HL Deb 19 July 1982 vol 433 cc644-91

Further considered on Report

4.21 p.m.

Lord Elton moved Amendment No. 2: Page 2, line 18, leave out from ("appropriate") to end of line 22.

The noble Lord said: My Lords, at Committee stage, my noble friend Lady Faithfull successfully moved an amendment to Clause 1(4) of the Bill, indicating the grounds on which a court should be satisfied, before passing a custodial sentence on a young offender, that no other method of dealing with him is appropriate. The Government are quite content to accept the will of the House on that. A second amendment, adding the same words to Clause 1(5), was accepted without debate. The Government feel, as I have explained to my noble friend, that the second amendment involves different considerations, and that it is not appropriate to seek to add guidelines to Clause 1(5).

Clause 1(5) relates to Clause 9, under which young adult offenders can be committed to be detained for default or contempt. Clause 9 replaces the present power to imprison such people. It has no application to juveniles. Indeed, it has very limited application in practice to any contemners; because in 1980, only 17 were committed.

The first of the criteria added to the Bill, that the young person is unable or unwilling to respond to non-custodial penalties, hardly seems appropriate since a defaulter has by definition already been made subject to a non-custodial penalty. The second, the protection of the public, seems even less appropriate since default does not make a young offender a danger to the public. Nor does the third, the seriousness of the offence, seem altogether apt. What would be needed, if one wished to go down the guidelines path for this subsection, are criteria specifically designed to cover default and contempt.

So far as default is concerned, Section 82(4) of the Magistrates' Courts Act 1980 already provides criteria which in most cases govern the use of the committal power. The court can only commit to custody if it is satisfied that the default is due to the offenders' wilful refusal or culpable neglect and the court has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful. It seems to us that this is a good deal more stringent than the guidelines being attached to Clause 1(5).

It therefore seems appropriate that Clause 1(5) should be left as it was before the amendment was added. It already required the court to refrain from committal to custody for default or contempt "unless it is of the opinion that no other method of dealing with him is appropriate That seems an apt and adequate safeguard, and I hope the House will accept the amendment.

Baroness Faithfull

My Lords, may I thank my noble friend the Minister for his explanation of that amendment. I agree with him that the criteria laid down in Clause 1(4) is not entirely satisfactory for defaults. Therefore, may I say that I should like to consider the question of criteria and perhaps reserve the right to bring this forward at a later stage.

On Question, amendment agreed to.

Clause 2 [Social inquiry reports etc.]:

Baroness Faithfull moved Amendment No. 3:

Page 2, line 41, at end insert— ("(3A) Where a magistrates' court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) above, it shall state in open court the reason for its opinion that no other method of dealing with him is appropriate because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified.").

The noble Baroness said: My Lords, with the agreement of the House, may I speak to Amendments Nos. 3, 4 and 5 together. These three amendments are consequential upon Clause 1(4). The reason for this amendment is to ask that it shall be stated in open court the reasons for giving a custodial sentence to a child or young person. There are really two reasons for this. One is that if one is dealing with a child or young person they want to understand why something has happened and they want to be sure not only that justice is done but that it is seen to be done. It is much easier and more productive to help a child when the child knows why it is that he or she is being given a custodial sentence. Therefore, this amendment simply says that it shall be stated in open court the reason for its opinion. This is the raison d'être for this amendment. I beg to move.

Lord Mishcon

My Lords, I wonder whether I may add one short reason in support of the amendment moved by the noble Baroness. It is this. It is not only a question of the young person—and it is not just a child but anyone under 21—hearing what the reason is. I think that it is a safeguard so that we have the court having to think very carefully about the restrictions we have imposed upon the custodial sentence and I think furthermore that it enables one to consider whether or not there should be an appeal; because one can look at the reasons given and decide whether those reasons can be argued against on appeal as being unsatisfactory.

Lord Hunt

My Lords, the noble Lord, Lord Mishcon, has anticipated the point that I was going to make in support of the amendment so that I will do no more than endorse from this Bench the point that he has made.

Lord Elton

My Lords, in Committee, the House decided that statutory guidelines incorporating the three criteria set out in the first of these amendments should be added to the restriction on the imposition of custodial sentences on young offenders.

I doubt myself whether it is actually necessary to add the criteria explicitly to Clause 2 in this way. But I would not for a moment seek to argue that there is any harm in spelling out the criteria again. If the House is content, I am content, also.

Baroness Macleod of Borve

My Lords, this is rather a long-winded amendment. Can we not just say: "and give their reasons in open court"? That would be enough and is usual. It seems to me that it is inferring that the chairman of a juvenile court is somebody of perhaps very little experience. I can assure the House that they are people of wide experience who will be able to put the reasons before the parents, the children and the social workers in perhaps better language than this.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 4: Page 3, line 1, leave out ("1(4) or (5)") and insert ("1(5)").

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 5: Page 3, line 10, after ("subsection") insert ("(3A),").

On Question, amendment agreed to.

Clause 11 [Provision of premises for young offenders etc.]:

Lord Elton moved Amendment No. 5A: Page 10, line 13, after ("Sections") insert ("5A,").

The noble Lord said: My Lords, this is a paving amendment on Amendment No. 81A, which I shall be moving before Clause 53. That amendment inserts a new section into the Prison Act 1952 concerning the office of Chief Inspector of Prisons. This amendment merely seeks to add reference to that new section to the new Section 43 for which Clause 11 of this Bill provides. This is thus no more than a technical amendment. I think that the House will agree with me that it would be to the convenience of us all if we were not to discuss the substantive issues arising under the proposed new section until we reach it at Amendment No. 81 A. I beg to move.

On Question, amendment agreed to.

4.30 p.m.

Lord Elton moved Amendment No. 6: Page 10, line 26, after ("to") insert ("detention in").

The noble Lord said: This is a drafting amendment. I hope that its purpose is self-evident, but I wonder whether I may take the opportunity in moving it to inform the House of a matter on which we shall have to bring forward an amendment on Third Reading. We are providing in Clause 10 of this Bill that, where young offenders are not remanded on bail but in custody, the period spent in custody should count towards all young offender sentences. Where juveniles are concerned, there is of course a third remand category besides bail and custody: namely, remand in care.

It has, I am afraid, only recently become apparent that the law on remand in care is unclear. The position in relation to Clause 10 needs to be put beyond doubt. The Government intend therefore to bring forward an amendment at Third Reading to make it clear that the remand of a juvenile to the care of a local authority will not count as a remand in custody for the purposes of Clause 10. I do not wish to detain the House further. The substance of the issue can be debated at Third Reading. I regret that this has come up at such a late stage; but this appeared to be the convenient way to give your Lordships notice of it now that it has. I now return to commending Amendment No. 6, and I beg to move.

Lord Mishcon

My Lords, the House will be obliged to the noble Lord for that intimation; but it is rather late at Third Reading to put down an amendment of this kind which obviously has great import and which has to be studied very carefully. I wonder whether the noble Lord would at least do this for us: can any note on this clause reach those who are interested in the matter—it may be that everyone present is—so that at least we have ample opportunity of studying it?

Lord Elton

My Lords, with the greatest of pleasure. I welcome what the noble Lord has said. He has recognised that this is an embarrassing difficulty. This situation has only very recently come to light; I was only aware of it today. As soon as there is a substantive amendment available, I shall see that he and the Front Benches of the other parties and the noble Baroness who speaks for the Cross-Benches have copies of it and also an explanatory note, insofar as I am able to devise one, to explain its effect and purposes of reaching that effect.

Baroness Trumpington

My Lords, I wonder whether my noble friend will be good enough to send copies to the All-Party Penal Reform Group at the same time?

Lord Elton

My Lords, if the noble Baroness will give me her valuable and edited address list I shall try to do that also.

On Question, amendment agreed to.

Clause 12 [Accommodation of young offenders and defaulters etc.]:

Lord Hunt moved Amendment No. 7: Page 11, leave out lines 3 to 7.

The noble Lord said: My Lords, in rising to move Amendment No. 7, I propose to speak to Amendment No. 10 at the same time, as the objections of the All-Party Penal Affairs Group to the references to juvenile offenders, whether sentenced to youth custody or to detention centres, is identical in principle in both cases. The objection relates to the powers of the Secretary of State to direct that 15- to 16-year old offenders should serve their sentences in an adult prison instead of a youth custody centre, detention centre or, if need be, a remand centre, as the case may be.

In response to representations made by Mr. Kilroy-Silk during the Committee stage on this Bill in another place, the Government have already amended the Bill so as to prevent juveniles given custodial sentences of 21 days or more from serving their sentences in adult establishments. But this clause would still allow them to serve in adult prisons if their sentences were less than 21 days—that is to say, if I have understood correctly the convoluted legal phraseology of this Part of the Bill. No doubt the Minister will correct me if I am wrong.

During the Committee stage in your Lordships' House, the noble Baroness, Lady Faithful], has already conceded on behalf of the All-Party Penal Affairs Group that it may unavoidably sometimes be necessary for offenders, even at this tender age, to be held for a strictly temporary and specific purpose in a prison—for instance to receive a visit from a relative who cannot move to the centre where he is incarcerated or perhaps for an interview in exceptional cases—on the premise that the offender would be taken to the prison for that purpose and returned to the youth custody, detention or remand centre immediately afterwards.

We find it quite unacceptable that 15- or I6-year olds should—however short the period—actually serve their sentences in prison. It will not be the intention of the courts that they should do this. It is quite bad enough that young adult offenders of 17 years and upwards, may have to be subjected to these conditions until sufficient youth custody, remand or detention places become available, but it is intolerable that younger boys should be incarcerated in such conditions as have been described by the borstal and prison governors' branch of the Civil and Public Services Association in their comments on the young offenders White Paper of 1980, which has already been quoted by the noble and learned Lord, Lord Elwyn-Jones, during the Committee stage. I think that the particular reference they made is so important that I am going to quote it again. They describe the circumstances for young boys of 15 to 16 in adult prisons where the pressures on the system make it impossible to make separate facilities for them. They are squeezed into a bank of cells at the end of a landing or in a basement. Recreational facilities are meagre and sometimes non-existent, and the same applies to work and physical education. Under such conditions, the youngsters w ill be denied the benefit of special programmes of training and education which youth custody and detention centres are designed to provide. They will be exposed to the proximity of adult criminals in the disgraceful, overcrowded conditions of a local prison.

The experience is likely to be positively harmful to the young persons concerned—and, let us not forget, on that account, also harmful to society. I am well aware of the difficulties. I am not going to pre-empt the difficulties which the Minister will no doubt explain to us. I would merely say that if something is as wrong as this, those difficulties must be overcome. I beg to move.

Baroness Faithfull

My Lords, on behalf of the All-Party Parliamentary Group, I support the noble Lord, Lord Hunt, in this amendment. I do not think that it is fully appreciated sometimes by our colleagues in the Home Office what it means when a young person goes to prison. That is where they start. They make friends and they are got hold of. I have dealt with many boys who have got into trouble subsequent to being in prison and when I have asked, "Why are you mixing with this person, or that person?" they reply that it is because they met in prison and arranged to meet them when they came out. I strongly support this amendment and I support the noble Lord, Lord Hunt.

