Criminal Justice and Immigration Bill

Public Bill Committee, 25 October 2007.

Further written evidence to be reported to the House

Nicholas Winterton (Conservative, Macclesfield)

I welcome those Members who are here to the seventh sitting of the Criminal Justice and Immigration Public Bill Committee. We have made some progress. I call, yet again, the hon. Member for Somerset—no, Somerton and Frome to move the amendment.

Schedule 1

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 121, in schedule 1, page 105, line 27, leave out paragraph 35.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following amendments: No. 134, in schedule 2, page 106, line 40, leave out paragraphs 3 and 4.

No. 122, in schedule 2, page 108, line 5, leave out from beginning to ‘before’ in line 8.

No. 123, in schedule 2, page 108, leave out lines 18 to 27 and insert—

‘(4A) Where the offender does not appear in answer to a summons issued under this paragraph, the appropriate court may issue a warrant for his or her arrest.’.

No. 130, in schedule 2, page 108, line 29, at end insert—

‘(za) a youth rehabilitation order is still in force, and’.

No. 131, in schedule 2, page 108, line 36, leave out from ‘ways’ to end of line 37.

No. 124, in schedule 2, page 109, leave out lines 1 to 4 and insert—

‘(ba) if the youth rehabilitation order was made by a magistrates’ court, by dealing with the offender, for the offence in respect of which the order was made, in any way in which the court could have dealt with the offender for that offence (had the offender been before the court to be dealt with for it); or

(bb) if the youth rehabilitation order was made in the Crown Court, by committing the young offender in custody or releasing him on bail until he can be brought before, or appear before, the Crown Court.’.

No. 125, in schedule 2, page 109, line 4, at end insert—

‘(2A) Where the court deals with the offender under the previous sub-paragraph, it must send to the Crown Court—

(a) a certificate signed by a justice of the peace certifying that the offender has failed to comply with the youth rehabilitation order in the respect certified in the certificate; and

(b) such other particulars as may be desirable.

(2B) Such a certificate purporting to be so signed is admissable as evidence of the failure before the Crown Court.’.

No. 128, in schedule 2, page 109, line 44, leave out sub-paragraphs (12) to (15).

No. 126, in schedule 2, page 110, line 27, leave out paragraph 7.

No. 132, in schedule 2, page 111, line 2, at end insert—

‘(za) a youth rehabilitation order is still in force, and’.

No. 127, in schedule 2, page 111, leave out line 4 and insert ‘paragraph 6, and’.

No. 133, in schedule 2, page 111, line 9, leave out from ‘ways’ to end of line 10.

No. 129, in schedule 2, page 112, line 10, leave out sub-paragraphs (11) to (14).

David Heath (Liberal Democrat, Somerton and Frome)

Good morning, Sir Nicholas. It is rare that any Member of the House gets both parts of my constituency’s name right. I regret that despite your correct strictures—your strictures are always absolutely correct—the Government are still in the dark. It is a great shame, but no doubt the lights will eventually be repaired.

This is a substantial group of amendments. Although they all cover the same broad area—breach of youth rehabilitation orders—they can be grouped into four subsidiary topics. I shall deal first with amendments Nos. 121 to 127, which deal with the venue for hearing breaches of rehabilitation orders. Such orders will be made in the magistrates court, but on breach the case is to be returned to the Crown court. Now, if the young person is aged under 18 the case will be returned to a youth court; and for an adult over the age of 18 it will be returned to the magistrates court. However, there is a lack of discretion in the Bill’s provisions, which requires that a breach be returned automatically to the Crown court. For a number of reasons, there are question marks against that procedure.

A breach may take many forms. It may be a deliberate breach, with the young person simply not being prepared to accept the terms of the order; but it might be what I would consider an inadvertent or an incompetent breach, at a much lower level of culpability. The advice that I have received—again, I pay tribute to the Standing Committee for Youth Justice for its help—is that a young person on a standard six-month supervision order might have kept 90 per cent. of his or her appointments but still be in breach because of a third unacceptable failure to attend an appointment. There may have been no intent not to comply with the order, but a third failure to make an appointment during that period would result in the young person coming before a Crown court.

There are a number of problems with that. First, in administrative and resource terms, it does not entirely make sense for what one might consider to be relatively trivial breaches to be heard by a Crown court, with all the expense that that entails. Crown courts are significantly more expensive venues for hearing such cases than the youth court would be. Secondly, a Crown court is essentially an adult court, and it could be argued that a young person in such circumstances should not be put before a Crown court unless there was a clear need to do so.

Alun Michael (Labour, Cardiff South and Penarth)

I am following the hon. Gentleman’s argument with some interest, but the word that he seeks to remove is “may” not “shall”.

David Heath (Liberal Democrat, Somerton and Frome)

The concern is that there is no provision for the breach to be heard before a youth court.

If the Minister wishes to correct me, I am happy to take his assurances. I would be delighted, as it would mean that the concerns raised by the Standing Committee for Youth Justice would not have a bearing on the Bill.

David Hanson (Labour, Delyn)

I hope that I can reassure the hon. Gentleman and save him those concerns. If the Crown court makes the youth rehabilitation order, paragraph 35 of schedule 1 gives it the power to refer further proceedings to the youth court. If the youth court itself makes the order, it will deal with the breach.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful for that clarification.

Alun Michael (Labour, Cardiff South and Penarth)

My point is fairly basic, in terms of the way that the courts deal with things. Often, one of the great problems when dealing with a breach is that all the events surrounding the original decision may not be appreciated. It seems sensible to allow a direction that a breach should come back in front of the more senior court, because that indicates what the court in taking the original decision would regard as the seriousness of a breach. Often such things become lost in the legal system, and surely all that the wording in paragraph 35 means is that the court may take that sort of decision in light of all the circumstances that are before it in making the original order.

David Heath (Liberal Democrat, Somerton and Frome)

I do not disagree with the right hon. Gentleman. The most important thing is that the breach is heard in context, which enables a proportionate response to be made. If the Minister assures me that that will be the case, I am happy to move on to other amendments.

David Hanson (Labour, Delyn)

The hon. Gentleman will see that the point he mentioned is covered on page 105, paragraph 35(1). I hope that he will reflect on that as he continues.

David Heath (Liberal Democrat, Somerton and Frome)

I shall certainly do so, and during the Minister’s response I will consider whether I wish to proceed with the amendments in light of what he has said.

Edward Garnier (Conservative, Harborough)

In part following on from what the right hon. Member for Cardiff, South and Penarth said, when I have dealt with community sentences that have come before the Crown court for breach, it is frustrating that often one has been required to remit the case back to the magistrates court, which creates a delay in the justice system. I should like to see a degree of flexibility that would allow the court that is seized of the matter to deal with it, rather than having to wait for further proceedings in another court.

The longer such community sentences go on, and, particularly in youth cases, the longer that there is a distance between the offence, the breach and the disposal of the case, the more difficult they become to deal with. I do not want to anticipate what my hon. Friend the Member for Enfield, Southgate has to say, but I would welcome an efficient and reasonably speedy way of dealing with that type of problem.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman is absolutely right. My intention in agreeing to table the amendments was to find the most expedient way of getting these matters before a court, at the right level, without undue delay or expense, and without escalating a matter that can be dealt with at a lower level. He is right that one of the silliest things would be to put it up to a higher level in order for it to be referred back down again. That would be a waste of resources within the judicial system and one that I hope we will all try to avoid, if possible.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. and learned Member for Harborough has rightly said that the timeliness is extremely important. Two things are important in disposals: timeliness and appropriateness. Balancing those two is quite difficult, but the clause does it. That is something that we should bear in mind when considering amendments and clauses as we go through the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

Happily, we are all in agreement. It is simply a matter of ensuring that we are all satisfied that the clause does what we have agreed. I do not think that there is any difference in terms of what we are trying to do.

Amendment No. 134 was tabled by myself and my hon. Friend the Member for Cambridge and has received the support of the Conservative Front Benchers. Again, this matter was raised by the Standing Committee for Youth Justice. It deals with the statutory arrangements for dealing with breaches of compliance.

The Bill describes the circumstances under which the responsible officer must issue warnings and initiate breach proceedings. It becomes a statutory duty to deal with a breach and there is no discretion on the part of the practitioner or manager at local level. That flies in the face of good practice. Quite a body of good practice has been built up over the years, which suggests that a degree of discretion and flexibility in dealing with young people is often advantageous. That is not to say that there should be a soft touch or that breaches should be ignored. Breaches are very important and it is essential that they are dealt with effectively. However, the effective way of dealing with a breach might be not to escalate it to the point of a formal breach.

Alun Michael (Labour, Cardiff South and Penarth)

I am drawing on experience in two fields. One is in terms of sentencing during my time as a juvenile magistrate and the other is from working with young offenders.

Surely the hon. Gentleman is arguing that a breach should be ignored. The schedule states:

“If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with a youth rehabilitation order”.

Therefore, there is an opportunity for a discussion to look at any excuses and to see if there is a reason that obstructed compliance with the order. Surely the hon. Gentleman is wrong in saying that the effect of this amendment is not to excuse breaches. If you remove that paragraph, it would ignore them. I think that he has missed the point of this proposal.

David Heath (Liberal Democrat, Somerton and Frome)

With the greatest respect, I do not think that I have. For instance, if a national bus strike that a young person is unaware of prevents him from keeping an appointment, that would come into the category of reasonable excuses. However, there should also be a level of discretion on the part of someone who is managing a case in assessing the overall willingness of a young person to make strenuous efforts to comply with an order. I think that a margin of discretion is of value. Even if there is no reasonable excuse, a breach could be talked through with the young person in order to discover the reasons and take appropriate action. In terms of good practice, I do not entirely agree with what the right hon. Gentleman is saying.

Alun Michael (Labour, Cardiff South and Penarth)

Where does the schedule fetter the discretion of the supervising officer in deciding what amounts to a reasonable excuse? It might be family circumstances; it might be the development that the young person has made; it might be that he has attended a variety of things and that the breach is one little example of failure. As I read it, the schedule does not fetter the discretion of the supervising officer to act responsibly, but it does place a requirement on him to make a judgment. That is surely right.

David Heath (Liberal Democrat, Somerton and Frome)

I am sorry, but I simply disagree with the right hon. Gentleman. I think that it does fetter the discretion of the manager of the case.

Alun Michael (Labour, Cardiff South and Penarth)

It causes him to think.

David Heath (Liberal Democrat, Somerton and Frome)

It does not just cause him to think. It causes him to make an assessment, in the same terms that the court would, of whether an excuse was reasonable or not. If it is not a reasonable excuse, he or she is required to take the appropriate action by statute. There may be circumstances in the good management of individual cases in which an excuse for a particular breach is not reasonable, nevertheless it is not appropriate to move to breach proceedings. That is the discretion that should be built into good practice, and certainly into management guidelines, but not constrained by statute. That is a perfectly proper disagreement between us. No matter how many times the right hon. Gentleman repeats his point, he will not change my view, but I am happy to let him try again.

Alun Michael (Labour, Cardiff South and Penarth)

I am not going to repeat myself. I want to invite the hon. Gentleman to give us an example.

David Heath (Liberal Democrat, Somerton and Frome)

One of the key parts of managing people with chaotic lifestyles is to establish a good working relationship with them to help them manage the way they conduct themselves in their everyday life. For example, a person who has strenuously attempted to comply with all the terms of the order may, one day, oversleep. That is not a reasonable excuse for not turning up to an appointment. No court is going to say, “So, Mr. X, Master X, young X, you overslept, did you, and you expect this court to take that as a reasonable excuse for you not meeting your appointment?” Of course it will not. However, a reasonable manager might say, “It is not acceptable. Get yourself an alarm clock and sort yourself out.” They will not consider it to be a breach of the order.

Alun Michael (Labour, Cardiff South and Penarth)

Sounds like a warning to me.

David Heath (Liberal Democrat, Somerton and Frome)

The right hon. Gentleman says from a sedentary position that it is a warning. He would move directly to the hierarchy of breach measures that are set out in the Bill. Under the circumstances that I have outlined, I would not. I would hope to be establishing a better relationship with the young person, and would not be entirely bound by the letter of the order but rather by the outcome of improving the person’s lifestyle and a hope that the supervision will have the desired effect. We must simply disagree. The right hon. Gentleman would be a harder taskmaster than I would be under those circumstances. There are practitioners around the country who are quite capable of using discretion. That does not make them a soft touch, but an effective manager of the young person. That is what amendment No. 134 seeks to do.

Amendments Nos. 130 to 133 originate from the Standing Committee for Youth Justice and are amendments to which Conservative Members have added their names. Again, they allow a discretion to the court. That discretion, which covers a breach of community orders in the first place, already exists, but is removed by the current provisions. If a court is convinced that it is in the interest of maintaining a young person’s progress towards the path of not reoffending, discretion effectively allows it to take no action other than issuing a warning, or perhaps guidance to the young person in the context of a breach.

The right hon. Gentleman may have decided that he has intervened enough on me, but I anticipate that he would say that he would not do that and that he would always take action—

Alun Michael indicated dissent.

David Heath (Liberal Democrat, Somerton and Frome)

No, he is not. He takes a different view on this.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. Gentleman wishes to provoke me. My wish is not to be unreasonable, but to set clear boundaries so that young offenders know exactly where those boundaries are. The distinction, I suggest to the hon. Gentleman, is between the reasonable and the woolly.

David Heath (Liberal Democrat, Somerton and Frome)

I would say that it is between the constructive and the inflexible.

Nicholas Winterton (Conservative, Macclesfield)

Order. I wonder whether the right hon. Member for Cardiff, South and Penarth is referring to the image of the hon. Member for Somerton and Frome and describing him as woolly.

Alun Michael (Labour, Cardiff South and Penarth)

On a point of order, Sir Nicholas—one provoked by the Chair. The hon. Gentleman’s appearance is attractively woolly, but some of his thinking is unfortunately woolly.

Nicholas Winterton (Conservative, Macclesfield)

I had hoped that my intervention, which was quite wrong, would not generate any response. Mr. David Heath, please continue with your speech.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful, Sir Nicholas, but being barracked from the Chair really is—[ Interruption. ] As has been pointed out, my constituency has now at least been referred to correctly, so let us look on the bright side—and this, literally, is the bright side.

Let me, however, return to the very important amendments before the Committee, which simply allow the court the discretion to take no action, and the right hon. Gentleman agrees with that in this instance. Instead, the court can set appropriate boundaries by means of warnings, if that is the appropriate disposal in the particular circumstances described in submissions to the court.

Amendments Nos. 128 and 129 deal with the question of proportionality on breach. We have discussed whether an intensive supervision and surveillance requirement is appropriate in cases where the original offence would not imply a custodial sentence. The curious thing about the schedule is that a court can impose an intensive supervision and surveillance requirement on breach of an order and, if that requirement is breached, impose a custodial sentence, even if the original offence would not usually receive a custodial sentence.

There is therefore a question of proportionality at one remove. Is the breach of the order sufficient to elevate the original offence to the level of requiring a custodial sentence? There is at least a question mark as to whether that is appropriate. I understand why the Minister would want a strong sanction against those who breach an order, but considered in the round, it would seem disproportionate for a young person who has committed a relatively minor offence—one that would not usually attract a custodial sentence—to find themselves in prison simply because the process of order and then breach brought them back before the courts. I therefore ask the Minister to consider whether that is his intention.

David Hanson (Labour, Delyn)

The schedule contains the words

“wilfully and persistently failed to comply”,

which I understand to mean that the behaviour is wilful and persistent. The custody element is there at the end of the process to deal with somebody who wilfully and persistently refuses to comply with the order. Does the hon. Gentleman believe that the courts should simply ignore such behaviour, or should the custody be there to prevent such a wilful and consistent failure to comply?

David Heath (Liberal Democrat, Somerton and Frome)

I entirely understand the Minister of State’s point, but the question is about whether custody is the right sanction for a wilful breach of an order in respect of a non-custodial offence. That is something that the Committee should explore. The Minister believes it to be right, and in the case of an adult I have no doubt that it is correct as we have parallel provisions within the adult criminal system. However, I question whether this is the right disposal when compared with other similar measures.

There are clear disposals within the rehabilitation order that do not put someone in a young offender’s institution or a prison, but which still take them out of their environment. We have, for example, the intensive fostering requirement, which the Minister of State has argued very strongly in favour of. Perhaps we should consider whether those are better provisions than effectively admitting defeat and saying that the young person should end up in prison.

It is an arguable case, and I would be interested to hear what other members of the Committee feel on the matter and in particular how the Minister justifies it. I expect that he will do so on the grounds that he has just used, and claim that there is no other sanction available and that this is the end of the road.

David Hanson (Labour, Delyn)

It is also there on the grounds of deterrence. The custody option is there to prevent wilful and persistent breaches of the order.

David Heath (Liberal Democrat, Somerton and Frome)

That is interesting because if there is one thing that all the evidence clearly shows, it is that short-term imprisonment of young people has no deterrent effect. One only has to look at the rates of recidivism for prisoners released from short-sentences—I stress short—to know that it is an ineffective deterrent. Saying that that acts as a deterrent is an arguable point—there is abundant evidence to suggest that it does not. However, that is an argument for another day.

David Burrowes (Conservative, Enfield, Southgate)

Welcome back to the Chair, Sir Nicholas. Hopefully my opening remarks will not be too challenging.

I want to look at the question of discretion, which is the broad theme of the amendments. In previous discussions we have looked at interesting reading material that we may wish to consider further over prorogation. Perhaps I could make one recommendation to the Minister for some bed-time reading. It comes from the Prison Reform Trust “Mitigation: The role of personal factors in sentencing” and uses research from Jessica Jacobson and Michael Hough.

I would like to draw the Minister’s attention to page 56 which deals with the sentencers’ responses to policy developments and is relevant to our discussions. The report highlights the need to consider the sentencers, who are at the forefront of the legislation that will be enacted and who will then have to implement it. They are concerned not only about being properly consulted, but also about possible interference in their sentencing. To put the concerns of the judges in context, they feel that the measures may deny the sentencer the capacity to deliver genuine justice. One said that,

“the more judges’ hands are tied, the less justice there is”.

Two judges used almost identical turns of phrase to stress the need for, in their words, “humanity” in sentencing. One commented that judges are encouraged to sentence by following a “kind of mathematical model” in the search for consistency. However, if sentencing takes this approach, in their words,

“you take out of the process any kind of humanity”.

The other judge complained that sentencing policy encourages sentencers to act as “robots” and that it

“should be more to do with educating the bench than tying our hands too much”.

Finally, one judge said:

“If you take away discretion completely, then you end up taking the humanity out of sentencing.”

One of the more vociferous critics said:

“We all resent the ever, ever-encroaching bounds on our discretion in sentencing”.

