy to consider that activity as part of the wider criminal justice activity.

Charles Walker (Conservative, Broxbourne)

This project could be an interesting innovation. It could be useful in helping children to feel empowered and in helping them to learn the difference between right and wrong, and it is just a great shame that our national newspapers have got hold of it and are perhaps distorting what could be an interesting scheme. Perhaps it would have been nice if this project could have been brought before Parliament at an earlier stage.

David Hanson (Labour, Delyn)

I am grateful to the hon. Gentleman for his supportive comment. As I say, at the moment this scheme is not a scheme for which I am directly responsible, but it is a scheme which I have authorised and I am happy, given our discussions, to reflect upon it in due course. I hope that the hon. Gentleman will pass on that message to the hon. Member for Arundel and South Downs, who, in the same article that I have before me, says:

“Faced with a rising tide of violence, the public deserves proper punishment for young offenders”.

By implication, the hon. Member for Arundel and South Downs does not mean the scheme that is being undertaken in Preston on a pilot basis. So, I hope that the hon. Gentleman will use his immense influence with his Front Bench to ensure that that project receives a fair wind.

Charles Walker (Conservative, Broxbourne)

Perhaps we could have avoided the anguish if this innovative scheme had been announced to Parliament by the responsible Minister so that it did not come as a surprise to certain people and could have been debated collectively.

Nicholas Winterton (Conservative, Macclesfield)

We have gone far enough on that.

David Hanson (Labour, Delyn)

As I have said, Sir Nicholas, you are always right and how can I not take that encouragement in the way that it was meant?

If the Committee feels that it will be of help, I will ensure that a letter detailing the pilot project is sent to members of the Committee. As I say, I wish that I could give more information on that project today, but I am not party to it and I would not wish to give information that was not complete to the Committee.

In responding to the debate, I hope that I have provided clarity for the hon. and learned Member for Harborough, the hon. Member for Somerton and Frome, and my hon. Friend the Member for Leyton and Wanstead on the Government’s thinking on these issues, and I also hope that, having given those assurances, the amendments will not be pressed.

Edward Garnier (Conservative, Harborough)

I heard what the Minister had to say about amendment No. 1. I am not entirely sure that I am convinced by his response, but I am entirely convinced that I do not need to take the matter further.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister of State, and indeed to other hon. Members who have contributed to the debate. He has given me greater clarity than was provided before and I am grateful for that.

May I also say how pleased I am that the Minister of State is prepared to use the “c” word—children—in respect of 10-year-olds? I got into trouble with one hon. Member on Second Reading for daring to say that some of the people that we were dealing with were children. They are children. They may have behaved badly, they may need punishment, but they are children, and the way that the Minister of State described his intentions was entirely admirable, in that he is trying to deal with the problems these children face and the unacceptable behaviour that they are displaying in an holistic way, if I dare use that word “holistic”. One treats the whole individual and finds the right avenues to help to correct some of the problems that they face, which very often are environmental, or developmental, in terms of the learning environment in which they have lived. Sometimes, their behaviour is as a result of peer pressure of all sorts.

Regarding the scheme that was alluded to, although I think that it is of dubious relevance to my amendments, this much is relevant: it is important to find ways of dealing with offending behaviour that work. That is the crucial thing. It underlines everything that I have to say about penal policy. What works? What actually reduces reoffending? I could not give two hoots for what the newspaper industry thinks about a proposal. What is critical is whether a proposal works to reduce reoffending. It is not an entirely novel process, because it has been explored elsewhere. There is evidence that it works, and that young people are more responsive to the views of their peers, who are certainly no soft touches. Again, that is the evidence on dealing effectively with offending behaviour. If it works, it is a model that we should build on, and that is all.

On my amendments, I am grateful to the Minister for giving a clear indication of the age range for the various elements of the rehabilitation orders. However, there is still a suspicion of doubt in my mind as to whether the Bill is explicit about a three-year expiry, as opposed to the conditions that must be fulfilled within three years. Because some of those orders are very resource intensive, I can see circumstances in which not the individual on whom the order has been placed, but the authorities that have a duty to provide a variety of things to that individual, will be in breach of it. I am not clear what will happen if that is the case.

As the Minister is apparently satisfied that the Bill provides for such circumstances, I will, for the moment, take his assurances as being a sufficient answer, yet it worries me that there is perhaps still an ambiguity that has not been addressed. Having said that, I thank the Minister for the intended helpfulness of his replies and I beg to ask leave to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 114, in clause 1, page 2, line 5, leave out paragraph (j).

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: Amendment No. 110, in clause 1, page 2, line 17, leave out paragraph (a).

Amendment No. 115, in clause 1, page 2, line 20, at end insert ‘, or

(c) a youth rehabilitation order with local authority residence (see paragraph 17 of Schedule 1).’.

Amendment No. 111, in clause 1, page 2, line 21, leave out ‘(3)(a) or (b)’ and insert ‘(3)(b)’.

Amendment No. 116, in schedule 1, page 85, leave out lines 15 and 16.

Amendment No. 113, in schedule 1, page 85, line 31, at end insert—

David Heath (Liberal Democrat, Somerton and Frome)

I have long determined that getting my constituency right is not easy for many hon. Members. It is Somerton and Frome, pronounced “Froom”; in fact, in Somerset it is pronounced “Vroom”, with a hard “F”. Now that is a challenge to Hansard, which I instantly regret.

Nicholas Winterton (Conservative, Macclesfield)

That is the one and only occasion on which I have been wrong.

David Heath (Liberal Democrat, Somerton and Frome)

I concur entirely, Sir Nicholas, as I wish to get the creepiness award as well.

I wish to speak to the large group of proposals standing in my name and that of my hon. Friend the Member for Cambridge. The group is broken down into three main areas of concern. Therefore, I will deal with those three areas in turn, rather than the wording of specific measures in the group.

The first area comprises amendments Nos. 114 to 119, which deal with the local authority residence requirement. As we know, that part of the youth rehabilitation order allows for a range of disposals. One is the intensive fostering requirement, where there are additional provisos before a court can impose it. The other is the specified local authority accommodation, where much more discretion is allowed to the court to use that disposal. That is an anomaly in the context of these amendments. If a child is to be taken away from their family home and, in effect, placed in detention—although I accept that detention is an inappropriate term for fostering, and I hope for much of local authority residence—or in the care of the state in one form or another, it seems appropriate that there ought to be at least some provisos as to the circumstances under which that can be used.

The suggestion in these amendments is first that this disposal should be used only where otherwise a custodial sentence might have been appropriate. That is a proviso that applies as far as the terms of the fostering arrangements are concerned and there seems no obvious reason why it should not apply to the local authority placement. We have established beyond doubt now that this can apply to a child as young as 10. We are dealing with very young children for whom such an enforced move out of the family home can be an intensely traumatic experience.

The second proviso is that the local authority should have some opportunity to consent, rather than simply being consulted, before that residential order is made. The reason for that is twofold. First, the authority must ensure that the appropriate facilities are available for the receipt of the child. Secondly, social services within a local authority should be able to have a strong say-so when it comes to whether that is an appropriate disposal and whether the court is correct in its view. There are already powers within the remit of the local authority to place a child in care without any offence having being created, but that decision is clearly made on the basis of the best interests of the child, which are paramount. That is rather different from an order that is made, one presumes, in the interests not only of the child but of society—in the form of a part of a rehabilitation order. We should consider whether the two disposals that require a change of familial environment for the child should be brought into approximate parity within the context of the Bill.

The second broad area includes new clause 6 and its ancillary amendment No. 109. New clause 6 deals with preconditions to imposing a youth rehabilitation order. In effect, it lifts the present proviso, which is there in relation to an intensive fostering order, to make it apply to youth rehabilitation orders as a whole. That is an important condition: that there is a right of representation before the court. A very wide palette of powers is being given to the court under the youth rehabilitation order. Many of them involve a significant, effective reduction in freedom of movement and of activity, or impose specific requirements upon the offender. There seems to be a parallel with custodial sentences. It seems odd that there is no right to legal representation for the child in those circumstances.

David Burrowes (Conservative, Enfield, Southgate)

For those who practise in the courts, such as myself, I welcome with interest the principle of the extension of legal aid—one would never want to persuade against that. Nevertheless, is there concern about how one would deal with the clause’s approach to replicating adult orders? Presently, legal representation is not available for those orders regarding which the restriction of liberty is not at risk and that therefore fall below the level of the interests of justice test that is necessary to grant legal aid. How will we be able to square that with orders that deal with youth offenders?

David Heath (Liberal Democrat, Somerton and Frome)

There are two things to say. First, we are not dealing with adult orders in this part of the Bill and it would therefore be wrong to extend my comments on the present provisions for offenders. Secondly, there are specific issues relating to children and young people, not only with regard to their legal rights under the conventions, which are arguably at least breached by a lack of representation.

The particular circumstances of a child or youth offender, not only in environmental and parental terms, should be a key part of the consideration that a court applies. For instance, we have considered that the emotional maturity of the child and the consequences of some of the orders should be properly explored by the court. I think that legal representation of the young offender is a key part of a court reaching a proper decision. I have no interest in making more work for lawyers in that area, and I hope that the hon. Gentleman will not be unnecessarily distraught about that view. Because this is an important range of disposals, the court ought to have the opportunity of hearing how the interests of the child might be properly represented before making the order. That can only really happen through legal representation.

The third element—this also applies to adult cases, but it is particularly important in cases involving children—is that if the court makes an inappropriate disposal that encourages a breach inadvertently, or by over-prescription, the sanctions can be ratcheted up to custodial sentences. Therefore, a process is under way from the point when the young person is given a rehabilitation order. That being the case, there ought to be legal representation by right at each of the stages of that process.

I am supported in that view—having gone through the process of evidence-taking sessions, we ought occasionally to refer to the evidence that we are given. On Thursday 18 October, I put that point to Bob Reitemeier, who replied:

“Yes, we feel that that should be put into the Bill, that legal representation should be provided before any YRO is put forward. So we fully support that position.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 96, Q209.]

That seems to me to be an important piece of evidence from the chief executive of the Children’s Society. If we are to make the evidence sessions relevant to our considerations, that ought to be brought into the reckoning at this point. That is the argument for new clause 6 and amendment No. 109.

The third sub-group—amendments Nos. 110 to 113 and new clauses 9 and 10—deals with intensive supervision and surveillance orders. The argument is about hierarchy and whether incorporating the intensive supervision and surveillance order into the general ambit of the rehabilitation order removes from the discretion of the court an important element of hierarchy in sentencing.

The amendments would separate out again the intensive supervision and surveillance order from the general rehabilitation order. That is not to argue against either the rehabilitation order or the intensive supervision order in themselves. We accept that there is a strong argument for intensive supervision and surveillance.

The programme has been narrowly drawn, and I think that it has been used effectively, although there has been concern that sometimes the courts have used it as an alternative to community sentencing, rather than an alternative to a custodial sentence, as was intended. However, the programme does provide for a high level of supervision in the case of an offender when there is an intention of ensuring that they are not put in circumstances where they are likely to reoffend. It was expressly designed as being a last chance saloon—to use a clichÃ(c)—before a custodial sentence; it is the very last disposal that is available. If it is included in the wider remit of the rehabilitation order, the difficulty is that that step will be missing. The YRO becomes the last resort. That, perhaps, forces the court into a position in which it would not otherwise have been.

ISS programmes are good, but they are resource intensive. They will not be appropriate for a large number of offenders before the youth court, and they should be specifically tailored to those who will benefit most from them as a way of keeping them out of prison because prison is not likely to be an effective remedy to the offending behaviour they have exhibited. We feel—we are supported by others—that by incorporating ISS programmes into the youth rehabilitation order, there is a compression of sentencing options that does not allow a court to move up from a YRO to an ISSO to a custodial sentence. Those are three clear steps, each of which are appropriate to particular circumstances.

I will be interested to hear what other members of the Committee and the Minister have to say in response to that argument. I hope that there are some constructive suggestions to make the orders work more effectively.

Edward Garnier (Conservative, Harborough)

I begin by recognising the help that we have received from the Standing Committee for Youth Justice, which I think provided the briefing behind which the hon. Member for Somerton and Frome framed his amendments. The standing committee is a membership body that provides a forum for organisations—primarily in the non-statutory sector—working to promote the welfare of children who become engaged in the youth justice system. It advocates a child-focused youth justice system that promotes the integration of such children into society, thus serving the best interests of the children concerned and the community at large.

The organisations that are members of the standing committee include Barnardo’s, the centre for crime and justice studies at King’s college London, the Children’s Rights Alliance for England, the Commission for Racial Equality, Just For Kids Law, Justice, the National Association for the Care and Resettlement of Offenders, the Association of Youth Offending Team Managers—YOT managers, as they are called—the National Association for Youth Justice, the National Children’s Bureau, the National Children’s Home, the NSPCC, Rainer, Save the Children, an organisation called Soba, the Children’s Society, the Howard League for Penal Reform, the National Youth Agency, the Prince’s Trust and Voice. That is a wide selection of membership bodies. It is important that we pay attention to what those people have to say. As the hon. Gentleman mentioned in quoting Mr. Reitemeier, who gave evidence last week, they have huge experience and things to say that we must pay attention to, especially when we legislate on youth justice.

I broadly agree with some of the concerns that the hon. Gentleman expressed. Where I part from him is on the over-prescriptive approach that would necessarily follow from his new clauses and amendments. I share with him an intense desire to see children kept out of the criminal justice system and to reduce the amount of reoffending that happens in our criminal justice system at all ages. I also share with him a desire to see appropriate laws passed that give all public agencies an input. Such agencies include the courts, but outside the courts I would include social services, education services, health services, the charitable sector and any number of other motivated and sensible groups and people. I share with him and them a desire to produce a system that makes our country more civilised and not only a safer place to bring up children, but a safer place in which children can grow up.

I sometimes worry that politicians are influenced and bashed around and buffeted by this or that fad, or this or that pressure group with a particular axe to grind, and that that leads us to come up with solutions that sound and look attractive during the immediate review of the issue, but that fail when they are played out over the longer term. That is what concerns me about some aspects of the Bill, which is why I applaud the way in which the hon. Gentleman introduced his amendments. While they might or might not get on to the statute book, they reveal issues that we should carefully consider.

The hon. Gentleman identified three areas of concern or debate: the local government residence requirement, which includes intensive fostering; the issue of specified local authority accommodation; and intensive supervision and surveillance orders. Yesterday morning I was sitting as a recorder in a court not far from here and I had in front of me a young man who was 17, but was 16 when he committed the offence for which he pleaded guilty. He and another young man who has never been found mugged a man at a bus stop at about 1 am. During the mugging, in which they stole the victim’s laptop and briefcase, the other young man brandished an imitation firearm. It is not hard to understand the fear and state of mind of the victim of this hideous crime. He was not available to give an impact statement, but, none the less, it does not take much imagination to work out how he must have felt that morning in October when he was attacked.

When the young man pleaded guilty in court in July, I remanded him in custody pending pre-sentence reports. He was kept in Feltham young offenders institution until yesterday, when he was brought before me for sentencing. I could see that this individual, who was on the cusp of adulthood, was, to all intents and purposes, a large child—a very silly and badly behaved child. It struck me that to keep him in Feltham would do more harm than good. I made it clear that the public expected people such as him to be punished severely, and it required some explanation to those listening to the sentencing process to make them understand why I thought it inappropriate to return this young man to custody, not least when the Court of Appeal, the sentencing guidelines and other case law suggested that it would not have been unjust or overly harsh to give this 17 year-old a custodial sentence of at least 15 months.

It struck me that the ISSP, the intensive supervision and surveillance programme, was an apt way to deal with this particular individual. I was grateful that the sentencing structure allowed me that discretion. It is important that sentencers should be able to sentence a person using the facts of the case and the circumstances surrounding the offence, and that includes the impact on the victim. Although I did not have an impact assessment from the victim, I was satisfied that, if I had had no discretion to give an ISSP but had been required to send this boy to prison, it would have been a mistake.

That defendant may let me down and reoffend. He may disobey the instructions of the probation service officers who are going to be looking after him for the next few years. Every now and then, however, I think that it is appropriate for sentencers to take a risk. It is entirely appropriate that the courts should be given discretion. That is why I, to some extent, applaud what the hon. Gentleman has said and also why I do not wish us to pass overly prescriptive legislation about the way that sentences have to be passed. Each case is different, albeit that most cases have many similar facets.

I agree with the hon. Gentleman that, if we are to take children away from their families, we need to understand that the state is the worst possible parent. I mentioned on Second Reading and during last week’s evidence sessions in Portcullis House, that 27 per cent. of people in custody have been in care. I have scarred on my mind the Beck inquiry into Leicestershire social services’ handling of children’s homes. A man called Beck, who is now dead, was eventually arrested and convicted of huge numbers of offences against children, including sexual and other abuse. Many of the abused children who were in his care in the 1960s and 1970s ended up committing crime themselves and some of them, certainly at the time evidence was being given to the inquiry, were in prison.

It is hugely important to bear it in mind that it is not ideal to take children away from their natural parents and families and place them in state care. It does not always work out best for the children. Therefore, if young people are in front of the criminal justice system and the courts are provided with the weapon, or process, to take them away from their natural families and place them in local government or other state care, it is important that the decision maker is given the best, most up-to-date and appropriate information about the individuals concerned.