Lord Elwyn-Jones

My Lords, I, in turn, do likewise. I agree with the noble Lord, Lord Hunt. I cannot think that any court passing a custodial sentence on a 15-year old would intend that he should be dumped by the prison- department in an adult prison. That cannot be the intention of the courts. I hope that the noble Lord, Lord Elton, will be able to accept this amendment.

Baroness Masham of Ilton

My Lords, I should like to support this amendment, but, where it reads, "aged 17 or over", I should like it to read, "aged 18 or over". Over the years I have dealt with many 17-year olds, and many of them are still maturing and are very young. After all, people get the vote at 18 and they are supposed to be adults. Seventeen-year olds are at a very in-between age and therefore I should like the age to be 18.

4.40 p.m.

Lord Elton

My Lords, it has been urged on the Government, both here and in another place, that we should not let juveniles be held in prisons for a substantial part, or the whole, of their sentences. While we are short of places we cannot make such a concession in respect of group after group of trainees, but we do recognise the strong case that the youngest should be kept out of prisons when at all possible. That is why we amended this Bill on 22nd June to make the provisions now in Clause 12. The effect of what is now of Clause 12(2) is that where a juvenile is not already subject to the training guarantee set out in subsection (1), he may be held in a youth custody centre or a remand centre but not in a prison, except in very limited circumstances. Those circumstances are specified in the subsection.

The first two of those circumstances, which are described in paragraphs (a) and (b), relate to very short sentences. If a person has time in custody on remand to court against sentence and the effect is to reduce the term below three weeks—that is, two weeks when remission has been deducted—we do not think it is practicable to provide that he should always move on from the local prison in which he was originally received after sentence to a youth custody centre. The same applies to a person sentenced to less than 21 days for breach of supervision under Clause 15. I should emphasise that our general aim will be to return such people to the establishments from which they were previously released, but, with a very short term, that will not always be practicable. We are talking of periods of a fortnight, where full remission is available.

The effect of the first of the amendments moved by the noble Lord would be to remove paragraphs (a) and (b), and hence the very limited discretion we have, to place in a prison a juvenile subject to a youth custody sentence. I have explained that that residual discretion has been retained for sound practical reasons, and its removal would place the prison system under a requirement it cannot properly meet.

The procedures for receiving, discharging and allocating prisoners are not perhaps the simple and glib operations some noble Lords may think they are. On reception, when a person is received into an establishment it is necessary to check the court documents to ascertain the conditions of his detention, to make a preliminary medical check, to check and list his property, exchange his clothing and have him bathed. He is then seen by the governor, finger-printed and photographed, given a full medical examination and interviewed about his physical and mental history. Inquiries are made about his social circumstances and his criminal background, and he is interviewed by the chaplain and the probation officers. These procedures are normally carried out in two working days. I will not elaborate on the effects of this, but if there is a move from one establishment to another, you need to have, as it were, the debriefing and the reception into the second establishment.

Your Lordships will then see the difficulties that could arise from this. Even in cases where the requirement could technically be met, it could operate to the detriment of the people concerned. It would often result, for example, in transfers for very short periods to establishments further from home, and noble Lords on the opposite Benches were anxious to bring home to me earlier this evening how important it was that that should not happen.

Then the administrative burden on staff, and hence on other offenders and on régimes in youth custody centres, of individuals passing through them in a matter of days, would also be bad. Instead of a single discharge at the end of a fortnight, there would be, first, discharge from the prison, secondly, admission to the centre, and thirdly, final discharge from the centre. That is a tripling of the administration to be done after the sentence has been passed and all of this done by staff who could otherwise be supervising out-of-cell activities. While therefore the price of the amendment might not be large, to the extent that it results in longer periods without supervising activity it will be very expensive, at least to those who pay it. The Government have already gone as far as they can to meet the case put forward on behalf of the juveniles and I hope that the proposers of this amendment will be prepared to withdraw it.

May I now turn to the second amendment. Here the noble Lord will have noted that subsection (8) is rather similar in form to the part of subsection (2) dealing with youth custody trainees. Its purpose is also specific and limited. It does not, in my view, represent a serious incursion into the principle, which we all support, that people subject to detention centre orders should actually be held in detention centres. The point of the subsection is this: the Bill creates a new range of shorter detention centre sentences, running from three weeks up to a maximum of four months. That is a change for which there has been considerable pressure for many years. I think it is fair to say that it has been given a general welcome.

The new minimum of three weeks was set on the basis of advice from detention centre managements at a level which would still enable the detention centre to operate a worthwhile régime with a properly constituted programme of activities for the inmate. Allowing for one-third remission, that minimum period again is 14 days. If a period in custody is below that, practical problems will ensue. First, the offender could spend a disproportionate part, or even the whole, of his total time spent in custody going through the reception and discharge procedures. He could even spend all of it, as I say, in that process. But these procedures are still necessary, even when people come in for a short time.

Secondly, he could, if he is sent to a detention centre in the normal way, go under police escort a very long way from home, only to be returned to his home area after a very short period. However, there will necessarily be certain exceptions to the three-week minimum sentence. One will be where time in custody on remand is counted against a sentence of 21 days or more and brings the term below 21 days. I think it is absolutely fair that the person should have the benefit of all that time.

The second would be where a very short sentence is imposed for a breach of supervision—a circumstance in which it is right for a court to have the ability to pass a very short-term sentence. The number of people in custody at any one time would probably not be great, precisely because their terms were so short; but they could prove to be the straw that breaks the camel's back in detention centres, which become very hard pressed at certain seasons of the year because of fluctuations in the level of sentencing. They could also have a disproportionate impact on the reception and discharge facilities in those establishments, as I have sought to show.

Since this Bill came before Parliament the Government have gone a very long way and done a very great deal to ensure that juveniles sentenced for periods between three weeks to five months do go to detention centres and nowhere else. We have made exceptions but they are few and they operate, in my view, to the advantage of the young people concerned. They keep them closer to home; they prevent them becoming an unpopular "spanner" in the constructive works intended for the benefit of the vast majority of that class of offender. I accept that the amendment has been moved from the best possible motives, but I think its effects will be against the best interests of the very people it seeks to serve, and I hope the noble Lord will not press it.

Lord Avebury

My Lords, if the Minister suggests that this is going to be a very large problem when he paints a picture of the enormous administrative burdens that will be laid on the staff if our views prevail, would he care to tell the House how many young people aged 15 and 16 he calculates will be sent to prison if the Government's views are accepted by the House? I think it is important that we should know precisely how many of these juveniles will find themselves in adult prisons before we leave this particular amendment.

Lord Harris of Greenwich

My Lords, if I may say so, that seems to be an extremely well-taken point. The Minister can only have it in one of two ways. If, as I understand the argument to run, this will impose an intolerable strain on the prison service, then by implication the number of children in this category is going to be substantial. If, on the other hand, the numbers are going to be limited, as I assume is the position, the strain on the prison officers and the prison department establishments will be fairly small. I do not, with great respect, think that the Minister has made an altogether persuasive argument.

Lord Elton

My Lords, I am in some difficulty as to the procedure of the House. Having been rebuked for replying at inordinate length before, I can only give a cautious estimate at this stage of the figures for which the noble Lord asked. I should not probably give them, but perhaps your Lordships will give me leave. If there are about 30 in the system at any one time, and if the length of stay in each case is somewhere between one and two weeks, your Lordships will have to do the arithmetic more quickly than I can in order to get the answer before I sit down, which I must now do.

Lord Elwyn-Jones

My Lords, I am sure that the House will be grateful to the Minister for intervening in response to a specific question. He must not take umbrage at my having taken him to task a little earlier for gilding the lily.

Baroness David

My Lords, the Minister said a great deal in his reply, but I do not think any of it has convinced me that there is any good reason why a young person should be sent to an adult prison, even for a very short time. As the noble Lord, Lord Avebury, said, many of the objections are administrative ones which surely could be got over; and the finger-printing and so on could be done at a police station. Anything is better than having a young person in prison, even if it means going slightly further from home. If the detention régime is upset at the thought of having a youngster there for a time, may I quote what the Minister said at Committee stage, though admittedly in another context: … the fact is that one can accommodate oneself to a certain number of people who are not capable of taking up the full benefits of a régime, or a curriculum, without throwing out the administration for the rest."— [Official Report, 22/6/82; col. 996.] I am unconvinced by his argument and I hope that the noble Lord, Lord Hunt, will press his amendment.

Lord Hunt

My Lords, the noble Baroness, Lady David, has said just about what I was going to say, after listening with great attention to the noble Lord. He has listed the difficulties which I anticipated he would list. I am very familiar with the allocation procedures in Her Majesty's prisons or penal establishments. I accept the difficulty about the distance from home for visits from relatives and so on, but the numbers of visits that can be fitted into 14 days under the prison rules make that argument more or less invalid.

As regards what the noble Lord described as the straw that might break the camel's back in regard to the régime in a detention centre, and the spanner that might be put into the works by having young offenders serving these very short sentences committed there when they should be committed to a youth custody centre or a detention centre, I should like to quote back to the noble Lord what he said in speaking to an amendment moved by the noble Baroness, Lady Faithfull, on 22nd June. The immediate context of that was the suitability, or otherwise, of youth custody centres for very short sentences, and he was responding to a question put to him by my noble friend Lord Hutchinson of Lullington. He said: … the fact is that one can accommodate oneself to a certain number of people who are not capable of taking up the full benefits of a régime, or a curriculum, without throwing out the administration for the rest."—[Official Report, 22/6/82; col. 996.] The noble Lord will know that he was speaking from his background as a teacher. I suggest that, if that is true in his experience, it is equally true of the situation where 15 to 16 year-olds are serving less than 21 days in—if the Government have their way—a prison. There is no magic in the figure of 21. It is neither more nor less difficult to accommodate, in the noble Lord's expression, a young offender of 15 to 16 in a youth detention centre or a youth custody sentence, than it is to accommodate such an offender who is serving 21 days or more. I am going to respond positively to the hopes expressed by one or two noble Lords. I really think that this is a matter which ought not to be decided on party political grounds. It is much too fundamental an objection that I am raising in this amendment. I hope that many of your Lordships will join me in promoting this amendment.

4.55 p.m.

On Question, Whether the said Amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 83; Not-Contents, 83.