Well, Sir Nicholas, I would not want to use any intemperate language, but an expletive is then mentioned:

“We are the people looking so”—

expletive—

“silly in court, when we can’t sentence properly because some civil servant has second-guessed us.”

The report makes interesting reading, and it goes on and on. There is an important theme of discretion, which the amendments touch on in different ways. Amendments Nos. 121 to 125, which are tabled in the name of the hon. Member for Somerton and Frome, are well motivated. We all recognise the need to ensure that Crown court appearances for young people are limited because they are not always appropriate. When dealing with minor breaches of order, one would not want to provide more opportunities for youths to come before a Crown court and one wants to reduce costs in relation to Crown court appearances.

I commend the arguments made by the Standing Committee for Youth Justice and the organisations that are part of the Standing Committee. Its concern, in one sense, relates to discretion. It is concerned that the Bill would make it automatic for a youth who breached an order imposed by the Crown court to be returned there, unless the Crown court judge stipulated that the breach could be dealt with by the youth court. The concern of the hon. Member for Somerton and Frome is that matters of minor breaches should be dealt with in the first instance by the youth court, and it is suggested that 90 per cent. of breaches fall within that category.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. Gentleman seems to be making the same mistake as the hon. Member for Somerton and Frome, unless I am mistaken, which is to think that the clause says “shall” when it says “may”.

David Burrowes (Conservative, Enfield, Southgate)

The right hon. Gentleman intervenes too early—I am still setting out the context of the amendment. The theme is discretion, and had he waited, I was to come on to the fact that the Bill does provide for a discretion that does not currently exist. It allows the Crown court judge to direct that such an order be dealt with by the youth court, which I commend. That is why the amendment tabled by the hon. Member for Somerton and Frome would not necessarily bring an improvement in the area of discretion.

Alun Michael (Labour, Cardiff South and Penarth)

I may have misunderstood this, but I thought that the default setting was for a youth to be dealt with by the youth court, although the judge may direct that a case go to the Crown court.

David Burrowes (Conservative, Enfield, Southgate)

The right hon. Gentleman’s helpful intervention allows me to move on to some of the problems with the Bill that the amendment would not deal with. The discretion lies with the Crown court judge, but at the early stage, so he must make a call before any breach has occurred. The judge must decide, based on the nature of the case and the offender, whether he will put within the order a discretion for the youth court to deal with the breach. The concern is whether that discretion should be more devolved and whether it should be dealt with wholly by the decision of the Crown court judge. I would not go along with the amendment because the Crown court judge is dealing with a case that is, naturally, a serious one. For such a case to have come before a Crown court, the offence would be likely to carry a sentence of more than two years’ detention. Naturally, any such case is serious and would only exceptionally be dealt with using a youth rehabilitation order, so we are talking about the exceptional cases that can be dealt with in the community rather than about someone who has been convicted of a serious offence and dealt with by imprisonment. We are concerned that in such cases, the sentencer should have full control of the order and be involved in its enforcement. We therefore welcome paragraph 35, which gives the Crown court discretion and allows it to be involved in the order’s enforcement. Indeed, it could be taken further.

I opened the innings for the Conservatives in the Committee on the draft Community Order (Review by Specified Courts) Order 2007, which enabled courts in a pilot scheme to review orders and be much more involved in their review before they are breached. That proactive involvement was to ensure that the orders were properly complied with before that person went down the road of breaching the order and there being a subsequent sentencing. During discussions on the order, the hon. Member for Cambridge and I were informed that the evaluation of the pilot scheme was due to be published by October, but I have not seen it. The Minister of State gave a clear indication on that, given that we had previously been told that the evaluation would be published by May. We are now coming to the end of October, and he has every opportunity to publish it, so that we can consider it.

The essence of the 2007 order was to allow reviews to take place. When the evaluation is eventually published, after much anticipation, the pilot projects that are making progress in evaluating the orders might well be rolled out not only to local magistrates courts in Haringey and Enfield, but to Crown courts. That is anticipated within the order. However, the very principle behind that proactive involvement is that the sentencer sees the person who received the sentence, who comes back before the court, to check how well they are complying with the sentence and to ensure that compliance continues. The principle within the Bill allows that, but we must allow full discretion.

When it comes to how the Crown courts deal with drug treatment and testing order reviews, it has been said, and I have certainly seen this with clients, how much people have been affected by having to go back before the judge who sentenced them to explain whether they are making progress. That has a significant impact on preventing them from breaching the order and on ensuring that they take it seriously. That should be the case when a Crown court makes a youth rehabilitation order, which would no doubt involve a serious offence.

We are concerned that there should be flexibility and discretion. When a youth breaches an order and is in custody at Edmonton police station, for example, the custody officer often does not know what to do. He calls around trying to find out whether the youth should go to the youth court or the Crown court, but no one is able to give an answer. People look through the different orders and statutes that have been introduced over the years and try to work it all out within the confines of the custody suite. That is often a dilemma for custody officers, and they often make the wrong call. The youth then goes to the wrong cells, has to be transferred and ends up being ping-ponged between Wood Green Crown court and Enfield magistrates court.

Although the amendment does not deal with the proposal, I invite the Minister to consider whether probation officers assigned to young offenders should be able to recommend where breaches are dealt with—in the youth court or the Crown court—provided that a direction has not already been made on venue. That might be particularly appropriate when one is dealing with minor breaches which, as we have heard, might constitute the majority of infractions. There could be an administrative process for reaching a realistic view on whether to deal with a breach in the youth court, although there would obviously need to be liaison with the sentencing judge.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman makes a persuasive case—even in relation to my own amendments. He is making the same point as me on flexibility but with the further suggestion of a reserve mechanism. It would exactly meet my requirements, as well as those that the Minister has outlined, if there could be an executive decision to put the matter before a youth court, with a report to the Crown court such that the Crown court would always have a calling power to intervene if it so wished.

David Burrowes (Conservative, Enfield, Southgate)

I am grateful for the hon. Gentleman’s comments. When considering proposals such as these, it is always important to consider what is happening on the ground. There should be a proper consultation with the people who actually deal with things so that there is appropriate flexibility and discretion. That way, there will be an expeditious process for dealing with cases in the right setting, as we all wish, which nevertheless ensures that justice is done and that there is neither any continued breach nor any reoffending.

The next set of amendments likewise deal with discretion, although in the context of the probation service. Resources are important to that. We should take account of the comments made in the annual report by Her Majesty’s chief inspector of probation, who referred to concerns about overload in the probation service, and to the number of cases per offended manager with which it has to deal. In the words of the chief inspector, Mr. Bridges, that can range from some 25 to 70, with the higher caseloads often being exacerbated by freezing of posts. He has said that

“it is clear to us that when the costs of new work, new requirements and new infrastructure have been taken into account, resources have in practice still not kept pace with the increasing demands”.

The new raft of generic orders might draw on the existing orders, but further requirements are made in the Bill, and it is important to heed Mr. Bridges’ words on behalf of the probation service. He has also said that the new demands include

“new Orders or requirements for drug treatment and testing, for accredited programmes and for managing prolific offenders, extended periods of post-release supervision, increased public protection expectations, enhanced standards of quality for unpaid work and other supervision requirements.”

The probation service is concerned that, despite the increases in resources in recent years, resources might not match demand.

The crucial point is that resources might be directed to the warning and breach processes, rather than primarily on ensuring that young people under the supervision of probation officers are not committing further offences and that the requirements of orders are fulfilled, which is what people want. The particular complaint is that there is too little discretion in relation to breaches, so will the Minister reflect on whether the Bill provides sufficient discretion?

Paragraph 3(1) of schedule 2 states that

“the responsible officer must give the offender a warning”.

They may well give a warning currently, but that is subject to national standards; it is not on a statutory basis. That is the difference: it will be on a statutory basis, under schedule 2, that the warning must be given. That warning would then be a record of non-compliance, and that would go down the route towards breach of proceedings. The fact that it is placed on a statutory basis is key.

The concern is that the measure may tie at least one hand behind the back of a probation officer. The concern is whether the removal of discretion flies in the face in many ways of the proposals to give the probation service quasi-judicial powers in relation to dealing with breaches. On one hand, there is a concern to ensure that, in appropriate cases, breaches can be dealt with away from court and that there is sufficient flexibility, but on the other hand, the proposals in schedule 2 are designed to take away what may well take place under national standards, and put it on a formal, statutory setting. The concern is that when probation officers want to deal with matters flexibly, they may well be precluded from doing so.

One example, to which the Standing Committee referred, is the programme piloted by the Youth Justice Board, which no doubt the Minister supports. It involves a scaled approach that is to be rolled out nationally alongside the youth rehabilitation order. We referred in earlier debates to minor breaches when someone fails to attend an appointment because their alarm clock does not go off at the appropriate time. Probation officers can take part in a buy-back scheme under which young people who are deemed to have failed to attend appointments without a reasonable excuse are given the opportunity to avoid breach action by subsequent compliance. Their later attendance can cancel out earlier failures after designated periods.

That flexible approach is about implementing national standards and it is an effective mechanism. It provides positive motivation for young offenders to ensure that they set the alarm clock and cancel out a minor breach, rather than go through the formal process that would be undertaken under the Bill whereby they must have a warning, and then we are talking about non-compliance and breaches.

With the amendments, we are calling for the discretion that is in the system and needs to be developed through such innovative pilot programmes not to be in any way restricted by what is required on a statutory basis. I invite the Minister to provide evidence for why we have to move to a formal, statutory basis involving mandatory warnings.

The next sub-group of amendments, including amendments Nos. 130, 131 and 133, also relates to the concern that the courts should be able to deal properly with the issue of discretion. The concern is that the Bill will preclude an approach that enables courts, when an offender is before them in relation to a more minor breach, to deal with the case in a reasonable way, to have flexibility, to be allowed, as the Prison Reform Trust document says, to have humanity rather than just acting as a robot, which will be the case if they are told by statute that when an offender comes before them because of a breach, they need to up the scale of the order, impose further requirements, impose a fine.

Sentencers want the freedom to be able to look at the offender before them to take account of the circumstances not only of the breach but of the young person, to enable them, in some circumstances, to take no further action but to ensure, with assurances on the circumstances of the offender, that they will be able to continue with their order with no further penalty. That may be the case for only certain offenders. Others may well need to be given the stick rather than the carrot, but the call from sentencers and others is for the stick and carrot to be in the hands of the sentencer, rather than to be taken away from them and to be only in the hands of the statute. Flexibility should be provided to enable the courts to deal with matters in an appropriate form.

Amendments Nos. 128 and 129 deal with the ISSP. We are all concerned about the number of young offenders and adults in our prisons; the estimate is that 20,000 across the board in the prison estate are in prisons due to sentencing behaviour, which is something that everyone wants to change. The amendments tabled by the hon. Member for Somerton and Frome are designed to ensure that in the hierarchy of sentencing we do not unnecessarily put young people into custody for breaches of the ISSP.

The Minister has constantly used the phrase “wilful and persistent non-compliance” with the order. The reality is that it may well be the case for any sentencer that if someone wilfully and persistently does not comply with an order they have come to the stage where the court has to show that orders need to be complied with and on that basis a custody sentence is the only option available. Obviously, that is in extreme cases and it is important, in response, to emphasise that any order involving intensive surveillance and supervision is made only when an offender is on the cusp of custody.

In present pilot programmes of ISSPs it is available for those cases in which the offender has been through all the levels of community orders and failed to comply and, sadly, the only option left is for a more intensive programme which, if the offender breaches it, may lead to that offender being over the cusp of custody and receiving a period of detention. Although I am with the hon. Member for Somerton and Frome in respect of the motivation of the amendment, I would not support him in regard to its reality.

Finally, I want to reflect on concerns that sentencers generally are increasingly being second-guessed by statute and the need for both them and professionals and probation officers to have the full discretion to achieve the objective that we all seek: that young offenders should be kept out of courts and prisons.

David Hanson (Labour, Delyn)

We have had a useful debate and I am grateful to the hon. Members for Somerton and Frome and for Enfield, Southgate for tabling the amendments and speaking to them. I fear that there will be disagreement on some of the issues but I am grateful for the support of the hon. Member for Enfield, Southgate in voicing concerns that I will articulate about some of the amendments tabled by the hon. Member for Somerton and Frome. I hope that at the end of the debate we will have a clearer picture of where we are.

I will first speak to amendment No. 21, which would prevent a Crown court that makes use of a rehabilitation order from directing that any subsequent breach action be dealt with by a youth or magistrates court. I listened to the hon. Gentleman, but I do not agree that the amendment is either desirable or necessary. The hon. Member for Enfield, Southgate will support me in that assertion, if I interpret him correctly. When the Crown court has decided that a youth rehabilitation order is an appropriate sentence, it is wholly appropriate and reasonable for the court to have the power to refer any further proceedings relating to that order to the youth court, because the youth court or magistrates court can, in itself, then deal with those further proceedings accordingly. They have sufficient powers to deal with the breach of the youth rehabilitation order and, of course, the youth court has some modicum of specialist knowledge in dealing with young people. It is a clear preference for me and, I hope for the Committee, that in the circumstances the Crown court should have the power to direct that the youth court should deal with those proceedings that may result in a breach, which also means that there are no burdens on the Crown court in dealing, potentially, with minor breaches.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is making my argument rather than his own. We are not saying that it should not go to the youth court or magistrates court, but that it should always go to the youth court or magistrates court in the first instance before being referred up to the Crown court, rather than going to the Crown court and being referred down.

David Hanson (Labour, Delyn)

The amendment would prevent a Crown court that has made a YRO directing that any subsequent breach action be dealt with by the youth court or magistrates court.

David Heath (Liberal Democrat, Somerton and Frome)

Only that bit of the amendment.

David Hanson (Labour, Delyn)

That is a fairly significant bit of the amendment, as my right hon. Friend the Member for Cardiff, South and Penarth has indicated. My main objection is that that would place an unnecessary burden on the Crown court and limit the flexibility of the higher court to refer cases back to the magistrates court for appropriate action in those circumstances. I thank the hon. Member for Enfield, Southgate for his support for the view that we have taken on that issue.

Amendment No. 134 has also given us an interesting debate. My right hon. Friend the Member for Cardiff, South and Penarth was particularly sparky this morning when challenging the assertions of the hon. Member for Somerton and Frome on those matters, and I am grateful for that support because it exposed some of the arguments that I am sure we will touch on in the debate.

The amendment would remove the provisions in the Bill that set out the breach proceedings to be followed by the responsible officer. Those provisions set a limit of two format warnings that may be issued to a young offender in a twelve month period, following which, on a third breach during that period, proceedings must be instituted. That is a reasonable approach to ensure that young people are formally encouraged through a series of warnings before a third breach in that period, to comply with the order. The provisions reflect the Youth Justice Board’s national standards for breaches and have been put in the Bill specifically to ensure that there is clear evidence that breaches will be pursued rigorously and consistently, with national standards applied on a national basis. The breach procedure will codify the Youth Justice Board’s national standard, which will continue to provide more detailed guidance on managing breaches effectively while retaining the discretion that my right hon. Friend the Member for Cardiff, South and Penarth wishes there to be.

Alun Michael (Labour, Cardiff South and Penarth)

I endorse what my right hon. Friend is saying. The problem with those sort of tariff ideas is that, although they are meant to guarantee a degree of proportionality, too often they bring about drift. Drift is not clarity, and a lack of clarity is bad for encouraging young offenders out of a pattern of criminal activity.

David Hanson (Labour, Delyn)

I thank my right hon. Friend for his intervention and agree with him. I hope that the whole Committee agrees that, if we are to have community sentences that are intended to keep young people out of custody, it is essential that they are meaningful, respected in the community, have some powers for dealing with breaches in a positive way and are codified in a national standard under the guidance of the Youth Justice Board.

We should be determined to ensure that YROs, and indeed all community penalties, are rigorously enforced. I am determined to see them widely used by the courts, accepted by the public and considered robust alternatives to custody. If we do not have those powers to warn or a strong codification of compliance with the orders within the 12-month period, we will undermine that order and, ultimately, the public will regard it as meaningless. The public need to respect the orders, regard them as a penalty and see that they will be enforced. The community at large will want to have some reparation made for the crimes committed against it.

Harry Cohen (Labour, Leyton and Wanstead)

I agree with my right hon. Friend that there must be a punishment for a breach of the order, but during the earlier discussion, it struck me that you could have an original youth rehabilitation order with an education requirement as one of its subdivisions; and if the order were breached because, after all the warnings, the youngster would not attend the sessions, he would be taken into custody and he still might not receive any education, owing to the state not providing it when they were in custody. That would be a nonsense, so will my right hon. Friend insist that the state apply the education aspect of the order to the young offender?

David Hanson (Labour, Delyn)

There is a mutual responsibility, both to make provision to meet the obligations of the order, and for the individual to undertake and meet those obligations. That is the key aspect. I draw colleagues’ attention to the use of “reasonable” in the legislation before us, because I recognise that, occasionally, young people will find it a challenge to meet some of the basic compliance requirements of the community order, such as being in a certain place at a certain time. If attendance at this Committee were a community order, having commenced at 9 o’clock this morning, some Members may have been breach of it by turning up at 1, 2 or 3 minutes past 9. I was here on time—I managed to do it today—and so were you, Sir Nicholas; but it is possible to turn up slightly late for an appointment. It was reasonable of my hon. Friend the Member for Tooting, the Whip, to exercise his discretion in respect of colleagues who were one or two minutes late today. He has been reasonable about the matter.

The simple point is that there are flexibilities allowing the responsible officer to decide what is reasonable. To use the Committee analogy again, if a Member were due to attend but did not stay for the whole Committee, my hon. Friend the Whip, if he were the responsible officer, might not regard it as reasonable, but he would consider the excuse. There is discretion for local officers to take those points into account. We have set national standards through the Youth Justice Board to provide more detailed guidance, and the key point is what is reasonable and what is unacceptable. However, the bottom line is that in any organisation, such as the Whips Office, or in the operation of a youth rehabilitation order, there must be some discipline and an understanding that at the end of it, action will be taken. Amendment No. 134 would remove that provision, and I support my right hon. Friend the Member for Cardiff, South and Penarth in his challenge.

David Burrowes (Conservative, Enfield, Southgate)

I wonder whether the Minister has considered the evidence that NAPO submitted in a letter dated 16 October, highlighting its concerns that, given the way in which it had been consulted, there had been insufficient time for it to consider matters in detail. It is also concerned about breaches. It said that

“one of the reasons why the prison population is growing disproportionately is because of increasingly strict interpretations of breach procedures within the Probation Service and the Courts.”

Its general concern was about the need to exercise appropriate discretion.