Whether that comes from legal representation or some other source within the youth justice system does not much matter. However, somebody who is trained, experienced and who understands the difficulties that are often associated with this sort of defendant, must be available to give youth courts and Crown courts the best information about the circumstances of the child or young person in front of them. That would include the family and education circumstances of the individual, whether they go to school, what their history is, and some understanding of their psychological make-up.

I return to the example of the boy in front of me yesterday. The individual in front of the court may look like a young man: he may have started shaving and be six foot two, but inside there may be a thoroughly immature mind. I do not know if the Minister has recently visited Feltham or any other young offender institution, but he will know, as I do, that there are plenty of people in the 18 to 21-year-old custodial estate who may look physically mature, but who are mentally children. Equally, there will be 14, 15 and 16-year-olds who are both physically and mentally mature beyond their years.

If end-to-end management and humane and sensible sentencing are to mean anything, the courts must know more about the individual and not treat people as categories of person. If that means representation of the sort that I have described, as opposed to the narrow, legal representation which was, for all sorts of good reasons, described by the hon. Gentleman, then I applaud that move.

Of course that has immense resource implications. The legal aid budget is under tremendous strain and giving state money to lawyers is an easy thing to criticise. As a lawyer——my hon. Friend the Member for Enfield, Southgate is in the same position——it is difficult for us as legislators to stand up and say that we should give more money to lawyers. However, if one can step outside that narrow and obvious criticism about the vested interests of what we would describe as a noble and decent profession, then we must understand that justice costs money. It is not something that can be got on the cheap.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. and learned Gentleman for giving way. As a non-lawyer, I have no difficulty in saying that legal aid is one of the essential elements of the welfare state and one of the greatest achievements of the Attlee Government.

Edward Garnier (Conservative, Harborough)

I am grateful to the hon. Gentleman for saying that, as that is the argument that I put forward in debating the misnamed Access to Justice Act 1999. In those days, I was the shadow Minister at the Lord Chancellor’s Department. How things have changed. My opposite number, the Parliamentary Under-Secretary in the Lord Chancellor’s Department, was the current Government Chief Whip. He has moved around a few times since then. I was interested, but certainly not amused, to find myself arguing in favour of Attlee’s reforms that are now being destroyed by a Labour Government. I said to the right hon. Member for Ashfield (Mr. Hoon) that Attlee must be spinning in his grave because they were dismantling a hugely important part of the welfare state.

Harry Cohen (Labour, Leyton and Wanstead)

I appreciate that the hon. and learned Gentleman’s speech was both eloquent and informed, and thus useful to the Committee, but he will know from our evidence-taking sessions that what was being argued for was diversion and pre-court processes so, if the matter comes to the court, that stage will almost be a rubber stamp. Youth professionals would have reached an agreement on how to deal with the youngster. In those circumstances, surely there is no need for legal or major representation of one form or another for the youngster. Can he put the diversionary approach into such a context, because it should have priority?

Edward Garnier (Conservative, Harborough)

It is not a matter of being exclusive. Of course, diversion is hugely important. As I said, I want young people to be diverted away from criminal activity whether they are under or over the age of 10. That is not controversial. Nor, I hope, is what I am saying now. I am talking about how we describe the court’s ability to do things. It can do something better if it has good information. The information does not necessarily have to be of a strictly legal representative sort. For my purposes, if a responsible person could speak for the young person and present to the court the fullest range of information about the child, the offence and the victim, as well as about the remedies and how the offence could be dealt with, the court would be better informed and could make a more intelligent judgment about what to do. Clearly, Parliament must set the ambit of the sentencing powers of a court, but I do not want it to be stuck into the nitty-gritty of saying, “If the following 15 sets of circumstances arise, you must only do the following.”

I want magistrates to have the freedom, as I like to think that I had yesterday, to match the sentence that is appropriate to the circumstances of the individual case, but they can do that only on the basis of the best possible information. Such information need not just come from a lawyer, but from some other person who can speak. The Latin phrase doli incapax has been mentioned, but “amicus” is the Latin word for “friend”. There is a system whereby people have McKenzie friends or the courts asked for an amicus to advise it. I am looking for a fund of knowledge to inform the court so that it can make a sensible decision.

David Howarth (Liberal Democrat, Cambridge)

Is not another response to the point made by the hon. Member for Leyton and Wanstead that, with the best will in the world, the pre-court processes and the discussions between professionals will not always work? They will not always be perfect in respect of the information on which they have acted or in the conclusions that are reached. There is still a role for the court at the end of the process to make decisions. It is the court that makes the final decision, not the professionals and, for that, the young person needs some representation.

Edward Garnier (Conservative, Harborough)

Again, I do not disagree with the hon. Gentleman. I am trying to create within a legislative framework a mechanism by which the court can make sensible decisions. I am in danger of repeating myself. While I always welcome interventions from people who know a lot about the subject, or, indeed, from those who do not, we seem to have a well-meaning set of clauses, introduced by a Government who no doubt want to do good in this aspect of public policy, but which are not necessarily apt to achieve the end that we all want. Clearly, the Government have been doing a lot of thinking. One only has to look at the amendment paper to see the huge number of Government amendments designed to perfect an imperfect Bill. I hope that they will think about what is going on and ask themselves whether what they have so far put into the Bill is the best way of achieving their objectives.

I do not need to say any more. I hope that I have made the points that I want to get across to the Committee. I certainly shall not chase these amendments to a Division, even if the hon. Gentleman were to press them. They are almost too important for a binary discussion and an argument that is entirely plus or minus. There are lots of things in the Bill that probably will work and lots that probably will not. I simply congratulate the Standing Committee for Youth Justice, and the hon. Gentleman who has used its briefing to start this line of debate, for bringing the matter to a marginally public forum in this Standing Committee.

Nicholas Winterton (Conservative, Macclesfield)

I am sure that the Committee is grateful to the hon. and learned Gentleman for his succinct contribution. May I ask members of the Committee whether they feel that the room is warm enough? [Hon. Members: “It is positively arctic.”] May I tell my Clerk that I hope that between the end of this sitting and the afternoon sitting the authorities will be approached, not only to replace two bulbs in the lights above, but to ensure that the room is a little warmer.

Charles Walker (Conservative, Broxbourne)

I listened with great interest to the debate, particularly that on intensive fostering, which I feel should be a call of last resort. Like most hon. Members, I believe that all children are born good and some turn bad, often through no fault of their own. Intensive fostering is almost the wrong way round. Many children who find themselves on the wrong side of the law come from very difficult homes. They come from what could be called dysfunctional families, where the adults put their needs before those of their children. One could argue that in many cases these children have largely uninterested parents.

It worries me that children as young as 10 will be made to pay the price for their parents’ failings. They will be plucked from a home that may have given them very little support, direction, love and care and sent into intensive fostering. It may well be that for the first time in their lives they will be in homes where they are the centre and their welfare and needs are put first. But when this period of intensive fostering is over, they will be returned to the same dysfunctional environment they came from, where the problems of drug and alcohol abuse, lack of proper nutrition and so on still exist.

I hope that in debating this, and when the Minister goes away to think about it, that as well as focusing on the child, we will focus on the background and the home that they have come from to ensure that those responsible for creating the child, and who I believe are largely responsible for the problems that the child is experiencing and bringing to society, are given the support, instruction and guidance that they need to become people who are fit to raise and care for the next generation. Unless we do that, I fear that this legislation will be a mere sticking plaster and that for decades to come we will have children who start off good—all children start off good—and, due to their family circumstances and through no fault of their own, are turned bad.

David Hanson (Labour, Delyn)

I am grateful to hon. Members for their contributions and their amendments. There are two sets of issues. The first relates to the use and type of order and whether to deal with the intensive supervision and surveillance order in a different way. The second aspect of the debate relates to the forming of legal representation. I will start with legal representation because I hope that that is the area where it is simplest to come to some consensus.

The existing arrangements for the provision of legal representation provide sufficient safeguards for young defendants. Although I understand the motivation behind amendment No. 109 and new clause 6, I do not believe that they are necessary. I hope that ultimately I will be able to show the hon. Member for Somerton and Frome that that is the case. The hon. and learned Member for Harborough also touched on this issue and helpfully reminded us of the Access to Justice Act 1999, which was taken through this House by my right hon. Friend the Member for Ashfield (Mr. Hoon), the current Government Chief Whip. Unlike you, Sir Nicholas, he is right on all occasions.

Sadiq Khan (Labour, Tooting)

Hear, hear.

David Hanson (Labour, Delyn)

Just for the record, my hon. Friend the Member for Tooting (Mr. Khan) concurred with that assessment.

Hon. Members will recall—particularly the hon. and learned Member for Harborough—that the 1999 Act ensured that all defendants must satisfy what was called the interest of justice test to qualify for publicly funded representation. The Act set down a number of criteria for the court to take into account in deciding on that. Among other factors was whether the defendant may, for example,

“suffer serious damage to his reputation”

and whether the charge is punishable with imprisonment. Under that Act, the court must also give consideration to whether the defendant is of a young age and to the defendant’s ability to understand the proceedings or state their own case.

David Burrowes (Conservative, Enfield, Southgate)

Under the Access to Justice Act 1999, the issue is not so much whether the defendant is likely to receive a sentence of imprisonment, but whether their liberty is at risk. It is that issue that is of crucial significance in relation to the youth rehabilitation orders. It can be argued that in certain of those orders their liberty is being deprived and that the interest of justice then merits legal representation.

David Hanson (Labour, Delyn)

Again, the condition in the 1999 Act is whether the charge is punishable with imprisonment. I believe that it sets out the criteria for the potential for publicly funded representation.

As I was saying, since 2 October 2006, defendants appearing before magistrates courts and youth courts have also been required to pass the financial eligibility test to qualify for publicly funded representation. From 1 November 2007, all defendants under the age of 18 will be passported through that means test. That announcement has been welcomed by professionals, the judiciary and the Law Society. I take the view that whatever our arguments around the question of publicly funded support, under the 1999 Act and the amendments to it, from 1 November, there will be sufficient safeguards to ensure that those individuals who require publicly funded support will get it. Irrespective of our views on that, the blanket assessment of public funding for all young people proposed by the hon. Member for Somerton and Frome would not only have wide consequences for the legal aid budget, but set precedents for other aspects and effectively undo the Access to Justice Act.

David Howarth (Liberal Democrat, Cambridge)

Perhaps what the Minister of State is saying will provide the basis of some sort of later compromise. It is a technicality to talk about imprisonment, because certain combinations of the orders would amount to quite a serious deprivation of liberty. Combining requirements in relation to prohibited activities, exclusion, curfew, and, crucially, residence, is a pretty severe restriction on liberty. On the other hand, what the Minister of State has said about other sorts of order might well be true, in that they might not require any sort of serious consideration or legal representation. That might be a way forward.

David Hanson (Labour, Delyn)

As ever, I am always happy to reflect on what has been said in Committee; I am simply giving my current assessment and judgment. Schedule 1, paragraph 19, requires young offenders to have received or had the opportunity to receive legal representation before a youth order or a local authority residence or fostering requirement is made. That is stipulated because the requirement will enforce residence away from the family home. It provides a safeguard in such cases.

David Howarth (Liberal Democrat, Cambridge)

That is precisely the point that we are trying to make. There are circumstances in the Bill in which legal representation is required. The Government have made the opposite judgment in the present instance to that which they have made in relation to other sorts of order. We suggest that the Government think about the dividing line between the types of case, and whether they have drawn the line in the right place.

David Hanson (Labour, Delyn)

I thank the hon. Gentleman for that comment.

David Burrowes (Conservative, Enfield, Southgate)

I am willing to accept that the Chairman is always right, Sir Nicholas, but I am not willing to accept that the Minister of State is always right—certainly not in relation to the access to justice provisions. I should particularly like clarification on whether we are indeed concerned only with risk of imprisonment rather than deprivation of liberty because, if so, that would preclude many adults and young people from entitlements that they currently have.

On resources, the Solicitor-General, the hon. and learned Member for Redcar (Vera Baird) indicated that, given the amount of legislation that has affected the legal aid budget, an impact statement would be made in relation to budget implications of further legislation. Schedule 1, paragraph 19, provides for legal representation when there is a requirement for local authority residence or fostering, so has there been an assessment of whether the hard-pressed legal aid budget will be pressed further in relation to that provision? There is a case for that, obviously. In addition, does not the new generic order necessitate guidance for courts and practitioners on when legal aid should be available?

David Hanson (Labour, Delyn)

I am happy to reflect on the points made by the hon. Gentleman on the interpretation of the 1999 Act. From my perspective, that Act concerns situations that are punishable by imprisonment, but that will be checked, and I shall reflect and clarify if necessary.

To each of the hon. Member for Cambridge, the hon. Member for Enfield, Southgate, the hon. Member for Somerton and Frome, who originally proposed the amendment, and the hon. and learned Member for Harborough, I say that we have had to try to make a judgment. We have drawn the line where we have drawn it. Legal representation will be available in relation to local authority and residential requirements. The position under the 1999 Act remains the same. On the basis that I shall reflect on our debate, I hope that the amendment will be withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister of State reflect specifically on whether the provisions meet article 6 of the European convention on human rights, because at present I am not convinced?

David Hanson (Labour, Delyn)

I shall reflect both on the points that have been made about where the lines are drawn and about compatibility with human rights legislation. Just for the record, my understanding is that the Bill is compatible. However, outside of this Committee sitting, I will examine those issues with colleagues.

We have made a judgment on where we draw the line in terms of legal representation. I cannot accept the amendments that the hon. Member for Somerton and Frome has tabled today. As ever, I will certainly reflect on what has been said in the Committee, because it is my duty as a Minister to do so. However, I would urge the hon. Gentleman not to press the amendments.

Harry Cohen (Labour, Leyton and Wanstead)

It is very good that my right hon. Friend is going to reflect on these issues. Will he also pick up the point that was made about a friend, such as a McKenzie friend, being in the court if need be?

David Hanson (Labour, Delyn)

The McKenzie friend principle is a sound one, and again I will examine that matter outside the Committee today. I am grateful to my hon. Friend for raising that issue.

I simply say to hon. Members who have raised the question of funding that the position that I have outlined with the access to justice regulations, along with the comments that I have made on subsequent changes in October 2006 and from 1 November 2007, provide the basis on which we have made the judgment. Therefore, I would ask the hon. Member for Somerton and Frome not to press the amendments in relation to those particular areas.

The other aspect of the debate concerned the nature of the youth rehabilitation order. Once again, from my perspective I hope that I have been clear, in Committee, on Second Reading and in evidence sessions, that we believe that the YRO offers courts a robust community sentence. We want courts to think long and hard before they send a young person to custody, for the very reasons that my hon. Friend the Member for Leyton and Wanstead has discussed in the past, as indeed the hon. Member for Broxbourne has discussed in his contribution today. We wish to ensure that custody is the last resort, which is why we have included reserved intensive supervision and surveillance and intensive fostering orders as the final hurdle before custody.

It is important to note that, when we have been developing these programmes, they have been specifically designed to deal with young people whose offending is so serious that they would have received a custodial sentence but for the existence of the particular high intensity programmes.

Sally Keeble (Labour, Northampton North)

Will my right hon. Friend clarify—he might do so in writing—whether the intensive foster parents will be managed by the Ministry of Justice or by the local authority, and how will the funding arrangements work, because those places are horrifically expensive and also very hard to find? It would be helpful to have that matter clarified, if not now, then afterwards.

David Hanson (Labour, Delyn)

The intensive fostering, which I will come on to in a moment, will be organised and managed by the Youth Justice Board, who will be responsible for that element of any potential order that is agreed in due course.

What we have been trying to do is use the YRO with intensive supervision and surveillance, which will provide a very stringent and difficult order for individuals to undertake. It will involve at least 25 hours a week of purposeful activity, directly addressing offending behaviour. It will include a curfew, usually with electronic monitoring organising that curfew. Our objective is that it will provide an alternative to custody, but for those individuals who are at very serious risk of entering custody. The idea is to ensure that, within the youth order that we have before us, we have that separate requirement accordingly.

Nick Hurd (Conservative, Ruislip - Northwood)

Will the Minister confirm that intensive supervision and surveillance arrangements are already in place? Also, will he enlighten the Committee as to what levels of reoffending arise from those existing orders, and perhaps also enlighten the Committee as to why those orders will make any difference?

David Hanson (Labour, Delyn)

As was mentioned earlier, the level of reoffending for those individuals who enter the youth justice system is extremely high. I do not have particular figures in front of me at the moment about those orders, as they are currently operated, but they do exist already. If the opportunity arises, I will give the hon. Gentleman those particular figures in due course.

Harry Cohen (Labour, Leyton and Wanstead)

When my right hon. Friend presents the Committee with those figures—not just the hon. Member for Ruislip-Northwood, I hope—will he look at the estimated figures of those who need that last resort before custody of intensive supervision? Will he also look at the number of such foster carers, so that we can see that there are sufficient to meet the estimated need? When he presents those figures, will he include us?

David Hanson (Labour, Delyn)

I refer again to the figures for 2004. In that year, as a general figure, over 201,000 10 to 17-year-olds were dealt with by the criminal justice system. Within that, there were a number of different aspects of order: reprimands, final warnings, prosecutions; but over 200,000 young people came into the criminal justice system in the last year for which figures are available. That is a significant number of young people going through the youth justice system in one form or another.