DIVISION NO. 2
CONTENTS
Airedale, L. Davies of Leek, L.
Amherst, E. Denington, B.
Ardwick, L. Donaldson of Kingsbridge, L.
Avebury, L.
Bacon, B. Elwyn-Jones, L.
Balogh, L. Elystan-Morgan, L.
Banks, L. Ewart-Biggs, B.
Beaumont of Whitley, L. Faithfull, B.—[Teller.]
Beswick, L. Fisher of Rednal, B.
Birk, B. Gaitskell, B.
Bishopston, L. Gardiner, L.
Blease, L. Gladwyn, L.
Blyton, L. Gosford, E.
Boston of Faversham, L. Hampton, L.
Brockway, L. Harris of Greenwich, L.
Bruce of Donington, L. Hatch of Lusby, L.
Burton of Coventry, B. Houghton of Sowerby, L.
Byers, L. Hunt, L.—[Teller.]
Caradon. L. Hylton, L.
Chitnis, L. Ingleby, V.
Cledwyn of Penrhos, L. Irving of Dartford, L.
Collison, L. Jeger, B.
Cooper of Stockton Heath, L. Kagan, L.
Kennet, L.
David, B. Kilmarnock, L.
Leatherland, L. Rochester, L.
Listowel, E. Sainsbury, L.
Llewelyn-Davies of Hastoe, B. Seear, B.
Sefton of Garston, L.
Lloyd of Kilgerran, L. Spens, L.
Longford, E. Stamp, L.
McCarthy, L. Stewart of Alvechurch, B.
McNair, L. Stewart of Fulham, L.
Mais, L. Stone, L.
Masham of Ilton, B. Strauss L.
Melchett, L. Taylor of Mansfield L.
Milverton, L. Underhill, L.
Mishcon, L. Wallace of Coslany, L.
Molloy, L. Wells-Pestell, L.
Phillips, B. Whaddon, L.
Ponsonby of Shulbrede, L. White, B.
Porritt, L. Wigoder, L.
Roberthall, L. Wynne-Jones, L.
NOT-CONTENTS
Airey of Abingdon, B. Lyell, L.
Alexander of Tunis, E. Mackay of Clashfern, L.
Atholl, D. Macleod of Borve, B.
Avon, E. Mancroft, L.
Belhaven and Stenton, L. Margadale, L.
Bellwin, L. Marley, L.
Beloff, L. Merrivale, L.
Belstead, L. Mersey, V.
Bessborough, E. Mottistone, L.
Bledisloe, V. Mowbray and Stourton, L.
Caccia, L. Murton of Lindisfarne, L.
Caithness, E. Newall, L.
Chelwood, L. Northchurch, B.
Clitheroe, L. Nugent of Guildford, L.
Cockfield, L. Onslow, E.
Constantine of Stanmore, L. Orkney, E.
Daventry, V. Platt of Writtle, B.
Davidson V. Portland, D.
De Freyne, L. Rankeillour, L.
Denham, L.—[Teller.] Romney, E.
Drumalbyn, L. St. Davids, V.
Ebbisham, L. St. John of Bletso, L.
Ellenborough, L. Sandford, L.
Elles, B. Sandys, L.—[Teller.]
Elton, L. Sempill, Ly.
Fortescue, E. Sharples, B.
Gainford, L. Skelmersdale, L.
Glenusk, L. Soames, L.
Glenarthur, L. Stanley of Alderley, L.
Gridley, L. Strathclyde, L.
Hailsham of Saint Marylebone, L. Strathspey, L.
Sudeley, L.
Holderness. L. Swinfen, L.
Hylton-Foster, B. Swinton, E.
Ilchester, E. Terrington, L.
Inglewood, L. Teviot, L.
Killearn, L. Trefgarne, L.
Kilmany, L. Trenchard, V.
Kinloss, Ly. Vaux of Harrowden, L.
Lane-Fox, B. Vivian, L.
Lauderdale, E. Wynford, L.
Long, V. Young, B.
The Deputy Speaker (Lord Murton of Lindisfarne)

My Lords, the Contents are 83, the Not-Contents 83. There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend a Bill in the form which is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.

5.4 p.m.

Baroness Faithfull moved Amendment No. 8: Page 11, line 17, at beginning insert ("Subject to subsection (4A) below,").

The noble Baroness said: My Lords, I beg to move Amendment No. 8, and, with your Lordships' permission, I shall speak also to Amendment No. 9. In many ways, this amendment is to some extent the same as the last amendment, but this one concerns mentally unfit children who have a youth custody order made against them. Children who are mentally unfit are not, by protocol and practice, sent to a detention centre. If they are not sent to a detention centre, a youth custody order can be made, which means that they might, or could, serve a prison sentence in a prison for adults.

Your Lordships' House has shown how equally divided it is on the question of children and young offenders being sent to prison. How much worse it would be for a mentally unfit child or young offender to be sent to prison. It would be worse for two reasons. First, there is no treatment in prison for the mentally unfit person, either adult or child. Secondly, although prison staff have a three-month training in medical practice, they have admitted to me that they do not feel that they are capable of coping with or giving treatment or help, even on a short-term basis, to the mentally unfit. I believe that in our hospital and psychiatric services the mentally unfit child or young person should be treated as such and should not be sent to prison. I beg to move.

Baroness Bacon

My Lords, I support the amendment, but I think we must go a little further than the noble Baroness, Lady Faithfull, has gone and see what the alternatives are. At the moment, psychiatric hospitals and centres for young people are under the jurisdiction of the Department of Health and Social Security. I raised this matter during the Second Reading debate and I must thank the noble Lord, Lord Elton, for the letter which he sent to me about it. But it does not clear up the difficulty which I am in, and I think the noble Lord realises that it does not go as far as perhaps it ought to go.

May I go back quite a long way to the time when I was a Minister at the Home Office and dealt with some rather distressing cases of young people who were very severely mentally disturbed? The difficulty was to know where those young people ought to go. I shall describe one of those cases in a moment. Just before I left the Home Office, I mooted the idea of centres for young psychiatric delinquents. Since then, however, there have been organisational changes. Child care is now under the jurisdiction of the Department of Health and Social Security, while juvenile delinquency is still under the jurisdiction of the Home Office. Home Office Ministers are sometimes put into very difficult predicaments. Although they may want to move someone from a penal establishment, it is sometimes very difficult to get the Department of Health and Social Security to accept them. There is an impasse. I am wondering whether the noble Lord, Lord Elton, can say in his reply whether or not the position is any better today.

I shall not detain the House for long, but it is important for the House to know what has sometimes happened in the past and to ask whether it could happen now. The case I want to mention is that of a girl of 14 who was in the care of a very good local authority.

She was put into an approved school because she had been delinquent. She escaped and then attempted murder and suicide and was brought before the courts. The girl was remanded for three weeks and—as the courts can do—the court said, "This girl is too unruly to be put in any remand home". The court committed her to the only place that was available then, which was the hospital at Holloway Prison. The first I knew of this—even though I told my department always to let me know when any young person was admitted to prison, because it is usually the courts who make this order—was when I saw the headlines in some of the tabloid newspapers, such as "Scandal of Girl of 14 in Holloway". I immediately said to my officials, "Get her out". After a few hours they came back and said to me, "That is all very well, but where can we put her?" We tried to get the girl into a psychiatric hospital but were told there was no room.

The local authority concerned was that of a city which was renowned for its good child care services. They felt that as the girl was in their care, they were really her "parents" and representatives came to London to see me. They asked very reasonably whether they could see the girl in Holloway. She was in a single room in the hospital at Holloway Prison, where she was looked after day and night, 24 hours a day, for her own safety and for the safety of others. The chairman and the child care officer of the local authority came back to me and said, "Keep her there—she is safer there than anywhere else we could find for her". We tried desperately to get her into a psychiatric hospital and it was only at the last minute, before she went back to court, that, luckily, we managed to get her a place. I am pleased to say that all ended happily. A year later, I received a photograph and a letter from the city concerned. The photograph showed a very happy girl with a bicycle. She had been completely cured and had bought a new bicycle, and she was very happy.

Another case—and here I will not go into such detail—did not end so happily. The boy concerned was found dead, and it was discovered afterwards that he had been suffering all the time from epilepsy. I should like to ask the noble Lord whether things are any different from those days. If he considers that a boy or girl should be removed to some kind of psychiatric unit, does he have the power to say, "Remove this person to that psychiatric unit", or is he still dependent upon the permission of the Department of Health and Social Security? When I mooted the idea of these units, I hoped that they would be under the control of the Home Office. But things changed, and they were in fact under the control of the Department of Health and Social Security. It is said that the Home Office is not the department to run any kind of hospital, but the Home Office does run Grendon for adults and so the Home Office is in a position—and Ministers are—of transferring persons from prison to Grendon, and then from Grendon back to prison. I would like to know whether the noble Lord the Minister has this difficulty.

I suspect that he does still have this difficulty. In a letter to me he said that the difficulty is rather more apparent in the letter than in actual fact—or words to that effect. I would like this matter to be cleared up because until it is, there is no use saying that these young people should not go into prison unless there is some alternative place for them.

Lord Avebury

My Lords, I believe that the noble Lord the Minister has accepted—although I cannot find the actual quotation—that young persons of 15 and 16 should not be detained in adult prisons. Therefore, there is no argument between us on the matter of principle; it is solely a question of practicalities and of how one can keep this very small number of young persons of 17 or 18 years of age out of adult prisons when they are unfit for a detention centre. When we were last discussing this, the Minister did say that there were as many as 100 young persons who were mentally unfit at any one time, although he subsequently qualified this and went on to say that they were not only the mentally unfit but also those who had any kind of disability which made it impossible to deal with them in a detention centre—including those who had a mild ailment such as a hernia. As he rightly pointed out, these are of a different order.

The figure which was asked for at Committee stage as to the number of persons who are mentally unfit were not given. I really believe we ought to know what this figure is. If the difficulty is one of resources and that we cannot yet provide enough places to cope with the mentally unfit—and therefore we need to send them to adult prisons—then we need to see the magnitude of the problem facing the noble Lord. It is remarkable that every time I ask for a figure it is not available from the Front Bench, but has to be sought from elsewhere. One would have thought that in coming to Report stage, Ministers would be properly armed with these figures. They are of crucial importance. Every time we talk about resources we need to know about numbers.

It seems to me, if I may say so with great respect, that it is surprising that the Minister does not have these figures at his fingertips and always has to obtain them from some other source before he can tell the House. Surely this is the crux of the matter. We are talking about the resources and whether we can provide enough places, so that we do not have to send these young people to prison. I believe that the noble Lord put his finger on it when he answered my question at Committee stage, when I asked did he not think that it would provide a strong incentive to the Government and the Home Office to get on with the job of providing youth custody centres for the small number of persons concerned if the House was to pass the amendment at that stage? The noble Lord replied, Yes, indeed it would. If we tell the Government that we do not want these young persons who are mentally unfit to be sent to adult prisons they would very soon get on with finding resources.

Lord Hunt

My Lords, I would like to say to the noble Lord, Lord Avebury, that I am much less concerned about the figures which he is asking the noble Lord the Minister to furnish. I am totally concerned about the very root of the matter, which is the principle; it does not matter if we are talking only single figures in terms of young people whose mental condition is such that they are likely to be sent to adult prisons. It is desirable that your Lordships should know what was said in 1980 in the White Paper on this subject, The Young Offender, in referring to those young adults who are the subject of the amendment of the noble Baroness. It stated: These young people will be placed as appropriate by the Prison Department"— and it goes on to say They are most likely to serve their sentences in accommodation in adult prisons. There is no basic question but that this is a scandalous suggestion. Young people whose mental condition requires them to have the best possible medical care are to be dumped, if this Bill goes unamended, into the worst conditions in our penal system.