David Hanson (Labour, Delyn)

I have seen NAPO’s evidence and discussed those concerns with its representatives in meetings. The my hon. Friend the Under-Secretary of State for Justice was at NAPO’s annual conference in Scarborough on Friday discussing similar matters. The hon. Gentleman knows that some 4,500 individuals are in prison as a result of licence breaches. Again, there should be flexibility and discretion, and we are discussing those matters with NAPO, because reasonableness must be built into the system. I trust local officials to make those decisions, based on national standards. As my right hon. Friend the Member for Cardiff, South and Penarth said, we need some element of understanding that in the event of persistent breaches, action will be taken. I am satisfied that there are sufficient safeguards to avoid returning young offenders to court for minor infringements, because it is right and appropriate that the clear standards set out in the Bill are examined, and that discretion is used at a local level.

On probation, the hon. Member for Enfield, Southgate discussed some of the pressures on the probation service. I have discussed the concerns about those pressures with Andrew Bridges, following the production of his annual report earlier this year. Obviously, there are resource implications arising from a number of matters, and there are pressures on resources at all times. I must say to the hon. Gentleman that resources provided for the probation service have increased by some 72 per cent. since 1997, which is well ahead of inflation. I accept that the demands on the probation service have also risen in that time, but I believe that there is scope within the funding elements that we have to ensure that we can meet the needs of the probation service for the future.

Amendments Nos. 122 to 127, 130 and 132 would limit breach proceedings to the specific type of court that sentenced the young offender to a youth rehabilitation order. For example, where a Crown court has sentenced the young offender to a YRO, it is appropriate and sensible for the Crown court to have the power to refer that breach back to the youth court, for the reasons that I mentioned earlier. The reasons why we have given the Crown court such power is that it would be disproportionate in every instance for the case to be retained at Crown court. Indeed, it would also impose a burden on that higher court when, in fact, youth courts have expertise in dealing with young people. If the Crown court decides to refer the matter to a youth court, I believe that it should have the power to do so and I cannot see a problem with that particular issue.

Amendments Nos. 131 and 133 would completely remove the measures in the Bill that would require a court to impose a specified penalty on a young offender who is found to have breached their YRO while it was still in force. Again, we return to a general point, which is that it is essential that community sentences are subject to rigorous enforcement when breaches occur, and that the action that is taken is appropriate.

The point has been made about sentencer freedom to decide the appropriate punishments that should apply, but it is necessary that the Government set some national standards and give a clear indication of what measures should apply, to help build confidence in the community. The measures that would be removed by amendments Nos. 131 and 133 are, in fact, trying to achieve that aim; they are designed to give some indication of what the sanctions would be in the event of the young offender breaching their rehabilitation order. The measures are about building public confidence, including public confidence in the courts, and it is right and appropriate that we set baselines in the Bill for dealing effectively with those national standards.

Amendments Nos. 128 and 129 would remove the court’s power to deal effectively and robustly with persistent and wilful breaches of the YRO. Under the Bill, when a young offender wilfully and persistently breaches their YRO, the court is able to impose a YRO with intensive supervision and surveillance, without the need to meet the custody threshold. If the young offender is already on a YRO with intensive supervision and surveillance, imposed as an alternative to custody where the offence was imprisonable, the courts have the power to order custody for wilful and persistent breaches.

Where the original offence was not imprisonable, custody is only available in certain circumstances. I come back to the phrase that we have used a couple of times today: “wilful and persistent”. There must be a wilful and persistent breach of the first YRO. The court can then impose a YRO with intensive supervision and surveillance because of that persistent and wilful breach. Custody is not available at this point if the original offence was not imprisonable. However, I believe that, if the young offender has wilfully and persistently breached that YRO with the intensive supervision and surveillance provision, custody must be available to the court both for the deterrent effect and to allow punishment.

I am grateful for what I interpreted as the support of the hon. Member for Enfield, Southgate for that approach. Like him, like the hon. Member for Somerton and Frome, and I suspect like every member of this Committee, I do not wish to see young people sent to custody for no good reason. However, there must be some national standards—there must be some bottom line or baseline. If there is an original order and a supervision and surveillance order, and if there are persistent and continual breaches and the court finds them to be wilful, it is entirely appropriate that the custody option should be available at that stage to the court, to use at its discretion, because such breaches will be seen as a snub to the court and to the penalty imposed. It is essential for the orders’ integrity that we have robust enforcement options to deal with wilful and persistent breaches.

I hope that my hon. Friend the Member for Leyton and Wanstead understands that the measures will not be used on those who turn up five minutes late, or cannot meet the obligations in an order because the state has not provided some element of it. They will not be used for minor infringements; they will be used for wilful and persistent breaches—for worst cases in which a young offender is clearly challenging the court.

Harry Cohen (Labour, Leyton and Wanstead)

I agree with that, and my hon. Friend makes a good point, but when the state takes control and puts a youngster into custody, it also takes responsibility for fulfilling the conditions of the youngster’s YRO. I gave the example of an education order. That education must be provided by the state. That is what I take issue with.

David Hanson (Labour, Delyn)

I do not believe that any court would say to an offender that they were wilfully and persistently not achieving an order’s objective because the state itself had not provided the mechanisms to achieve it, whether through courses or other provided activities. I hope that my hon. Friend accepts that assurance.

David Howarth (Liberal Democrat, Cambridge)

I do not think that that was the point that the hon. Member for Leyton and Wanstead was making. It is not about whether that would constitute a breach. What he was saying—it is an excellent point—is that the responsibility for ensuring that the purposes of an education order, for example, are fulfilled will shift to the state if the young person is taken into custody. The state’s obligation is to ensure that education is available. He is making the point that unfortunately, it is frequently not available.

David Hanson (Labour, Delyn)

In the event of a custodial sentence for wilful and persistent breaches over time, I hope that provision of education or any other requirement would continue in custody. That is important.

We are straying into separate territories, but my view is that we must raise the level of support for young people in custody with education, training and a range of provision. When visiting establishments for young offenders, I have been impressed by some of the education work going on. The purpose of custody, like that of community orders, is ultimately to prevent reoffending. Education is one of the best ways to do that. As hon. Members know, improving numeracy and literacy is key to preventing reoffending. Offenders under 16 sentenced to custody continue to receive education while in custody. We must ensure that it is the best that we can supply, so that we improve their literacy and numeracy and help them to overcome the challenging behaviour that lead to offending in the first place.

You will have gathered from my comments, Sir Nicholas, that I hope that the hon. Members for Somerton and Frome and for Enfield, Southgate will not press their amendments. I believe that the Bill supplies a framework for enforcing existing national standards through the Youth Justice Board, provides community confidence in community sentences and ensures that we have a backstop by stating that where there are persistent breaches, the Government, through the courts, will take action to enforce sentences properly. The sole intention is ultimately to keep people out of custody, but we will have the option of custody if people wilfully and deliberately breach court orders and associated regulations. I hope that that is helpful to hon. Members, and I urge the hon. Gentlemen not to press the amendments.

David Heath (Liberal Democrat, Somerton and Frome)

We learned several interesting things from that valuable debate. We learned that the engagement of the more poikilothermic members of the Committee is directly proportional to the temperature. We had an excursion into the practices of the Government Whip and his light-touch approach to members of the Committee. I thought that that example amply illustrated my point. It is precisely because the Government Whip is not bound by statute in his dealings with errant members of the Committee that he has discretion to use his undoubted intelligence and common sense to deal appropriately with the abundant shortcomings of his colleagues. That is precisely what I was suggesting might be appropriate for probation officers: they should have the same level of discretion to use their intelligence, common sense and professional training when dealing with troublesome youngsters.

I am not suggesting that probation officers do not have a palette of sanctions available, or that there should be no sanctions for breach of a community order. Of course there should be, and they should be clearly set out. But discretion on the part of the practitioner is a crucial element of applying sanctions sensibly. That is what I was seeking to ensure, but the Minister argued against it.

I have to say that the focus of the Minister’s argument on the first group of amendments was directly in opposition to what the amendments were intended to achieve. He addressed only the leave-out elements and not the insertions, and of course the argument was distorted because of that. He made great play of the fact that one of my amendments would leave out the current provision for the Crown court to devolve the decision downwards. Of course I do not intend that there should not be devolution downwards. All my amendments are designed to create the circumstances in which breach of orders are first considered in a youth court or a magistrates court, and only those that are serious are referred to the Crown court. I thought that that was clear from what I said in my opening remarks.

As I said during his remarks, I found the comments of the hon. Member for Enfield, Southgate very persuasive. He argued the case extremely well—much better than the ministerial briefing on the subject. In some instances, there is some merit in getting people who are in breach of their orders back before the Crown court, but there is an administrative issue with such disposal in the first instance. His suggestion is one that we might explore at a later stage of the Bill. The Minister failed to respond cogently to my argument simply because he did not listen to it. I am sorry about that; it is unfortunate.

There was no reference at all in the Minister’s response to the capacity of the court to take no further action other than to issue guidance. I wonder why he did not respond to that amendment. That was the one for which I believe I had not only the engagement, but the support of the right hon. Member for Cardiff, South and Penarth. He recognises the fact that there are occasions when the bench, having heard all the circumstances, will wish to set boundaries, as he put it—that is entirely right—and so ensure that the offender knows exactly where he or she stands in respect of the order, but will not wish to take action beyond that. That is an important part of the court’s armoury in dealing with breaches. It allows for the judicial discretion of the court that we are all supposed to recognise, and enshrines it in the orders. I hope that, after today’s proceedings, the Minister will reflect on matters and consider a response.

The hon. Member for Leyton and Wanstead was spot on. When a young person has been subject to a rehabilitation order that lays down various requirements, which are tailored to his needs prevent him from reoffending, it would be wrong if those considerations went by the board if the person was taken into custody. Rather than simply hoping that the provisions of the order will be complied with by the state in respect of the young person in custody, it should be a duty on the Prison Service in such circumstances to comply with the original terms of the order inasmuch as they still apply to a young person in custody.

There is abundant evidence that in many places, provision is unlikely to be made, certainly in the case of older teenagers. Those aged 17 and 18 are not receiving the level of support in education and other matters that they ought to receive from the system. Before we discuss the Bill on Report, I shall consider whether it is possible to ensure that the subject of a rehabilitation order that is still relevant in a case of custody in breach forms part of a duty on the Prison Service. The hon. Gentleman made an important point.

Edward Garnier (Conservative, Harborough)

I do not want to delay the closing of the hon. Gentleman’s argument, but there is a problem with lots of different publications. The Prison Service no longer seems to have immediate control over physical and mental health services within its estate, or over education. Such services are imported from local education authorities or other bodies. Although some people are employed by the Prison Service to teach or educate, it is a difficult in an organisational sense to impose a duty on the governor of the relevant institution if he does not employ those who are providing the teaching.

We need to work our way through the administrative problem. I applaud the hon. Gentleman for highlighting the issue. We will not solve it today, but I encourage the Government to think carefully about how we impose the duty on people who have no control over the providers of the service.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman has made an extraordinary and valid point. It is one that is of concern to me. I do not want to enter into a whole new debate, but mental health and general heath provision is extremely patchy. It is hard to persuade local PCTs that they have a duty to those in the prison estate in their area. Some do understand that, but others make less provision than is appropriate. I do not agree with the implication that matters should revert to the Prison Service for organisational reasons, because the service is not a health authority or an education authority. However, there needs to be better co-ordination between the Prison Service and the providers.

We have had a long and interesting debate. I do not intend to press the amendment to a Division, but the Minister and others have given us food for thought for amendments to be tabled on Report. I beg to ask leave to withdraw the amendment.

Nicholas Winterton (Conservative, Macclesfield)

I do not know whether hon. Members want to speak to clause 2.

Edward Garnier (Conservative, Harborough)

As clause 2 merely brings schedule 2 into effect, I suggest that we discuss it when we reach the schedule, Sir Nicholas.

Nicholas Winterton (Conservative, Macclesfield)

It is 1 o’clock, so we can continue our deliberations on this important public Bill.

From time to time, I remind hon. Members that I do not like knives, and I hope that there will not be any during our proceedings, but we have an out date. This is nothing to do with the Whip, who has been affable and agreeable, and has put no pressure on the Chair, as he should not. However, I ask the Committee, particularly the Opposition parties, whose contribution to a Bill is critical, to bear in mind that we have an out date.

Schedule 2

David Hanson (Labour, Delyn)

I beg to move amendment No. 30, in schedule 2, page 113, line 11, leave out ‘that sub-paragraph’ and insert ‘sub-paragraph (1)’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss Government amendment No. 31

David Hanson (Labour, Delyn)

I welcome you to our afternoon sitting, Sir Nicholas. These are drafting amendments to paragraph 10(3) and (4) of schedule 2. They clarify the order-making power in sub-paragraph 1.

Edward Garnier (Conservative, Harborough)

I shall be as brief as I sensibly can, but as the Bill consists predominantly of schedules rather than clauses, it is incumbent on us to spend a little time—not an excessive time—considering what clause 2 does. I shall not ask the Committee to divide on whether the schedule should stand part of the Bill, but this is an opportunity to consider what we are doing. I said on Second Reading that this is predominantly a schedule Bill. For example, clause 2 does nothing except to bring schedule 2 into effect. I want to highlight a number of issues, which might even touch on other schedules.

With regard to procedural matters, first, when a court comes to consider a sentence involving the breach, revocation or amendment of a youth rehabilitation order, it will have to examine the schedule closely to work out where it stands, almost as if it were in a game of snakes and ladders. I would urge, if at all possible, that simplicity enter into the drafting process—I dare say that it is too late for this Bill. I appreciate that the Government do not want to miss anything out or to produce legislation that leaves a court in doubt as to its powers or to how the sentencing regime is to be governed.

For example, in respect of the powers of both the magistrates court and the Crown court, the schedule, on page 113, in part 3, at paragraph 11(2)(a) and (b), essentially provides the court with the power to revoke the existing sentence, to re-sentence for the original crime, and to deal with the breach. Rather than a court going all through the detailed paragraphs of part 3, it would be far simpler as a matter of drafting, and therefore as a matter of efficient use of court time, and our own, if a straightforward power to revoke, re-sentence for the original offence and deal with the breach could be built into the Bill and replicated across each of the jurisdictions—be it the summary jurisdiction or the Crown court jurisdiction.

The Government may be fearful that if they do not set the measures out in such complicated detail, no one will fully understand the powers that apply to each respective court or to particular sorts of breaches and what a court can do. However, I have a suspicion that, when those who are training magistrates or Crown court judges come to look at this on Judicial Studies Board courses—of which I have been on a few—they will ask why it is like this and why it could not be a little simpler.

My second point touches on some of our earlier debates in relation to schedule 1. It is essential to build into the system a flexibility to allow a judgment to be made about each breach so that the court, be it the magistrates or the Crown court, does not feel boxed in by too rigid a framework, and the discretion referred to by my hon. Friend the Member for Enfield, Southgate is left in the hands of the court.

Other points that need tightening up include paragraph 3, in relation to the warning system. Clearly, it is sensible to give to a young person who is about to commit or has committed a breach, a warning that if he continues in that way, something worse could happen. I would ask the Committee to bear in mind what sort of person we are likely to be dealing with. They will not be very organised or responsible for their own lives, by virtue of the fact that they are before the criminal justice system at all. Some of them may have no contact with formal schooling; some of them may be riddled with substance abuse; they simply may not be very clever people, in the loosest sense of the word. Therefore, any warning must be clear and there is no better way of achieving that than in writing. Although other provisions deal with notices and certificates later in the schedule, it might be worth considering whether warnings should be given in writing, because it brings a little more authority.

David Hanson (Labour, Delyn)

I would expect that warnings would be given in writing.

Edward Garnier (Conservative, Harborough)

Good—I am glad. I do not suggest that we amend the schedule, but it should be made quite clear to the supervisors of these youngsters, in practice notes, protocols or some other form of guidance, that they must give warnings in writing and copy them to the responsible adult. It may be that the parent of the child in question is not very responsible either, but it is important that no provision is built into the system that allows for any excuse for failure by the criminal justice system or the individual offender.

Another practical question that needs to be addressed concerns the summons that can be issued by a court for failure to appear, which is set out on page 108. We must be careful that we are not just passing optimistic legislation in the absence of a knowledge of what normally happens. If a person does not appear in answer to a summons, a judge can issue a bench warrant. No doubt a magistrate can do so too; my hon. Friend the Member for Enfield, Southgate will be able to tell me about that. That power is fine, but very often there are not enough police officers to go and find that person. Such people do not necessarily stand around on the street corner advertising the fact that they are late or do not intend to appear. We must ensure that the personnel and resources are available for bench warrants and summonses of this nature to be not only issued but implemented.

Paragraph 6, on powers of magistrates courts, deals with the fining of young offenders under the age of 14. There may be some offenders of that age who have £250 in their accounts that can be extracted and given to the court, but I do not suppose that many of the sorts of people who unfortunately come in front of the courts will have that sort of money at that age. Essentially, we are fining the parent or guardian. We need to be careful that we are not just airily writing legislation that looks good on paper but provides an empty remedy. Even if the parent is the one who pays, we should bear it in mind that the benefits system might actually pay, not an individual, so the force of the penalty might be limited to some extent. I am not making a fundamental criticism, merely urging us to be careful.

Paragraph 6(4) states:

“In dealing with the offender under sub-paragraph (2), the court must take into account the extent to which the offender has complied with the youth rehabilitation order.”

That is repeated throughout the schedule. Surely, any court will look at the circumstances of the person in front of it. That does not need to be spelled out in black and white. Sub-paragraph (5) states:

“A fine imposed under sub-paragraph (2)(a) is to be treated, for the purposes of any enactment, as being a sum adjudged to be paid by a conviction.”

I wonder whether that is a typo or a term of art. Are we intending to say, “on a conviction” or “by a convicted person”, or is the expression “by a conviction” an accepted legal term in such circumstances?

Paragraph 7(2) states:

“The court may instead ... commit offender in custody”.

There is a word missing. I suggest that it should say “commit the offender”. More importantly, in relation to that sub-paragraph, surely all that we need to say is that the court may remand the offender in custody or in bail to the Crown court.

David Hanson (Labour, Delyn)

I am grateful for the comments of the hon. and learned Gentleman. I am inquiring as to the logic of not tabling amendments to the schedule, as they could have been discussed. There was an opportunity to do so. I am quite happy to look at the concerns that he has, but these are issues that could have been subject to discussion and amendment, and we could have reflected on them before Committee.

Edward Garnier (Conservative, Harborough)

I am trying to speed up the process. I am hurling at the Minister a number of small and medium-sized points along with some fundamental points.