My objective is to reduce that number, to prevent those who are in the system from reoffending, and to find effective means to have strong interventions with the family and individuals by looking at the range of options available under the youth rehabilitation order, and, in order to prevent final custody, to have intensive supervision and surveillance and intensive fostering as the final hurdle.

In response to the intervention from the hon. Member for Ruislip-Northwood, the aim of the intensive supervision and surveillance programme is to reduce the frequency and seriousness of subsequent offending among persistent offenders. I have some figures, thankfully, that will help to indicate some of the impact of that. Youth Justice Board research indicates that the frequency of offending in the intensive supervision and surveillance sample declined by 39 per cent. over a two-year period, which shows that the impact of the ISSOs has been quite significant in the past.

In relation to the proposals, the reason that I do not share the views of the colleagues who have brought forward the amendments today is that we are trying to ensure that we have a youth rehabilitation order with intensive supervision—meaningful, difficult operational activity within that; purposeful activity, electronic curfew monitoring—because that will be an opportunity to reduce the level of potential reoffending and will not lead to custody, as it could do if incorporated in the main order.

Intensive fostering is an intensive programme of work, with specially trained foster carers working to a Youth Justice Board specific programme model, with constant support. Again, the programme is designed specifically to provide high intensity care for young offenders for a specified period, up to 12 months, and also includes work with the young person’s family, which is important in terms of what both the hon. Member for Broxbourne and my hon. Friend the Member for Leyton and Wanstead said. That is important because, whatever we do with an order, if individuals return at the end of it and are sucked back into an atmosphere that has possibly helped to create some of the offending behaviour issues in the first place, that is not a way to help prevent reoffending. In that age old phrase, we need to look at the causes of crime as well as crime itself. The purpose of the fostering order is to ensure that we work not with only the young person but also with their family, to look at whether there are interventions that might help prevent reoffending.

Alun Michael (Labour, Cardiff South and Penarth)

It is very easy for us to misunderstand, because this is quite a complex area. I wonder whether it was merely a slip of the tongue, but I thought that my hon. Friend referred to fostering being organised by the Youth Justice Board. Surely it would be organised by the youth justice teams at a local level, would it not?

David Hanson (Labour, Delyn)

The intention is that we organise it via the Youth Justice Board and that it will commission work from youth justice teams at a local level as well. The Youth Justice Board retains overall responsibility for the exercise and funding of the programme, and for commissioning and monitoring standards. Those are the board’s responsibilities within the programme.

Alun Michael (Labour, Cardiff South and Penarth)

If my right hon. Friend is referring to the setting of standards, clearly that must be done at a national level by the board. However, the organisation of fostering activity—perhaps we are arguing about words without a difference—has to be done at a local level, not at a regional or national level.

David Hanson (Labour, Delyn)

The overall work of the Youth Justice Board is to specify and monitor the standards that are undertaken, to work with the commissioning network, and to work with local authorities and others that are delivering a fostering service on the ground. I hope that that is clear for my right hon. Friend

Charles Walker (Conservative, Broxbourne)

Just briefly, will the Minister describe—if he does not have such information to hand, perhaps he will send me a note—the type of environment in which such fostering will take place because some youngsters are very troubled and difficult. Will it be a normal or secure fostering environment? Will there be extra security or will the home be as normal as possible?

David Hanson (Labour, Delyn)

My objective is for the individuals to have as normal a life as possible and to have that intensive work done by the foster carers who are allocated by the Youth Justice Board with the local fostering network. We want to lift individuals out of the problem areas which, the court has deemed, has led to some of their offending behaviour. We are putting the individuals into foster care with intensive support. We are potentially doing extra work with their family for when they return home. The whole purpose is to improve behaviour by adding some of the things that may have been missing in their life before, such as love, care, attention, interest, aspiration, role models and leadership—all the things that foster care can provide for those young people. We are trying to ensure that we have a great deal of support to prevent reoffending.

The local authority residence requirement, the subject of the amendments tabled by the hon. Member for Somerton and Frome, does not offer this level of restriction and intensive work to address often entrenched behaviour.

Under amendment No. 114, elevating the local authority requirement to an alternative would risk, in my view, undermining core and public confidence in the youth rehabilitation order because of that very lack of intensity. The purpose of the local authority residence requirement is to impose stability on a young offender who will be living in accommodation provided by or on behalf of the local authority. It is not intended to address more serious offending, nor was it ever intended to do so. For that reason, I cannot accept amendment No. 114. With regard to amendment No. 116—

Sally Keeble (Labour, Northampton North)

Will my right hon. Friend provide a practical note of how that requirement will work? Issues that need to be addressed include the pressure on resources and how all of this is to be managed. In the interests of us seeing it through once the legislation is in operation, it would be helpful to have a practical note telling us how it will work and how the financing and procurement will work.

David Hanson (Labour, Delyn)

As with all of these matters, the youth reoffending order and all its elements are under the jurisdiction of the Youth Justice Board. In all of these matters, the Youth Justice Board will, as we mentioned in a previous discussion, set the standards, look at resource elements accordingly and work with the deliverers of those services to provide appropriate support.

Sally Keeble (Labour, Northampton North)

I would like to impress the point. I had to deal with such a person when I was a council leader. It took six social workers and 24-hour supervision to try to keep one difficult person out of custody. The girl lived in a specially adapted house, which she wrecked, costing another £100,000. That was way back in the early 1990s, so goodness knows what the cost would be now. It is really important that such implications are addressed by the local authorities and the people providing the care. The measures are really important, but there are practicalities to consider.

David Hanson (Labour, Delyn)

I appreciate and understand the points that my hon. Friend makes. Obviously, issues need to be addressed once the legislation has been agreed.

David Howarth rose—

David Hanson (Labour, Delyn)

If the hon. Gentleman will allow me, I will try to finish my point.

David Howarth (Liberal Democrat, Cambridge)

I thank the Minister. I felt that he was moving on to a different point. Will he clarify the precise purpose of the local authority residence requirement, given what the hon. Member for Northampton, North described, which is the experience of many in local government? Often, putting people into local authority care is far more expensive than people on the outside think. If that expense is not undertaken, little of any good happens to the young person. What do the Government intend these orders to do? Will he give examples of the kinds of cases envisaged?

David Hanson (Labour, Delyn)

I hope that this will help the hon. Gentleman. When a court seeks a residential requirement, it must primarily take into account the immediate living conditions of the young person. If they are such that they may be the cause of the offending behaviour, the court may well determine that it is appropriate to look at an alternative living condition for that young person. That may be fostering and an important element may be to place an individual with a family because it is the most appropriate source of alternative residential accommodation. Equally, because of the offending behaviour, the nature of the individual’s offence or the danger of the individual to the community at large, consideration may be given to local authority residential care.

The key to this is making an assessment, with pre-sentence reports being undertaken, as to what is the best way to ensure that the offending behaviour is challenged. Residential accommodation might be necessary because the individual’s home circumstances are a contributory factor to that offending behaviour. I could go through a string of potential scenarios. The key thing is that the assessment is made that removal from the current residential requirement and transfer into an alternative residential requirement is needed, be that fostering or residential local authority services. The purpose of the order would be simply to ensure that the young person has an alternative form of residence that will help them to address their offending behaviour.

David Burrowes (Conservative, Enfield, Southgate)

The concern is deliverability, as well as clarity on the issues. In the letter that has been circulated to members of the Committee, the only direct costs arising from provisions in part 1 of the Bill to have been identified are the one-off training costs of £600,000. There is a concern about the resources that will be required as a result of the order. Will it be local authority resources and by implication local authority residence, which we all know from our own experience is very thin on the ground? Will the order make it clear that it is a local authority direction in respect of accommodation? It does not have to be the resource of the local authority. As in the case of bail conditions, perhaps the local authority will direct that accommodation is provided by the father or the mother. It may well be that kind of order that is meant. We need clarity on this before we proceed much further down the road of legislation.

David Hanson (Labour, Delyn)

As stated in the letter that I circulated to the Committee, and as I mentioned when I gave evidence to the Committee, there is on the overall youth rehabilitation order and its compliant parts, a training requirement of just over £600,000, which will be included in the legislation. The order itself, and the orders on residential accommodation and fostering, are part of the existing system of youth offending work. I am bringing together under the new youth rehabilitation order a range of existing provisions with some additional new requirements. The provision and funding that are currently in place will still apply for the new orders. I do not have to hand a figure for the cost to date on a global basis in England and Wales, but we are already using fostering and residential accommodation for young people. The new order brings together the one generic order with some new additions that we will discuss later in the Bill. That resource element is already in place.

I move briefly to the points made by the Standing Committee on Youth Justice. Much like the Standing Committee, I also expressed a wish to see a reduction in the use of custody for young people. I welcome both the Standing Committee’s contribution and the evidence given by the Children’s Society during its witness session. Both groups wish to remove intensive supervision and surveillance programmes from the YRO, and create a new intensive supervision order that will sit above the YRO.

I am not persuaded that that is an appropriate way forward or that we need a separate intensive supervision and surveillance order. The current drafting of the Bill clearly establishes an ISS order as the last step before custody. That will be clear to practitioners and the courts, and in due course will be underpinned by guidance. We have deliberately drafted the ISS order separately from other requirements within the YRO as can be seen in clause 1(4). The legislation reflects the higher level of intensity of these requirements, and it is an important step in preventing individuals from going into custody and will be clear for both the courts.

The Bill shows a clear difference between a normal youth rehabilitation order and one with ISS. I again refer hon. Members to subsection (4) in which the criteria for the offence are set out. The offence must be imprisonable and so serious that only custody would be appropriate. If the offender is under the age of 15, the court must be of the opinion that they are a persistent offender.

Moving that into a separate section would not affect that measure and I hope that the hon. Member for Somerton and Frome will withdraw his amendment. I understand and appreciate the reasons why he tabled it, but, on finance I believe that provision is already there. I will however reflect on what has been said in Committee.

With regard to the orders in the Bill, we have clearly set out how we can handle residential, fostering and intensive support. From the Government’s perspective, that is done in order to prevent reoffending, and I ask the hon. Gentleman to withdraw his amendment.

David Heath (Liberal Democrat, Somerton and Frome)

In light of earlier housekeeping remarks, can I say that as a countryman, I do not find it too cold in here, unlike my thin-skinned colleague. However, I am very concerned about the Government Benches being dimmer than they need to be, and I hope that will be rectified.

We have had an interesting and important debate. This is one of those pleasant occasions where the entire Committee is united around an intention and seeking the best outcome. We have had some well-informed comments and we are beginning to tease out some of the issues about the precise drafting of the legislation.

I am grateful to the Minister for his response to my amendments, but I am not entirely persuaded. Let me deal first with legal representation. I accept that there are circumstances in which a youth rehabilitation order could be framed in such terms so as not to introduce a substantial reduction in liberty. In such cases, it may be argued that legal representation is not required. However, there are undoubtedly circumstances in which YROs represent a significant reduction in the liberty of the offender.

Later in his comments, the Minister was at pains to emphasise how much the intensive supervision and surveillance orders represented an alternative to custody that put a heavy burden upon the offender in meeting the requirements. It seems to be impossible to reconcile the two views that this matter is so unimportant that it does not require representation, but at the same time so burdensome that it would be an effective sanction. I think that the truth probably lies somewhere between the two. However, it is important as far as the individual is concerned and as far as the court is concerned. The hon. and learned Member for Harborough made the point that it is important for the court to understand the full circumstances of the case.

One other point that we have not yet addressed is that it is important that an offender who is in receipt of a YRO fully understands the implications of that, because otherwise, as sure as eggs is eggs, they will be in breach and will move inexorably towards a custodial sentence. For all those reasons, it is entirely appropriate that someone can represent that person at the point when a YRO is made. We need to look further at that, not only because the reasons put forward merit it, but because I am prepared to look at whether a narrowing of the scope of our amendments would be satisfactory to the Government, while still allowing, in the circumstances where a substantial sentence is imposed with a large number of requirements, an opportunity for the offender’s case to be properly heard, their circumstances to be properly exposed to the court and the consequences of the order fully explained to that individual. It is a matter that we may have to return to.

In the case of the residential requirement, it is a misfortune for the Minister that several people who have taken senior roles in local government happen to be dotted around the Committee and are only too well aware of the consequences of such an order for local authorities and social services departments. His responses to his hon. Friend the Member for Northampton, North were utterly unconvincing in allaying the fears of some members of the Committee that this will end up with a substantial financial resource burden upon local authorities that will not be met by the Youth Justice Board or his Department.

I was trying to point out the implications, in any case, of local authority placement. I am not referring to the intensive fostering—we had a discussion about that and I think that we all understand it. There is a difficulty with the lesser placement envisioned in the Bill, which provides for a person to be taken away from their family home to a place of stability, as the Minister put it, on the ground that that environment is part of the circumstances that encouraged them to offend. I wish that I could be persuaded that every local authority home was a place of stability that did not encourage offending. In some cases, of course, that is the case, but we all know that the incidence of youth offending for those in care is sadly far too high, and that is a concern in itself.

I did not hear from the Minister the argument that that will be done in the interests of the child or young offender, in which case it could be done outside the criminal justice context. There are good arguments for taking people out of dangerous environments that cause them harm, but that has nothing to do with a criminal sentence. If the view is that that is generally part of the sentence, I would want there to be provisos in its use, because it will effectively take someone out of their family home as part of a punishment regime. There is a distinction between the two and I am not entirely convinced that I have heard from Ministers what that distinction is, what the circumstances are in which they envisage this sort of order being applied or where the resources will come from to ensure that such orders are a success. That is one reason why I suggested that it might be a good idea to have the agreement of the local authority in advance, so as to ensure that a proper and appropriate placement can be made. We will return to this matter in a later group of amendments, so I do not need to take it further.

Harry Cohen (Labour, Leyton and Wanstead)

What does the hon. Gentleman envisage would be the situation in which a local authority would say that an appropriate placement could not be made?

David Heath (Liberal Democrat, Somerton and Frome)

That is a very good question and one best put to the Minister. If we have that situation, how is the court to provide for a proper disposal? It could be argued that under other legislation, such as the Children Act 2004, the local authority has a duty to provide for it. In that case, it is because it is in the interests of the child and for the prevention of harm to the child, not as part of a criminal justice sanction. That is the distinction that I am making. It is not clear that the duty falls on the local authority to make this provision under circumstances in which the duty of care does not apply. If it is to be conceived of as a duty, I think that there has to be some statutory backing for it and that is not currently in the Bill.

Last, I move to intensive supervision and surveillance orders. Again, the differences that we have with the Government are not substantial because we support the existence of such orders as a last resort. What the Minister did not tell the Committee is why the view of the Government has changed since 2004 when they brought in the orders with a very broad consensus that it was an essential level in the hierarchy. It was very clear that it should be a separate disposal for the court: one that would be used only as an alternative to a custodial sentence and not in other circumstances. It was clear that it would be the last point that the offender could come before the court without a custodial sentence being applied.

The argument in 2004 was about the separate nature of the ISSP. That distinction was an important ingredient in its nature and its potential success. Now, the Minister’s argument is that it can be subsumed within this wider category. Although it is described separately within the legislation, it nevertheless forms part of a broader youth rehabilitation order and he argues that we do not need that separate rung in the hierarchy of disposals. If the Government have changed their mind, they are perfectly entitled to do so, but they should explain why their reasoning is now so very different from three years ago and why it is so much at odds with the very broad range of interests that the hon. and learned Member for Harborough described in terms of the provenance of some of the proposals before us.

There is one further point. I do not want to overstate this, but article 37 of the United Nations convention on the rights of the child comes into play here. Are the Government honouring what they signed up to in those conventions about ensuring that custody is genuinely a last resort? There is a strong argument that having an ISS order as a separate level of remedy for the courts provides for the United Kingdom to be in accordance with the convention duty, and that without it, it is not. I would be grateful if the Minister would advise me at some later stage. I asked him earlier to look at the provisions of the human rights convention; I now ask him to look at the UN convention on the rights of the child to see whether he is satisfied that this arrangement meets that requirement.

Having said all that, we have had a valuable debate. The Minister has, at various points, indicated that he will give further consideration to some of the points that we have raised and I hope that he will do so. I hope that at a later stage we will have the opportunity to return to some of those issues, but at this point I beg to ask leave to withdraw the amendment.

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment No. 167, in clause 1, page 2, line 10, after ‘Schedule),’, insert—

‘(ma) a substance treatment requirement (see paragraph 23A of that Schedule).’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following amendments:

No. 168, in schedule 1, page 98, line 18, at end insert—

David Howarth (Liberal Democrat, Cambridge)

The amendments come together to form one proposal: to add a substance treatment requirement to the orders available to the court. The purpose of that is to address a particular and rather odd gap in the way in which the Bill has been drawn up. At present, the Bill says that the court can impose a drug treatment requirement and drugs are defined in schedule 1 part 2 paragraph 22(5) as

“a controlled drug as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38).”

That means that to qualify for a drug treatment requirement, the young person has to be abusing illegal drugs. As everyone involved in youth justice knows, the fact is that illegal drugs are only a small part of the picture. The most obvious aspect of substance abuse that is not addressed in the Bill is alcohol.