Lord Elwyn-Jones

My Lords, I must confess that when I discovered the facts—to some of which the noble Lord, Lord Hunt, has just referred and which other noble Lords mentioned—at Committee stage, it distressed me greatly. It seemed intolerable that young persons needing psychiatric care and suffering from some degree of mental disorder should be dumped in prisons. From what I read in an earlier report, they are sometimes dumped in the most unsatisfactory parts even of our most unsatisfactory prisons.

The noble Lord, Lord Elton, was kind enough to send a letter to me in relation to this matter, in which he said: Our intention is that young offenders who need psychiatric care while in custody will receive it. His letter goes on: Normally, this would be in an establishment within the youth custody system, primarily in what are now the borstals at Feltham and Glen Parva. Is the implication of that that since we last discussed the matter, arrangements are now being made so that none in this class of offender will in fact go to prison? If the noble Lord, Lord Elton, can give that assurance, then we shall be reasonably content. The letter certainly does not commit the Home Office to that degree. I think there ought to be such a commitment. Of all the people who need humane and civilised and competent medical care in custody, these are they. What is happening to them now is, I agree, a very serious scandal, and I hope that, as this led so many noble Lords into the Division Lobby in support of our last amendment, there will be even more who will rally this time to see that the Home Office must face the fact that this is unendurable and should not be tolerated.

Baroness Masham of Ilton

My Lords, there is almost an explosion situation in our prisons because of overcrowding and many other reasons. Yet these unsuitable people are still being sent there. Having mentally unfit young people in our prisons is of great concern to the staff who have to try to deal with them. The worrying situation of the drugging of these prisoners is of great concern to many. Surely, my Lords, they should be in special units.

Baroness Trumpington

My Lords, in supporting this amendment, to which my name is attached, I would say that I, too, have had a letter from my noble friend the Minister, for which I thank him very much, in which he said: The Government made it clear in the White Paper on Young Offenders published in October 1980 that it did not consider the detention centre order suitable for offenders who are mentally or physically unfit. Therefore, how much less suitable a place must a prison be for these kind of people? I am very much hoping that my noble friend the Minister will give us an assurance that people who are mentally or physically unfit will not go to prison.

Baroness Macleod of Borve

My Lords, may I briefly support this amendment. The noble Baroness, Lady Bacon, with her wide knowledge from the Home Office side, has hit on a very great problem, in that when we try to send somebody into medical care a different department is concerned. This has been the problem for a very long time. Not only is it a different department, but it is also a problem to try to get psychiatrists to take the children involved from a court. This has been a real problem. I shall be most interested to know what my noble friend is going to say.

Lord Milverton

My Lords, I, too, will support this amendment. I hope Her Majesty's Government and my noble friend Lord Elton will be able to say that they will find a way to agree to this. As has been said, it is not nice for the young who are fit to have to stand up to our prisons, but for those who are not fit in any way it is even worse. So I do hope Her Majesty's Government will be able to respond.

Lord Somers

My Lords, from these Benches I should like to support this amendment and to remind the Government that being mentally ill is not in itself a crime. No doubt they will remember that for some years now we have recognised that fact, in that we refer to those who are mentally unsound as the mentally ill, and not as "lunatics", as we used to. I do hope, therefore, that this amendment will be allowed.

Lord Elton

My Lords, I will first look at what this amendment actually does. It relates to a young offender who is ineligible for a detention centre by virtue of his mental condition and who is instead sentenced to a short term of youth custody. If it were to be accepted, such an offender could be accommodated in a youth custody centre or in a remand centre, but not, as Clause 12 at present also provides, in a prison. Perhaps inadvertently, the amendment would also have the effect of preventing a mentally unfit offender from being held in a prison even temporarily. I assume that that effect would be inadvertent, because the temporary purposes for which, inter alia, subsection (4) provides will generally be to the benefit of the offender, and welcome, I should think, to those supporting this amendment. They include allocation at the beginning of the sentence—a time when links with relatives and friends can be of particular value—and, later on in the sentence, transfers for further appearances in court, accumulated visits and compassionate reasons. I hope there is no disputes about the merits of that provision.

However, the clause as it stands also permits these young people to be held in prisons for the whole of their sentence. I agree that that does require some explanation. I was asked in the earlier debates during the Committee stage how many young people would be excluded from detention centres on physical or mental grounds and said that there might in future be up to 100; that is, up to 4 or 5 per cent. of the estimated total number of short-term prisoners. The figure is derived from our experience of operating the tougher régimes pilot project in detention centres, under which transfers are carried out by the Prison Department on account of physical or mental unfitness for that régime. Your Lordships will notice that it is the tougher régimes and not the whole of the spectrum. The figure can only be an estimate, since it relates to future use by the courts of a statutory provision which does not at present exist. If it is of help to your Lordships, I should add that, so far as the prison system as a whole is concerned, there were 320 mentally disordered offenders on 30th June last year, and that was 137 less than at the same time the previous year.

Lord Donaldson of Kingsbridge

My Lords, may I ask the noble Lord, is that of all ages?

Lord Elton

Yes, my Lords. It is, therefore, not strictly relevant, but I am trying to give approximations because approximations are all that I can produce. I hope the noble Lord will bear with me before he gives vent to his spleen until I have completed what I wanted to say. Well, I have just done it, in response to the noble Lord.

Most people will be excluded from the régime because of physical conditions, including relatively minor ones, as the noble Lord, Lord Avebury, has said. Of the minority we expect to be mentally unsuitable, we would expect only a handful, probably less than half a dozen, to be mentally disordered within the meaning of the Mental Health Act 1959, which is a much tighter criterion than that which determines whether somebody is suitable to go in for this strict régime.

As to how these young offenders will be dealt with, I made it clear that the general rule, now reflected in Clause 12, will be that juveniles—that is, the under-17s—who are excluded from detention centres on medical grounds will go to youth custody centres by virtue of their age alone; that the young adults, people aged between 17 and 21, will normally go there, and that, wherever they are placed, particular account will be taken of any need for psychiatric care or oversight.

The principal facilities for young offenders with mental conditions which render them incapable of coping with normal régimes are at Feltham and Glen Parva Borstals, and at Grendon Prison. Under the new scheme, the first two will be youth custody centres and the last will have a youth custody wing. They will thus continue to be the main outlets for young offenders. But there are two particular reasons why the Government think it should be possible, as Clause 12 provides, for them also to be held in prisons. There are self-contained young offender wings, which will remain as prisons in law because they cannot meet the overall standards set for youth custody régimes but will continue to hold young offenders. The wing at Liverpool Prison, for example, will continue to provide psychiatric facilities for young offenders. Secondly, it will probably be clear from what I have already said that very few of those who are excluded from detention centres on account of their mental condition will be mentally disordered within the terms of the Mental Health Act.

The noble Baroness, Lady Bacon, gave a dramatic illustration of the sort of problems which can present themselves to people in the position which she held and I hold. I have to tell her that it remains the case not that the Department of Health and Social Security determines whether a particular case is suitable for admission to hospital, but that the consultants at the hospital have to agree that the patient is one whom they can or will treat. That is where the difficulty arises which she experienced some years ago, and to which my noble friend has also referred.

Some of the people who are not regarded as suitable for the régime will not require full-time medical supervision at all. Some of them may have quite short periods in custody to serve. Quite apart from that, there will be cases where it is very much in the offender's own interests to spend a short period in custody in a local prison where he can be closer to his home and to the support he can receive from his family, and also closer to the outside facilities which may be appropriate to him on his release than would be the case if he were transferred.

I have spent some time elaborating my hesitation about this amendment. It seems to me that I am compassed about by a great cloud of people who disagree with me. I have noted no sudden and loud changes of opinion and gasps of gratitude for what I have said already. That being so, I revert to the suggestion that we should look at this amendment with a view to the structural weaknesses to which I drew your Lordships' attention at the start and which I trust will be found in the first paragraph of this debate in Hansard—that is to say, it appears to do some things wider than what were noted as the purposes of the amendment when it was moved. If my noble friend would be content for me to do that with some reluctance but with I trust a good grace, perhaps she will feel that she need not press the amendment at this stage.

Baroness Faithfull

My Lords, I find myself in a very real dilemma. My noble friend the Minister has pointed out to me that perhaps the amendment is not worded exactly as it should be, and he has agreed to take the matter back. As the noble Baroness, Lady Bacon, has said, this is a complicated matter, because I also have had experience of trying to get a child into a mental hospital. Let me say at this stage that I do not think that the Home Office and the Department of Health and Social Security have come to terms with one another as to whether treatment should be given, who it should be given by, and where. I think that I almost—and I repeat "almost" —feel like pressing this amendment in order for that to be done. But, having been given the assurance of the Minister that this matter will be looked into—

Lord Mishcon

My Lords, the noble Baroness is always so courteous. I did not wish her to give away too much. I wonder whether the noble Lord the Minister could help by informing the House whether the assurance which he gave with some reluctance but nevertheless with considerable charm, is an undertaking that there will be an amendment in the spirit of the one now before the House but with certain structural defects remedied? If that is the assurance that the noble Lord the Minister is giving to the House, it might help us all, including of course, the noble Baroness.

Lord Elton

My Lords, I am grateful for the way in which the noble Lord describes my manner; he has also got my intention right.

Baroness Faithfull

My Lords, as the intention is right—and I am grateful to the noble Lord, Lord Mishcon, for clearing up the point—I hope that my fellow workers on the All-Party Penal Affairs Group would agree that I should withdraw the amendment until the next stage. My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

5.34 p.m.

Lord Hunt moved Amendment No. 10: Page 12, line 11, after ("or") insert ("(where the offender is aged 17 or over)").

The noble Lord said: My Lords, I spoke to this amendment when moving Amendment No. 7. Those of your Lordships who were in the House when the debate took place on that amendment will not wish me to rehearse the case for this amendment again. The Minister, in his usual charming and extremely clear way, responded to the points that I made in favour of that amendment, which are the same as those which relate to Amendment No. 10. Those of your Lordships who were here will have heard him, and I am sure will not wish the Minister to repeat all the arguments against Amendment No. 10.

Your Lordships will be well aware that the Division on Amendment No. 7 ended in a draw: 83 were content, and 83 were not-content. Emboldened by that result and in the hope that, maybe impressed by that outcome, at least one or more noble Lord opposite or on my left will take the plunge and have the courage to come across into the Content Lobby, there will not be a "but" in this case, because I propose to press the amendment to a Division. I beg to move.

Lord Elton

My Lords, if it is the noble Lord's intention to divide the House and silence any criticism of the amendment, at the same time forfeiting any defence of the amendment, then I am not sure that that is within the power of the noble Lord to achieve. I must repeat to your Lordships that there are cogent reasons why the first amendment was not agreed to with a majority of this House, and that is the only way in which it can be agreed to. The noble Lord has now cut off the pair of legs at one end of the table and is expecting us to address ourselves favourably to the others. I think that the table would stand flat if we cut the legs off at that end too.