This is not an attack on the Government. The Minister need not worry; the Government will not fall this afternoon as a result of these points. I am simply asking us to be careful as we rush together to create legislation. The Committee is under time pressure, as you reminded us, Sir Nicholas. I could have tabled any number of amendments, but sometimes one loses the will to live. [Laughter.] However, I think that it is important that I chuck the occasional pebble into the Government pond. I just ask the Minister to take these ideas away. I do not expect a detailed response. I realise that if I had tabled an amendment, he would have a ministerial brief and so could comfortably respond, but I am not after that this afternoon. I am instead quietly tugging at the prefect’s spats. We will see how we get on.

There are a number of areas in this schedule which are susceptible to the greater or lesser criticisms that I have addressed so far, but bearing in mind your strictures, Sir Nicholas, and bearing in mind my need to remain on very friendly terms with the Minister of State, I shall finish on this one point. It relates to page 115 and part 4 of the schedule. It says something that we have not just a schedule, but a schedule that is divided into many parts. It has more parts than Caesarean Gaul, one might add. But there we are.

Paragraph 13 is headed “Amendment by appropriate court”. This is a perfectly sensible suggestion. If an offender moves from one local court jurisdiction to another, it is important that the order should follow him and can be applied in the new area. However, we must ensure that the communication and co-operation systems are available to ensure that this happens. Far too often—I say this from my experience in sitting in courts in London—even within a petty sessional division, things do not get done because nobody bothers to tell the person who needs to implement the thing that has been decided. Will the Minister please ensure that an adequate communication system is in place before the Bill becomes law, so that the force of order can follow the offender geographically as he moves about?

I am beginning to feel inhibited from making further remarks, for no better reason than that the clock is ticking. If I do not continue to talk about schedule 2, I do not want anyone—particularly the Government—to think that I have no further things to say in relation to it. I do.

Nicholas Winterton (Conservative, Macclesfield)

Take your time.

Edward Garnier (Conservative, Harborough)

You are very kind, Sir Nicholas. In that case, I shall just say two more things. Taking a random example, paragraph 22(5) states:

“The powers of a magistrates’ court under this paragraph may be exercised by a single justice of the peace, notwithstanding anything in the Magistrates’ Courts Act 1980”.

In many ways that is a sensible thing to do to avoid having to bring together two or three magistrates to make a decision that could be made by one, but it underlines the point that the hon. Member for Leyton and Wanstead made on Tuesday about the need for adequate representation of youngsters within the criminal justice system. When decisions about the future of young offenders are being made by a smaller court, which is in the interests of efficiency, we must be careful that the offender is not left alone in the court. I suspect that no humane magistrate would want to do that, but we need to take care.

Furthermore, on the issue of making sure that these young people are dealt with properly, if copies of the revoking or amending order are to be provided to the parent or guardian of someone under the age of 14, as stated at the top of page 122, why are they not to be provided to the parent or guardian of any other minor who comes before the court?

Finally, paragraph 25, “Power to amend maximum period of fostering requirement”, gives the Secretary of State quite a big power in terms of the disposal of youngsters. It is not simply a question of raising or lowering the limit of a fine or the number of hours of unpaid work; the paragraph deals with the length of time for which a child can be taken away from its natural parents and handed over to the local authority. It can happen for all sorts of good reasons, as we discussed on Tuesday, but we ought to be careful. Such a power should not be exercised without far greater parliamentary intervention.

As always, I am deeply grateful to you, Sir Nicholas, for your patience and forbearance as I seek to tease the Government into producing better legislation. I look forward to hearing from the Minister either now, or in writing in due course.

David Hanson (Labour, Delyn)

I hope to reassure the hon. and learned Gentleman that I am relaxed about discussing any aspect of the Bill. If he wishes to spend time on schedule 2, that is fine by me. The point of my intervention was that if even moderate drafting changes are to be made, the purpose of the Government and the Opposition is to ensure that those changes make good legislation. As part of that process, we must consider the potential legislative impact of drafting changes with parliamentary counsel outside Committee. I know that he will understand that, but I am genuinely relaxed and willing to go at whatever pace the Committee wishes. We do not have any knives in the process. I am content for us to consider anything.

I shall read Hansard when it is published for the hon. and learned Gentleman’s points. If he has made valid points about the detailed aspects of potential amendments, we are always willing to consider them if they will improve the Bill. The purpose of Committee is to have political arguments, but also to ensure that the Bill is clear and usable and achieves the desired objectives. I did not mean to criticise him. I am sure that we will get on as far as possible within the constraints of Opposition politics.

I shall respond to a couple of the hon. and learned Gentleman’s points. To reiterate my point about warnings given directly to young people by the officer responsible for the order, I confirm that it would be appropriate for the responsible officer to make an internal record of any warnings and normally to confirm those warnings in writing for the individual. That is in line with the current good practice of the Youth Justice Board’s national standards for the enforcement of orders and will provide a balance between the need for compliance with an order and the individual’s circumstances, as well as ensuring that the individual understands the message. I hope that that reassures him.

The hon. and learned Gentleman mentioned the danger that combining provisions to cover magistrates and Crown courts could lead to more complex provisions. The schedule’s merits lie in setting out separate provisions for each court. For example, magistrates will need to digest only those provisions relating to youth courts. We are trying not to over-complicate the schedule, which is why we have drafted it as we have. The separate provisions will assist each court in turn.

The hon. and learned Gentleman mentioned bench warrants. I take on board his points. I accept that such warrants must be executed quickly, and I hope that that will be the normal practice.

I am happy to reflect on the points that the hon. and learned Gentleman made. In general, he mentioned a number of drafting points. I am happy to consider them in light of his comments. Different drafting styles impact legislation differently. If hon. Members prefer that the detail should be settled in a broad order-making process, perhaps we can do that next time around rather than this time. I will consider the hon. and learned Gentleman’s points, because there are details that need reflection. However, given those brief comments and the assurances I have offered on a couple of his substantive points, I hope that the Committee will agree to the schedule.

Clause 3

David Heath (Liberal Democrat, Somerton and Frome)

Welcome to the Chair, Sir Nicholas. I shall speak briefly and I will understand entirely if it turns out that my point would be more appropriate in relation to schedule 4.

I have a simple question. The clause and schedule 3 deal with the transfer of orders into the jurisdiction of Northern Ireland. Government amendment No. 44 will deal with Scottish jurisdiction. I simply wish to inquire why Scotland will be dealt with by a consequential order-making and revocation amendment and whether the provisions for Northern Ireland and Scotland are comparable. I find it difficult to understand Scots law, so I do not know whether the provisions for the two jurisdictions are comparable. If a young offender is subject to an order in England, will he be able to avoid the responsibilities placed upon him by crossing the Scottish border and, say, becoming a resident of Gretna Green?

David Hanson (Labour, Delyn)

To clarify, clause 3 introduces schedule 3, which sets out the procedure for the transfer of a youth rehabilitation order to Northern Ireland when a young person either “resides or will reside” there when an order takes effect. Neither the Bill nor Government amendment No. 44 provides for the transfer of youth rehabilitation orders to Scotland.

Government officials have discussed the matter with Scottish Executive officials, who have concluded that they do not wish to have equivalent provisions. As the hon. Gentleman will be aware, the Scottish Executive have competence for these matters in Scotland and it is important that, in the spirit of devolution, we respect their wishes. That is my understanding of the position after the matter was discussed at official level.

The clause provides for Northern Ireland because my hon. Friend the Minister of State at the Northern Ireland Office, who holds a post that both my hon. Friend the Under-Secretary of State for Justice and I have held—this year is the year of the three Ministers of State in Northern Ireland—has agreed to and is content with the provision.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the Minister but, importantly, he has confirmed my suspicions. I understand entirely the devolution arrangements and that there is an entirely separate Scottish jurisdiction, but a young person who is subject to an order in England will not be subject to it if he goes to Scotland. Is it correct that such a person will not be subject to an order unless he returns to English and Welsh jurisdiction?

David Hanson (Labour, Delyn)

My colleagues in the Scottish Executive have been closely involved with the development of the youth rehabilitation order policy and have worked closely with the Ministry of Justice and the Home Office. Scottish Executive Ministers have decided that youth rehabilitation orders should not transfer to Scotland, but that will not make orders unworkable.

I understand the difficulties of border issues—I represent a constituency on the border between Wales and England, but provisions are easily transferred over that border. However, I do not believe that the arrangements will damage the workability of the orders because, potentially, the numbers involved are small. Where such a transfer does arise, I would expect the local youth offending team, the relevant Scottish local authority and the court to work closely to find a workable solution with the Youth Justice Board and the courts in England and Wales to ensure that we examine public protection issues.

However, the hon. Gentleman has raised a very important point and I will certainly reflect on it, because I would not wish someone who has an order placed on them in Berwick-upon-Tweed suddenly to decide that they are much more comfortable living in Galashiels or wherever is just over the border from Berwick-upon-Tweed. I hope that the hon. Gentleman will allow me to reflect on that matter, given the valid points that he has made today.

Schedule 3

Clause 4

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 3, in clause 4, page 3, line 22, leave out subsection (3).

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss amendment No. 4, in clause 4, page 3, line 30, leave out subsection (4).

Edward Garnier (Conservative, Harborough)

As you can see, Sir Nicholas, subsections (3) and (4) give the Secretary of State the power to amend legislation. However, they do not give him the power to amend only secondary legislation or even the Bill; he is being given the power to amend other primary criminal justice legislation. It is rather more than interesting that the Act that he is being given the power to amend—the Criminal Justice Act 2003—is, in terms of its implementation, the most ridiculous piece of legislation that it is possible to imagine.

In written questions, I have asked the Home Secretary how much of the 2003 Act is in force, how much has been repealed before even coming into force and how much is not yet in force. Although it is a big fat Act, it is incredible how many of its provisions are not in effect, have not been implemented, or have been repealed before being brought into force.

That point is reinforced, or at least I like to think that my arguments are reinforced, by a quick glance at schedules 4 and 23 of the Bill, in which great reams of amendments to recent legislation are identified. There is a constant cascade of legislation that is being amended before it is even brought into force, yet here we are giving the Secretary of State power to effect amendment by the writing of his name, rather than by any fully scrutinised legislative process.

I tabled amendments Nos. 3 and 4 because I believe that Parliament should amend the criminal law; Parliament should amend the Criminal Justice Act 2003. Parliament, not the Executive, should make the decisions on how we frame our criminal law, which deals with the removal of people’s liberties and the conduct of our police, courts and criminal justice system more widely.

David Hanson (Labour, Delyn)

These amendments are the first of several that the hon. and learned Gentleman has tabled that seek to remove delegated powers from the Bill. The use of order and regulation-making powers is a well established means of removing unnecessary detail from primary legislation and of conferring a sensible degree of flexibility on the legislative scheme. It has been used not just by the current Government but by previous Governments.

We have set out the rationale for each delegated power in a memorandum that we published on the introduction of the Bill, and I hope that members of the Committee can reflect upon that rationale. I must say to the hon. and learned Gentleman that the parliamentary scrutiny element of that memorandum will be considered in due course by the Delegated Powers and Regulatory Reform Committee in another place. That Committee, as members of this Committee may know, is never slow to criticise any excessive use of delegated powers. In the event that the delegated powers aspects of the legislation are considered by the Delegated Powers and Regulatory Reform Committee and the Committee makes suggestions, I will certainly consider those suggestions in the normal way and give sympathetic consideration to recommendations that the Committee makes.

I believe that the order-making power is necessary and justified, and that it gives us the flexibility to adapt the interpretation of legislation, particularly relating to the responsible officer in this case. The order-making power will enable the Secretary of State to require courts to determine who should be the appropriate responsible officer where the order contains more than one requirement.

On that basis, I commend the order-making power in the Bill to the Committee. I understand the hon. and learned Gentleman’s concerns. I hope that the fact that the Delegated Powers and Regulatory Reform Committee will examine this legislation in detail reassures him. The Committee will make recommendations and those recommendations will be considered by the Government, and if it suggests changes, I give a commitment to consider them sympathetically, in the light of any comments that it wishes to make.

Edward Garnier (Conservative, Harborough)

I hear what the Minister says. It is seven-all in this Committee, and I gather that there may be other people interested in this debate who are not currently present. However, I will not disturb the hon. Member for Tooting and require him to go outside, because that would lead to a further delay of our proceedings. However, it is important that, as a matter of constitutional propriety, we are careful about what powers we give a Secretary of State.

This is the place where the Executive should be held to account. It may be said that this is a convenient and well used procedure to amend the detail of legislation, but just because it has been done before does not mean that it is right to do it again. I think that, from time to time, Committees of this House and the House itself should just check the Government, because Governments, if they are not careful, take power because they find it convenient to do so. The Government are not here for the convenience of anybody apart from the electorate of this country, as represented by us.

I beg to ask leave to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

This is a minor point that I would just like to ask the Minister about; it is such a minor point that I did not think that it was worth an amendment. It is just a minor anxiety on my part. Subsection (1)(b) says that the responsible officer, in respect of an attendance centre, is

“the officer in charge of the attendance centre in question”.

Given that the responsible officer has a particular relationship to the offender, it may not always be the case that the person who is nominally in charge of the attendance centre is the person who has that relationship in care to the offender in question. I just wonder whether that wording raises any possibility of causing difficulties or confusion. If it does not, my anxiety is allayed.

David Hanson (Labour, Delyn)

I am advised that it will not cause problems, in that the officer in charge will maintain responsibility. I understand the point that the hon. Gentleman makes, but I hope that I can assure him that there will not be a problem.

Clause 5

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 5, in clause 5, page 3, line 45, after ‘offender’s’, insert ‘, or his immediate family’s,’.

The amendment relates to the wording in subsection (3), which states:

“In giving instructions in pursuance of a youth rehabilitation order relating to an offender, the responsible officer must ensure, as far as practicable, that any instruction is such as to avoid...any conflict with the offender’s religious beliefs”.

It seems to me that when an young offender’s religious beliefs are placed in a position of conflict as a result of the making of the order, it will, or it could, impact equally on his family. Under the Bill as drafted, the court may well say that the offender’s religious beliefs are incorporated in his wider family’s beliefs in any event, but I think that the court ought to be careful to inquire about the nature of the family structure of the individual offender. If the offender is 13, 14 or 15, the court should consider whether they cannot go to an attendance centre on a Friday evening, a Sunday morning or at some other time. If the offender is a minor, as he surely will be, the ability of the family to co-operate with the court and to ensure compliance with the order is something that we ought to consider. That is the simple point, and I hope that the Minister can address it.

David Heath (Liberal Democrat, Somerton and Frome)

I support the hon. and learned Gentleman’s contention. It has some force in the case of the youngest offenders—those under 16—as it would seem entirely appropriate to take into consideration the family’s religious beliefs. We ought to assume that young persons aged over 16 have formed their own religious beliefs and are capable of answering the question properly themselves, but it is not unreasonable for an inquiry to be made about the family’s religious background in the case of younger offenders. I hope that the Minister will be sympathetic to that view.

David Hanson (Labour, Delyn)

I want to make two points in discussion with the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome. First, the responsible officer’s first duty is to the young person. As the hon. and learned Gentleman has pointed out, under subsection (3)(a), potential conflicts with an offender’s religious beliefs should be discussed as part of the consideration of such matters.

The amendment states “family”. It is possible for a family—however that is defined—to have different religious beliefs within it. It is quite possible for Catholic to marry Protestant, for Jew to marry Catholic and for Muslim to marry Church of England, and it is also possible to have different emphases within that. That might be confusing to the individual. The individual who is before the responsible officer may have strong religious beliefs, and they will be taken into account. We must avoid the potential for confusion.

The hon. and learned Gentleman’s amendment refers to the family, but I do not have a definition of what the family means in that context—

Edward Garnier (Conservative, Harborough)

It says “immediate family”.

David Hanson (Labour, Delyn)

I am still not sure what that means. I am making two points. The first is about the definition of family and the second is about the fact that a family may have different religious beliefs within it, and that the duty of the responsible officer is to the young person. I do not believe that it is practical to extend clause 5 to include the religious beliefs of the offender’s family. The point that I would also make—I referred to this earlier—is that when sentencing, the court has to take into account the young person’s family circumstances before it makes a youth rehabilitation order. In practice, that means that a youth offending team would have to make an examination of the offender’s family and some of the consequences and details that might impact upon the offender and sentence in that regard. If, as the hon. and learned Gentleman suggests, we impose a mandatory requirement in the legislation, it would cause some difficulties. The approach in the Bill is also consistent with similar provisions in section 217 of the Criminal Justice Act 2003 relating to the adult community order. I hope that those points have some resonance with the hon. and learned Gentleman.

Charles Walker (Conservative, Broxbourne)

Will the Minister give some examples in which the offender’s religious beliefs would need to be taken into account? What sort of circumstances would come into play?

David Hanson (Labour, Delyn)

Let me give one example. The individual might have to work on a religious holiday. It might be a religious holiday for one individual but not for another. That is one example of how that could work in practice. I do not think that the amendment is workable because there could be different religious beliefs in the family. It is also possible in these sad and troubled times that there could be divorce and separation within the immediate family. There could be conflicting requirements within the religious beliefs of the family in that circumstance. I accept that the hon. and learned Gentleman may not find such arguments helpful, but I am proposing—as I hope I have done with my remarks—that the interests of the young person are central, and that the assessment will be made around those interests and the family circumstances. In doing so, that requirement will be brought forward, but not in a mandatory legislative capacity.

Charles Walker (Conservative, Broxbourne)

Am I right in assuming that the court will determine whether these religious beliefs are genuine? It would be quite easy for someone to say, “I don’t do Sundays because I am a Christian,” when, in actual fact, they have never been seen in church and never worshipped before. It is just a good get-out clause.

David Hanson (Labour, Delyn)

The assessment has to be that the requirements are reasonable. The Bill states:

“In giving instructions in pursuance of a youth rehabilitation order relating to an offender, the responsible officer must ensure, as far as practicable, that any instruction is such as to avoid—

(a) any conflict with the offender’s religious beliefs,”

For example, if the offender is an orthodox Jew and the rehabilitation order says that community work should be undertaken on Friday, that might be in conflict with the offender’s religious beliefs. That may be something that the court wants to take into account. We want to build the order around its deliverability to ensure that the offender’s beliefs are taken into account. If we extend the measure to the wider family, we could have a circumstance in which the offender might be an orthodox Jew who has lapsed, but the parents may be orthodox Jews who wish to see their religious beliefs taken into account. There are discussions that we can have around that, but the key thing is that the duty of the responsible officer is to the young person. We are trying to avoid conflict with religious beliefs but not, as the hon. and learned Member for Harborough has put it, to extend that to the wider family.