Like many other hon. Members, especially on this Committee I am sure, I have visited the youth offending team in my area to ask what lies at the heart of current problems with youth offending. They were very clear that at the heart of a lot of the problems is the abuse of alcohol, not the abuse of illegal drugs. There is broad agreement among experts that, if we want to look for the causes, especially of violent behaviour, there is at least an association, if not a cause, of violent behaviour with alcohol abuse and problem drinking in general. Alcohol is at the heart of many of the problems that we face and that young people themselves face, and the order should allow a treatment requirement for alcohol and not just for drugs.

It is not only alcohol. There are all sorts of other substances that are not in themselves illegal that can be abused and cause serious problems and damage to young people, with serious behavioural consequences. The most obvious one is glue. Glue is not illegal and glue-sniffing or abuse of glue is not covered by the Bill, but it should be. Every few months, we read in the newspapers of another substance that people have somehow got hold of and started to abuse, whether it be prescription drugs or something as simple as nitrous oxide—laughing gas. All sorts of developments in youth culture will not be covered by the Bill. There is a need for flexibility and a broader approach.

We must also consider the interaction between the abuse of illegal drugs and the abuse of alcohol and other substances. Experts in the area will tell anyone who wants to hear that alcohol abuse is often associated with, or leads to, the abuse of illegal drugs. To deal simply with one aspect of a young person’s problem with drugs, without addressing other aspects that might include the abuse of alcohol and other substances, will not get to the heart of the problem.

There has been scepticism in some quarters about the effectiveness of court order treatment. It does not always work. I accept that, but my amendment suggests that, if we are to have court order treatment—which we should—it should be much broader than simply covering illegal drugs. It should cover a wide range of substances, both those known now and those that young people might abuse in the future, to their own detriment as well as to that of the community.

Philip Hollobone (Conservative, Kettering)

I support the amendment tabled by the hon. Member for Cambridge. I have the privilege and honour of being a trustee of an organisation based in Kettering called Solve It. It is a national charity dedicated to promoting awareness, particularly among young people, of the dangers of volatile substance abuse, some of which the hon. Gentleman highlighted. Volatile substance abuse is an extremely dangerous pastime. One of the problems is that the matter falls between several departmental stools. The Home Office, the Department of Health and what was the Department for Education and Skills have responsibility for tackling the issue. An attempt has been made at a co-ordinated response to the problem.

I welcome the hon. Gentleman’s amendment because volatile substance abuse is a particular habit in which young people are engaged. When talking about youth misbehaviour, it is therefore appropriate to introduce such a provision. A frightening aspect of volatile substance abuse is that many participants die the first time that they engage in it and, often, there is no warning. About 52 young people a year die of volatile substance abuse.

Two main organisations are dedicated to tackling the problem: Solve It and Re-Solv. They both undertake similar work to promote awareness among young people, particularly in schools, of the danger of substance abuse. I think that I am right in saying that most hard drug users start by abusing volatile substances, especially lighter fuel and butane gas. The amendment would make a terrific improvement to the Bill and I hope that the Minister will agree to its inclusion. The Bill is about youth misbehaviour, and the proposal would be a welcome addition.

Clause 1

Edward O'Hara (Labour, Knowsley South)

I remind the Committee that with this we are discussing the following amendments:

No. 168, in schedule 1, page 98, line 18, at end insert—

David Burrowes (Conservative, Enfield, Southgate)

Welcome to the Committee, Mr. O’Hara. You and I share some areas of mutual interest—normally in relation to Cyprus. I hope that the Committee can likewise reach some consensus on the need for alcohol treatment.

I speak in support of amendments Nos. 105, 106 and 108, which were tabled in my name and those of other Opposition Members, and which would require an alcohol treatment option as part of the generic youth rehabilitation order. I endorse the comments that have been made about the need to widen the restricted list of requirements in the Bill to cover alcohol treatment explicitly, and to address the misuse of substances that cause many offences. I refer particularly to the case made by my hon. Friend the Member for Kettering in relation to volatile substances and their connection with crime.

The amendments relate first to the points of principle on how to differentiate the treatment of adults and the treatment of youths. Previous debates have recognised the need for different treatment of young offenders, for proper coverage of their needs and for sentencing options that are tailored so that young offenders who come before the courts are diverted from reoffending, as all of us in the Committee would wish. My experience is that in all too many cases, young offenders become trapped in the “revolving door”, getting locked into the system as they graduate through different levels of crime. The aim of youth rehabilitation orders and of the treatment requirements is primarily to meet their needs.

The Opposition are concerned about the fact that there is a different set of requirements from that which is available for adults. Let us consider the history of the legislation. In July 2001, the Halliday report set out the need to deal with community orders holistically and generically, and to move away from the proliferation of different orders of which I, as a practitioner, had been much aware. Even at that stage, efforts were being made to try to straddle the many different elements of orders and legislation to bring some sense from the madness. The proposal at that time was to scrap the distinct orders and present them as requirements within a single, generic, community sentence.

That was the genesis of the provisions of the Criminal Justice Act 2003, which overhauled the range of community orders for adults and substituted community sentences. Significantly, the range of requirements for generic orders available for adults included unpaid work, curfews, drug treatment and alcohol treatment. The first question, therefore, is why that menu of options is available for adults but is not reproduced in the Bill for young people.

In September 2003, the Green Paper “Youth Justice—The Next Steps” was published. At that stage, the proposed action plan orders were to include a number of different menus of options, including options relating to drug and alcohol awareness measures, drug treatment and testing, and alcohol treatment. The question is why we have, in many senses, moved backwards from that stage by not including an alcohol treatment requirement in the Bill.

During the evidence-taking sessions, we heard from Brendan Finegan from the Youth Justice Board, who informed the Committee:

“The Bill in its current shape probably does not allow us to have that alcohol treatment order. We would support the addition of an alcohol treatment element.”

Referring to his colleague, Graham Robb, Mr. Finegan added:

“Graham’s view was that the board’s approach to substance misuse and the misuse of substances, whether licit or illicit, is that we would wrap them up in a general concept of substance misuse, so that misuse of tobacco as much as misuse of proscribed drugs can be wrapped together. In terms of the Bill itself, we accept that an amendment for alcohol would allow that problem to be tackled.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 97, Q211.]

We welcome that comment from the Youth Justice Board in favour of such an amendment.

The principle should be shared. The Minister of State acknowledged a couple of days before that evidence-taking session, during the preliminary discussions and questions that:

“There is potentially a gap in respect of alcohol.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 11, Q2.]

I am sure that we all agree that it is important to tackle the problem of alcohol when dealing with young people. All the evidence suggests that more alcohol is going down fewer throats. On the issue of alcohol-fuelled disorder, it is clear that teenagers and children are drinking to dangerous levels, with over 45 per cent. of 14 to 15-year-olds estimated to have drunk alcohol in the past week. One survey showed that 54 per cent. of 15 to 16-year-olds had consumed more than five drinks on a single occasion in the preceding 30 days, and 27 per cent. of them reported doing that three or more times within the preceding 30 days.

Looking at crime itself, the British crime survey—we do not always want to rely on that—states that alcohol is a factor in 47 per cent. of violent crime. That breaks down to alcohol being a factor in 45 per cent. of incidents of domestic violence, 19 per cent. of muggings, 58 per cent. of incidents of stranger violence, and 51 per cent. of incidents of acquaintance violence. That is the case whether adults or young people are involved.

The primary aim of the order for which the Bill provides is to intervene as early as possible, which sadly sometimes has to be at the court order stage. One wants to get to the heart of the problem of young people’s offending, which affects the offender, their relationships at home, which are often broken, and their relationships out on the streets. The amendment is designed to put in place the provision that is already available for adults. Basically, what is good for the adults should be good for the youths. It also seeks to understand that this is a primary problem for young people.

It is also important to see whether treatment can be delivered in practice. The Minister will probably say that there is nothing within the generic order to stop voluntary activities of alcohol treatment being dealt with, but the real question, which has to be answered whether or not we have an alcohol treatment requirement, is whether the resources needed to deliver a step change improvement in alcohol treatment are available. When one looks at funding across the board, one sees that, compared with drug treatment, alcohol is very much the Cinderella service, if indeed Cinderella is even thought of. A recent survey following a freedom of information request showed that alcohol treatment funding made up only 6 per cent. of the funding that drug treatment services receive.

The opportunities available for an adolescent to seek treatment voluntarily are limited. It is estimated that around 17,000 adolescents at present are in treatment, but that can cover many different forms of treatment. Often that does not include any sense of whether they are receiving day treatment or residential rehabilitation. The reality is that there is only one dedicated residential service in this country: Middlegate Lodge, which has three beds available. That is shocking given the statistics that I have outlined.

All hon. Members know the impact of alcohol on young people in their constituencies. Whether we have the treatment requirement or not, the resources to deliver treatment are very limited indeed. One cannot rely on treatment taking place voluntarily. It is important, when cases come to court which merit a treatment order, that that provision is available. If the Bill is to contain a treatment requirement for alcohol, as we suggest—the same argument can be made in relation to drug treatment—it should be there not just for the headlines, but for delivery. People have a right to expect that if an order is in the Bill, it can be delivered. The £600,000 or so that will be put in place to deliver training is plainly not adequate as a dedicated resource to deliver proper treatment.

The situation in this country contrasts remarkably with that in other countries. Very briefly, I would like to illustrate what is needed to deliver an alcohol treatment requirement with an example from Sweden, where there is more of a focus on adolescent services. This country focuses more on adult rehabilitation. Treatment centres such as the Maria youth clinic are fully state funded. It has 110 staff who see 2,000 families a year. Early treatment for addiction is crucial. In the Maria youth clinic, treatment is available immediately. The clinic sits in its own dedicated unit within a police facility and immediately the offender is arrested and charged, they go straight to the clinic for treatment, once it has been identified that drugs or alcohol are a relevant factor.

The Maria youth clinic

“aims to achieve permanent sobriety in the young patient and straight away he has individual counselling and his parents and the school are brought in”.

The parents and school being engaged at an early stage are crucial factors in terms of any effective treatment.

“Quite often our youngster will stay in the clinic for a number of days but will be required to undergo counselling for up to 10 weeks. The emphasis in the counselling is the rebuilding of self esteem and the tackling of depression—something that is often at the heart of drug addiction in teenagers. Time after time the head of the clinic stressed to me the importance of youngsters receiving treatment immediately—waiting lists are not acceptable.”

That is just one example in Sweden. We cannot just replicate that provision, but it gives an indication of how far we have lapsed in terms of providing effective treatment for addiction in this country.

My amendment is designed to plug a gap, one that would properly be filled only by the commitment of dedicated resources to produce an effective step change in the treatment of addictions. Nevertheless, it is a gap that needs to be plugged, given the position in which adults currently find themselves. It is a gap that we see all too clearly in our constituencies and in the courts.

David Hanson (Labour, Delyn)

I welcome your to your first sitting in the Chair following our evidence-taking sessions, Mr. O’Hara.

I am grateful to the hon. Members for Cambridge and for Enfield, Southgate for the amendments that they have tabled. I am also grateful to the hon. Member for Kettering for raising the issue of substance misuse and, in particular, solvent misuse.

I will declare an interest as I am currently vice-president of the charity Re-Solv, which deals with solvent and volatile substance abuse. In fact, my last proper job before entering the House of Commons was as a director of Re-Solv for three years until 1992. I therefore have an understanding of the impact of solvent and volatile substance misuse, particularly on young people. As has been mentioned, there is a number of substances that are normal, everyday household items that young people can and do misuse, which give a temporary kick, but which can lead to instant death or long-term problems. I am particularly pleased to have the opportunity to examine the substance misuse amendment tabled by the hon. Member for Cambridge in conjunction with the alcohol misuse amendment tabled by the hon. Member for Enfield, Southgate.

On Second Reading, my hon. Friend the Member for Warrington, North (Helen Jones) intervened on my right hon. Friend the Secretary of State for Justice to raise the lack of an alcohol order within the youth rehabilitation order. My right hon. Friend agreed to look at the issue with me during proceedings on the Bill. I say to all three hon. Gentlemen that their amendments are valuable. I am keen to look at them in great detail, and I hope to produce an amendment at a later stage that meets their objectives. I obviously need to reflect on matters carefully to make sure that our definition will do the job that those who have spoken want to be done. My right hon. Friend and I are keen to make progress.

I noted that, when giving oral evidence, the Youth Justice Board and the Children’s Society felt strongly that there should be a treatment requirement to cover substance misuse. I have undertaken to look at that in detail, and I am ready to widen our consideration so that we examine all substance misuse. If we get the definition right, a provision on substance misuse could cover alcohol misuse as well as solvent and volatile substance misuse. I shall certainly be considering whether such a requirement is deliverable and, if so, how we can ensure that it is appropriate to young people.

To be fair to the hon. Member for Cambridge, I need to examine whether his helpful definition of substance misuse is appropriate for the Bill. I want to consider whether it covers substances other than drugs and alcohol, and how we can define substance misuse to ensure that we catch some of the volatile substances that are subject to abuse, and whether we can have a definition that covers the concerns that have been expressed today.

I want to examine whether the drug treatment requirement under the Bill will or will not be subsumed by the suggestions of a substance misuse treatment order, because we could consider tabling an amendment that covers a generic substance misuse order and which would cover drug, alcohol and volatile substance misuse treatment. I understand where the hon. Members for Cambridge and for Enfield, Southgate are coming from, and I have great sympathy with their aims, given both my professional background before I came to the House and my ministerial background.

We need to discuss the matter with the Youth Justice Board, the Department of Health and others who will be responsible for examining some of the needs in respect of the order. I am keen to do that and I hope that I have signalled to members of the Committee that I am minded to table an amendment of the same nature as those proposed. I am happy to discuss matters outside the Committee with hon. Members before I do so.

I cannot accept an amendment today because our discussions and negotiations have not been finalised. We need to look at the downstream consequences of the actual phraseology used in the Bill. In principle, however, I agree to examine such matters in great detail and in due course to table an appropriate amendment that I hope will be agreed by the hon. Members for Cambridge, for Enfield, Southgate and supported by the hon. Member for Kettering. I hope that, on that basis, the amendment will be withdrawn.

David Howarth (Liberal Democrat, Cambridge)

I am very grateful for the Minister’s remarks and I am hopeful that we can move forward on the issue in the way that he has described.

The reason that the definitions are drafted as they are in the amendment is, firstly, to ensure that they depend on the nature of the substances, rather than the legality or illegality of the substances concerned; and, secondly, so that they take into account possible future developments. We are always behind the curve when it comes to youth culture and what youths are doing.

David Hanson (Labour, Delyn)

One of the reasons why I want to reflect upon this matter in detail is to cover that very point. In my experience of solvent and volatile substance misuse, every item that is abused is something that has a domestic day-to-day purpose and a legitimate use. We phrase legislation in terms of the sale of those items to cover their misuse; we need to ensure that we phrase the legislation, in due course, to cover the misuse of items rather than their legitimate use.

David Howarth (Liberal Democrat, Cambridge)

That is precisely the point. We must ensure that we are looking at the effects of substance misuse on young people and their communities, rather than sticking to narrow, legalistic definitions of whether a substance is legal or used for a particular lawful purpose.

As I said, it is very important to draft legislation so that we can catch future developments. Our ability to predict the future in this type of case is very limited. There have been a number of developments, as mentioned by the hon. Member for Kettering, which were not predicted by the authorities, the Government or anyone with a position of authority.

With those brief explanations of the way in which we drafted the amendment, and with gratitude that the Government appear to be thinking in the same direction, I am happy to withdraw the amendment.

David Burrowes (Conservative, Enfield, Southgate)

To deal with our amendments, we too welcome the Minister’s saying that he is considering seriously an amendment to encompass the elements of substance and alcohol misuse.

I add a note of caution. Back in 2003, it was indicated that there was to be an alcohol treatment requirement. Obviously, time has passed, and it would be interesting to know why that was dropped from the list. We are subject to the demands of the legislative timetable and there is limited time to come up with an appropriate proposal. That is, in many ways, regrettable.

I also share the concern that the treatment requirement should be deliverable. Within the amendments there is the important requirement that the court must be satisfied that

“arrangements have been or can be made for the treatment intended to be specified in the order”.

That is more important if we take substance misuse generically. As I said earlier, in terms of alcohol, a limited amount of treatment is available, and it is important to be able to deliver what one promises and what the courts would expect. With that said, if work is done on both the definitions and what can be achieved, I will not press our amendments.

David Howarth (Liberal Democrat, Cambridge)

I will count that as an intervention. I beg to ask leave to withdraw the amendment.

David Burrowes (Conservative, Enfield, Southgate)

I beg to move amendment No. 103, in clause 1, page 2, line 11, at end insert ‘, and

(o) a reparation requirement (see paragraph 24A of that Schedule).’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 104, in schedule 1, page 99, line 2, at end insert—

David Burrowes (Conservative, Enfield, Southgate)

These amendments develop a theme that has already been debated by the Committee, both in terms of the principles behind the generic youth rehabilitation order and in relation to hierarchy of sentencing.

Amendment No. 103 would make the reparation requirement part of the generic youth rehabilitation order. In that connection, I want particularly to note the comments of the Magistrates Association during our evidence-taking sessions. The association expressed concern in evidence given on 16 October. In response to Question 61, Cindy Barnett, the chairman, explained her concerns that a separate reparation order with the generic youth rehabilitation order might lead to confusion. The association was concerned to ensure consistency and clarity about orders, both for the offender and for the court.