Lord Mishcon

My Lords, perhaps I may help the noble Lord with a different kind of surgery. Having seen that, indeed, on the last occasion this was not completely cured by the doctor who was trying very hard to cure it, is he not prepared himself to look at the way in which the doctor managed to look after the patient and help that patient by agreeing that a dead heat on a matter of this importance obviously necessitates that the Government very seriously rethink the whole matter?

Lord Elton

My Lords, the noble Lord, who is intending to be helpful, places me in a very difficult position. I shall read the debate with the greatest care and I shall also read the Division List with the greatest care. In the light of that, I will consider what has gone before. However, the fact remains that we have discussed the merits on one occasion. Your Lordships have shown that you very nearly agreed with the noble Lord and that you very nearly agreed with me and that actually you were equally divided. But, if the noble Lord, Lord Mishcon, is asking me to bring an amendment to the House at Third Reading, then that is something which, at this short notice and without debate of this amendment, I could not undertake. I can undertake to read what the noble Lord, Lord Hunt, and others have said in moving exchanges, to see whether there is anything I can do in order to go some way towards what he wants. But, on the basis of the Division as it was, it is not something as regards which I can undertake to come back with an amendment.

Lord Hunt

My Lords, I should like to begin by apologising to the noble Lord, Lord Elton, if I have pre-empted his opportunity to speak against this amendment. I realise that I was too precipitate in that regard. I should have listened to him and invited him to reconsider the opposition he had put forward to it when I was speaking to this amendment while moving Amendment No. 7. I am very sorry about that indeed.

I would point out to your Lordships that there is an essential difference, in that we are talking now about 15-and 16-year olds who are sentenced to detention centres rather than to youth custody centres. Therefore, although the principle is exactly the same, the issue is, in that respect, different. I have every intention of testing the view of the House on the proposal in the Bill for the power to be given to the Secretary of State to require that even a few 15- to 16-year old boys should, when given a detention centre sentence, serve it in an adult prison. The conditions are such that I need not repeat them again; they have been aired extremely fully. It is totally and absolutely wrong in principle. It is very important that we should have yet another go to spare at least those who are given detention centre sentences, as distinct from those given youth custody sentences, the ignomony and the damage that would be done to them by serving in an adult prison.

Lord Elton

My Lords, with your Lordships' leave—because we were discussing whether the amendment should be put; we have now decided that it should be put, and the noble Lord has said that there are arguments in favour of it—I shall also be brief. People are apt to dismiss as irrelevant or bureaucratic arguments of administrative convenience. All I want to do is to put a gloss on what I said before—that when the time of prison officers is taken up in an operation of this kind, which is of marginal benefit and which is sometimes contrary to the interests of the people caught up in it (sometimes it is a considerable period of time extending over a number of days), and when you take these people away from their normal duties, somewhere else in the prison system someone is locked up for 23 hours a day who might be out doing other things under supervision. That is what I was trying to say. I shall not wax eloquent—if I am eloquent—at greater length on other points. I take the emotive question of the mental stress in good part; I recognise it. But when you come to the individual cases, as I have already sought to describe, I think you do little or no good to the individual concerned and you do a great deal of harm to somebody else somewhere else who has to sit behind bars for 23 hours in the day instead of having association or going to a workshop. That is the nub of the matter.

Lord Harris of Greenwich

My Lords, with great respect to the Minister, that is not at all a satisfactory answer to my noble friend Lord Hunt. Prisoners will continue to be locked up 23 hours out of 24 whether or not this amendment is passed. That is the fact, as I am sure the noble Lord, Lord Elton, will be the first to agree. The difference that would be made in terms of lessening the pressures on prison officers has, I think, been considerably overstated by the noble Lord. I certainly recognise the problems of management, which the noble Lord, Lord Elton, put earlier. He certainly has a case there.

But I am bound to say that when he starts using arguments about people being locked up 23 hour out of every 24, he knows perfectly well that in all the local prisons of this country that is exactly the régime that exists. I know that he has visited a number of prisons since he went to the Home Office and took charge of the prison department. He, like me, has seen the conditions in which children are kept in custody. They are, in fact, wholly deplorable. They create great anxiety for the prison officers. I am sure the noble Lord will agree with me that when one is talking about the attitude of the prison service, prison officers are often deeply concerned about the conditions in which children of this age are kept in custody.

I put it to him that on an issue where the House has been evenly divided it is right for him—I hope—to get up and say that he is prepared to reconsider this matter as a question of substance before the Third Reading of this Bill. I think that it would be most unfortunate if we took a marginal decision one way or the other on this matter. It seems to me perfectly reasonable to ask the noble Lord, Lord Elton, to discuss the matter with his right honourable friend the Home Secretary, pointing out to him that, on the last occasion the matter was put to the test, the House was evenly divided, and on that basis, before the Third Reading, to reconsider whether he can meet the wishes of at least 50 per cent. of the House.

Baroness Macleod of Borve

My Lords, before the noble Lord sits down, I wonder whether recently he has visited many children's custodial establishments. At those that I have visited, although they have been locked between large dormitories, they have been outside kicking balls about. They are not being treated as prisoners in any way. They are taken out of society because of the way in which they behave in society. They are not locked in small rooms for 23 hours a day, as are some of the adults. I think that, inadvertently, the noble Lord might have given the House the wrong impression.

Lord Harris of Greenwich

My Lords, with great respect, with the leave of the House, perhaps I could answer that point. I have, indeed, visited a number of such establishments in the recent past. The conditions to which I referred reflect the general situation prevailing in local prisons; and some of the problems attendant on this situation of over-crowding, in fact, put the position of the prison service in a great deal of difficulty because it then has to deal with the problem of looking after teenage prisoners of this kind. It is that to which I refer.

Of course, the prison service does everything it can to minimise the damage being done to children who are being kept in adult prisons. The point which I was making in answering the noble Lord, Lord Elton, was that he appeared to be implying that in some remarkable way we were discussing whether, in fact, prisoners were or were not to be kept locked up 23 hours out of every 24. That is the situation which exists now in local prisons, and it will continue, whether or not this amendment is passed.

Lord Elton

My Lords, at the risk of annoying your Lordships by asking your indulgence a second time for speaking more than once, I do not wish to appear curmudgeonly about this. I recognise the narrowness of the Division and I have already said that I shall look at this very carefully. I cannot anticipate the result of that look. I cannot say to your Lordships that, as we are exactly evenly divided on this, I shall come back with something which will satisfy one 50 per cent. rather than the other. But if what the noble Lord, Lord Harris, said accurately expressed what the noble Lord, Lord Hunt, thinks about this, I am perfectly willing to consider the whole of this debate and the Division List, and the debate that produced that Division List, with my right honourable friend before the Third Reading to see whether, in the light of that, there is a new positon that we could take. If that is of assistance to the noble Lord, I am very happy to offer it to him.

Lord Hunt

My Lords, the noble Lord the Minister has spoken with his usual courtesy and I have a very high regard for his sincerety in this matter. Undoubtedly, I can confirm that what my noble friend Lord Harris has said accords with my own feelings on this matter, and I can also say to the noble Baroness that I, too, have visited adult prisons and have seen 15- to 16-year-olds incarcerated in them. I confirm what the borstal and prison governors branch of the Civil and Public Servants Association has written, which I have quoted to your Lordships. So I know the conditions.

In view of what the Minister has said, I shall not press this amendment to a Division. I shall await hopefully—although he has not been able to offer the House much hope—the outcome of his deliberations in the Home Office between now and the Third Reading. Depending on what he is able to tell me between now and Third Reading, I shall stand ready to put both these amendments down again at Third Reading. On that basis, I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

Clause 15 [Release on licence of young offenders]:

5.48 p.m.

Baroness Birk moved Amendment No. 11: Leave out Clause 15 and insert the following new clause:

Repeal of s. 60(5A) of Criminal Justice Act 1967.

("15. Subsection (5A) of section 60 of the Criminal Justice Act 1967 shall cease to have effect.").

The noble Baroness said: My Lords, this amendment, again, deals with young people. It sets out to make the length of licence for those young offenders released on parole the same as for adults. The licence would then end at the remission date. A similar amendment was moved in Committee by my noble friend, Lord Elystan-Morgan but it was late at night so it was withdrawn in order that it could have a better hearing and airing at this time of the day.

In general, distinctions between young and adult offenders are—and I think quite rightly—made with the intention of benefiting the younger offenders. However, the present parole arrangements have the opposite effect and they can, in fact—and, indeed, they do—put young offenders in a worse position than adults in similar circumstances.

The Bill—and one must be fair here—improves on the existing arrangements under which parole for young offenders extends to the latest date of release rather than the remission date. However, we feel very strongly that it does not go far enough.

Therefore, a young offender released on parole could still be subject to licence and, therefore, to recall for a longer period than an adult serving the same length of sentence. This seems to us to be unfair, and it also sets up a great deal of bitterness and ill feeling. It also means that the young offender who is subject to recall is liable to spend a longer period in custody as the unexpired part of the licence will be longer. This amendment would remove this anomaly and the potential for a serious injustice.

Parole, as it is framed at the moment, is only available to those serving over 18 months. All young offenders serving shorter sentences will be related on licence, under Clause 15, on their remission date. For a breach of licence a court may fine them up to £200 or impose up to 30 days custody. Those serving less than nine months will be on licence for three months; those serving from nine to 18 months will have licences between three and six months.

If the Bill is amended, some young offenders released on parole will then have shorter licences. For example, someone serving two years and released at 12 months will have four months' licence. However, this will be a parole licence carrying recall either by the Secretary of State or the courts and with the sanction of longer periods in custody. Therefore there are ample safeguards for anyone who offends while they are on parole. Without the amendment those young offenders will face longer periods on the parole licence, which carries a greater sanction, than other young offenders who have spent less time in custody.

At Committee we felt that the Minister, Lord Elton, when he spoke of the value of a period of supervision following release—which we accept, and it is absolutely right—minimised the important differences between a parole licence and normal supervision on release, which are two quite different things. Under a parole licence there is an expectation of much more stringent and frequent reporting to the probation officer, and throughout the period on parole the offender remains liable to recall to prison. This is a very real sanction. We believe that there should be parity between adults and young offenders and that young offenders released on parole should not be at a disadvantage in comparison with adults. We also believe that this outweighs any inequity that would be created between young offenders.

There is a further point. The Minister has on many occasions, and no doubt will during the passage of the Bill on Report, refer to the question of resources, whether financial or resources of personnel. Without this amendment this Bill adds to the burden on probation officers, which must mean extra demands on the people available and also extra demands on finance. Therefore, as well as doing something that is equitable and wanted by probation officers and other people who are concerned with the licensing system in this area, the amendment would also reduce—and this is extremely important—the demand on resources, and do it in a good cause. In other words, it would not be trying to reduce resources by cutting corners but by doing something which is badly needed. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, the arguments have been fully deployed by the noble Baroness on the Opposition Front Bench. Beyond adding that the National Association of Probation Officers are keen on this I will say no more than that I support the noble Baroness fully.