Edward Garnier (Conservative, Harborough)

The Minister’s responses were brave. The suggestions that the measure would cause problems with families of mixed religion and that the Minister does not really understand what the words “immediate family” mean are bordering on desperate. Anyhow, I shall take the Minister at his word and assume that when the Bill becomes law the words

“any conflict with the offender’s religious beliefs”

will require a court to take into account the religious circumstances surrounding the individual presented before it.

The Minister mentioned a lapsed orthodox Jew whose parents none the less were still observing orthodox Jews. I do not want to get too silly about this. Let us assume that this lapsed orthodox Jew under the age of 16 was not worried about working on the Sabbath, but his parents could not physically take him in their car to the place where he had to work on that day. We need to think about such a practical problem. Whether we think about it via the vehicle of subsection 3(a) as currently drafted or, as I have suggested, through inserting “or his immediate family’s”, I do not much mind, so long as somebody thinks about it.

On that basis, and given that I do not want to spend too much time on the Minister’s response, I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 6, in clause 5, page 4, line 5, leave out subsection (4).

The arguments behind the amendment, which would delete subsection (4), are exactly the same as those I made in relation to amendments Nos. 3 and 4 to clause 4. I have no doubt that the Minister’s answer will be exactly the same as well.

Nicholas Winterton (Conservative, Macclesfield)

We will have to wait and see.

David Hanson (Labour, Delyn)

In the spirit of co-operation and speed, may I refer the hon. Gentleman to the reply that I gave some moments earlier?

Edward Garnier (Conservative, Harborough)

I refer the Minister to the request that I made to him in relation to amendment No. 3, which was that I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 7, in clause 5, page 4, line 8, at end insert ‘written’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following amendments: No. 8, in clause 5, page 4, line 11, after ‘officer’, insert ‘in writing’.

No. 173, in clause 5, page 4, line 11, at end insert ‘within a reasonable period of time’.

No. 15, in clause 5, page 4, line 11, at end insert—

‘(5A) Any instructions given in accordance with subsection (5)(a) must be recorded in the offender’s probation records.

(5B) A copy of instructions recorded in accordance with subsection (5A) shall be provided to the offender on request.’.

Edward Garnier (Conservative, Harborough)

In amendments Nos. 7 and 8, I seek to add a requirement that the instructions should be given to the offender in writing. I made this point a moment ago. The Minister has indicated that the normal practice is that such instructions should be given in writing. I am not one for over-legislating but, if it helps, let us stick it in. If we can be assured that written instructions are given, we need not bother.

Under amendment No. 15, which is of greater substance, first, I wish to ensure that

“Any instructions given in accordance with subsection (5)(a) must be recorded in the offender’s probation records.”

Secondly, a copy of the instructions should

“be provided to the offender on request.”

I am not trying to over-bureacratise the system and add more paperwork to it, hence my suggestion that a copy of the instructions should only be given to the offender if he asks for it. If we are to have end-to-end management of offenders, which was the philosophy behind the setting up of the National Offender Management Service and which was touched upon during our discussions on the Offender Management Act 2007, it is important that we have an audit trail. In that way, a supervisor—whether from within the national probation service or from one of the commercial or third sector organisations that will be involved following the passing of the 2007 Act—should be able to see the records and say, “This is what he has been asked to do; this is what he has not done.” We need an audit trail of breaches and so forth—a trail of instructions and of the offender’s behaviour.

Too often, as we know from the current state of the prison estate, records do not follow prisoners, and there is a tremendous amount of churning of prisoners from one prison to another. Those on remand in prison can be taken to court in the morning, with no guarantee of being returned to the same prison. Nor is there any guarantee that the records attached to that person will follow—and if they do follow they are frequently late, which means that medical and other forms of rehabilitation are that much more difficult to achieve. That results in a waste of money, because the people looking after the prisoners have to start all over again.

That is the broad point that I want to ensure is catered for by amendment No. 15.

David Howarth (Liberal Democrat, Cambridge)

I shall speak briefly to amendment No. 173. It seeks to add to the requirement in subsection (5)(b), that the offender

“must notify the responsible officer of any change of address”,

the rider that it should happen

“within a reasonable period of time”.

The underlying problem has to do with the chaotic lives of many young offenders. I am sure that many hon. Members have come across such problems in their advice surgeries. Those young persons who are subject to the criminal justice system will not always have a particularly clear address—they might live with one parent for some parts of the week and the other parent for the remainder of the week, or move between hostels and other sorts of accommodation.

Our concern is that because the clause is enforceable under subsection (6) as if it were part of the order, and therefore subject to all the enforcement procedures of clause 2, it may become a sort of “gotcha” clause for a particular group of young people. Because of the way that they live their lives, it is a provision that they are almost bound to violate. For example, requirements can be imposed under antisocial behaviour orders that the defendant cannot but violate, which will trigger enforcement. I would not want the clause to have a similar characteristic for a particular group of offenders.

David Hanson (Labour, Delyn)

I shall deal first with amendments Nos. 7, 8 and 15. I hope to reassure the hon. and learned Member for Harborough that his desire for matters to be placed in writing is already covered by the guidance issued to the Youth Justice Board on the national standards. They already require a responsible officer to produce an agreement with the offender, in writing and signed. It will include a number of conditions, such as the criteria for acceptable or unacceptable absence, the right to be treated fairly and with respect, and the requirement to behave acceptably and to have adequate and proper timekeeping. The Youth Justice Board national standards cover the point raised by the right hon. and learned Gentleman, and I hope that he will withdraw the amendment.

As for notification by an offender of a change of address, the priority must be the immediacy of the notification. In my view, it is essential that the responsible officer knows as soon possible of any change of address. That is best done by telephone or text message. Placing a requirement to notify the change of address in writing would also potentially be difficult for young people who have literacy problems.

The hon. and learned Gentleman also tabled an amendment that would require instructions to be recorded in offenders’ records and would require those records to be disclosed upon request. Youth offending teams and other responsible authorities already routinely keep records pertaining to young people, not least because they need to be produced by the court. If the hon. and learned Gentleman wishes that young people should be able to see their records, that could be dealt with quite properly under current data protection procedures and does not need to be reiterated in the Bill.

The hon. Member for Cambridge spoke to amendment No. 173, which is a reasonable amendment. Although I wholly endorse the sentiments expressed in the amendment, if the hon. Gentleman refers to subsection (5)(b) he will see that there is a requirement for the responsible officer to be notified of any change of address by the young person. As he mentioned, if such notification were not provided, that would be a prima facie case for a breach of order. I wish to see speedy notification of changes of address, but if we set out a time scale in the Bill it may lead to the consequences that the hon. Gentleman has mentioned. I would like to allow the responsible officer to have discretion. They will have to set out for the young person the obligations contained in the clause and make it clear that notification of any change of address is a key part of the order that could lead to a breach. Any instruction given must be carried out as quickly as is practicable by the young person, but I am not persuaded that putting a time scale in the Bill will assist the process.

David Howarth (Liberal Democrat, Cambridge)

I am glad that the Minister understands the underlying problem. There needs to be some indication, by using a word such as “reasonable” or “practicable”, which were used by the Minister, that the notification requirement should not be enforced in a rigid way. That indication does not have to be in the Bill, but it could be; I presume that there will be some guidance for that enforcement at some point and perhaps it should go in there. However, either through the Minister’s remarks today or through a change to the Bill, the Government’s precise intention should be made clear. I take the hon. Gentleman’s point about strict timetables.

David Hanson (Labour, Delyn)

As ever, I am happy to reflect on these matters. However, the Bill has been framed to make it clear to the responsible officer—and I hope, through the responsible officer talking to the offender—that the offender has a clear duty to provide notification of a change of address. Obviously, it is a duty that, if delayed for several weeks or months, would be a clear breach of the order and would require action to be taken, which would create difficulties for the offender. Putting a time scale in the Bill might militate against the flexibility that the hon. Gentleman wishes to see. At the same time, the Bill must put a duty on the offender and the responsible officer to take account of the need to have an up-to-date address for the offender.

David Howarth (Liberal Democrat, Cambridge)

The Minister and I do not disagree about this very much, but surely the real point is that if the responsible officer’s lack of knowledge of the address interferes with the requirements of the order, there ought to be enforcement. Enforcement should be concerned with the purpose of knowing the address, not just the mere technical fact of a change of address. If it were written into guidance that officers should bear in mind the purpose of the provision, rather than just the technicalities of it, that would deal with the point.

David Hanson (Labour, Delyn)

The hon. Gentleman and I are more or less in agreement that it is important that the responsible officer knows where the offender lives and has a record of that, and is informed straight away if there are any changes to that address. The hon. Gentleman suggested that we insert a time scale. We note that issue as a potential breach, but we have that common-sense discretion whereby if a long period of time were involved, the judgment could be made accordingly.

Sally Keeble (Labour, Northampton North)

May I urge caution the other way? I am thinking of a pregnant girl of only 15 who moved house at extremely short notice and nobody knew about it, including her midwife. There is a real need to ensure that young people understand that they must tell people where they are living.

David Hanson (Labour, Delyn)

I accept that. The Committee is as one on the need to have up-to-date addresses because communication is important; the responsible officer needs to know where the offender is. That is a clear duty; there will be a breach of the order under subsection (5)(b) in the event of a change of address not being notified. There should be discretion to ensure that the circumstances are managed, and to decide within the guidance, and with knowledge of the offender, whether a breach has occurred. That is important because I can think of circumstances in my constituency in which individuals have had to move at short notice because of domestic violence, drug abuse at home or other circumstances that are sometimes beyond their control.

Under the Bill, the offender is obliged to notify the responsible officer of any change of address and, self-evidently, that means within a reasonable time. The amount of time can be judged by the responsible officer based on circumstances, as my hon. Friend the Member for Northampton, North indicated, or on guidance and advice given at the time.

In the light of those helpful comments, I hope that the hon. and learned Member for Harborough will withdraw the amendment, useful though it has been to have the exchange, and that other hon. Members will not press their amendments to a vote.

Edward Garnier (Conservative, Harborough)

I heard what the Minister had to say and I listened with interest to the hon. Member for Cambridge. I will not ask the Committee to express an opinion about my argument, or even the Minister’s; at present, it is sufficient for me to have placed my concerns before the Committee and for the Minister to have considered them. Perhaps he will also consider them on another occasion. I beg to ask leave to withdraw the amendment.

Clause 6

David Burrowes (Conservative, Enfield, Southgate)

I have a few brief but, I hope, appropriate comments. My hon. and learned Friend the Member for Harborough has already made a plea about the implementation dates. The youth court is perhaps a victim of the criminal justice system in being subject to a sentencing regime that covers the span of many pieces of legislation and implementation dates that are dealt with in a less than logical fashion.

That allows me to refer again to the reading material from the Prison Reform Trust recommended earlier, in which the sentencers said that they were all grappling with the new legislation. They referred to the new provisions, not necessarily in temperate language, as “idiotic” and the introduction of so many complex changes as “lunatic”. They made particular reference to the piecemeal introduction of the new provisions. The plea with regard to the clause, when the logic is obviously to abolish certain youth orders and related amendments, is that the implementation of the new regime in relation to youth rehabilitation orders and associated matters should be done in a logical and comprehensive fashion. That should be made clear at a very early stage to all practitioners to ensure that, at the point of delivery, the youth court is not trying to work out what is, or is not, implemented and can deliver justice in a consistent manner.

David Hanson (Labour, Delyn)

As the Committee will recognise, clause 6 will abolish the five existing community sentences for young offenders and replace them with a generic youth rehabilitation order, which we have spent some time discussing in Committee. The question of implementation is important and I am grateful to the hon. Member for Enfield, Southgate for raising that today. Obviously, the Bill needs to pass through both Houses of Parliaments before it will receive Royal Assent. It is likely that that process will be completed by early to mid-2008 at the earliest. My perspective is that the sooner that that is done, the better, but obviously it will take some time. Given that, I do not expect that we will implement the legislation until 2009 at the earliest.

Edward Garnier (Conservative, Harborough)

Which measures will be implemented?

David Hanson (Labour, Delyn)

The order—I refer to clause 6, and the abolition of youth orders and their replacement by youth rehabilitation orders. We will need to look at the important issues of delivery and training, which I will examine during the course of the Bill and will consider when the legislation has passed both Houses of Parliament.

Schedule 4

David Hanson (Labour, Delyn)

I beg to move amendment No. 36, in schedule 4, page 131, line 22, at end insert—

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to take the following: Government amendments Nos. 37 to 46, 54 to 56 and 58 to 73

New clause 16—Accommodation in which persons aged under 18 may be detained—

‘(1) No person aged under 18 shall be detained in a young offender institution or a secure training centre unless the Secretary of State certifies that he can be detained safely.

(2) In section 107(1) of the Powers of Criminal Courts (Sentencing Act) 2000 (meaning of “youth detention accommodation”)—

(a) omit paragraphs (a) and (b); and

(b) in paragraph (c) after “by order specify” insert “but not including a secure training centre or young offender institution”.

(3) At the end of section 92(1)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 (detention under sections 90 and 91: place of detention etc.) substitute the full stop for a comma.

(4) At the end of section 92(1) insert “provided that such place is not a secure training centre or young offender institution”.

(5) Omit sections 23(7A) and (7B) of the Children and Young Persons Act 1969.

(6) Omit section 98 of the Crime and Disorder Act 1998.’.

David Hanson (Labour, Delyn)

The Government amendments in this group are minor, technical and consequential amendments that repeal legislative references that will be out of date due to the new youth rehabilitation orders. I hope that they will be acceptable to the Committee.

Government amendments Nos. 55, 56 and 73 concern the manner in which the Secretary of State makes arrangements for detention of young offenders sentenced under sections 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000. They are technical amendments relating to the youth rehabilitation orders and I commend them to the Committee. I will be happy to comment in due course on new clause 16 if it is spoken to by the hon. and learned Member for Harborough.

Nicholas Winterton (Conservative, Macclesfield)

New clause 16 is in the name of the hon. and learned Member for Harborough, but it would be appropriate first to debate the Government amendments and then for the hon. and learned Member to make considerable reference to new clause 16.

Edward Garnier (Conservative, Harborough)

I do not know whether my contribution will be considerable, but I hope that it will be a considered reference to new clause 16. I do not have a quarrel with the Government amendments; they are, as the Minister has said, necessary and partly consequential on clause 6 and, I suspect, the other changes to the way that youth offenders are dealt with in the criminal justice system. Some of the later Government amendments touch, although not directly, on what I want to say about new clause 16. Essentially, I want the Government to have a proper understanding of the need to put the right people in the right places.

I have been to Glen Parva young offenders institution, which is partly in my constituency and partly in that of my hon. Friend the Member for Blaby (Mr. Robathan). I have been to the YOI at Warren Hill and Hollesley Bay, which is near Woodbridge in Suffolk. I have been to Feltham YOI and Lancaster Farm YOI, which is in the north-west. All of those are institutions for young men. I also went to Bullwood Hall about a year ago, when it was being used as a YOI for young women.

Bullwood Hall has been re-roled at least twice since then and hit the news last week, no doubt to the Minister’s enjoyment. It was associated with HMP Canterbury because those two institutions are now used exclusively to accommodate foreign national prisoners. I will not talk about that, but I will talk about my experience of young offenders institutions. Based on that, I urge the Minister to ensure that we send the right people to the right sort of custodial institution, as I said at the outset of my remarks.

Compared with the adult prisoner estate, young offender institutions are very troubled and troubling places. That is not just because they are full of young people who are there because they have committed serious crimes—some of them very serious indeed. There is a unit within Warren Hill and Hollesley Bay where youngsters who have committed murder—some of them quite nasty murders—are held, and will be held for long periods. At Feltham, about 20 young men are serving the equivalent of life sentences, and there are other young men who have committed serious crimes in the other YOIs to which I have referred.

We are dealing with a difficult collection of people and nothing that I am about to say should be taken as a criticism of the governors, the governing staff or the prison officers who work in these difficult institutions. We need to be very careful that we do not put into institutions that are for over-18s younger teenagers of the age group that is to be brought within the youth rehabilitation order and youth custody remit. We need to be extremely careful in ensuring that there is sufficient capacity to house those under the age of 18 securely and safely in secure sites. If we get that wrong, those youngsters could be badly damaged. We could face the sort of circumstances that the hon. Member for Northampton, North spoke about in her Adjournment debate over the death of a young constituent of hers in a secure unit outside her constituency. It was a story that caused a great deal of alarm. The Minister responded to that Adjournment debate and I was on the Opposition Front Bench as he did so.

There are a whole host of issues—easy, not so easy and plain difficult—that we have to be aware of when talking about the incarceration of young people. I want the Minister’s assurance that the Ministry of Justice has the resources and the personnel to deal with the imprisonment of youngsters, has trained those personnel and has fully understood the difficult nature of the task. A number of people who have spoken about the imprisonment of young people say that we should not be sending children or young people to prison. I am not sure that I would go that far because there will be some young teenagers who commit crimes that society would expect to result in custody. However, custody, whether of young people or adults, must be humane and carried out in a way that improves the chances of their being able to return to society in a better state.

Harry Cohen (Labour, Leyton and Wanstead)

What is the hon. and learned Gentleman’s view of young people who have been incarcerated in an adult prison, even if they have committed an horrendous offence?

Edward Garnier (Conservative, Harborough)

I do not like it. The problem that we face, which is one of the Government’s own making, is that the custodial estate is full to the gunnels. I might be wrong, but I do not think that young offenders are kept in police cells or court cells overnight. There is no more room on the custodial estate. It has more than its official capacity. Last Friday, there were 81,533 adult prisoners. That is about 30 prisoners over the establishment. It might be thought that 30 is not a big number, but the Committee must bear in mind that about 20,000 adult prisoners are in cells that were designed for one person and which are now having to be shared by two or three people.

We have an accommodation problem. To deal with it, people are being put into cells or accommodation with others of a different age group. I accept fully that some people look 14, but are 20 years old, while some look 20, but are 14 years old. We must be careful that people are put in the right place.

Because of overcrowding, young offenders convicted of offences or on remand in custody in courts in the east of England, for example, are having to be taken in a sweat box hundreds of miles overnight and brought back to court the following day. On some occasions, they do not arrive at their overnight accommodation until well after 9 o’clock. When I was at Lancaster Farms, the governor and his senior colleagues said, with huge regret, that there was not much that they could do about the fact that young people were arriving in their care at almost midnight. That has an effect on the child or young person as well as on the staff who, by the time that they have gone over their shift and are waiting to go home, are not necessarily in the best frame of mind to deal with disoriented, difficult or plainly bad teenagers in need of overnight accommodation.

Sally Keeble (Labour, Northampton North)

Given that the hon. and learned Gentleman referred to very disturbed young people who have committed murder, he and my right hon. Friend the Minister might like to visit Northampton and see the model of care that is provided by St. Andrew’s for such people. It is different from the Home Office estate. The way in which it deals with those young people is stunning.