To be fair, we also heard that the Youth Justice Board did not share that concern. It wanted to ensure that there would be an appropriate hierarchy of sentences, going up the tariff. However, I suggest that the Government cannot have it both ways in the matter of hierarchy. They argue that the intensive supervision and surveillance order should come as part of a generic order and that there is an inbuilt hierarchy within the generic youth rehabilitation orders; but at the same time they still want to keep an element of separateness with the reparation order.

There is concern about clarity. From speaking to practitioners and others, I know that when they come to court they want to know exactly what orders are in place. If we are to move towards adopting a generic order, it is important that it is all-encompassing, so that magistrates can deal with different levels of seriousness of offences appropriately, and, if an offence is at a low level and requires a first instalment of a youth rehabilitation order, a reparation order should be made within that order. I concede that there is an element of reparation already within the generic orders. However, I share the concerns of the Magistrates Association that there is still a need to deal with the matters together, by way of a generic order.

To return to the point that I made about the way in which the Bill has come before us following the discussions about the 2003Green Paper, the plans at that time for the action plan order entailed a menu to cover fines, reparation and a range of other specified activities. It would be interesting to know how we have moved on to keeping reparation orders separate from other, generic, orders. There used to be other low-level community sentences, such as attendance centre orders, which were kept separate, but—properly, in many ways—the generic order is now intended to include that element, by way of an activity requirement. The question is why a reparation order cannot similarly be part of the same order, for the sake of clarity, and for the sake of magistrates, offenders, practitioners and the public.

David Howarth (Liberal Democrat, Cambridge)

I read amendment No. 104 as having a slightly broader effect than one of pure reparation. That is why I support it. The only problem that I have with it is the name given to the requirement, which should really be something like “restorative justice requirement”, rather than just “reparation requirement”.

Amendment No. 104 would provide that

“the offender must attend an activity or activities involving contact between an offender and persons affected by the offences”.

That is not just reparation in the ordinary sense of payback. It includes the element of an encounter, in controlled conditions, between the offender and the victim. It is that encounter that is often the most successful part of a restorative justice exercise. Reparation itself can be part of the process, but the encounter is important as well. That is what the order includes.

What we now know about restorative justice is that it is successful. It is probably the most tested criminal justice intervention of recent years, and the evidence is piling up, not only of its potential, but of its actual success. If we look at the research reported by Professor Lawrence Sherman and Heather Strang for the Smith Institute, we see scientifically validated evidence piling up in favour of that type of intervention.

The intervention works, often in surprising ways. For example, it works not just for property crime, which is what people normally think of restorative justice and reparation being about, but for some forms of violent crime. In fact, it sometimes works better for violent crime than for property crime. Perhaps even more surprisingly, it can work successfully for serious offences as well as for minor offences.

That is probably because of the element of the encounter. Offenders often have in their heads a series of quite unacceptable excuses for their behaviour—excuses they give themselves, which downplay the humanity of the victim and the entitlement of the victim to live a safe life. A series of studies shows clearly that those sort of excuses can be dismantled as a consequence of the encounter between a victim and an offender. Therefore, restorative justice works, but it works best for crimes in which there is an individual victim.

The other important aspect of restorative justice is the good it does for victims. Again, it is not just about the payback. Some work might be done for the victim or some payment might be made, which the hon. Member for Enfield, Southgate mentioned. However, it is not just that. Often victims want to know the answers to quite simple questions such as, “Why me? Why was I the victim rather than some other person? Was I being picked on for some characteristic of my own?” What comes out of the encounter is that the victim discovers that they were chosen at random. They were not being picked on in any particular way because of who they were, but were chosen because of the circumstances or the coincidence of events.

David Burrowes (Conservative, Enfield, Southgate)

I support the hon. Gentleman and the principle of restorative justice, which my hon. and learned Friend the Member for Harborough also supports. My concern is that in practice, some of the reparation orders made at present do not go as far as the hon. Gentleman seeks to take them, which is properly to address the issues of the offence with the victim of the crime. Instead, it can be at a very low level. They might write a letter saying sorry, or make something that gets sent to the victim, but it often does not go beyond that and they do not take the opportunity to ensure that reparation also leads to restoration.

David Howarth (Liberal Democrat, Cambridge)

Yes, the amendment creates the power to do that, which is a valuable part of it. The effect on the victim can be very important. Studies show that the degree of mental illness that victims suffer as a result of crimes can be reduced by this sort of restorative justice encounter. I therefore support the amendment.

The one point to mention here, which echoes a point made in a previous debate, is that resources are needed for restorative justice to work. I would like to draw the Government’s attention to the research finding that says that restorative justice works far better when it is run by the police rather than by social workers. If that is going to work, we must think about the resources that go to the police for this sort of activity, rather than for their other more usual activities.

David Hanson (Labour, Delyn)

Again, I am grateful to the hon. Members for Enfield, Southgate and for Cambridge for speaking to the amendments.

Let me state at the outset that I believe that it is important that young people who have offended accept responsibility for their actions and, where possible, do something practical to offer reparation that will benefit the victim, or indeed the community as a whole. That is why, in the Bill, we have included reparation in the requirements of the youth rehabilitation order. We also propose—this is the crucial difference between the amendment and our thinking—to maintain the reparation order as a separate sentence beneath the YRO for the courts to exercise. We have done that for a number of reasons, which I hope the members of the Committee will understand.

I believe that reparation is very important. In my previous role as a Northern Ireland Minister, I was responsible for the Youth Justice Agency there, where restorative justice was a particular aim. My hon. Friend the Under-Secretary of State for Justice also had a brief sojourn in Northern Ireland for six weeks, following my departure, before moving to her current post. She joined the Ministry of Justice to take forward very positive activity too. The use of restorative justice has been proved to show great benefits to the community at large and to the individuals who undertake it. We are currently undertaking a number of restorative justice pilots in England and Wales to see whether there would also be benefits here. In my experience in Northern Ireland, the victims of crime and, very often, the young people or others who have been involved in crime benefit greatly from undertaking that process, so I feel that restorative justice has merit.

The argument between us today is, I believe, about whether we retain a separate reparation order or simply subsume it into the YRO. I take the view that we should have a separate order, because I want to see it used to prevent the escalation of activity by young people who are made the subjects of such orders.

I pray in aid what the Committee heard last Thursday from the representatives of both the Youth Justice Board and the Children’s Society. They strongly supported retaining the reparation order as a separate sentence. Indeed, Ellie Roy, the chief executive of the Youth Justice Board, told the Committee that

“there is value in having reparation in its own right”.——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 109, Q229.]

Making reparation to the victim of the crime is central to the youth justice system and I believe that it can both assist the rehabilitation of the offender and help the victim.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister explain one thing to the Committee? The Youth Justice Board and others are being entirely consistent in their approach of saying that there should be a hierarchy. The Minister is not being quite so consistent in that he is now arguing the exact opposite of the position that he adopted in respect of ISSOs. I wonder whether he could explain why he now takes a different view.

David Hanson (Labour, Delyn)

I take the view that the reparation order in itself can act as a useful tool to prevent further reoffending and to prevent the ratcheting up of offending by the young person. I accept that I have taken a different view with regard to the surveillance requirements. I think that, based on the evidence that we have, we can involve young people in undertaking reparation, without ratcheting up the level of the order that would be proposed for the future.

Alun Michael (Labour, Cardiff South and Penarth)

May I suggest that the answer to the hon. Member for Somerton and Frome might be made easier if we put aside the idea of a hierarchy, because I think that that sometimes gets in the way of sentencing in the courts? That is because one ends up with inappropriate sentences, due to the idea that the individual is somewhere on an inappropriate hierarchy. By contrast, what we have is a multi-faceted and serious option, which is the one that the Minister is addressing. However, a youngster who had committed an offence that led to a decision of guilt, but which was not a serious offence, might nevertheless undertake reparation. Is it not better, as my right hon. Friend the Minister of State rightly suggests, to make that provision available than to trap people in hierarchies?

David Hanson (Labour, Delyn)

I am grateful to my right hon. Friend for his contribution. The essential point that I am trying to make is that the reparation order provides a separate sentence—in this case, below the youth rehabilitation order—that is focused on activities that will help prevent crime and deal with some low-level, but significant, offences that young people might be responsible for, such as graffiti, minor damage or poor behaviour in the community at large. The reparation order would ensure that we focus on activities that will reinforce principles such as personal responsibility and ensuring that people learn about the consequences of their actions and accept and understand the nature of the damage that they have done.

It is important that we retain the reparation order. The Youth Justice Board and the Children’s Society indicated the same thing in their evidence to us. Our experience is that the reparation order can be effective in preventing the escalation of offending behaviour before there is a need for the court to consider whether a youth rehabilitation order should be imposed. Considering the types of reparation that young people can undertake, such as graffiti cleaning, repairing community facilities and innovative bespoke schemes—including bike renovation for people involved in bike crime and faith-based reparation in conjunction with local churches—conservation work and community art work, and considering the youth reparation order generally with regard to wider restorative justice schemes, all those things have a value in helping to prevent crime, which all Committee members are concerned about.

Edward Garnier (Conservative, Harborough)

It is probably my fault, but I have become a little bit confused about the agreement that the right hon. Member for Cardiff, South and Penarth seemed to be advancing in favour of the Minister’s argument. I thought that I agreed with him that it is far better to have a fairly open-ended system whereby the courts could choose the appropriate remedy for a particular offender without being bothered by the hierarchy, so that if an individual were charged with a fairly low-level offence but none the less needed to have his offending behaviour brought home to him, a reparation order, as suggested by my hon. Friend the Member for Enfield, Southgate, might be sensible. What you call it and how it fits into the Bill does not seem to make much difference; what is important is getting the offender to repair the damage, in some way or other, to the victim. Whether that is done by a rehabilitation order requirement or by a self-standing disposal, or a combination of both, and whether the reparation order fits within both categories, surely does not matter much, as long as the court has it at its disposal.

David Hanson (Labour, Delyn)

As the amendments are drafted, the proposed new reparation requirement would duplicate the existing order. Provisions for reparation that are already built into the youth rehabilitation order and would cause confusion to the courts, the supervising authorities and, crucially, to the young person. We are trying to ensure that we have the flexibility of having the reparation order in place for low-level offences and, equally, including it as part of a wider youth rehabilitation order if need be. It is important that we do that to prevent reoffending.

I ask the hon. Member for Enfield, Southgate to withdraw his amendment. I cannot support it.

David Burrowes (Conservative, Enfield, Southgate)

I have heard the Minister’s comments, but I am not convinced by his rationale. The Magistrates Association, which gave evidence to us, said that its involvement in consultation on this proposal was limited. At the very least, the amendment has highlighted the association’s concerns, which perhaps could have been listened to and taken on board at an earlier stage. It is, however, worth repeating its comments in written evidence, as it takes issue with the Minister and looks at whether having the Bill as a separate order is less confusing. The association points out:

“This separation will only serve to confuse young people. Whilst in its own right it is not a community sentence, neither are many of the other requirements in the new YRO and therefore the Association cannot see, nor has it been given”—

that is an important point because the level of the conversation has perhaps been limited—

“any good reason why this order has been excluded and left separate.”

Alun Michael (Labour, Cardiff South and Penarth)

The Magistrates Association does not always get it right; the hon. Gentleman should apply his own mind to the matter. Faced with an offender who commits a mild offence, we might not want to use the full panoply of measures in the YRO, but merely want to say, “Put things right.” Surely what the hon. Gentleman seeks would stand in the way of that.

David Burrowes (Conservative, Enfield, Southgate)

As a defence solicitor, I do not suggest that magistrates always get it right—indeed, I often try to convince them to alter their pre-existing opinion of a particular defendant. Nevertheless in a case involving a low-level offence, such as that referred to by the right hon. Gentleman, it might be appropriate to impose an activity requirement with an element of reparation, or a measure that had an attendance centre requirement. Those types of order used to be distinct and separate and were the lowest level of order before we moved up the scale to supervision orders. Under the Bill all those requirements are contained within youth rehabilitation orders.

The menu of options contains many low-level interventions that magistrates can use. It is not clear how one can distinguish a hierarchy of measures such as a limited attendance centre requirement or a limited activity requirement and a reparation order. That is particularly true if the Government’s position is that intensive supervision and surveillance orders fall within generic youth rehabilitation orders; by implication, there is a hierarchy that goes right up the scale to intensive supervision and surveillance orders. Surely it makes sense to have all the options available in a clear and methodical manner.

I maintain my view, but do not at this stage wish to press the matter further. I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 2, in clause 1, page 2, line 21, leave out ‘or (b)’.

The amendment provides us with an opportunity to talk further about the regime of youth rehabilitation orders, particularly those that cover fostering. Clause 1(3) allows a youth rehabilitation order to include

“a youth rehabilitation order with intensive supervision and surveillance”,

and secondly,

“a youth rehabilitation order with fostering.”

It is governed by paragraph 4 of schedule 1, which lists a number of things that the court must consider. It must be satisfied

“that the behaviour which constituted an offence was due to a significant extent to the circumstances in which the offender was living,”

and

“that the imposition of a fostering requirement would assist in the offender’s rehabilitation”.

However,

“a court may not impose a fostering requirement unless—

(a) it has consulted the offender’s parents or guardians (unless it is impracticable to do so), and

(b) it has consulted the local authority which is to place the offender with a local authority foster parent”.

I am not sure what “consulting” really means. I know what the English word means, but I would be interested to hear from the Minister what consulting the offender’s parents or guardians and the local authority is intended to mean as a matter of the construction of the Bill, so that a court knows what is in the Government’s mind when it comes to consider a youth rehabilitation order.

I say that in the context of the evidence that we heard on Thursday 18 October. Mr. Simon Hickson, the policy advisor for the Children’s Society, said:

“About £280 million a year is spent on sending children into custody. A custodial sentence of a year, even if only six months is spent in custody, can cost nearly £100,000. From our perspective, there is a crucial need to look at the criteria for custody and the Bill presents an opportunity to do so. There is an opportunity to move to something of a virtuous circle, by tightening the criteria for custody and using the intensive supervision and surveillance programme or ISS order, as we would like to see it, and the higher intensity measures as community options.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 92, Q200.]

I take it that he included within that the fostering requirement because, clearly, if we could deal with a disaffected young person through fostering and improve his behaviour, stop his criminality and reduce reoffending through fostering or an ISS order, that would save a huge amount of money.

However, Ellie Roy, the chief executive of the Youth Justice Board also gave evidence on that occasion. In response to a question from me:

“Where is this money coming from that is going to make this work?”,

she said:

“The starting point for this is that a lot of money is being spent on these young people anyway, through various parts of the system, whether it is on care, social work or various services. This looks as if it is a more effective way of spending some of that resource to get much better results. If we manage to reduce the numbers in custody, the Youth Justice Board would be able to invest more of the money that we currently spend on custody. Simon Hickson quoted the amount for custody. In some sectors it is much higher than that. Some of the beds that we pay for cost up to £200,000 a year. A lot of money is being spent anyway, particularly on the secure children’s homes. There are issues about how local authorities identify the children who are most in need and who are already costing a lot of money, and how they spend the money that is already being invested in them. There is also for us a challenge in terms of getting kids out of custody so that we can spend the money spent on custody in other ways.”

Then, Bob Reitemeier, who is the chief executive of the Children’s Society added:

“I should like to encourage the Committee to take a long-term view in addressing this question of finances. Reoffending rates hover between 75 and 80 per cent. for offenders who go to custody. It is not just, as Simon Hickson pointed out, £100,000 a year, because you multiply that every time the young person comes back into the system. So what some of the interventions, such as intensive fostering or intensive engagement with young people, are trying to combat is the reoffending rate. It is working in a way that prevents these young people from coming back into the system. So when you look at finances and the long term, it sounds crude, but it is pay now or pay later, or pay now or continue to pay. We need to take a long-term view of that.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 92-93, Q202.]

I have set that out possibly at too great a length, but it is important to understand the context in which people such as Bob Reitemeier, Simon Hickson and Ellie Roy are looking at finances and looking at the resources that it is necessary to deploy if these sorts of responses to young criminal behaviour are to work.

As I said in the evidence sessions, I have concerns about the nationalisation of children, as I rather dramatically put it. There are already arrangements in the family courts for children to be put into the care of a local authority outside the criminal justice system. Those arrangements have good and bad results, as we know—I come back to the figure that 27 per cent. of the people in custody have been through care. Undoubtedly, however, there will be cases where sadly, both for the child and for the parents, it is the only answer if the child is to move into adulthood with any form of safety. If that is what is required, we must harden our hearts and hope that taking the child away from its natural parents and placing it in care is the lesser of two evils.

The problem that I see arising from intensive fostering requirement is again highlighted by Bob Reitemeier’s evidence. I asked:

“So who will be responsible for co-ordinating this, or does that just fall through the grating?”

That is to say, would the co-ordinating of the resources and providing the right answer for these youngsters fall through the grating? Ellie Roy replied:

“It should be the youth offending team at the local level. If they have behind them the leverage of saying that what they are doing is a requirement of the court, that will facilitate and encourage discussions with local partnerships about to which people priority should be given. If you get that right, you will get the pay-offs that Simon Hickson described earlier. You can change behaviour and that will save victims, communities and money in the future. That is the ideal that we are heading for and I think that the YRO is a strong lever for us in achieving it.”