Lord Elton

My Lords, in Committee I set out quite fully the reasons why the Government cannot accept this amendment. They were, I think, fairly substantial. The argument put forward in support of the amendment was simply that young offenders should be treated in the same way as adults. My Lords, I certainly agree that young offenders should not generally be denied any advantages which adult prisoners enjoy. That is why parole will be available for those serving youth custody. But it is not always and invariably possible to achieve exact parity because young offenders do not serve the same sentences as adult prisoners. The crucial difference is that when young offenders are released from custody, they are all under supervision. Adult prisoners are not. The arrangements we make for young offenders on parole must take account of what happens to young offenders who are not released on parole. That is what the present parole provisions do and that is what we are doing in Clause 15.

The general rule we introduce in Clause 16 is that all young offenders will be supervised until the date on which their full sentences would have expired. That can be called the "remission period". The period of supervision is therefore related to the length of the sentence but with a minimum of three months and a maximum of 12 months. We do not, however, intend that this new arrangement should interfere with a young offender's chances of being released earlier on parole. At present, young prisoners are eligible for release under the parole arrangements in the same way as adult prisoners. The only difference between the two categories is that the parole licence of a young offender runs until the end of the full term of his sentence. The parole licence of an adult is shorter. It runs until the two-thirds point of his sentence. That is the date on which he would otherwise have been released without, of course, any supervision.

This amendment to Clause 15 would abolish the existing differences between adults and young offenders released on parole. The Government intend to retain it, because it balances the general principle underlying the custody and supervision of young offenders. In general, offenders released under Clause 16 will spend two-thirds of their sentences in custody and one-third under supervision. Those released early on parole under Clause 15 might spend one half of the sentence in custody and one half on licence under supervision. That means that there is some equality of treatment as between young offenders as a class, and that is the Government's aim. If this amendment were to succeed it would make a severe inroad into this general approach to young offenders. It would also introduce a dramatic difference to the way we treat those who are released on parole and those who are not. The Government regard that as highly undesirable, and I must ask the House to reject this amendment.

Lord Elystan-Morgan

My Lords, we on these Benches are deeply disappointed that the noble Lord has taken so rigid a line in relation to this matter, an attitude which is markedly different from that taken by his honourable and learned friend the Minister of State in another place who, at Committee stage, was prepared to give the matter further consideration. The basic point has been avoided by the Minister. It is not a question of giving young offenders the same benefits as older offenders. The basic point is that a young offender is on risk of recall for a longer period. He is on risk of recall to the end of his sentence, whereas the older offender is on risk only to a point in time two-thirds through his sentence; that is, the first release date. That is the difference. It is a difference that has not been justified, either today or on the earlier occasion on, I think, 28th June, when we last debated the matter in Committee. No cogent argument has been put forward for that distinction.

Baroness Birk

My Lords, my noble friend Lord Elystan-Morgan has answered the Minister's reply. He is right when he says that no real answer has been given. The noble Lord still appears to have overlooked the difference which we both stressed, between being on a licence of parole or being under supervision under a supervision order. There is a strong element of unfairness to the young offender in the way the system is working at the moment, even with the changes that have been made in the Bill up till now.

However, at this stage I do not think there is much point in pressing it to a Division. I should like to see exactly what the Minister said and read that in Hansard, and reserve our position until Third Reading. I do not know whether in between the Minister will be able to help me by letting me have any figures on how this works and how it affects a number of young people. I think it could be a considerable number of young people who will find themselves at fairly quick recall to prison and who, as my noble friend said and as I said at the outset, will be punished more severely than older offenders, and there does not seem to be any rhyme or reason for it.

I do not accept the argument about supervision because it is an entirely different sort of supervision. As has been pointed out, the type of supervision when one is on licence under parole is much more stringent than under a supervision order. Although the Minister's reply was completely unsatisfactory, at this time of the afternoon we had better leave it and move on, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 [Supervision of young offenders released otherwise than on licence]:

6.1 p.m.

Lord Elton moved Amendment No. 12: Page 14, line 23, leave out ("A") and insert ("Subject to subsection (8) below, a").

The noble Lord said: My Lords, it might be to the advantage of the House if I spoke also to Amendment No. 14. The Government have tabled these amendments after giving further thought to a point which the noble Lord, Lord Donaldson, raised in Committee. He was concerned about young offenders who were under supervision after being released from custody and who, under Clause 16(6), were given a short custodial sentence for being in breach of that supervision. That short custodial sentence would, as the Bill stands, itself attract a further period of supervision. The Government are persuaded by the arguments which the noble Lord put forward. There is the possibility that a young offender could be caught in a long cycle of custody, supervision, breach, yet more custody and more supervision and a further breach, and so on. The effect of our two amendments to Clause 16 is to prevent that.

If a young offender is in breach of supervision, he can be given a short custodial sentence. The penalty for the breach will not itself carry a further fresh period of supervision. This seems on reflection to strike the right balance. It is in general desirable that young offenders should have the benefit of supervision after serving a custodial sentence and that the supervision should be proportionate in length to the time spent in custody. But where custody is imposed becuase of a serious breakdown in supervision, it is less profitable to impose a new period of supervision. The original period of supervision should, however, continue to run. It would be undesirable for an offender to be able to cut short his supervision liability as a result of a breach. The Government amendment makes this clear.

There are other detailed points which have led us to table our own amendment in preference to that tabled by the noble Lord, Lord Donaldson. The Government amendment makes it clear that the new exception for sentences imposed for an offence under subsection (6) is to prevail over the general rule in subsection (1) that any custodial sentence carries with it a liability to supervision. More importantly, the Government amendment makes it clear that where an offender is dealt with for breach of supervision at the same time as for a further offence, and receives a custodial sentence in respect of both, it is only in respect of the custodial sentence for breach of supervision that no further supervision arises. Suppose an offender receives a sentence of 12 months' youth custody on re-offending. It would surely be wrong to deprive him of the advantages of supervision to help him resettle after several months in custody merely because he had committed a serious breach of the period of supervision following his first custodial sentence. I hope your Lordships will agree to the amendment and that I have in fact made clear the distinction between the two classes.

Lord Donaldson of Kingsbridge

My Lords, I am most grateful to the noble Lord. My gratitude is slightly tinged with disappointment because I had prepared a powerful short speech, and it was not until I read Amendments Nos. 12 and 14 that I realised there was nothing to say, except "Thank you".

On Question, amendment agreed to.

[Amendment No. 13 not moved.]

Lord Elton moved Amendment No. 14: Page 15, line 23, leave out from beginning to ("of") in line 24 and insert— ("(8) A person released from a custodial sentence passed under subsection (6) above shall not be liable to a period of supervision in consequence of his conviction under that subsection, but his conviction shall not prejudice any liability to supervision to which he was previously subject, and that liability shall accordingly continue until the end").

The noble Lord said: This is consequential, my Lords. I beg to move.

On Question, amendment agreed to.

Clause 18 [Attendance centre orders]:

Baroness Birk moved Amendment No. 15: Page 17, line 6, at end insert ("where the offender is under 17 years of age, or 36 hours where the offender is under 21 but not less than 17 years of age.").

The noble Baroness said: This is concerned with attendance centres, my Lords. Clauses 17 to 20 deal with this subject, and some changes, which have been beneficial, have been made. This is in the nature of a probing amendment and if the information we are given supports the need for an amendment such as this, hopefully the Government will see it that way. The attendance centre provides a useful form of punishment, being midway between a fine or community service and a detention centre, and it is believed by some people, particularly the Justices' Clerks' Society, that there is a case for increasing the maximum number of hours that can be ordered for a senior attendance centre. At present, someone aged 17 and under 21 can be ordered to perform community service of up to 240 hours, but can be required to attend an attendance centre for only 24 hours. The amendment proposes that the maximum period of attendance at a senior centre should be increased to 36 hours, bringing the period nearer to the lower limit of 40 hours for community service.

There is no question of wishing to add any draconian factors to attendance at an attendance centre. If it were thought that by increasing the maximum—obviously it does not have to be given every time—fewer people would go to detention centres or to some other form of custodial service, then in those circumstances it might be worth considering. On that basis, by extending the hours that can be spent at an attendance centre, we may encourage benches to use the attendance centre more frequently than is presently the case, or to use it for offences for which at the moment they may think the maximum is too low to deal with a particular offence. It is really in that spirit, rather than wishing to press hard on the amendment, that I move it.

Lord Elton

My Lords, I am grateful to the noble Baroness for the opportunity provided by her amendment to say a few words about the development of senior attendance centres. As was indicated in the White Paper on Young Offenders, the Government are extending the provision of attendance centres for young men aged 17 and under 21. In 1979 there were only two. There are now 14, including one which opened at Middlesbrough last Saturday, 17th July. At all these centres the usual duration of a session is three hours, which means that a young man undergoing a 24-hour order (the maximum a court may impose under existing law, and the Bill as drafted) must attend on at least eight Saturdays to complete the order. The effect of enabling courts to make orders for up to 36 hours, as proposed by the amendment, would be to require a young man to attend the centre on a minimum of 12 occasions. For young men of the age in question, at least 17 and under 21, the longer order would be compatible with the aims of the attendance centre order as we see them, which are to vindicate the law by imposing loss of leisure and to teach offenders something of the constructive use of leisure. The noble Baroness said it was a probing amendment which she would not push too hard. I hope I do not astonish her by opening the door against which she is pressing because I am disposed to accept the amendment.

Lord Harris of Greenwich

I welcome that, my Lords. For some time it has been regarded as rather unfashionable to have senior attendance centres but, speaking for myself, I thought the decision of the Government is this respect was very sensible. I has an opportunity of visiting one of the two centres which existed before the present Government came into office. The centre was in Greenwich, and was run by officers of the traffic branch of the Metropolitan Police. I thought that it was run with a high degree of efficiency, and, what is more, having visited it, I had no doubt that the kind of young men who were sent there would otherwise in many cases have attracted custodial sentences. I was agreeably surprised at the kind of risks—they were risks—which the court ran when making the attendance centre orders. I repeat that I consider that the senior attendance centres have a useful role, and I very much welcome the noble Baroness's amendment, as well as the fact that she is pushing at what is at least an opening door. It is with pleasure that I support the amendment.

Baroness Birk

My Lords, I am very grateful to the noble Lord, Lord Harris, not only for his support, but for his enabling me to recover from my surprise; pushing the opening door had knocked me backwards. I am also grateful to the Minister. I hope it will be realised that the maximum number of hours is not the same as the normal number, and that the amendment will prove to be a constructive move towards keeping at least some people out of custodial care.

On Question, amendment agreed to.

Clause 21 [Requirements in supervision orders]:

6.11 p.m.

Lord Elton moved Amendment No. 16: Page 21, line 10, leave out ("aggregate of any periods specified in") and insert ("total number of days in respect of which a supervised person may be required to comply with").

The noble Lord said: My Lords, in speaking to this amendment, I shall with the leave of your Lordships, speak also to Amendments Nos. 17 to 22, and Amendments Nos. 23 to 30. I understand that there is another amendment, No. 22A, that has slipped in between the two series of amendments, and I do not wish to address myself to that particular amendment in the same terms as I address myself to the other amendments.