Edward Garnier (Conservative, Harborough)

I should be interested to visit St. Andrew’s. It comes under the auspices of the Department of Health, not the Ministry of Justice. When I visited Grendon Underwood, a special and marvellous institution that is run by the Ministry of Justice and the Prison Service, I asked the governor whether it was a hospital with bars or a prison with doctors. He said, “It is a prison with doctors, but I wish that it was a hospital with bars because we would get more money to do what we have to do.” I accept that we are not debating such matters this afternoon, but at some stage we, as legislators, will have to work out the best way in which to deal with disturbed people who end up in the criminal justice system. I have made my point. It is important that we not only lock up the right people for the right offences, but that we lock them up in the right place, and that people do not come to any harm once they are locked up.

Finally, on a happier note, I wish to draw the Committee’s attention to the fact that this might be the first time that Members of Parliament have tabled a new clause that would

“substitute the full stop for a comma”.

One can see it by looking at the end of subsection (3) of new clause 16. It is a matter of some considerable note.

David Howarth (Liberal Democrat, Cambridge)

If the hon. and learned Gentleman looked at the Committee that considered the Companies Bill, he would see the first instance of almost everything, even including proposed changes to punctuation.

Edward Garnier (Conservative, Harborough)

I knew that a former law don would have his finger, as it were, on every piece of punctuation on every piece of legislation that the House has dealt with over many years, but it is a matter of some personal pride that new clause 16 would amend legislation in the way to which I referred.

Nicholas Winterton (Conservative, Macclesfield)

I had spotted that particular passage.

David Heath (Liberal Democrat, Somerton and Frome)

Punctuation can make a difference to legislation, and we would do well to take care over it.

I do not wish to add anything to what the hon. and learned Member for Harborough said—his argument was extremely cogent, and I support it. I simply wish to ask the Minister a more general question about what Government amendment No. 44 will do regarding amendments to Scots law? Will it simply replace terms, or will it have a real effect on the way in which Scots courts will deal with the matter? If it will have a real effect, should there not be an amendment to clause 127 about its extent?

David Hanson (Labour, Delyn)

I thank the hon. and learned Member for Harborough for raising this issue because it gives the Committee an opportunity to consider his point. Like him, I have, in the course of my duties, had the opportunity to visit a number of youth offender institutions and secure training centres in the past few months. Indeed, in my previous role, I was responsible for the criminal justice system in Northern Ireland and for secure units and youth offender institutes. I understand the challenges of managing the young people and of working with the staff of those institutions.

My most recent visit to such an institution was to the Hindley youth offenders institute near Leigh in Greater Manchester. Difficult and challenging behaviour problems need to be addressed in those centres. I am due to visit the Oakhill secure training centre in Milton Keynes with my right hon. Friend, the Minister for Children, Young People and Families to examine some of the issues arising from the way it operates and performs, and at how we can improve it.

I agree with the hon. and learned Gentleman that we must provide a safe and productive environment for young people in those establishments. I say “safe” because it is important that we protect young people not only from self harm, but from the potential harm they might suffer from other young people in the centres. We also need to create an environment in which staff are protected and secured from potential attack. We must ensure that people in the centres have a productive regime. The whole thrust of the legislation, the Bill and Government policy is to ensure that whatever mistakes people have made, we prevent them from reoffending.

There are a number of measures in place to provide broadly for the safety of people in secure units and youth offender institutions. Under the Children Act 2004, governors and directors of young offender institutions and secure training centres are already required to have regard to the need to safeguard and promote the welfare of children in discharging their functions.

What is certainly true—the hon. and learned Gentleman mentioned this in passing—is that these establishments contain some very dangerous young people. According to our most recent figures, which are dated 22 October, 64 young people in custody are charged with murder. Those are very dangerous individuals and that requires not just a safety regime, but a productive regime to try to turn around the offending behaviour. That comes back to the points made by my hon. Friend the Member for Leyton and Wanstead. We must ensure that we have proper investment in education and skill training. Nearly every young person in that accommodation will come out into the community at some point in the future. They need a proper regime, a safe regime and one that invests in them to turn their lives around.

Sally Keeble (Labour, Northampton North)

On the point about funding for education and hospitals, St. Andrew’s hospital, for example, does not get funding for education. There needs to be some parity. Would my right hon. Friend accept that if young people are convicted of murder and sent to a psychiatric hospital, they should have access to education in the same way as they would if they were sent to a young offenders institution or a Home Office establishment?

David Hanson (Labour, Delyn)

I hope and expect that they would. I will certainly look at that matter outside the Committee to ensure that that is the case.

The whole thrust of our discussion today is the prevention of reoffending. We have young people, some very young, who need education and investment, who need to have their offending behaviour addressed and who ultimately need to come out of the young offender institution as better people than when they went into it. From my visits to such institutions, both secure training centres and young offenders institutions, I know that that work is ongoing.

The statistics still show that we are facing very difficult and challenging times in working through that. There is still a high level of reoffending by those young people when they leave secure training centres and youth offending institutions. Our purpose has to be—I agree with the hon. and learned Gentleman—to ensure that we have a safe and productive environment. I am not able to accept his new clause, but I accept some of the thrust of the arguments about having that safety and that positive regime in the centres.

The hon. and learned Member for Harborough will know, as will my hon. Friend the Member for Northampton, North, that one of the issues we have looked at recently is restraint and its use in secure training centres and other establishments. My hon. Friend has been very assiduous in pressing the concerns of her constituents. She will know, as the Committee knows, that there have been two serious inquests following the deaths of individuals in custody. We need to reflect on those issues and take them on board.

In July, I instigated a full review across the estate of the use of restraint in the young persons’ estates. With the Minister for Children, Young People and Families, I recently appointed two joint chairs to conduct the review, which is now taking evidence. I hope that the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome will submit their views to the joint review on restraint. That review will report to me by 4 April 2008. My right hon. Friend and I will be taking decisions on the use of restraint. I hope that the regime will ultimately have an effect on disturbed behaviour by young people, either through self-harm or against each other.

Sally Keeble (Labour, Northampton North)

I was going to write to my right hon. Friend about a visit that I made to St. Andrew’s, where different methods of managing young people’s behaviour are used. The whole design of the building and the regime there have a very different impact from those of the secure training centres. Although St. Andrew’s is a health establishment, in his review will he consider the methods used in such establishments as alternatives to restraint?

David Hanson (Labour, Delyn)

I will reflect on that outside the Committee and will await the letter from my hon. Friend with some interest. We have published the terms of reference of the review, and we have appointed two individuals to conduct it, both of whom are strong professionals in their field. The review will report to me. They have sent invitations this week for evidence to be presented to them. In terms of the safety issue, the use of restraint in secure training centres and other establishments is being looked at in the round, because of the challenging nature of some of the individuals.

In July, I tabled amendments on restraint issues in the other place and this place, because self-harm, harm against other individuals, and harm against staff can be prevented by restraint, but we need to look at how it is used in the context also of preventing some of the tragic events that have happened in the past.

David Heath (Liberal Democrat, Somerton and Frome)

Will the review on restraint also deal with the question of protective armaments for prison staff raised by the Prison Officers Association—the baton question?

David Hanson (Labour, Delyn)

That is not specifically part of the review’s terms of reference. At the prison officers’ request, we are considering a separate undertaking dealing the use of batons, but it is not part of the formal review, the terms of which were published in July. If hon. Members wish to consider that aspect of the safety issues in institutions, they should refer back to those terms of reference which were published, I think, on the last day before the summer recess.

Harry Cohen (Labour, Leyton and Wanstead)

I welcome the review announced by the Minister and I congratulate him on it; it is very important. One of the organisations with which I have worked in the past that is very active in this field is Inquest. May I recommend that he meets them as part of the review process, at a suitable time?

Nicholas Winterton (Conservative, Macclesfield)

I am not sure that it is entirely relevant to the debate, but it could be.

David Hanson (Labour, Delyn)

The review will provide important background information to our debates on how to improve safety. My hon. Friend has mentioned Inquest. The review is, in a sense, an arm’s length Government review. With my right hon. Friend the Minister for Children, Young People and Families, I have appointed two independent chairs. They are conducting the review independent of Government. I am sure that Inquest will submit evidence to them. When I gave evidence in another place last week, Inquest were present. I have no doubt that they will follow the process with interest and play an active role in it.

Although I cannot accept his clause, I feel that the hon. and learned Member for Harborough has made some very strong points. I take seriously the safety regime in young offender institutions and secure training centres. In my view they are, for the most part, very positive. In future, I want to tackle some of the causes of offending behaviour which have brought young people into custody in the first place with a positive education and health regime.

We have taken a number of important general measures such as the separation of under-18s from over-18s, and we are developing new high-dependency units for more vulnerable boys to help support those individuals. To give the Committee some context, there are more than 300 places in secure training centres; more than 2,500 in young offender institutions; and more than 230 in secure children’s homes. They are very cost intensive: secure training centre places cost £170,000 a year; young offender institution places cost £50,000 per year; and secure children’s home places cost £190,000 per year. I want those resources to be used effectively to prevent reoffending. It will be a failure of our system if the young people who are sentenced to and attend those institutions leave them and graduate to adult prisons. I want both security and effective rehabilitation to be part of the process.

I ask the hon. and learned Gentleman to reflect on those points. I hope that I have offered him some satisfaction, and I ask him to not to press his new clause. I urge the Committee to accept the Government amendments.

David Heath (Liberal Democrat, Somerton and Frome)

And Scotland?

David Hanson (Labour, Delyn)

I am grateful to the hon. Gentleman for reminding me about the position in Scotland. No amendments to extend the clause have been requested, as it already provides that amendments made by the Bill to existing Acts have the same extent as the Act as amended, if that makes sense. Amendment No. 44 makes no substantive change to the law, as it replaces references to the existing community order with references to the new youth rehabilitation order. I hope that that satisfies him.

Mr. Heath indicated assent.

David Hanson (Labour, Delyn)

For the sake of the Committee, if the hon. and learned Member for Harborough wishes to reflect on what I said and examine it in the cold light of day, I am happy for him to do so. I hope that that satisfies him.

Edward Garnier (Conservative, Harborough)

If it were appropriate for me within the rules of procedure of the Committee to ask your leave to withdraw the new clause, Sir Nicholas, I would do so, but it is not, so I shall not. I wish to respond briefly to the Minister.

Although we would not admit this on a party political occasion, I believe that the Minister and I have much in common in our concern about what is happening in the custodial estate. He mentioned the huge cost of young offender institutions, secure training centres and some secure children’s homes. He says that he wants to prevent failure and that failure is reoffending. Well, we are already failing. The reoffending rate for people under 21 is about 75 per cent., and some studies suggest that it is over 80 per cent. We are already failing, so that huge investment per young person that the Minister spoke about is already wasted money. We are not seeing a dividend.

Prisons, young offender institutions, secure training centres and other places where children are kept in custody are part of a secret world, about which we do not know enough. I hope that this short debate has acted as a window through which we as parliamentarians can look into the secure estate. It is unfortunate that this occasion did not provide a window through which those inside can look out to a world that is prepared to welcome them back as long as they are reformed, rehabilitated and prepared to live useful lives. It is essential that somehow or other we create those metaphorical windows so that we can get better value for money and far better outputs, to use a rather nasty word, from the criminal justice system.

At present, we are wasting money and lives, and, in some respects, destroying lives. I want all of that stopped. I want our streets and communities to be safer, and the reoffending rate to come down sufficiently. We will never get down to the ideal of zero, but the rate is far too high at present, and we seriously need to do something about it.

I would be interested to learn more about the joint review. I had not heard of it. That may be my fault, but I would be pleased if the Minister sent me details about it or let me know if it is on some Ministry of Justice website. I shall not detain the Committee further. I hope that the proposals will shunt things on a bit in a sensible way.

Nicholas Winterton (Conservative, Macclesfield)

With the will and the permission of the Committee, I would seek to put Government amendments Nos. 37 to 48 together. They are not controversial, and therefore I hope that the Committee will be happy with that—[ Interruption. ] May I say to the Government Whip that there are other Government amendments that have been discussed—or not, as they case may be—as part of the group that we have just debated? They will be taken in due course, and I will ask the Minister to move them formally when we come to them.

Clause 7

Clause 8

David Heath (Liberal Democrat, Somerton and Frome)

I shall be brief. Years of experience have led me to form the view that, if I wish to disconcert Ministers in charge of criminal justice Bills, I should ask them either about courts martial, Northern Ireland or British overseas territories. Northern Ireland simply will not work in this respect, because two of the Ministers know far more about it than I do, and courts martial have been covered, but I have never before considered the possibilities of asking about the Isles of Scilly, which form part of the English and Welsh jurisdiction.

I assume that the rest of the Bill applies, unamended, to the Isles of Scilly and that the clause refers only to part 1. However, I am keen to ensure that the orders, which it appears now can be evaded by going to Thurso, cannot also be evaded by going to Tresco, because that may be a temptation to young hooligans in Penzance and Newlyn, for whom that would not be a huge journey. Can I just be assured that the principal objectives of the rehabilitation orders will take effect in the Isles of Scilly and that the Minister’s intention in including a power to exempt by order is not to remove any significant part of the orders that we have debated?

David Hanson (Labour, Delyn)

As ever, I am grateful to the hon. Gentleman. I hope that, as he said, I cannot be caught out by him on Northern Ireland. Having had two years there as Minister of State, I feel as though I can answer any questions relating to Northern Ireland. In relation to our discussion earlier about Scotland, I have already indicated that I will write to him to clarify that point and, although I feel that it is covered, I will reflect on what he said.

I know little about the Isles of Scilly except that the former Prime Minister, Harold Wilson, used to holiday there. [Interruption.] And apparently he is buried there. Apart from that, I cannot string a sentence together on the Isles of Scilly. However, I can tell the hon. Gentleman that the youth rehabilitation order will have effect in the Isles of Scilly, with such exceptions and adaptations as the Secretary of State may specify. Unlike areas of England and Wales, the Isles of Scilly are not a county or a district council, so the Secretary of State may need to make some adaptations by order in order to reflect the curious nature of the jurisdiction of the Isles of Scilly. It will not alter the fact that the youth rehabilitation order will have effect in the Isles of Scilly and will, I hope, prevent reoffending by whatever Isles of Scilly residents are called these days.

David Heath (Liberal Democrat, Somerton and Frome)

Nor is the common council of the City of London, and there was no problem in inserting that into clause 7’s definition of a local authority. That is normally what is done with the Isles of Scilly, and I wondered why we need a separate order. I need not extend the debate further though.

Clause 9

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 135, in clause 9, page 6, line 25, leave out subsection (1) and insert—

‘(1) After section 142 of the Criminal Justice Act 2003 (c. 44) insert—

“142A Purposes etc. of sentencing: offenders aged under 18

(1) This section applies where a court is dealing with an offender aged under 18 in respect of an offence.

(2) The court must have regard primarily to the welfare and well-being of the offender, in accordance with its duties under section 44 of the Children and Young Persons Act 1933.

(3) The court must ensure a proportionate response to offending behaviour.

(4) The court must also—

(a) have regard to the purposes of sentencing mentioned in subsection (5), in so far as it is not required to do so by subsection (2), and

(b) in accordance with section 37 of the Crime and Disorder Act 1998, have regard to the principal aim of the youth justice system, namely to prevent offending (including re-offending) by children and young persons.

(5) The purposes of sentencing are—

(a) the reform and rehabilitation of offenders,

(b) the protection of the public, and

(c) the making of reparation by offenders to persons affected by their offences.

(6) This section does not apply—

(a) to an offence the sentence for which is fixed by law,

(b) in relation to the making of a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction under Part 3 of the Mental Health Act 1983.

(7) In respect of a proportionate response, as stated in subsection (3), this shall be considered to mean a variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care, in a manner proportionate both to their circumstances and the offence.’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: Amendment No. 193, in clause 9, page 6, line 26, leave out ‘18’ and insert ‘19’.

Amendment No. 194, in clause 9, page 6, line 28, leave out ‘18’ and insert ‘19’.

Amendment No. 195, in clause 9, page 6, line 31, leave out ‘18’ and insert ‘19’.

Amendment No. 9, in clause 9, page 7, line 1, after ‘of’, insert ‘financial compensation or other appropriate’.

Amendment No. 196, in clause 9, page 7, line 18, leave out ‘18’ and insert ‘19’.

Amendment No. 136, in clause 9, page 7, line 20, leave out subsections (3) and (4).

Amendment No. 197, in clause 9, page 7, line 25, leave out ‘18’ and insert ‘19’.

Amendment No. 198, in clause 9, page 7, line 34, leave out ‘18’ and insert ‘19’.

Clause stand part.

New clause 13—Principal aim of the youth justice system—

‘(1) Section 37 of the Crime and Disorder Act 1998 (c.37) (aim of the youth justice system) is amended as follows.

(2) In subsection (1), after “preventing offending” insert “(including re-offending)”.

(3) At end insert—

“(3) Subsection (2) above is subject to section 142A(2) of the Criminal Justice Act 2003 (which requires a court to have a regard primarily to the welfare and well-being of offenders aged under 18 in accordance with its duties under section 44 of the Children and Young Persons Act 1933).”.’.

New clause 14—Courts to have regard to the welfare and well-being of offenders under 18—

‘(1) Section 44 of the Children and Young Persons Act 1933 (principles to be observed by all courts in dealing with children and young persons: general considerations) is amended as follows.

(2) In subsection (1) after “shall have regard to the welfare”, insert “and well-being”.

(3) After subsection (1) insert—

“(1A) In complying with their duties under subsection (1), courts shall have regard in particular to the following matters—

(a) in respect of welfare, the matters set out in section 1(3) of the Children Act 1989; and

(b) in respect of well-being, the matters set out in section 10(2) of the Children Act 2004.”’.

David Heath (Liberal Democrat, Somerton and Frome)

It is rather rare that one is almost formally invited by the Attorney-General to table an amendment in Committee, but in this instance we can properly say that we were. Similar amendments with the same objective as those in this group were proposed on 3 July in the House of Lords to clause 33 of the Bill that became the Offender Management Act 2007 by my noble friends Lord Wallace of Saltaire and Baroness Linklater. They were well supported, and received support from Baroness Anelay of St. Johns, Lord Ramsbotham, Lord Judd and Baroness Howe of Idlicote. In response, the Attorney-General, Baroness Scotland, said:

“The distinction between welfare and well-being is an interesting, important and rather subtle one. The House will have extensive opportunities to reflect on it during consideration of Clause 9 of the Criminal Justice and Immigration Bill, to which the noble Baroness, Lady Anelay, referred, which was recently introduced in another place. I agree with her that that is probably the better place for these issues to be more fully debated.”—[Official Report, House of Lords, 3 July 2007; Vol. 693, c. 999.]