Mr. Reitemeier agreed with her about

“the critical need for joining up these services”,

but he continued:

“A point was made earlier about resources in a different context, but the other reality experienced on the ground is that this is viewed as a criminal justice problem, not a broader problem relating to children and young people.”

He reminded us:

“The reality for children’s services is that once a crime enters into the life of a young person”

children’s services can move them off their book and place them in the criminal justice resource system. I intervened on him and said,

“And out of their budget.”

He replied:

“It is not really part of the Bill, but I was going to make the point that, because the Youth Justice Board commissions and pays for custody, it is not a local authority problem. The Committee may want to consider that.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 102-03, Q221.]

I am getting to the church by way of the moon, but the question that I want the Minister to answer is as follows: if the court consults the local authority, if the local authority has very few resources to spare, it will say, “Criminal justice disposal? Yes please.” The criminal justice system, whether it be the youth offending team or the youth justice system, will then take over the burden of spending public money on that child, as opposed to the county council or other local authority departments. There will be an incentive for local authorities, if consulted in a meaningful way, to respond that the criminal justice procedure is the best way to deal with it. Paragraph 4(3) of schedule 1 states:

“But a court may not impose a fostering requirement unless ... it has consulted the local authority which is to place the offender with a local authority foster parent.”

The local authority treasurer’s eyes will light up and he will say, “You pay for it, youth justice system.” The fostering system will still be provided, but it will come out of somebody else’s budget.

I have never served on a local authority in any guise, as many hon. Members have—

Maria Eagle (Labour, Liverpool, Garston)

Neither have I.

Edward Garnier (Conservative, Harborough)

I have something in common with the hon. Lady at last. In fact, we have two things in common: first, neither of us has served on a local authority and, secondly, we want to get the Bill right. Although she will not admit it in public, she too probably thinks that the Bill is in a bit of a mess and that it needs pulling together. There are always difficulties when a Bill is run by two separate Departments and this is classic example. I look forward to her co-operation with the Opposition in working to ensure that the Bill—in so far as it emerges at all—emerges with some degree of coherence. However, that was an aside.

I seek advice from members of the Committee who know a bit more about local authority treasury activity than I do. I ask them whether I am right, when I interpret what Mr. Reitemeier said, in suspecting that we will see many local authorities that do not have enough money to use in all sorts of other areas saying, “Push this on to the youth justice system.” I see that the hon. Member for Cambridge is going to help me.

David Howarth (Liberal Democrat, Cambridge)

I shall speak as one of the team of former council leaders on the Committee. Experience in another area—the relationship between the health service and local authorities—shows that there will always be a tendency for local authorities and central government to have a bit of a contest to push costs onto the other, unless a system is set up to ensure that that does not happen. With enough thought, however, those problems can be reduced.

Edward Garnier (Conservative, Harborough)

I am sure that they can be given enough thought, and today we are seeking to provoke the Government into thinking. If they do that, it will be a good thing. My concerns are added to because the Ministry of Justice is new. Although it may have all sorts of experienced officials and advisors who have been in other Departments that have dealt with these matters before, the culture of departmental government means that, by and large, once one is in one Department, one is in a silo. It is quite difficult to get the different silos in government to talk to each other. For example, we are talking about young people who are engaged in the criminal justice system. That will effect education, health, social services, children’s services, the criminal justice system and the police—a host of public authorities and agencies. I wonder whether the Ministry of Justice yet has the clout, impetus and experience to handle that. The Under-Secretary of State for Justice is rising to the challenge of co-ordinating all those great public authorities, and I hope that she is successful.

To be serious, there is an organisational and administrative issue here, which will take a lot of ministerial and political drive and leadership. I hope that we will see that from the three Ministers who sit on the Committee. However, I am sceptical and I am concerned that the Bill will fall in its implementation because of those resource problems.

I wanted to describe that issue to the Committee in moving amendment No. 2. I assure the Minister that I will not press it to a Division because there is no point. I do, however, want some sort of understanding from the Government about how they think the Bill will work in real life. Local authority leaders on both sides of the Committee room, practitioners, certainly on this side of the room, and Ministers who have non-political experience in children’s activities, such as Re-Solv—

David Hanson (Labour, Delyn)

And as a council leader.

Edward Garnier (Conservative, Harborough)

I am sure that the Minister has done many wonderful things in his life, but I was particularly interested in his work as the director of Re-Solv. All of us have different experiences and all of us know that things go wrong if work is not co-ordinated. We all talk about demanding co-ordination, but nothing ever seems to get done and how we then have to have another Act of Parliament to cure it.

Finally, I ask the Minister, when he is considering the amendments in the previous group that he said he would reflect on—amendments Nos. 167 and 105—to find time to read a book entitled “Wasted” by Mark Johnson. He may well have read it already. It is clearly one man’s story, but it a useful encyclopaedia of information about what happens to someone who falls into the grips of addiction or substance abuse as a result of his family not providing the support to him as a child that might have been necessary. He became disaffected with education and with what I loosely call “normal life”. He went right to the bottom and it was very difficult for him to rescue himself or allow himself to be rescued by others.

“Wasted” is about someone affected by class A drug abuse and alcohol. Its author would use anything to get him away, in his head, from where he was—that is to say, away from the street door or pavement in the west end—and drugs were the travel system he used to get himself away. He did not think that he was an addict. He knew that he was in control of his drug habit, which was costing hundreds of pounds a day. He stole money or stole goods to sell to raise the money. There are some big issues in this book that are perhaps hidden by the ordinariness of the black print of these pages.

I urge the Minister and his colleagues to read “Wasted”. The right hon. Member for Cardiff, South and Penarth seems to have read it, but I urge other Committee members who have not done so to read it, because it demonstrates the seriousness and the huge nature of the problem that we are all trying to get to grips with.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. and learned Member for Harborough for raising some important questions. I do not think that he addressed his amendment at any stage, which is a good thing because I do not agree with it and I might say why right at the end of my remarks. Instead, he used his amendment as a vehicle for expressing some proper concerns about the intensive fostering scheme, which I think the whole Committee agrees is a bold, imaginative scheme with enormous potential, if it is allowed to work and if it has the resources to make it work. I do not want to suggest that it is not well worth considering and including in the Bill. However, there are some important questions, which we will discuss further in the context of schedule 1 and which we have already discussed, albeit superficially, in our earlier consideration of the Bill. The hon. and learned Gentleman set out some of the concerns.

Resourcing is not peripheral; it is absolutely central to the operation of the measure. I do not want to be unkind to the Minister, but I do not think that he answered precisely the questions put to him this morning on this subject. There was certainly no clarity about how the measure will be funded, but that will be critical to its operation.

My local authority experience is years out of date. I was the leader of a county council with social services responsibilities and, certainly in my time, although almost any amount of resource could be put into social services and it would be used effectively, they would still require more to deal with vulnerable people. The limitation was always the budget that was available, rather than the demands that the services put on the budget. I am clear in my mind that any directors of social services—although they are not called that any more; they are called all sorts of other things that reflect the Children Act 2004 and what flowed from it—or any officer of an authority who has responsibility for child protection will grasp an opportunity to shift significant amounts of expenditure off local authority budgets on to a central Government budget. However, I want to be clear that that is what is envisaged, because although the Minister said this morning that his Department and the criminal justice system would have responsibility for organising implementation of the measure, I was not clear whether there would still be a duty on the local authority to provide. If there is, that would be an onerous duty for many local authorities.

There is a distinction—I come back to the point because I do not think that we have clarified the position—between what is required for the child’s protection, which is clearly part of the duty of the local authority but is no part of a criminal justice disposal, and what will be required in making orders under the Bill. The latter is part of a criminal justice disposal and is therefore not purely for the child’s protection, but its purpose, quite properly and significantly, is to seek to provide an environment where the young person is less likely to reoffend.

We need to understand the system that will get us from A to B—that gets the young person into an intensive fostering place in each local authority area in the country. Is the Department going to maintain lists of approved intensive foster parents for each criminal justice area? Will those individuals be funded directly from Department of Justice funds for the very difficult job that they will be doing? Alternatively, will the Department, at the time of disposal, simply ask the local authority whether it has any foster parents who might fit the bill and work on an ad hoc, or an ad hominem, basis? Which is it going to be? It will require significant resources, so what thought has gone into the provision?

Without some clarity it is hard to accept at face value that the disposal will be available in every court across the country to every young offender who would benefit from it. If it is not to be so, we shall have a postcode lottery, to use a hackneyed term, in the disposals that are available to particular magistrates benches.

Is it envisaged that the foster parents who are engaged for the purpose will be in the same local authority area as the young person, or indeed the court before which they appear? Or is it the intention to take children out of inner cities to a—for them—totally alien environment to remove them from the temptation and pressures that they might otherwise experience? There is an argument for doing that. There is a case to be made for saying that the best thing one can do for a young offender in Lambeth is to take them away from an inner-city environment to a suburban or rural environment. That has happened in the past. There is a school in my constituency that is intended for young people who display behavioural difficulties. It is a local authority school, but it is not run by Somerset local education authority; Bristol education authority does. It is miles out in the country, although it is not in the middle of nowhere. It is in a very sweet little village, but it is certainly a long way from St. Pauls or Knowle West in Bristol, or the other places where the children at the school might have come from. Is that what the Minister of State has in mind?

If the Minister of State cannot provide that clarity here and now, will he write to the Committee to tell us how the scheme will work? It would put a lot of minds at rest to know that sufficient thought has gone into its working, and into the duties that will exist for local authorities, and to know that the scheme has been discussed with the Local Government Association and others, so that there is clarity as to the source of funding for supporting particular individuals.

The placements must be very special placements if they are to work successfully. It will not do a young person much good to simply put them into a standard local authority home—not a foster home—and expect that that will do the trick of dissuading them from criminal behaviour. All the evidence shows that it is unlikely to do so, despite the best will in the world on the part of those who are trying to operate such homes. We need clear assurances that there are sufficient numbers of people who can address the problem and who have a high degree of altruism and the ability to care for what may sometimes be disturbed individuals, and that we have a way of funding them.

Let me return to the amendment—

Edward Garnier (Conservative, Harborough)

You should not bother.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman says that I should not bother, and perhaps that is entirely sensible. I shall just say that I have been consistent in my view that if a child is taken away from their familial home by court order, that is a significant disposal and should be done with proper care. The criterion that would be removed by the amendment is that it should be done in relation to an offence that would otherwise attract a custodial sentence. I think that that is a necessary threshold for such a disposal. I do not wish to remove it from the order and that is why I would not support the hon. and learned Gentleman if he were to push the amendment to a vote, which he is clearly not going to do. I hope that the Minister will be able to respond to the cogent points that he made, which perhaps I have amplified a little in my remarks.

David Hanson (Labour, Delyn)

I am grateful for the positive way in which the amendments have been moved by the hon. and learned Member for Harborough, supported in part by the hon. Member for Somerton and Frome.

Let us be clear what the amendment would do. It would remove the fostering requirement from the custodial threshold. I strongly believe that the fostering requirement retains a place as an alternative to custody provision alongside the intensive supervision and surveillance provision, on which we touched earlier this morning. The requirement is based on the Youth Justice Board’s intensive fostering pilot, which offers an alternative to custody and which is currently being examined. It may help if I outline some of the thinking behind the pilot scheme being operated by the Youth Justice Board, with a view to rolling it out if the pilot proves to be successful.

The Youth Justice Board is running small-scale pilots in Staffordshire, Hampshire and London, funded by a grant of £1.5 million per year. Young people involved in the pilot are sentenced to the intensive fostering supervision order under section 88 and schedule 2 of the Anti-social Behaviour Act 2003. Individuals are put in a foster placement for approximately nine months, although it could be up to a year, with potentially further time spent with a family after that.

At the moment, we are funding 13 placements on the pilot in those three areas. So far, 36 young people have been sentenced to intensive fostering. We are monitoring the pilot. Again, this is a generic provision in the Bill—we are trying to prepare legislation in the event of successful roll-out. The pilot is due to end in October 2008. It is being evaluated by York university and the interim results show a very positive impact on the young people involved, including a reduction in reoffending rates among those who have been through the intensive fostering process.

I have to put in the caveat that only a very small group have been involved in the pilot and we cannot, as yet, assess its impact. For the reasons I mentioned earlier in discussions with the hon. and learned Gentleman, there is a need for intensive fostering where the circumstances of the home situation mean that an individual needs to be taken out of that to provide all the important things that fostering can provide, such as role models, love, support, encouragement and a range of benefits that may be absent in the original family home. It is not about nationalising young people and children; it is about trying to meet the needs of what is a very small group on the pilot, bearing in mind that, if the pilot is successful, we may roll out the scheme in future.

The very important issue of resources has been raised. This morning I indicated that we needed to look at that in the round. The Youth Justice Board, the Ministry of Justice and the Department for Children, Schools and Families will be accountable and responsible for setting standards, encouraging schemes and looking at those matters generally. We are discussing funding for intensive fostering with all three bodies. We have not made any final decisions yet and I cannot give the Committee any encouragement in that respect.

However, even if we did roll out the scheme nationally from the pilots, based on the legislation, only a very small number of individuals would be sentenced to intensive fostering. It is not to be confused with the normal fostering that local authorities throughout the country provide. Intensive fostering is significantly different in standard to the fostering arrangements that are for local authorities to determine as a welfare issue. Intensive fostering is based on an evidence-based model delivered by a team who work directly with the young person and, critically, with the family of origin, to try and ensure that we prevent reoffending, which is the whole purpose of the order.

A number of very important points have been made by the hon. and learned Member for Harborough in relation to the role of the local authority. Let me assure him that, to date, we have only operated a pilot scheme; we are looking at the implications of it before deciding whether to roll it out. As he mentioned, paragraph 4(3)(b) of schedule 1 says a court may not impose a fostering requirement unless

“it has consulted the local authority which is to place the offender with a local authority foster parent.”

In practical terms, that will mean that a court can impose an intensive fostering requirement only if the local authority has confirmed that a place is available. I expect that, in the event of both the pilot and the roll-out of the scheme proving successful, it would not be a question of merely consulting the local authority, but of a partnership with the local authority in which it and the court would work together, as part of a general pre-sentence report, to ensure that that place was available. It would not simply be a matter of saying to the local authority, “We intend to impose that order and you have to provide a place.” It would be about consulting the local authority to ensure that a place was available when the order was passed.

Nick Hurd (Conservative, Ruislip - Northwood)

I am sure that the Committee understands why the Minister is not in a position to give a funding commitment. In his comments, he suggested that he had some idea of the parameters of how many children might be involved in a national roll-out of intensive fostering. Could he be more explicit about the scale that might be measured through a national roll-out and what broad costs might be attached to it?

David Hanson (Labour, Delyn)

I cannot do that. At the moment, as I have said, we are undertaking a small-scale pilot in Staffordshire, Hampshire and London, with a cost of about £1.5 million per year. We have had 13 places available and approximately 35 people have passed through those places during the course of the pilot. We are evaluating the pilot, which is undertaken under different legislation. The purpose of this Bill is to subsume the provisions of that legislation into a generic order to make that available. We hope that the pilot will be evaluated and rolled out. I am discussing funding with colleagues in the Department for Children, Schools and Families and the Youth Justice Board. We will consult with local authorities on those placements, but I have to say that local authorities will almost certainly have to take up a large part of the cost of those placements.

Once again, however, I would like to refer the hon. and learned Member for Harborough and the rest of the Committee back to our helpful evidence-taking sessions. During our fourth sitting, Councillor Les Lawrence, speaking on behalf of the LGA and replying to the hon. and learned Gentleman, said:

“The early indication is that the number of places and the resources, working with the court and the other agencies, are sufficient at this point, as is the number of places that are required to match the number of available resources.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 141, Q285.]

He was speaking in relation to intensive fostering.

I am seeking the Committee’s permission to ensure in the legislative framework that we have intensive fostering available as part of the YRO. I hope that the Committee will understand that the benefits for individuals who have experienced intensive fostering are accepted. The pilot will run its course and be evaluated, but to date it has been shown to be quite successful in preventing reoffending. I hope that the Committee takes on trust my statement that the Government are considering funding arrangements with the YJB and the Department of Children, Schools and Families. However, in the event of this scheme being rolled out, consultation will take place with local authorities about the availability of places, if courts sought to exercise the order.

I would again like to quote from the YJB’s written evidence to the Committee. The YJB said:

“It is also welcome that the YRO will include a fostering requirement as another clear alternative to custody allowing for use of the Intensive Fostering programme currently being piloted by the YJB.”

The clear intention, as shown in the evidence to the Committee from the chief executive of the YJB, is that an intensive fostering requirement will be an alternative to custody. From my discussions with colleagues in Committee, including Opposition Members, I know that one of their objectives is to ensure that we keep young people out of custody. This order, which is being piloted and examined in detail, gives the potential to meet that objective, subject to the caveat that the local authority would have to be consulted. In other words, in real terms the local authority would have to agree to take on the burden of funding that place and meeting that resource. We are looking to see what guidance and support that we can give centrally, in terms of monitoring standards, examining that provision and encouraging its wider use.