This amendment—or set of amendments—gives effect to the Government's decision to add to the requirements which the court may impose in making a supervision order. As I indicated to your Lordships during the Committee stage, this follows consultations arising from the consideration given in another place to the proposal for a curfew order. I must admit that this battery of amendments has a rather daunting appearance. Much of it arises from the need to reframe Clause 21. Clause 21 amends Section 12 of the Children and Young Persons Act 1969. That is the section which provides for requirements to be attached to supervision orders. The essence of these amendments is set out in paragraph (aa), which amendment adds to subsection (3C). This empowers the court to add a requirement when it imposes on an offender under 17 years old a supervision order to the effect that he must stay at home during specified night hours. Hence the description "night restriction" which subsection (3CA) adopts, and which I hope your Lordships will find preferable to the description of "curfew order" which we have used in the past.

Since the requirement is complex, perhaps I should first summarise the new provision. It will enable the court, after consultation with the supervisor, to require the young offender to remain at home for up to 10 hours, between 6 p.m. and 6 a.m., on up to 30 nights during the first three months after the supervision order is made. As I say, there is a requirement to consult the supervisor. Secondly, there is a requirement to obtain the consent of the young offender, or, if he is under 14, that of his parent or guardian. Thirdly, there is a requirement to obtain the consent of the parent, or guardian, or other person with whom the young person lives. Where appropriate, the night restriction may apply to more than one place; nor will the young offender be confined absolutely to his home, even during those hours. He will be able to leave it if he is accompanied by his parent, or guardian, or his supervisor, or by someone else specified in the order. Those are the restrictions and limitations on the order, and the exceptions to it.

Let me now turn to the value of the new provision. The supervision order is designed to enable a wide range of young offenders to be dealt with in the community. Clause 21 is designed to provide a framework for extending the use of intermediate treatment. It enables requirements covering programmes of activities to be written into the supervision order. Under subsection (3C)(b) it also enables the court to require an offender to refrain from certain activities. This is the "negative" requirement which we discussed at the Committee stage.

The night restriction builds on that. To those who doubt the principle, I would say that difficult young offenders, even those under 17, cannot be dealt with merely by being assisted. They have to be taught to refrain from unlawful activities. It may be necessary for the supervision order to encompass that restraint. We are all agreed that taking away young offenders from home and putting them in custody, or residential accommodation, should be avoided wherever possible. This power is designed to enhance the strength of the supervision order to achieve that objective. The courts must have confidence that there is a reasonable chance that a young offender who has committed a serious offence will not continue offending with impunity if he is not put into residential accommodation. They must feel that the imposition of a supervision order is compatible with their public duty.

Where a young offender is in the habit of spending his evenings out on the streets getting into trouble, courts have to find a satisfactory way of seeing that he does not just go on getting into trouble. Custody has many disadvantages, but at least it promises that much—it keeps the offender off the streets at night. If the court is to consider a supervision order seriously, the possibility of adding a requirement that the young offender shall not go out of an evening and will therefore be restrained from getting into trouble will add a considerable degree of extra confidence. Without that confidence a custodial sentence will look far more attractive than we should like it to be. Our original proposal was aimed at this problem, but it attracted widespread criticism. It was precisely for that reason that the Government consulted widely on the new proposal. We believe it in its revised form to be a modest, but nonetheless very useful, strengthening of the supervision order, and it is on that basis that it must be judged.

Our consultations with the Magistrates' Association made it clear that the night restriction will be widely regarded as a useful addition to the powers available to the courts, and there was fairly general agreement that to put it within the framework of the supervision order was a considerable improvement on the original proposal for a free-standing curfew order.

The notion of a "contract" within the supervision order is well established. It may involve regular time-keeping. The Medway scheme is a well-known example of the use of that kind of approach. The value of such a requirement as part of a package of positive and constructive activities carried out under a supervision order was noted in the comments made to us by both NACRO and the British Association of Social Workers. Certainly the latter organisation did not favour a statutory basis for the order, but it is clear that the courts would have more confidence in a supervision order made with the backing of legislation, and in which the courts themselves would be involved, rather than in one made informally by agreement with the supervisor and the young offender.

I do not seek to play down the fact that there are substantial reservations about the proposal, nor that some bodies have expressed outright opposition. The National Association of Probation Officers and the National Intermediate Treatment Federation both oppose it. They and other bodies have clearly given careful consideration to the issue. We are grateful for the trouble that they have taken.

Your Lordships will, quite rightly, expect me to explain why, having studied carefully the comments put to us, we nevertheless think it right to go on. One of the principal fears expressed about confining a young offender to his home is that it may impose an unbearable strain on relations between parent and young person; and those relations may already be precarious. In particular, the inappropriateness of such a requirement where the young offender comes from a single-parent family living in deprived circumstances has been widely emphasised. The Government accept that.

To say that the requirement, like many another power available to the courts, is inappropriate in many, or even in most, circumstances is surely no argument for not making it available for those cases where it is appropriate. Where a conscientious parent is striving to control a difficult adolescent, the authority of a court order in the context of supervision with the support and assistance of a supervisor and the backing of sanctions, can make a real contribution in reinforcing that authority. At best, it can take the resentment out of the situation—the resentment, I mean, of the rebellious youth for the parent's assertion of authority—because the authority of the parent has been not so much reinforced as overtaken by the authority of the court. It is an endorsement of father's stand, if I can so put it. If the resentment does not go, at least it is transferred outside the home to the court, which stands behind the supervisor as well as the offender; and if there is no authority in the home, or very little, then this is the addition of a stabilising influence to a precarious situation.

Lord Harris of Greenwich

My Lords—

The Deputy Speaker (Baroness Wootton of Abinger)

My Lords, the Question is, Whether Amendment No. 16 shall be agreed to?

Lord Harris of Greenwich

My Lords, may I ask the noble Lord a question? I did not want to interrupt him, because he was developing his argument. He very fairly mentioned that two of the organisations he had consulted had come out against this proposal, and he mentioned the Magistrates' Association, which had in fact endorsed it. Given the fact that in a Written Answer to me the other day he indicated that a very large number of organisations had been consulted, I wonder whether he could assist the House by telling us whether any organisation other than the Magistrates' Association has in fact supported this idea.

Lord Elton

My Lords, we had reached, not the end but an interesting caesura in my speech, I regret, and I apologise to the noble Baroness on the Woolsack that, perhaps because this is an important issue, I had spoken at greater than usual length, and in my sitting down she understandably hoped that I had finished, but I fear I have not. Perhaps I may return to my muttons and deal with the noble Lord a little later.

The role of the supervisor in all this is clearly crucial. The implications of the requirement for the supervisor's relationship with the young offender is an issue which has attracted a good deal of comment. It is suggested that the restraint which the requirement to be at home during certain hours involves will conflict with the relationship of support and trust which the supervisor has to seek to build up with the young offender. That relationship is of fundamental importance. Of course, the requirement of the restriction order cannot work unless its validity is accepted. That is why it is right that the young offender must consent to it. That consent is now built into what we propose. Without it there can be no order. But once that crucial element is secured, we see no reason why that requirement should underline the relationship between the supervisor and the young offender more than any other.

The element of enforcement which the night restriction will place on the supervisor is nothing new. All the rules to which the young offenders must conform while under supervision are already backed by the sanctions available on breach. It is part of the supervisor's duty to enforce the requirements. He brings the young offender back to court where this is necessary to deal with a breach. The crucial consideration is that the night restriction should be a part of an appropriate response to the young offender and his offending, secured with his own consent and that of those in natural authority over him.

There is, I know, concern about enforcement. Of course, guaranteed watertight enforcement, with no possibility of evasion, cannot be secured. That is unobtainable in many respects of the context of dealing with offenders in the community. But that does not render the requirement ineffective in this case any more than it does in others. In the context of the relationship between supervisor, parent and the young offender, the restraining sanction of the court order can be an effective support; a sort of sea anchor in troubled waters.

Thus, my Lords, we believe that the night restriction is a constructive addition to the supervision order power. It is a constructive supplement in those cases where the court is dealing with serious offenders who need to be restrained from getting into trouble and where family circumstances make it possible to do this in the context of supervision in the community.

I have already made it clear why the Government do not agree with those who oppose the concept in principle because they consider that it conflicts with the supervisor's role of assisting young offenders. To those who do not oppose it in principle but who do think that such a restriction should be left to private agreement between the supervisor and young offender, I would say this. It is the courts that have to decide what response should be made to each offender who comes before them. They make the supervision order. We want them to prefer supervision to custody. I believe your Lordships do as well. The principle behind the whole approach which this Bill adopts to the strengthening of the supervision order is that the courts should be more involved in the process of deciding what is the right response to each offender and each offence. That is right in principle. It is also desirable in practice, since the courts will not make supervision orders if they lack confidence in them.

There is talk of the contract between the supervisor and the young offender. The strengthened supervision order provisions give the courts their place in drawing up that contract. Deciding on proper cases for attaching the right restriction will depend on careful judgment of the circumstances of the offence, of the offender and of his home background. These amendments enable the courts to tailor the restriction to suit the circumstances of each case. It depends on close co-operation between the supervisor and courts in identifying appropriate cases and drawing up the appropriate requirement.

My Lords, the clause provides for proper consultations between supervisor and court. The court will be dependent on the supervisor for advice on the circumstances of the offender. The supervisor will be responsible for the supervision package. It is clear that the courts are bound to pay close attention to the advice they receive from the supervisor. We believe that the courts and supervisors can be relied upon to make proper use of the powers which the amendments propose. Against that background we consider them to be a valuable reinforcement of parental responsibility; and where there is hostility to them by the supervisor, the court will be steered by them. We believe that they are a valuable way of keeping young people out of custody. If that is what your Lordships also want—to keep young people out of custody—I ask your Lordships to put these amendments into the Bill.

The Deputy Speaker

My Lords, I apologise to the noble Lord for my premature interpretation of the conclusion of his speech. The Question is, Whether Amendment No. 16 shall be agreed to?

6.28 p.m.

Baroness Birk

My Lords, I rise to oppose the amendments that the Minister has must moved, not because I think the motivation behind them is wrong or bad; in fact, I think they are based on good intentions, but this is a case where good intentions, even those of the Minister and the Government, I am afraid, are not going to get us very far and are in great danger in fact of effecting exactly the reverse of what is intended. I agreed entirely with the Minister when he said that young offenders should be dealt with in the community. There are a variety of ways of doing that, and we would like to see these added to; but I do not believe that this is one of them. May I say that in addition to all the letters and pieces of paper flying around, which I think most of us have seen—and the majority are against this proposal; the Minister cited the Magistrates' Association, but I am afraid that stands out in rather lonely isolation as being in support of this particular measure—over the last few weeks, between Committee and Report stage, I have discussed this at considerable length with the magistrates on my own bench (a fairly large number; we are a large bench) and with the probation officers. One thing has emerged. Among all the magistrates—and we are a very varied collection of people, not only of different political parties but different in our approach to crime and sentencing; we are different people individually—there is not one who supports this approach or thinks that it can be made to work. This applies to the probation officers, too, who also have considered it very carefully and seriously.