That is very much an invitation from a Minister to table these amendments, which is something that I have not enjoyed before. The Minister may care to have words with the Attorney-General later.

The amendments relate to sentencing, which is a serious purpose to which we could devote a considerable amount of time. I do not propose to do so, because we can simply state the objectives of this group of amendments. Essentially, they would introduce into the principles of sentencing in the criminal court some of the underlying principles that apply in the family court in terms of the welfare of the child and its paramountcy.

As the Minister will know, the Children Act 1989 requires that the principle should apply to all children involved in family court proceedings, and that there is a welfare checklist that the court is required to consider when taking forward any proceedings involving a child. The proposition before us this afternoon is that a similar welfare checklist ought to apply when dealing with the rehabilitation orders, which have at their core the idea that one treats the individual as a whole. The circumstances that might promote criminality and offending behaviour in that child, and all those influences that are pooled together by those agencies that have dealings with the young offender and that are invited to give their views and advice to the court, ought to be taken into account during the sentencing procedure.

The Children Act 2004 framework document—the five outcomes document— examines the factors that ought to be taken into account when considering whether a relevant authority or institution has improved a child’s well-being. Some of those factors are entirely relevant to the actions of a court when considering the disposals available to it in dealing with a young offender. There are particular factors that are relevant to the points made earlier by the hon. Members for Northampton, North and for Leyton and Wanstead and by the hon. and learned Member for Harborough.

What are the provisions available, in the context of sentencing procedure, to deal with education, for instance? Is there a special needs requirement that is not currently being met? What are the welfare implications? Is the child a child in need, as identified under section 17 of the Children Act 1989? Those are material issues, as are mental health assessment, consideration of housing and living conditions, and consideration of physical health. All these factors, if they are taken in the round, provide the substance that ought to underlay the principles of sentencing.

What is being proposed is to draw together the various strands of Government policy in this area. The Government have been very clear in stating their intentions in respect of how best to deal with children who suffer various disadvantages and to ensure that they have access to the type of support that they need. All those factors are relevant to a person who has found themselves in trouble with the courts, where there are underlying issues that go beyond the offending behaviour, which must properly be brought into account when considering the measures contained in the Bill. By extending the principles of sentencing to encompass those factors, I believe that the courts would take an even wider view than they currently do of their responsibilities to the child as well as to society, in trying to protect society against the offending behaviour, in dealing properly with the prospects of recidivism and in ensuring that there is less prospect of reoffending.

Without extending the debate—I think that my intentions are very clear already, and I have no doubt that other Members will support my views—I believe that the amendments would reconcile the provisions of this Bill with the Children Act 2004 and other legislation. They would reconcile the systems that are already in place in the family court to those in the criminal court, which would produce more integration in what we do with these young people to ensure that they have access to the support that they need.

Harry Cohen (Labour, Leyton and Wanstead)

In this cluster of amendments—Nos. 193 to 198—are amendments that I tabled, which would all do the same thing, which is alter the age below which the youth justice system is involved from 18 to 19. That arises very much from the evidence that we were given in our fourth sitting by Les Lawrence of the Local Government Association. He said:

“My final point—and it is a strange conundrum—is that the Children Act 2004 created the concept of a child or young person as being from 0 to 19. In the youth justice system, the cut off is at 18.”

He goes on to say that

“as far as the responsibility of a local authority under the Children Act goes, that person should be supported until the age of 19.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 144, Q290.]

Mr. Lawrence was referring to the gap of a year. My amendment aims to put some coherence into the system. I would not mind if the local authorities were to start at 18, but it is probably better that the youth justice system includes those aged 18 and finishes at 19, so that there is not that gap. I have tabled these probing amendments to get the Minister’s opinion on that and to hear what he thinks about the gap that was identified by Mr. Lawrence.

While we are talking about ages, I will take the opportunity to discuss a matter that is not specifically about 18 to 19-year-olds, but still relevant. On Second Reading, I quoted from the newsletter from the youth offending teams’ managers at their annual general meeting. It states:

“It is crucial that there is a distinct and separate youth criminal justice system, where 17-year olds are afforded the same rights as 16-year olds on arrest and within the court system. This would mean access to an appropriate adult at the police station as well as the remand criteria equating to that of 16-year olds.”

They go on to say that the review of Police and Criminal Evidence Act 1984 and this Bill are opportunities to forward that ambition. Clearly, there is a gap from 16 to 17-year-olds that needs to be addressed as well. At least the local authorities and the youth justice system recognise that the matter in respect of 17 and 18-year-olds needs to be addressed. My amendment aims to get some coherence into the system and address that gap.

I will say a few words about the amendment and the new clause tabled by the hon. Member for Somerton and Frome. I will not make a big speech now, but in the initial stages, I said that I felt that the welfare and development of the child have to have a more paramount position in the criminal justice system. I hold that as my view and that is very much what his amendments are about. I like the look of his amendments in lots of ways and will be interested to hear what the Minister has to say.

While I accept that there needs to be some blurring in legislation, we also need some clarity. We should be clear in our own mind of the three elements that we want in the system. First, we need punishment and retribution, but the truth is that the UN conventions on the rights of the child and others and Government legislation do not talk about punishment and retribution. They may be a factor in the criminal justice system, and if they are, we need to be honest and say that they are necessary for horrendous crimes, but we need to set out their limitations. The system should not be solely about punishment and retribution. That is why I think that we need some clarity, including in the legislation.

The other element is the welfare and well-being of the child, and that is in all the documents that we have signed up to, including the convention on the rights of the child. The reason that we have come so far down that chart on looking after children has a lot to do with how we treat child offenders. We have not given that element the priority that it should have had. We must revisit that point and be clear that whatever happens on the other factors, the welfare and well-being of the child will always be present in how we expect children to be dealt with. That point is very important.

Thirdly, my right hon. Friend the Member for Cardiff, South and Penarth, a former Home Office Minister, made the point on Tuesday that, since it has been in power, Labour has seen the prevention of reoffending as a priority. That is the other factor that is involved in this issue. Often, those elements can work together. For instance, the welfare of the child, in terms of education and the development of skills for when they come out of custody, can work towards the prevention of reoffending.

We need to be clear in our minds about the three factors: punishment, preventing reoffending, and welfare and well-being. We must be clear about what priority we give them, how we spell that out in the legislation and how we expect it to be implemented. I come back to the point that the amendments are about the welfare and well-being of the child. That must always be present in conjunction with the other two factors. We must say to administrators and judges that the welfare and well-being of the child is an important factor, which we expect them to take account of.

Sally Keeble (Labour, Northampton North)

I am pleased to take part in this debate because it gets to the heart of what the youth criminal justice system is all about. Personally, I oppose the amendment, although I have enormous sympathy will all the sentiments that gave rise to it. I agree completely with the approach of many of the outside organisations that have promoted this measure, but I do not agree with the amendment. I thought that it might be helpful to set out why that is.

The state obviously has to think about a number of issues. One is the protection of the wider public, which is what the criminal justice system is all about, to a great extent. There are also issues about the welfare of the child, which is also the state’s responsibility. That is the responsibility of different Departments under different bits of legislation; for instance, the Department for Children, Schools and Families is involved. The amendments confuse or give the wrong priority to some of the roles and responsibilities. However much we do not like what has happened to these children in their lives and however much we might sympathise, once they are in front of the court, being sentenced, they have stepped over the boundary.

The job of the courts must be to deal with the crime, as well as to deal with the young offender. The sequencing for that in the legislation seems to be the right way round. When the courts come to sentencing, they have to deal with the offending behaviour, and in the process of dealing with that, must look at the welfare of the child.

We have discussed the enormous sympathy with which the young people must be treated in different instances, for example, with regard to the religious views of the family. Those things are absolutely right. However, once the child is in the criminal justice system, it is right that the offending behaviour has to be the first concern. Part of this issue is about sequencing. In other areas of our legislation, courts and others have to sequence different roles and responsibilities of the state in making their decisions. The hon. Member for Somerton and Frome mentioned the family courts, but they are different. I am not involved in the legal profession, but I understand that, in many instances, in the family courts, the welfare of the child is protected against the war that goes on between the parents. It is absolutely right to say that the paramount concern in all this must be the welfare of the child, not the right to access of either parent.

I am much more familiar with housing legislation, where the importance is placed on the local authority’s ability to allocate housing, rather than a child’s need for a home. A family can be made homeless despite the fact that people will say that the child has a right to a home and the welfare of the child has to be considered. The issue is therefore one of sequencing and of what comes first, whether that concerns how the parents became homeless or the need of the child for a house. These are difficult issues, and there are competing rights and responsibilities. However, different priorities have to be set in different areas, and it is right that the priorities and sequence with which the courts should consider the different factors are set down in the legislation.

Underlying a lot of this, as the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough commented, are qualms about what actually happens to young people in the criminal justice system. I not only share their concerns, but probably take a more oppositionist stance than either of them, because I have profound concerns about how some young people are treated and think that wholesale changes are needed. Those failings are failings of administration, procedure and systems and are not so much the result of the legislation.

For example, there were profound failings in the work of the Home Office monitor in the case of Gareth Myatt, the case that I am most aware of. The Home Office monitor said that he found it very hard to challenge the decisions that were taken by the management of the secure training centre. What is the point of having a Home Office monitor if they cannot challenge the decisions that are being taken? That, at least, is supposed to be one of their functions. There are supposed to be reports on each incident of restraint. I find it hard to believe that all those reports were done—if they were, there might be between 3,000 and 4,000 reports every year, which I defy anyone to deal with.

I have much more profound concerns about the whole regime of restraint, which is horrific and under-reported with regard to injuries. I know a young man, a constituent, who was repeatedly subjected to the nose distraction technique in one of the secure training centres. He only went to hospital when he went to the next institution because of the damage that had been done to his nose. That is an ongoing case that I have just written to the Department about. There are major issues that are not the result of the welfare considerations taken at sentencing, but concern the failures of the system once the young people get into the institutions.

The level of scrutiny that applies to the approval of restraint regimes is also partly our job. It is in our own gift, as a Parliament, to take the Government to task over the statutory instruments that provide for the current system of restraint. The Liberal Democrats, in fact, were responsible for getting the debate in another place. The Government could have been overturned on that, but were not. One could say that that was partly a failure of parliamentary scrutiny. There are issues about how all the restraint techniques were put together and approved. The amendment tabled by the hon. Member for Somerton and Frome would not change one whit of that.

When we talk about how we will make things better for these young people and deal with the appalling record of recidivism, we also need to consider carefully what happens in some of these institutions. The Government and others who support them say in their defence that the children and young people are well looked after and that their welfare is being protected, just as the hon. Gentleman would want.

I have not been to as many secure training centres or seen as many institutions as some Opposition members of the Committee, but a young person came with me when I went to Rainsbrook and, interestingly, her response was very different from mine. The young people in Rainsbrook looked better than they did outside. I met one of my constituents there and, knowing where that young man came from, I am not surprised that he looked better because it was probably the first time in his life that he had had three meals a day and got to bed on time. However, what he learnt about behaviour in an institution where restraint was used with the frequency that it was in Rainsbrook was probably negative. He would have learnt that ultimately the sanction is force, which he probably knew before he went in and on which basis he would continue to operate after he left. We need to do some profound thinking about the regimes, but the amendment will not alter that.

To make the provisions of the amendment a primary concern in the criminal justice system would be to let the social welfare system off the hook completely and the prime responsibility for the tragedy of these young people’s lives is that intervention is much too late. It should happen much earlier. All of us know that most of the young people who end up in these institutions are a slow-motion disaster that we can all see coming, as we have all tracked them through the system. For example, a young girl at a special needs school was picked up for shoplifting, kept in a police station overnight and progressed from one thing to another until she ended up in Holloway. I have a sneaking suspicion that if there had been a more substantial, thought-through, considered intervention very much earlier, that disaster might not have happened. There are hundreds of kids like that.

Let us get the child services in place to intervene early on, quite toughly if needs be. Once children have committed crimes and go to court, it is right to reassure wider society that the offending behaviour will be the courts’ prime concern, but we must look after the welfare of the child. I hope that my right hon. Friend the Minister will not now jump up and say he will accept the wording in the amendment.

I think that the general public understand that the lives of most of these kids are a disaster and a tragedy and they would not want them to be treated badly. I had nothing but supportive comments from my constituents after I dealt with the Gareth Myatt case, as they understood that what had happened to that young person was wrong. Equally, they would want the kind of behaviour that leads a young person to be given an ASBO to be dealt with.

Although I have enormous regard for the points being made and for the organisation behind the amendments, we need to ensure that we deal with the offending behaviour as well as dealing with the welfare of the young person while they are in the court system. We must try to ensure that we break the appalling cycle of repeat offending and disadvantage, which is what takes these children round and round the revolving doors of the criminal justice system, until they do something really horrible and end up with a long sentence in an adult prison. On that basis, I oppose the amendment.

David Howarth (Liberal Democrat, Cambridge)

There are two main differences between the amendment and the clause as it stands. One is the matter that the hon. Member for Northampton, North just referred to, which is the primary regard of the system. The other is the purposes of sentencing. I want to mention a couple of points on each issue.

On the first issue, perhaps the difference between the two versions of the clause is not as great as the hon. Lady suggested. It is not in the interests of a young person, in terms of their welfare and well-being, to be an offender. The amendment would introduce broader considerations alongside that fundamental consideration. I do not think that anybody believes that allowing a young person to remain in a state where they repeatedly offend can possibly be in their interests.

My second point concerns the purpose of sentencing. The difference between the amendment and the existing clause is that the amendment would miss out the punishment of offenders as the first mention of the purpose of sentencing, but it would leave in the other three purposes: the protection of the public, the reform and rehabilitation of offenders and the making of reparation by offenders.

David Hanson (Labour, Delyn)

This goes to the nub of the differences between us. Does the hon. Gentleman feel that the 64 young people who are currently in offender institutions because of the crime of murder should not be punished?

David Howarth (Liberal Democrat, Cambridge)

The question is whether there is any point to punishment that is not protecting the public, reforming or rehabilitating, or making reparation. In the cases referred to by the hon. Gentleman, presumably the public are being protected. That is presumably why the young people have been sentenced in the way that they have. No one is arguing that the protection of the public aspect of sentencing should be removed, and it would be wrong for the Minister to suggest that that is part of what we are saying. The protection of the public is in the amendment. What is not in the amendment is punishment that does none of those other three things. What is the point of punishment that does not protect the public, that does not rehabilitate and that does not repair the damage?

David Hanson (Labour, Delyn)

The amendment tabled by the hon. Gentleman would remove clause 9(4)(a). I take the view, as I think my hon. Friends would, that whatever the circumstances regarding reoffending, the need to protect the public and reparations required of offenders, there has to be an element of punishment for those individuals who have committed crimes—in some cases horrendous crimes of murder. If the hon. Gentleman takes his case to the general public and argues that the murderers of Jamie Bulger should not be punished as well as rehabilitated, he will find himself on the wrong side of the argument with the public at large.

David Howarth (Liberal Democrat, Cambridge)

The question is what the purpose is of punishment. The purpose of punishment in those cases is the protection of the public. For the Minister to suggest that Opposition Members favour murder, which is what he seems to think, is absurd. All we are saying is that it is for the Government to say what the point of a punishment is, not to refer to what other people might think, but what the Government and Labour Members themselves believe to be the purpose of punishments that do not fulfil any of the other three functions.

Alun Michael (Labour, Cardiff South and Penarth)

During the course of sentencing I was always primarily focused on the three elements that the hon. Gentleman mentioned; in other words, on having a constructive purpose to the decision that is taken. However, if he takes the trouble to ask young offenders, including some of the most difficult and prolific offenders in the land, whether they think that there should be punishment when something wrong is done, he will discover that he is in a very small minority in suggesting that punishment should be cast to one side as not relevant. He is making a mistake.

David Howarth (Liberal Democrat, Cambridge)

I would be glad to be in a minority of young offenders, although I am not a young offender, as I hope that the hon. Gentleman will realise. The question is still for him to ask—[ Interruption. ]

Alun Michael (Labour, Cardiff South and Penarth)

No, the hon. Gentleman has missed the point.

Nicholas Winterton (Conservative, Macclesfield)

Order.

David Howarth (Liberal Democrat, Cambridge)

The hon. Gentleman should not refer to what other people believe, but he should answer as a sentencer what the point of a sentence would be that did not protect, repair or rehabilitate; it does not have to be all three of those things, but at least one.

Alun Michael (Labour, Cardiff South and Penarth)

I was making the point that those who commit offences understand full well that there will be, and expect there to be, a punishment. Young offenders can be among those who are the most critical of their friends if they commit offences. In the wider scheme of things, to follow what the hon. Gentleman is saying, it would have to be shown that a specific decision leads to prevention, whereas, the general fact that there is punishment is important in creating an environment in which it is understood that there is cause and consequence, and that a punishment follows offending.

David Howarth (Liberal Democrat, Cambridge)

The purpose, ultimately, is to protect the public. The hon. Gentleman is reading more into the clause than is there; it is still part of the purpose of the sentence to protect the public in those circumstances. The fundamental point is that one of the things that stands out about British society compared with almost all of the rest of the world, except, perhaps, the United States, is the profound degree of punitiveness that characterises our society, as we have heard today. What do we make of that? What do we do about that as policy makers?

The irony is that one of the clearest causes of crime in a young offender’s background is having been subject to a punitive parenting style. The same characteristic that makes our society punitive is the one that generates, in large measure, the crime that we are trying to prevent.

Sally Keeble (Labour, Northampton North)

Will not the hon. Gentleman accept that he is confusing punishment with some kind of physical chastisement or more severe sanction? It seems perfectly logical that if society sets boundaries beyond which people are not supposed to go, the most obvious one being murdering people, someone who breaches those must receive a sanction. Wider society expects that in order for it to be confident in the criminal justice system. A young person will only learn how to behave if they understand that if they go beyond that boundary, there will be a sanction of some sort. We are not a particularly punitive society. Our penalties are probably less severe than in the majority of other countries.

David Howarth (Liberal Democrat, Cambridge)

I am afraid that research is against the hon. Lady. We do not have a clause saying that the purpose of sentencing is sentencing. The courts impose sanctions on people; the question is what the purpose of that activity is. Our clause meets the requirements of putting forward purposes for sanction. It makes no sense to say that the purpose of punishment is punishment. That is ultimately what our amendment alters in the Bill.

David Burrowes (Conservative, Enfield, Southgate)

I speak to amendments Nos. 135 and 9, tabled in my name and those of my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Ruislip-Northwood.