Therefore, I hope that the Committee will agree, not only with me, but with the LGA, the YJB and others, that intensive fostering has the potential to make an important contribution to the mix of community penalties that are available to the courts, and to provide a robust and effective alternative to custody. I hope that the comments that I have made have reassured the hon. and learned Gentleman about the use of that provision. I urge him to reflect upon what I have said and to withdraw his amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Minister for what was certainly intended to be a helpful response.

There is no question—certainly not from the Liberal Democrats, nor from the Conservatives, I think—that there is a recognition of the utility of this disposal; it is transparently a good thing. However, the questions about resourcing will continue to worry us.

What the Minister said still prompts some really important questions in my mind about the level of funding. He gave the examples of the pilot scheme and suggested that, if we were to see a roll-out on the same terms, there would be about four of these placements per county area, or per principal authority area, because that is the level at the moment. Minister said that providing those placements would cost about £500,000 per county area—that was the figure for grant that he gave. He said that it would be provided primarily by the local authority.

Frankly, that is why I could not understand the rather sanguine attitude of Councillor Lawrence when he was giving evidence. In any other circumstances, if local authorities are asked whether they will shoulder a further burden of £500,000 a year out of resources that are not there, they immediately start banging on the door of the Treasury and the Department for Communities and Local Government to say that they cannot meet such requirements from existing budgets. Yet Councillor Lawrence said that it would not be a problem to provide, on the Minister’s figures, an extra £500,000 a year for individuals for whom local authorities do not have a duty under welfare legislation. It is an additional responsibility. The Youth Justice Board said that the measure was a cheaper disposal than a custodial sentence. That is correct, but the custodial sentence is paid for through the criminal justice system from the budget of the Ministry of Justice, not from local government social services. That is what worries me.

I shall accept the Minister’s assurances and accept that he is working on the details, but we shall need greater clarity on this matter before we reach the Bill’s later stages. We must be clear about how the measure will be funded. If it is not funded properly, it will not work.

Edward Garnier (Conservative, Harborough)

I am grateful to the hon. Member for Somerton and Frome and to all those who have contributed to the debate, whether from the Labour or Opposition Benches. As I said, we must get the area under discussion right, and there is not much room for party political banter.

Like the hon. Gentleman, I found the LGA witnesses the least satisfactory in the sense that they were the least inquisitive, the least curious and the least questioning about the Bill. I do not know enough about the individuals who gave evidence, but I, too, was surprised when they seemed to be fairly relaxed about the financial burdens that would be placed on local authorities as a consequence of intensive fostering. That might be a function of representing Birmingham and Coventry, which are two large local authority areas, but Leicestershire, part of which I represent, has a revenue budget of about £750 million for the entire range of activities. I dare say that Birmingham has a larger budget than that, but Leicestershire is always having to look carefully at its annual budget to see whether it can afford the things that the Government, by statute, require it to do already without having to face a further bill for £250,000 to carry out a justice function.

The Minister said that the fostering requirement is based on crossing the custody threshold. Let me put aside for one moment my worries about the fostering arrangements and whether they are always a good thing. If the requirement works for the more serious offences of those crossing the custody threshold, why restrict it to that? Why not allow it to be used to prevent the young person in a difficult family from reaching the stage at which he does cross the threshold?

I come back to the book “Wasted” by Mark Johnson. He used to spend weekends on an entirely voluntary basis with a married couple who were teachers at his school in Kidderminster. During those weekends—as he admits in the book—his behaviour improved immeasurably. It was when he went back home that he fell into his old habits. When his teaching family moved to another part of Worcestershire, and he was unable to join them at weekends, things got worse and worse. At that stage he had not done anything that would have crossed the custody threshold, but clearly he was benefiting from contact with that other family. I would be interested to know more about the 13 placements and the 36 youngsters who have been sentenced to the system in Staffordshire, London and Hampshire. Can I be assured that those people were placed with real families, and not local authority homes? There is a provision within the Bill, if foster parents are not available, for children to be placed in the care of the local authority, which would mean putting them into children’s homes or other institutions and that would defeat the object.

David Hanson (Labour, Delyn)

I assure the hon. and learned Gentleman that all of the 35 young people on all the 13 placements are with “real families”.

Edward Garnier (Conservative, Harborough)

Good, that is reassuring and I look forward to reading next year the York university evaluation of the system. It begs the question whether we are introducing this too early—can we delay, will we delay or is it necessary to delay the implementation of this aspect of the Bill until the York university study has been completed?

I am still concerned about the multiplicity of Government agencies that will be looking after the system. I now discover that the Department for Children, Schools and Families will get its oar into this, as well as local authorities and the Ministry of Justice and its subsidiaries, such as the Youth Justice Board. There are far too many people running the show. We need to have one agency co-ordinating the system and a Minister of State driving it, because once the political drive and the organisational coherence are lost, the thing begins to splinter and people start empire building. It is we, the public, who lose out because we, the public, are the ones who suffer from the reoffending. The youngsters falling into the criminal justice system lose out as well.

This has been a useful debate, albeit it has nothing to do with the amendment. But frankly, so what?

Edward O'Hara (Labour, Knowsley South)

Order. The Chair thought that the hon. Gentleman was speaking entirely to the amendment.

Edward Garnier (Conservative, Harborough)

As we discovered from Sir Nicholas this morning, you or who whoever sits in that Chair is always right, Mr. O’Hara. Whether you are right as a Member of Parliament or not is neither here nor there.

Let us try to get the Bill right, let us try to make it work and ensure that it is adequately managed and adequately resourced, and that it is implemented at the right time—not too early, before things are ready to go, but equally not too late, before other problems arise. That is my plea; let us hope that the Government listen to it. I beg to ask leave to withdraw the amendment.

Schedule 1

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 174, in schedule 1, page 86, line 19, at end insert

‘, after considering advice from children’s services and the youth offending team,’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 171, in schedule 1, page 86, line 22, at end insert—

‘(aa) that the imposition of a fostering requirement would tend to improve the circumstances in which the offender was living, and’.

David Heath (Liberal Democrat, Somerton and Frome)

We come now to consideration of the youth rehabilitation order with fostering requirements, and what might be suggested by such an order. The amendments are small and it might be said that they state the obvious, in terms of the provisions, but they also cover areas that are not explicit in the Bill. The present wording of schedule 1 requires the court to be satisfied

“that the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living,”

and

“that the imposition of a fostering requirement would assist in the offender’s rehabilitation.”

It goes on to say that before any fostering requirement is made, the court’s assessment needs to be accompanied by consultation with the offender’s parents or guardians and consultation with the local authority in which the court intends to place the offender with a foster parent.

It is axiomatic in what Ministers have said about the orders that they would be derived from a proper consultative process by all concerned. The measure would not be imposed by a court out of the blue sky, but would be the result of all the agencies involved with the care and future management of the offender sharing the view that this is a disposal that they would recommend. The courts will make the decision as to whether it is an appropriate disposal, but other agencies must be involved. There is no mention of that in the Bill but it is assumed that that will be the case.

Amendment No. 174 tries to ensure that the court will have properly consulted with children’s services and the youth offending team before it considers this fundamental, and as we know expensive and perhaps difficult to effect, order. The court must be satisfied that it is the right and proper disposal for that individual.

The Minister may intend to include that in sentencing and other guidelines to the court, but it is important that the point is made. This is a culmination of a consultative process rather than ex cathedra judgment by the court. Quite apart from the interests of the criminal justice system, it is fundamental to the child’s interests.

Amendment No. 171 might be taken as a statement of the obvious. Again, it is an important consideration that the court must take into account. It touches on the point made in the context of the previous amendment by the hon. and learned Member for Harborough. It would be wrong to take somebody out of an environment that may be conducive to them offending or reoffending, only to place them in an environment which is no better. We have already had assurances from the Minister about pilot schemes, and I see no reason not to include the latter point made by the hon. and learned Gentleman, although whether it can be rolled out is a different matter from whether it should form part of the provision within the Bill. Even though a criminal justice Bill arrives every few weeks, there is no reason not to use this one to make the necessary amendments to the law.

During the pilot schemes, individuals were placed with foster families and not into children’s homes—some of us have serious doubts as to whether children’s home accommodation could possibly provide the stability and safe refuge that would be required. We must be satisfied that the order would do the same. Amendment No. 171 states that

“the imposition of a fostering requirement would tend to improve the circumstances in which the offender was living”.

That is modest wording for what we intend to accomplish. It should very significantly improve the environment in the context of the behaviour that constituted the offence.

May I just say one thing in parenthesis? Is it correct to say that

“the behaviour which constituted the offence was due to a significant extent to the circumstances”,

rather than that the circumstances contributed to the likelihood of the offending behaviour? There is a difference. I would hate it if a clever person were challenging this at some later stage and said, “You cannot possibly imply causality from the family environment with any certainty.” I ask the Minister not to respond now, but to ponder whether there is any difficulty with the bald expression “the offence was due”. Of course, the offence was due to the behaviour of the individual and perhaps the circumstances in which he or she found themselves on that day, having the opportunity to commit the offence. It is not due to the environment, but the environment can affect the propensity of an individual to commit an offence, which is what we are dealing with through the intensive fostering arrangements. That is an aside.

I have two separate points to make, neither of which I intend to seek to divide the Committee on. First, I should just like to gauge the Minister’s reaction to the orders arriving out of a genuinely consultative process with all concerned with the individual’s welfare and management. I think that that is intended, but I want to ensure that that is always so. Secondly, I want to ensure that the placements are, as far as can possibly be arranged, to the benefit of the individual and will not be allowed where a local authority has failed to make proper provision—if it is their responsibility to do so—and the different environment is no better than the one from which the child was taken as a result of the rehabilitation order.

Edward Garnier (Conservative, Harborough)

I sympathise with the intention behind amendments Nos. 174 and 171. However, instead of “after considering advice”, in amendment No. 174, I would prefer to use the words “after considering evidence”, because a court would be making decisions based on evidence rather than advice. Advice might be useful—opinion evidence is sometimes permitted—but I think that we want to know the facts before we make a decision.

I agree with the hon. Gentleman’s criticisms in relation to paragraph 4(2)(a), under which the offence is

“due to a significant extent to the circumstances in which the offender was living”.

We want to know about the circumstances in which the offender was living, then we can draw our own conclusions, based on the offence and those circumstances, about whether there was a relationship between the two. Plenty of people live or have been brought up in difficult circumstances and never commit a crime in their lives and far too many people who have had privileged lives none the less go on to commit offences. Equally, I suppose that if the circumstances in which the offender was living affected the way his mind was working or his morals, his understanding of right and wrong or what was due to his actions and what was not, the court should be informed. We want information given to the court on the basis of which it can make a sensible decision.

I would not have written the Bill as it has been drafted. Perhaps, when the Minister takes the Bill back, in the gap between this Session and the next, a different form of words can be produced. That is just a suggestion. It is not something that I will go to the stake on, because I suspect that when the courts are advised by advocates, or what used to be called justices’ clerks, they will take a common sense view of this issue.

The hon. Gentleman said that he was doing no more than putting forward the blindingly obvious; perhaps I am paraphrasing him inaccurately. Amendment No. 171 is fairly close to being within that category. It is tough being in opposition; it is even tougher being the third party in opposition—not that I intend to change his position in relation to the two main parties.

David Heath (Liberal Democrat, Somerton and Frome)

The amendment was tabled in order to have the debate that the hon. and learned Gentleman managed to have under the previous group and to examine the circumstances in which a person could be placed in foster care and whether that could include a local government home placement rather than a foster family.

Edward Garnier (Conservative, Harborough)

Now we are getting back to the meat of the discussion. In paragraph 18 of schedule 1, which is married to the paragraph that the hon. Gentleman is seeking to amend, sub-paragraph (6) states:

“This paragraph does not affect the power of a local authority to place with a local authority foster parent an offender in respect of whom a local authority residence requirement is imposed.”

I know that we discussed this issue with the Minister a moment ago when debating the other group, but it is important that if the fostering requirement is to work, the fosterer should be a human being or a human family, not a local government institution. Otherwise, the whole point is lost. The expression “a local authority foster parent” may be well known in the social service and family court worlds. It may be defined later in the Bill—I should have checked—but it is important that paragraph 18(6) refers to human beings.

The only other comment that I make in relation to paragraph 18 relates to sub-paragraph (7). That requires the Secretary of State to certify that there is a fostering family or a fostering system available in the area of the local authority that is to place the offender. That brings me back to the York university evaluation and the pilot scheme that the Minister told us about not so long ago. The Bill, all being well, is likely to complete its passage through Parliament some time after Easter and will presumably receive Royal Assent in the early summer. However, as we know, Bills do not come into force on the day of Royal Assent nowadays. They come into force in various sections or at a date to be appointed by the Secretary of State.

I suggest gently to the Government that the date to be appointed should be after the evaluation of the York university pilot scheme because if this system—or this disposal, to use a hideous expression—is put on the statute book and made available to the courts before it is ready, we will just get into a muddle. I would rather that we did this slowly and sensibly than speedily and less sensibly, albeit that Governments are often tempted to do and say things in order to get a headline.

David Hanson (Labour, Delyn)

I am grateful to the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough for the way in which they have approached the amendments. I hope that I can give them some comfort in relation to the objectives that they seek. I remind the Committee again that we have had a long discussion on the question of intensive fostering, and it is a primary requirement of intensive fostering that the offending must be associated with the individual offender’s home environment. That is clearly set out in paragraph 4(2) of schedule 1. I raise that point again because it is important to recognise that the intensive fostering requirement states that the behaviour that constituted the offence must have been

“due to a significant extent to the circumstances in which the offender was living”.

I expect that the use of the order will be very limited and fully anticipate that, before agreeing that the intensive fostering requirement is necessary, those professionals and individuals involved in assessing the individual will have undertaken a full assessment of the individual and judged that their home is a contributory factor towards the offending and

“the imposition of a fostering requirement...would assist in the offender’s rehabilitation”.

Therefore, the objectives that the hon. Member for Somerton and Frome put in amendment No. 174, of

“considering advice from children’s services and the youth offending team”

and those of amendment No. 171, will be implicit in the work that will go on to prepare for the likely imposition of the order by a court. I fully expect that, before recommending to the court that the fostering requirement is appropriate, the youth offending team will have undertaken a full assessment not only of the young offender and their needs, but of the impact on the young offender’s family, who are equally part of the objective outcome of the order.

I do not consider the amendment to be necessary for the reasons that I have stated today regarding good and appropriate practice and guidance for those who will study the legislation. It will be essential that the individual organisations that he has mentioned in his amendment are involved in the full assessment of the order prior to it finally being made.

The youth offending teams are involved not simply because it is a good and positive thing that they are or because I say that they should be. They will be involved because, under section 156 of the Criminal Justice Act 2003, there is already a requirement for a pre-sentence report, which the youth offending team will have to prepare prior to any consideration of the order by the court. I fully understand where the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough are coming from, and simply say that I hope they will understand from my perspective that those bases are covered and the encouragements that they want to see are provided for in the 2003 Act. They are also provided for by my encouragement of good practice in relation to pre-sentence reports made prior to the exercise of the intensive fostering order by a court. That will take place when the legislation reaches the stature book in January 2008.

David Heath (Liberal Democrat, Somerton and Frome)

I am extremely grateful to the Minister for his response, which entirely satisfies me. The only comment that I will make is that, when he mentioned the circumstances in which the offender was living, he used the valuable phrase “contributory factor”. I would be much happier if his provision was so worded, so that the court had to be satisfied that the circumstance in which the offender was living was a “contributory factor” to a significant extent to the behaviour that constituted the offence. That would satisfy my slight quibble concerning the causality implicit in the current wording. I will leave him to ponder that, and beg to ask leave to withdraw the amendment.

David Hanson (Labour, Delyn)

I beg to move amendment No. 22, in schedule 1, page 91, line 1, leave out ‘14’ and insert ‘16’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendments Nos. 23 and 24 and 49 to 53.

David Hanson (Labour, Delyn)

Amendments Nos. 22 to 24 make changes to the bandings of the aggregate hours for which offenders may be required to attend at an attendance centre. They will change the hours set out in the Bill to those currently used by the youth courts, so effectively we are not making any change. The Bill proposes a change but we are not making it. The number of hours will be as they are now: a maximum of 12 hours for under-14s: between 12 and 24 hours for 14 to 15-year-olds; and between 12 and 36 hours for 16 to 17-year-olds.

We have had discussions since the Bill was published with key stakeholders who agree that the attendance hours should not be increased, particularly for the younger age group, and we have accepted that. Essentially, the changes I am making are neutral in their effect. Amendment No. 49 makes a small textual correction. Amendments Nos. 50 to 53 make changes to schedule 5, which modifies the requirements of the youth rehabilitation order to apply them to youth default orders. They change the hours that can be offset against an outstanding fine in a similar way to the amendments made to the hours in schedule 1. I hope that these are fairly straightforward amendments. They should not be controversial. They are small textual changes and I commend them to the Committee.

Edward Garnier (Conservative, Harborough)

The Minister says that the amendments are small textual changes: they are to some extent, but they have some considerable effect. It was not quite clear from what he said how the figures in the Bill got in there as opposed to the ones that he now wants in. Presumably someone must have thought quite carefully about how the Bill was constructed. Amendments Nos. 49 to 53 affect pages 150 and 151. I have lots of little read marks all over my copy of the Bill. I am sure that the Minister is itching to tell us how it was created.