We could debate the purpose and principles of sentencing at length. But it is also important to look at the practical reality of the impact on the courts. The statutory duties to prevent offending were explicit in the Crime and Disorder Act 1998. For the first time, a duty to prevent offending was imposed not just on the courts but on all those involved in the criminal justice system, which included practitioners and solicitors. It meant that those solicitors who were defending their clients and acting in their best interests also had a primary duty to prevent them offending. That was a good duty and it is repeated in clause 9. The clause also repeats the purpose of sentencing, which is aligned to those purposes relating to over-18s. That is quite proper. The principle that justice should be the same and should be seen to be achieved both in relation to the victim and the offender, regardless of age, is right.

David Hanson (Labour, Delyn)

May I give the hon. Gentleman the same opportunity that I gave the hon. Member for Cambridge? In seeking to amend the clause, does he think that people who have murdered and are currently residing in youth offender institutions should not have punishment as part of the purpose of their sentence?

David Burrowes (Conservative, Enfield, Southgate)

I am grateful for that intervention. It is probably one of the easiest ones that I have had from the Minister. Of course the answer is yes— [ Interruption. ] If I can complete my reply, it depends on the context in which we look at the purposes and whether the purposes need to have a focus and need to underlie the sentencing regime. The implicit point of any sanction is punishment. The point of prisons is punishment. If the argument put forward to rebut the amendment is that removing punishment as a purpose of sentencing inevitably mean removing prisons, that is obviously not so—prisons are there to punish as much as any other sanctions in the court system. The important point when one looks at punishment is to look at what it achieves and at what sentencing, which in its very nature is punishment, achieves.

Sally Keeble (Labour, Northampton North)

We can get very involved in semantics here. How would the hon. Gentleman explain to one of his constituents that punishment pure and simple is not required to ensure that people have confidence in the criminal justice system? There are all the other worthy things too. But when he is dealing with a constituent who is a victim of crime how will he explain away the idea that punishment means punishment?

David Burrowes (Conservative, Enfield, Southgate)

The way to answer that is very simple. Punishment obviously forms an inherent part of the criminal justice system. The purpose of this amendment was to probe whether we are achieving the purposes of sentencing on the ground. We need to focus on those areas of reform and rehabilitation of offenders and the protection of the public. We also need to look at the context in which offenders come to court and how they are dealt with in family courts. There is reference to acting in the children’s best interests. Many clients come through to the youth courts. Are the social welfare gaps that the hon. Lady described being plugged by the youth courts? Unless such children come within the statutory definition of a child in need, there are often gaps in that system which are not dealt with properly.

Often a case will involve a young person with special educational needs or family issues such as abuse in the home or housing needs. If they come before the court for, perhaps, a more serious offence but the courts are keen to deal with matters speedily, particularly given the present guidelines for speedy justice, the reality is often that the background of the offending is not properly considered in depth. Often, all the needs of a child attending court for the first time are not taken into account and properly considered, and the effect is limited.

When discussing sentencing and justice, we need to take account of reparation. That is the purpose of amendment No. 9. The courts often give limited attention to reparation. On earlier clauses, we had debates about restorative justice and the progress and improvements that have been made, but unless restorative justice involves not just conferencing and challenging offenders’ behaviour and their relationship to victims, and unless that is seen in relation to proper restitution and making of amends, its effects will be limited. That is why the amendment seeks to include in proposed new subsection (1)(4)(d) the words

“financial compensation or other appropriate”

before the words

“reparation by offenders to persons affected by their offences.”

The reality is that the number of financial compensation orders made in youth courts is limited. The latest figures, which are for 2005, suggest that 22,511 orders were imposed, but there are no centrally collected figures to indicate how many were enforced and collected.

Many people consider that basic justice should involve people paying for their crime and properly making amends, but they do not see that as the reality. For example, offenders who commit property or shoplifting crime do not accept that there are any victims. The horrible expression “victimless crime” has come into common parlance but it is something that one should treat with great caution. The concern is that offenders who commit such offences do not understand that they properly need to make amends for their crime.

Let us take the example of a prolific burglar who committed robberies in the Enfield area. When he got into robbing local petrol stations, he did not see a victim. As far as he was concerned, petrol stations were fair game. He considered them to be part of an institution and not bodies with which the concept of victim could be associated. He certainly did not think that he should make any amends. The sentences that he received during the years of his criminal life did not truly require him to pay back the victims of his criminal behaviour.

We have all spoken about reparation. The purpose of amendment No. 9 is to make the point explicitly that it must include financial compensation or other appropriate reparation. That crucial element must become a reality. I ask the Minister to explain how the justice system will ensure that reparation means what it says and involves the financial compensation that many victims often want.

We have discussed welfare issues, which are already a statutory duty, and the suggestion that we should extend the duty to well-being, and broaden the issues of which the court needs to take account with regard to children. But the general concern of the public in respect of the justice system is that victims are not included in discussions on sentencing. The public want people to pay for their crime, and they often want financial payment. It is important for there to be reality in the purpose of sentencing, which is why we tabled the amendment.

Charles Walker (Conservative, Broxbourne)

I have been in this place for two and a half years and I still do not have a clue how to navigate my way around a Bill. Proposed new subsection (1)(4)(d) refers to

“the making of reparation by offenders to persons affected by their offences.”

It is important that people in our communities see that those young people responsible for making their lives miserable and for destroying the environment in which they live are making financial reparation for the harm and offence that they have caused. Like many hon. Members, I attend public meetings at churches and community halls in which we discuss antisocial behaviour. There is a strong desire among the public for financial reparation.

As I said on Second Reading, when a group of youngsters are caught smashing up a bus shelter for the first time, they must pay for the repair of that bus shelter. I note that the provision refers to the making of reparation by offenders

“to persons affected by their offence.”

It should refer to persons and organisations. The bus shelter would be owned by an organisation. If the youngsters smashed up the bus shelter a second time, they should pay for the repair—although it would probably be their parents who pay—and receive a fine. In the case of it being smashed up a third time, the youngsters and their parents should appear together at the magistrates court. It is not on for young people to be recidivist offenders without their parents taking an interest in them and the reason behind their actions.

Sally Keeble (Labour, Northampton North)

The hon. Gentleman has particularly strong views about violence against women with which I agree absolutely. I also agree with him about reparation for minor crimes, but is that acceptable for major crimes such as violence against women? If people say that they are sorry for their actions, does he believe that they should be allowed to go unpunished? Does he accept punitive sentencing?

Charles Walker (Conservative, Broxbourne)

The hon. Lady draws me into a completely different area. People who commit violence against others should be incarcerated, so that they do not continue to pose a risk to law-abiding members of society. While they are incarcerated, the underlying cause of their violent behaviour should be addressed, be it their addictions, their mental illness or whatever.

As for youth offending, it is important that, when culprits are identified, they are not just given a warning and told not to do it again. They must be made responsible for their actions. Parents must also be made responsible for the actions of their children. If my children were caught smashing up the local bus shelter—and I hope to God that they would never do such a thing—and I was told that it would cost me £500 to repair it, I would make damn sure that they did not do it a second time. The Bill must allow for that to happen and place responsibility on parents for the actions of young children. Until they take an interest, we will not get to the bottom of the problem.

Nicholas Winterton (Conservative, Macclesfield)

Before I call the Minister, I say to the hon. Member for Broxbourne that a learned Clerk is sitting on my left, and the Department of the Clerk of the House is here to help all hon. Members. If he wants to be shown around a Bill, I assure him that those in the Department can lead him a merry dance.

Edward Garnier (Conservative, Harborough)

I want to intervene briefly because the sedentary chatter that has been going on might have disturbed the general direction of the debate. I do not want to appear more pompous than I am usually. Many hon. Members will find that impossible.

However, I wanted to try to draw us back to the purpose of the Bill and the purpose of this particular debate. I do not think that we need to get over-excited about the points that have been made by people from sedentary positions, when they say, “Oo-er, you have removed the word ‘punishment’”; that is a given. It seems to me that the purpose of tabling this amendment and having this debate is to ensure that we realise that the system is not just about punishment but about disposing of young offenders’ crimes with greater purpose. I do not think that that can be controversial; I am sure that the new Labour party is very keen on punishment nowadays. I am also sure that we all agree that punishment is a necessary part of the criminal justice system.

However, we need to stress that punishment by itself is not enough. The Minister and I have had debates about this issue, in relation to custody. Sending somebody to prison and doing nothing more is not enough; giving someone a young offenders institution sentence and doing nothing more is not enough; sending someone to a secure training centre and doing nothing more is not enough. I suspect that the purpose of the amendment is to get us to engage our thoughts about the whole breadth of purpose of the sentencing system.

I would have thought that those views are utterly uncontroversial. We all know that, even if this matter were pressed to a Division, the Government would have their day. So what? I think that we can be a bit more grown-up about what we are discussing. Let us enjoy the fun of the late Thursday afternoon and tease each other about whether the word “punishment” is in or out, but let us also be serious about what we are trying to achieve and let us hope that no Government Minister will concentrate too much on what he thinks is a good debating point and instead concentrates on the substance of the issue.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. and learned Member for Harborough has tried to row back from some of the discussion that has been going on in this debate today. However, it is very important indeed that we recollect something that has been referred to in this debate; that it is the purpose of the criminal justice system, particularly in relation to young offenders, to prevent reoffending. If a youngster offends, there is damage to the victim, whoever that is, to the wider community, very often to the offender’s parents and family, and certainly to the offender themselves, in terms of their future prospects. So it is in nobody’s interests that there should be reoffending.

However, in seeking to discourage offending and reoffending, it is very important indeed that the message gets across that if someone offends they will get punished. [Interruption.]

Nicholas Winterton (Conservative, Macclesfield)

Order.

Alun Michael (Labour, Cardiff South and Penarth)

It is that message that Opposition Members sought to resile from in this amendment. I think that they may have muddled themselves; they may not have intended to do that. However, that is what they did.

It is also important, when deciding on the individual sentence and how a youngster is punished, that other decisions are taken that will help to get the youngster out of a pattern of offending and that they are taken constructively. That is why the provision in the Crime and Disorder Act 1988 was put in place, and a very wise one it was, if I may say so.

Opposition Members need to recognise that it is important, from the point of view of offenders or possible offenders, and also from the point of view of the public, in terms of their confidence in the criminal justice system, that we do not put the line through the word “punishment”. It is not the same as the word “punitive”. The word “punitive” means punishment that is excessive in relation to the offence, and punitive measures are not terribly constructive in helping to prevent reoffending. I think that Opposition Members, in instigating this debate, have simply demonstrated that they are a bit muddled about the English language.

David Burrowes (Conservative, Enfield, Southgate)

It is important to have a grown-up debate about these important issues. I heard the right hon. Gentleman say that he was concerned that the criminal justice system should prevent reoffending. The amendment seeks to include reoffending, but no one is suggesting that anyone, in any part of the House, wants to put in place measures that will make it easier to reoffend. We are almost getting into a debate over whether to include a phrase saying that we are against that certain principle. He seems to want to make it clear in the clause specifically that we want to stop reoffending.

Alun Michael (Labour, Cardiff South and Penarth)

I am glad that the hon. Gentleman has had the opportunity to clarify his position.

David Howarth (Liberal Democrat, Cambridge)

Is not an alternative view of the meaning of punitive, that it is punishment that does not have a purpose? The amendment is trying to make it clear that punishment should have a purpose.

Alun Michael (Labour, Cardiff South and Penarth)

I do not think that that is the case. I think that that is a gross over-simplification. Punitive means a punishment that is excessive and inappropriate. That is the simple definition.

David Hanson (Labour, Delyn)

I am grateful to have had this debate. I fear that I will disappoint the hon. and learned Member for Harborough in my response. The issue is not about having a childish debate. These are very serious issues. I have looked at the amendment and at the clause. I am a simple man and have been here for only 15 years. I still occasionally look at Bills and decide how we can amend them, just as the hon. Member for Broxbourne has done after two and a half years in this House.

It is clear to me that under the clause, the words “the punishment of offenders” are there as the first purpose of sentencing. That is associated with the issues on which we all have some agreement, such as that we must reform and rehabilitate offenders, protect the public and seek reparation. Simple man though I am, I look at the amendment and see that the first purpose of sentencing is

“the reform and rehabilitation of offenders”.

The words from the Bill—“the punishment of offenders”—are not present.

The amendment was tabled by the hon. Members for Somerton and Frome and for Cambridge, the hon. and learned Member for Harborough, the hon. Member for Enfield, Southgate and the hon. Member for Ruislip-Northwood, who has just come in and has missed a very interesting debate. I congratulate the hon. Members for Broxbourne and for Kettering for not putting their names to the amendment. I think they will find that that will curry favour with their constituents at some point.

I am astonished, rather like my hon. Friend the Member for Northampton, North and my right hon. Friend the Member for Cardiff, South and Penarth. There needs to be an element of punishment. There needs to be an element of boundary also, but there must be some consideration that there will be punishment. Whatever well-meaning words the Committee has heard, the amendment does not put in the words that the purpose of sentencing is “the punishment of offenders”. It would delete those words.

I simply say to the Committee that I hope that the Liberal Democrat Members press the amendment to a Division because I know that my hon. Friends will take great pleasure in voting against it. I do not ask them to withdraw it, but challenge them to put it to a Division. Let us see what the Committee thinks of that motion.

David Burrowes (Conservative, Enfield, Southgate)

The Minister interestingly put a primacy on the function of punishment. Does he put it ahead of paragraphs (b), (c) and (d)?

David Hanson (Labour, Delyn)

Punishment is important. The first point should be punishment. We need to look at rehabilitation and the prevention of reoffending, but ultimately, I can only defend to my constituents that an element of punishment is—[ Interruption. ]

David Howarth rose—

Nicholas Winterton (Conservative, Macclesfield)

Order. We have been sitting for nearly three hours and I have been in the Chair for three hours. Personally, I believe that this debate has been taken as far as it should have been taken, but I am the servant of the Committee. I advise the Committee that if it goes on much longer, I will suspend proceedings because I believe that three hours of debate without any break is long enough. I warn the Committee that quite shortly I shall suspend proceedings for at least 10 minutes.

David Hanson (Labour, Delyn)

I hope to complete my remarks before the stroke of 4 o’clock at the very latest.

David Howarth (Liberal Democrat, Cambridge)

Will the Minister give way?

David Hanson (Labour, Delyn)

I would rather complete my remarks, if I may?

David Howarth (Liberal Democrat, Cambridge)

This is a serious point about the legal interpretation of the clause, to get away from the politics and back to how the courts will read the clause. The Minister was just saying that the clause should be read in order, so that an aim that comes first is more important that an aim that comes afterwards, and that is a hierarchy. For the sake of Pepper v. Hart, was that the interpretation of the clause that the Minister intends?

David Hanson (Labour, Delyn)

All aspects of clause 9(4) are important, but I emphasise that the punishment of offenders is equally important. If the amendment is passed, that will not be in the Bill. I want to see the prevention of reoffending, the protection for the public and reparations. However, I also want individuals to know that they will be punished for the crimes that they undertake, particularly serious crimes. I can concur no more than with the statement:

“The purpose of punishing criminals is to deter crime and to send a clear signal that it is wrong.”

That is from the Conservative party’s 2005 manifesto. The signal that the amendment would send on the purpose of sentencing would be entirely the wrong signal.

A couple of other points were made during the debate. My hon. Friend the Member for Leyton and Wanstead suggested raising the age to 19. I think that that would confuse matters and respectfully tell him that I cannot concur with it. Doing so would confuse the courts by crossing the established boundary between youths and adults in youth offending.

Some hon. Members have also mentioned the question of reparation. I do not consider that financial or other compensation needs to be directly referenced in the Bill. If hon. Members look at section 1(30) of the Powers of Criminal Courts (Sentencing) Act 2000, they will see that courts already have a separate power to order any offender to pay compensation.

Charles Walker (Conservative, Broxbourne)

All I suggested was the making of reparation by offenders to persons affected by their offences. Would the Minister consider adding, “persons and organisations”?

David Hanson (Labour, Delyn)

I will reflect on that. That is an amendment that the hon. Gentleman could have brought forward.

I say to the hon. Member for Cambridge with regard to new clause 14, that, while we have had a gentle debate around the issues of the initial amendment, I accept that it might be worth while including the words “including reoffending” in the Bill. I will reflect on that and potentially bring back a clause or amendment on Report.

I hope that the hon. Member for Somerton and Frome will put amendment No. 135 to the Committee, because I know that my hon. Friends would be grateful for the opportunity to vote on it.

David Heath (Liberal Democrat, Somerton and Frome)

We have had a debate that was in part constructive and sensible and in part deeply depressing for its unoriginality and preoccupation. I had hoped that we might have had a sensible debate about the purposes of sentencing and a proper consideration of the attitudes that the Government have clearly expressed many times on how to deal with the child. The hon. Members for Leyton and Wanstead and for Northampton, North certainly touched on that.

The hon. Member for Northampton, North did not agree with the terms of my amendment, and I accept that. She said, quite rightly, that the matters that I wanted to ensure were taken into account before the point of going to court and that there is a much greater duty on the agencies that deal with the child before they come into the criminal justice system and on the penal system after sentence than we sometimes understand or recognise. I do not disagree with her at all. I simply say that the court is a convenient point at which stock take can be taken of all the things that should have been done by those agencies. Using the sentencing procedure and bringing it into the same context as the process that occurs in the family courts is an opportunity to see whether the right support is being given to that individual for the purposes of preventing reoffending and protecting the public. That is what the penal system is all about.

After what was quite a sensible debate on that, we had this absurdity of deciding whether the purpose of punishment had to be punishment. What a nonsense of a debate. Labour Members were saying that they wanted the first principle of punishment to be punishment. It was as if the purpose of the Bill was to make a Bill. If that was the way that the short title started I would be right to say that those words should be deleted. The purpose of sentencing is punishment because sentencing is punishment. As we say in amendment No. 135, sentencing is to ensure a proportionate response to offending behaviour. A sentence is not exerted unless it is punishment, but that punishment must have purpose. The present Prime Minister used to say when he was Chancellor, “prudence with a purpose.” Everything must have a purpose. What we are trying to establish is the purpose of punishment and sentencing. That is why I so deplore the way in which we have descended into such a futile debate, simply because some thought that they might be able to secure some petty political advantage. I have not got the slightest intention of prolonging this debate any further. I find it very sad that we cannot have a serious debate about the purposes of sentencing in this Committee without people making utterly futile points. I therefore beg to ask leave to withdraw the amendment.

Nicholas Winterton (Conservative, Macclesfield)

The way in which the Committee has been debating in the past few minutes indicates that a three-hour sitting may be a little bit too long.