David Hanson (Labour, Delyn)

It is probably a fair cop in the sense that this was an error in the Bill that I am trying to rectify, following consultation after its publication. The figures in the Bill should not have been included. They should have been the figures in the amendments that I have proposed. I am trying my best to make that clear. I am taking this on the chin and doing it according to the Committee’s will.

Edward Garnier (Conservative, Harborough)

The Minister has a very delicate chin and I do not want it to come to too much harm. In a sense this is a small and childish debating point. But that is not the point that I am trying to get across to the Committee. My point is that when a Bill like this is pulled together from all sorts of different places, and it deals with all sorts of different things, errors of this nature will happen. In the great scheme of things it is probably not very important that the figure 18 was put in when it should have been 12 or whatever. Nor does it very much matter that it says convict instead of conviction. I think we all know what the draftsman was trying to do.

This is an object lesson that shows us that essentially the Bill should be deconstructed. There should be a separate Bill for youth justice, a separate Bill for the police stuff and a separate Bill for the immigration status stuff, and so on. I know that it is convenient in some respects to lump everything together on a great Christmas tree and then Ministers can come in during the Committee stage or on Report or in the House of Lords and just hang additional things on.

Alun Michaelrose—

Edward Garnier (Conservative, Harborough)

Hang on, a constructor of Christmas trees is about to intervene on me. I wish I could chop them down more effectively from time to time. This Parliament—that is to say the 1997 through to 2007 Parliament—has seen hundreds of Bills come forward. In the criminal justice field we have seen lots of these funny Christmas tree Bills which give Ministers additional powers to do this, that and the other, and I want to give the Government a gentle spur toward occasionally having a criminal justice Bill once every two years.

Alun Michael (Labour, Cardiff South and Penarth)

Will the hon. and learned Gentleman give way?

Edward Garnier (Conservative, Harborough)

I shall in a moment, because I want to hang something on the right hon. Gentleman shortly. As I was saying, if we could move toward having a criminal justice Bill once every two years instead of once every six months, we would have tidier and more coherent legislation. The present situation is not the fault of the Minister of State; he had to pick up this dish when he moved from Northern Ireland. However, I am beginning to meander.

Edward O'Hara (Labour, Knowsley South)

Order. I think the hon. and learned Gentleman saw my elbows flexing. That is enough meandering.

Alun Michael (Labour, Cardiff South and Penarth)

I am interested in the hon. and learned Gentleman’s remarks about tidiness of Bills. I wonder why he did not show such vigour in challenging Christmas tree Bills when they were the responsibility of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard).

Edward O'Hara (Labour, Knowsley South)

Order. We really must bring the debate back to consideration of the Bill.

Edward Garnier (Conservative, Harborough)

I quite agree. [Interruption.] I feel many things when I listen to the right hon. Gentleman, but desperation is not among them. His remarks were not so much a Christmas tree as a total turkey.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. and learned Gentleman forgets the nature of the Crime and Disorder Bill, which even went so far as to have amendments to fisheries and shellfish legislation in it, and was such a total dog’s breakfast that it spent three days on Report.

Edward O'Hara (Labour, Knowsley South)

Order. Enough allusion has been made to parallels in past legislation. I call Mr. Garnier to address the Bill.

Edward Garnier (Conservative, Harborough)

The election will be along shortly. I leave my comments where they were. They were a gentle reminder that we need more thinking before legislation.

David Howarth (Liberal Democrat, Cambridge)

I have little to add, except possibly to suggest a slightly different approach in these circumstances. There is far too much machismo in this place for my liking, and we should try to make it easier for the Government to change their mind. On the attendance centre figures they have gone back on the proposal after listening to other advice, and they are restoring the status quo. When they make a concession of this sort, we should not make it difficult for them by crowing and trying to humiliate them; we should thank them for their common sense in listening, and hope that they do so again in relation to other parts of the Bill.

David Hanson (Labour, Delyn)

In my 15 years in the House, I have participated in, I believe, 26 Bill Committees, and I can honestly say that on not one single occasion has the relevant Bill completed its passage through Committee without being altered in some way. During my five years in Opposition, there were a number of Bills that affected my constituents, and in relation to which amendments arrived in droves. Bills develop organically.

I am grateful for the question from the hon. and learned Member for Harborough. I shall tell him a secret, which might be of comfort, which is that at an earlier stage I asked the same question. He has referred to the fact that I came back from Northern Ireland to find that a large amount of work had already been done on the Bill by officials and colleagues. Some aspects of the Bill will continually evolve. Today’s amendment acknowledges the fact that there was an incorrect figure. I am grateful to the hon. Member for Cambridge for recognising that such things happen, and I commend the amendment to the Committee.

Edward O'Hara (Labour, Knowsley South)

The amendments have been exhaustively debated.

David Hanson (Labour, Delyn)

I beg to move amendment No. 25, in schedule 1, page 95, line 40, leave out from ‘(c)’ to first ‘the’ in line 41.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss Government amendment Nos. 26 to 28, 32 and 33.

David Hanson (Labour, Delyn)

The amendments update the language used, to reflect the terminology now used by the Department of Health and to be in line with the Mental Health Act 2007. The amendments change the wording in schedule 1 surrounding the mental health drug treatment and drug testing requirement, and the references to those requirements made in schedule 2, which deals with breached revocation and amendment to youth rehabilitation orders.

An indication of willingness to comply with treatment will be required, whatever the age of the young offender and not simply for those aged 14 and over, as the Bill provides. Guidance will deal with those who are of an age that they cannot fully understand the implications of such a requirement. We brought forward those changes because of the changes that I have mentioned in the Mental Health Act 2007. They have been brought forward in consultation with the Department of Health to ensure consistency of approach. The Department of Health will separately provide detailed guidance to medical practitioners on the issue of consent to treatment. That is different from the matter of willingness to comply, which is required before the court may impose a treatment requirement in a youth rehabilitation order. I hope that the Committee will accept the amendments to update the Bill, following the Mental Health Act. I commend the amendment to the Committee.

Edward Garnier (Conservative, Harborough)

I do not disagree with the amendments that the Minister proposes. I ask a question out of ignorance, which is: can a child consent to treatment, medical or otherwise, or express willingness to receive it, without the agreement of his parent or guardian? Obviously, if he cannot that may undermine the thrust of these paragraphs of the schedule. If the Minister wishes to take advice on that issue I do not expect him to answer the question now, but I cast that fly across the water so that we can view it. I will also continue to address the Minister so that any notes that may come forward to allow him to answer can do so.

David Heath (Liberal Democrat, Somerton and Frome)

I do not know the answer to that important point. I suspect that consent can be given. I recall that that was the basis of the Gillick case, to a considerable extent, but perhaps I am wrong and I certainly claim no authority. Consistency between statutes is to be wished for but is seldom achieved and if this is a case of the Department getting it right, I welcome it.

David Hanson (Labour, Delyn)

I hope that the amendment will be non-controversial. I am hopeful, if I may help the hon. and learned Gentleman, that the amendment is not about consent to medical treatment. We are trying to ensure that the offender will comply with the order. In relation to parental consent, I should like to reflect on that point and get in touch with the hon. and learned Gentleman shortly.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister has just worried me now. Is he saying that the person could comply with the order by attending the mental health treatment place, even if he did not accept the treatment when he was there?

David Hanson (Labour, Delyn)

We are not trying to force treatment on young people. It is quite the contrary. We aim to encourage them to undertake treatment when it is clear that their offending is linked directly to their need to receive treatment. It is essentially a voluntary involvement to ensure that young people are encouraged to undertake the treatment, not compulsory treatment.

David Heath (Liberal Democrat, Somerton and Frome)

I repeat the point: does the person to whom such an order is applied comply with the order simply by attending the treatment centre rather than undergoing specific treatment at the centre?

David Hanson (Labour, Delyn)

An indication of willingness to comply with treatment will be required whatever the age of the young offender. The young offender has to ensure that they comply with the treatment, but it will be done on a voluntary basis. We do not want to force young people, but encourage them when there is a clear and identified need to ensure that they receive the treatment.

Edward Garnier (Conservative, Harborough)

I had not intended to get into such a discussion, but it is quite important. Several people in such a condition could have a double diagnosis. They could be mentally ill and could also have a drug addiction. If is often difficult to distinguish what causes which. Clearly, a court that was thinking about giving a mental health treatment requirement would want to be satisfied before it did so that the individual defendant in front of it could usefully attend treatment. Obviously, it would not be able to second-guess the doctors, but it would want to know that whatever treatment outlined would be applied and have a beneficial effect. While not wishing to delay the Committee with a debate about the Government’s amendment, we ought in fairness to the public whom we represent not pass over something that could lead to unforeseen problems if we can briefly discuss it now.

David Hanson (Labour, Delyn)

I hope that I can clarify the matter and help the Committee. It is important that, when a young person is not able to give consent at any age, the parent or guardian will be involved. In the type of treatment under discussion, it is important that parents and guardians have a role. It will be open to an offender to express willingness to comply with a term, but equally the offender could refuse particular treatment if it were reasonable to do so. The judgment on what is reasonable would be made in light of what the offender said. The amendment would not affect consent to particular treatment in any way, shape or form. I am simply trying to bring the terminology into line with Mental Health Act 2007.

David Heath (Liberal Democrat, Somerton and Frome)

I am interested in what the Minister said and in his understanding of the capacity to refuse treatment. He said “if it were reasonable to do so”. I am still at a loss to find that provision in the Bill. I do not want to tax him further on it now, but it seems a crucial issue. I am arguing about the circumstances in which an order is made and the person complies with it by attending the treatment centre, but then refuses treatment for whatever reason.

David Hanson (Labour, Delyn)

I refer the hon. Gentleman to paragraph 9(2) of the schedule, which states:

“The offender is not to be treated for the purposes of paragraph 6 or 8 as having failed to comply with the order on the ground only that the offender had refused to undergo any surgical, electrical or other treatment required by that requirement if, in the opinion of the court, the refusal was reasonable having regard to all the circumstances.”

Obviously, it is for the court to determine what is reasonable, but the provision provides the legal background to the decision.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is absolutely right. However, the provision begs the question what is reasonable and what is not reasonable. Presumably only a court can determine that. I hope that you will not mind my having raised the issue, Mr. O’Hara, and I am grateful to the Minister for his guidance. I will look a bit further to see whether I believe that it satisfies the answer that was raised in my mind.

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment No. 120, in schedule 1, page 95, line 42, at end insert—

‘(3A) A court may not specify treatment falling within sub-paragraph (2)(a) in a youth rehabilitation order unless it is satisfied, on the evidence of a registered medical practitioner approved for the purposes of section 12 of the Mental Health Act 1983, that the medical condition of the offender is such as requires treatment as a resident patient.’.

The amendment relates to the mental health treatment requirement. As I understand it, under paragraph 20(2) of schedule 1 the offender can be required to be treated as a resident patient or as a non-resident patient. The question is, what place will medical evidence play in the decision to place an offender in either residential or non-residential care? It appears from sub-paragraph (3) that the medical evidence used in the decision making for a mental health treatment requirement does not require the medical practitioner’s view to be taken into account on that question. Sub-paragraph (3) says that the court has to be satisfied

“on the evidence of a registered medical practitioner”

approved under the Mental Health Act 1983, merely that the offender’s mental condition is

“such as requires and may be susceptible to treatment, but ... is not such as to warrant the making of a hospital order”.

On the face of it, it seems that the choice between residential and non-residential is not a matter that the mental health practitioner has any influence over. That seems to be a gap in the way that the Bill works. It seems to me—not as a person with any qualifications in the area—that this sounds more like a medical matter than a legal matter that the court could come to a conclusion about by itself.

In addition, if there is a non-medical element in this matter, it is a policy element. Over the last few years, Government policy has been moving in the direction of saying that mental health should be a matter more for care in the community than for residential care. There is some dispute about whether that is the right direction and I do not wish to get into that debate. However, it seems to me that the right way to approach that question as well is as a matter of medical evidence and not just as a matter of politics.

There should be a requirement in the Bill that the decision between residential and non-residential treatment should be taken on the advice of a medical practitioner. The underlying anxiety that prompts the amendment is that it is very important that mental health is not seen as a way of producing an alternative form of imprisonment. Mental health decisions about residential or non-residential treatment should not be criminal justice decisions. This is not an in or out decision, in the criminal justice sense. It has to be seen, for the integrity of the mental health practitioner, if for no other reason, as more of a medical than a legal decision.

Edward Garnier (Conservative, Harborough)

I have a brief question, following on from the hon. Member for Cambridge’s remarks in support of the amendment.

A moment ago we were discussing the willingness of a child or a minor to agree to certain forms of treatment. I would like to ask the Minister to clarify whether, in the event that a mental health treatment requirement is thought to be appropriate by the magistrates or the court and there is available hospital or non-residential space to carry out the treatment, but the defendant refuses or is unwilling to comply, the only alternative is to section the person and detain him compulsorily, or will he be sent into custody?

It seems that we have to anticipate people being unwilling and, therefore, what do we do when they are unwilling, because the Government are building into the system a requirement that they should be willing? Certainly, many of the people whom I have had to sentence in 10 years as a recorder have not always been very willing.

David Hanson (Labour, Delyn)

I am grateful to the hon. Member for Cambridge for tabling the amendment and I hope that I will be able to deal with it to his satisfaction. It is very similar to the existing provision under sub-paragraph (3) of the mental health treatment requirement, which requires that the court be satisfied on the evidence of a registered medical practitioner that the mental condition of the young offender requires and is susceptible to treatment. The amendment would require that the court seek similar satisfaction from the evidence of a registered medical practitioner to support residential treatment, in particular.

In practice a mental health treatment requirement will be made by a court only if it has been recommended by a registered medical practitioner and the court is satisfied that a treatment place is available. Residential treatment, similarly, will be ordered only if it is deemed appropriate by the medical practitioner. I hope that I can reassure the Committee by indicating that, as with many other orders before it today, the court order treatment will be used only as a last resort and the requirement can be added to the youth rehabilitation order only if a young person’s mental health is linked to their offending behaviour and if they have failed to seek and receive treatment.

Having considered what has been said, I think that there are sufficient safeguards in place to ensure that appropriate treatment is provided under the requirements, as drafted.

Charles Walker (Conservative, Broxbourne)

When I sat on the Mental Health Bill Committee a few months ago before the summer recess, one of the concerns raised was that there are not enough places for young people in mental health units specifically structured around the needs of young people.

Too often young people end up in mental health wards populated by adults, and that concern was expressed by all parties and by many of those organisations coming to see us. What safeguards or guidance to sentences does the Minister envisage incorporating in the legislation to ensure that the type of residence will be taken into consideration? It would be a disaster if a young child of 14 or 15 was placed in an adult mental health ward, where they could be subjected to some appalling acts of brutality. It would certainly not be in their interests for them to be in that environment.

David Hanson (Labour, Delyn)

The hon. Gentleman raises an important point. I hope that, if he examines Hansard for my earlier remarks, he will see that I have tried to deal with that point. For the sake of repetition, the mental health treatment requirement will be made by a court only if it has been recommended by a registered medical practitioner and if the court itself is satisfied that a treatment place is available. I shall not determine today what that treatment place is. Obviously, any court that is considering a mental health treatment order would need to have background discussions with medical practitioners to ensure that the placement was appropriate for the individual.

Also, if the court was considering residential treatment for an individual it would have to be satisfied that a treatment place was available. Again, the appropriateness of such treatment would be a matter for the court to consider. There would be a medical report, a recommendation of a placement and the security that that placement was available. I do not want to delineate the details precisely because I cannot second-guess what the court might wish to say. I hope that there are sufficient safeguards to ensure that the court’s consideration is dealt with in an appropriate way.

Charles Walker (Conservative, Broxbourne)

For the record, a treatment place may be available, but if that place was in a largely adult mental health ward, it would not be in the child’s interests to put them there.

David Hanson (Labour, Delyn)

The whole purpose of our discussions is to improve the lives of those who have orders placed against them and to prevent them from reoffending. If, as in this case, mental health issues are related to the offending behaviour, the whole purpose of the order is to ensure that those issues are dealt with in an appropriate way, either by placement or in a residential setting. I cannot second guess what happens down the line, but what I can say is that there will be a medical assessment. The court will be aware of that and the individual facing the order will have consideration given to their best needs. Ultimately, the court will have to be satisfied that the reoffending issue will be addressed by the placement. I hope that that offers some satisfaction to the hon. Gentleman.

The hon. and learned Member for Harborough asked what would happen if an offender refused to comply with the court and whether they would then be sectioned. Normal mental health legislation applies and if sectioning is an appropriate course of action, that might be the case for that individual. However, it would not be seen to be done simply in sentencing terms. If the individual refused to comply with the order, the court could consider alternative sentence options to help prevent reoffending issues. If an individual met the criteria for statutory sectioning under the Mental Health Act 2007, that could happen, but it would not be linked under an order of the court because treatment cannot be forced on an individual, and that is made clear in the legislation. I hope that that helps to clarify the concerns of the hon. Member for Cambridge, and that he will now withdraw his amendment.

The rest of the debate is in Hansard.