I think that the reasons are quite clear. First, the Government are proposing something which is going to be unworkable. Let us consider that and not whether it is good or bad. What we are asking is that this curfew (or the different phrase that the Minister used) should be imposed on young people for this period of 10 or 12 hours and that this should be abided by. For this to happen it means that the young person has to be followed all the time; it has to be monitored. It means that either the police have to be brought in in order to help to effect it, to see whether it is working or not; or that without having a young person supervised almost like a captive for all that period, it is not going to be practicable with the resources available. If it is not going to work it will be brought into disrepute and it will become almost a game. They will say: "Don't worry about it. Accept the curfew! You will not have to worry about it. Unless you are very unlucky you will not be caught". A number of young people and their parents will accept this as being, as they see it, an easier way out. They may have the intention of trying to keep it but without the real motive of being able to keep it. That is the first point.

Secondly, I find it anathema to put something like this in a supervision order which, if it is to be successful, depends on a great deal of rapport and mutual confidence between the probation officer and the person for whom the order is made. Once you put in criteria like this—and later there is Amendment No. 22A dealing with a different area but it is the same principle of putting negative criteria in the order—then you immediately start destroying, before it has been able to be built up, the relationship between the probation officer and the young person. Thirdly, there are the parents. There may be parents who find it impossible to control the young persons certainly as far as keeping them in is concerned. They will do their best but will not be able to do it. They are brought into a situation where they are having to be in collusion with their own children in what would amount to breaking the law. If this were not a serious subject, the idea, when a young person goes out, of either a parent or guardian escorting him, would be ludicrous. It will not work. And what about the occasion when either the mother or father—and we have a great many single-parent families in the country today—say to the child; "Run to the corner and buy this or that". Either they do not think about it or they just feel that that does not count. Nevertheless, he would be acting against the order; he would be liable to be hauled in for that and would be in trouble about it.

Then there would be parent who would feel badly about this curfew. You are not by this going to turn a bad relationship (whether with the parents or whoever) into a good one by imposing something of this sort. Although the motives may be worthy, I think it would be disastrous if the Government pursued this course in the face of the tremendous amount of opposition across the board from every type of person who has any concern with young people and who feel strongly that this would not work. I hope that when the Minister and the Government take into consideration the effect on the young person, that it will not be practicable, that it will put a great burden on the parents many of whom will not be prepared to bear it at all and that it will turn the law into ridicule and destroy what could be a good supervision order, they will think again about it.

Lord Avebury

My Lords, I feel unhappy about this and I am reinforced in that feeling by the strength of the opposition against it. I think the noble Lord the Minister could have told us a little more. Many of us will have seen the paper which embodied the view of a great many responsible organisations: the Association of Directors of Social Services, the British Association of Social Workers, the Conference of Chief Probation Officers, the National Association for Care and Resettlement of Offenders—I will not read them all out because the Minister is aware of the generality of the opposition expressed. Although the present amendment is a great deal better than the original proposal in the Bill it does not take care of the objections voiced by the noble Baroness.

In Committee, the noble Lord, Lord Elton, said that the general reaction among the bodies consulted has been that although there are reservations and some opposition, a curfew requirement in a strengthened supervision order would be more constructive than a free-standing curfew order. But he did not say whether the question that was put to the organisations was whether they thought that this kind of provision was necessary or desirable. So much depends in consultation on how you put the questions, and perhaps the noble Lord may have misled himself in making the inquiries he mentioned.

I think that of the points which make me most anxious, one is that because the provision is, admittedly, very difficult to enforce, the young offender may be tempted to break it and thereby acquire a greater disrespect for the law than he had initially. I know the Minister will say that he has had to accept the order and agree to abide by it. But we are talking about a young person who is asked, when in a difficult position to say "No", whether he will accept the order. He says "Yes" at the time, thinking it will be easy to comply, but then afterwards he thinks it will be possible to slip out to a disco and nobody will know; and nine times out of ten they will not know. Then he discusses it with his friends and they all realise that the orders are not enforceable. Therefore I do not believe that young people will respect that particular aspect of the law and it will encourage them to a disrespect of the rest of the law.

Secondly, what are the parents expected to do if there is a breach? We are presupposing that relationships between the parents and the young offenders are reasonable. The noble Lord, Lord Elton, said that the courts will be well advised on these matters and will not impose requirements like this unless they think that the relationship is a reasonable one and that the parents can be expected to try to see that the child complies. Not only will it not turn a bad relationship into a good relationship, as the noble Baroness, Lady Birk, has said, but it will put under strain the good relationships which already exist, by inference because the order would not have been imposed if they were not there As soon as the offender breaks the requirement and goes out the parent is in the appalling position of having to decide whether to turn a blind eye and to keep on good terms with the young offender or to report to the supervisor that the order has been broken.

These are two of the main reasons why I think this set of amendments is not good enough and we should throw this particular provision out altogether. But there are so many others which have been dealt with comprehensively in the representations we have had from many national organisations with great experience that I cannot see that it would be wise for the Government to proceed with a proposal which apparently has the support only of the Magistrates' Association and none of the other professional organisations concerned in the field.

6.40 p.m.

Baroness Faithfull

My Lords, I oppose this clause and all these amendments both in practice and in principle. First of all, I absolutely agree—which makes it difficult—with the idea behind the amendments, which is to put family responsibility on to families. I know that this was the way in which the magistrates who recommended this amendment were thinking: that responsibility should lie with families for their children.

I should like to take up one or two points that my noble friend the Minister made. He said that he had consulted widely with a number of organisations. I decided also to consult widely. I rang up Lancaster Research Unit and they told me that of course they agreed with anything that kept children out of custody, but they did not think that this amendment would do so. This was their considered opinion. I have spoken to my former colleagues of the Association of Directors of Social Services. They also said that they would like to keep children out of custody but not this way. Strangely enough, when it became known that these amendments were likely to be put down, I had calls from magistrates saying, "We know that this was recommended by magistrates but we should like you to know that we do not agree". I said, "Why don't you consult with your Magistrates' Association?" But by that time it was too late. So, the people who are going to have to carry this out are the people who disagree with it.

My second point has already been touched upon: what goes on inside a family; what are the dynamics of a family? My experience is that it depends on good relationships in a family. Some children are of course naughty and they get into trouble. There are other children—and I am not saying that I am making an excuse for children—whose misdemeanours are due to very poor relationships within a family. Those relationships very often stem from poor conditions. Every time I look at a high-rise flat, I wonder how I should feel living at the top with four children.

Therefore, there is going to be an injustice done. Just take, for example, two children appearing before the court: one child has good relations with his family and his motivation for making the mistake that he did or committing the crime that he did, which he should not have done, was just sheer naughtiness, or perhaps weakness with the other boy. Another boy commits the same crime at the same time with the same boy but the relationships with his family are very bad. Therefore, what will happen? According to this, the boy with the good relationships will be given a night custody order; the other boy will be given a supervision or youth custody order, or whatever. In the eyes of the children this is unjust. Not only is it unjust for the children, but it gives the parent who is at fault a deeper feeling of guilt than ever before. That is saying something sometimes.

Therefore, the carrying out of these orders, as has been said by the noble Baroness, is going to be almost impossible. You are going to have confusion worse confounded where relationships are concerned within that family. It has been suggested to me by one father that if a night curfew were made on his son, he knows that he could not keep him in. He is going to buy nails and a hammer to hammer the door closed, so that he can keep the child in.

Lord Elton

My Lords, may I ask my noble friend whether, when she put that question to him, she said that it would be entirely up to him whether such an order was made?—because he would have to give his consent before it was. If so, what on earth was the point of the hammer and nails? Presumably he would not accept the order.

Baroness Faithfull

My Lords, may I thank my noble friend. I am coming on to that aspect. If you say to a child in court, "Will you accept a curfew", or "Will you accept night supervision?", the child will say almost anything. Although it has to be with approval and agreement, the child will not really know what is happening. May I say that it is always mothers who come to the courts and not fathers.

Lord Elton

My Lords, it is most kind of my noble friend to give way again. Either the mother or the father has to agree before the order can be made. The noble Baroness is suggesting that the parents would not agree.

Baroness Faithfull

My Lords, again may I say that there are many mothers who will agree to anything. They do not know what they are agreeing to, however carefully what is involved is explained by the magistrates and by the social worker. The mother will agree in court and when she gets home she has a frightful row with father who says: "If I had been there, I would not have agreed".

I know that this is only one option open to the magistrates and that a number of magistrates would not take it. The difference between town and country has to be considered. If a child lives in a cottage, with the fields beyond and a nice garden, it is probably possible for the night supervision order to be carried out fairly comfortably. The child can go into the garden and the garden gate can be locked, or whatever. But, imagine a single parent family with three children living in high-rise flats. I shall not name any area in London because that would be invidious; but I leave it to your Lordships' imagination. Therefore, there is a very different application between town and country.

May I speak on the question of contract? Those of us who are involved in intermediate treatment lay down on a voluntary basis a contract between the child and the parents and those running intermediate treatment. But it is one thing to agree in a social setting to a contract that you will attend an intermediate treatment centre and that you will be home at 10 o'clock at night—which is very often in the voluntary contract—and quite another thing to agree to a contract laid down by a magistrate in a court. That is where there is confusion; some people have said that they have agreed to the contract, the night supervision, when in fact many of us have carried out contracts with parents and children but in a social setting and not in the setting of the court. All the other points that I wanted to refer to have been mentioned. As a practitioner, I would say that this will be an almost impossible piece of law to administer, to administer well and administer wisely.

6.49 p.m.

Lord Campbell of Alloway

My Lords, may I say a word in favour of this amendment, and may I apologise for not having been able to be present when this part of the debate was initiated, because I was in the Temple. Of course, there is no easy answer, especially for those who have the job of sentencing. This was not made any easier by Dr. Beeching who, having been let loose on the railways and wrecked them, then was then let loose on my profession and did his best to wreck that, and certainly destroyed the sense of involvement between the old recorders and following up their sentencing policies, which in the days when I first sat, some 18 years ago, we always did. Now we sit anywhere, ad hoc, where we are sent.

The loss of this sense of involvement—personal involvement—with the probation officers, the police, and so on, makes it all the more difficult for us to do our job always as conscientiously as we would wish to do it. All developments in sentencing procedures are, and of their very essence and nature must be, experimental because we want to reach forward, we want to produce something better. Therefore, if I may say so with the utmost respect, for the noble Baroness, Lady Birk, to say that it is unworkable before it has been set to work is going a little too far. One really ought to put this experiment to the test to see whether it works before condemning it out of hand.

Baroness Birk

My Lords, if I may interrupt the noble Lord for a moment, would he, as a lawyer, not agree that there are many things on which there is plenty of evidence to show, as his noble friend has already pointed out, that it would be quite silly to have an experiment when all the evidence is against it? He must agree that is so.

Lord Campbell of Alloway

I am obliged to the noble Baroness, my Lords. Of course I agree; I agree that there are circumstances where the evidence is overwhelming and therefore the experiment should not be indulged in. I am trying to follow the intellectual analysis by which the noble Baroness put her case, that this experiment, which is what it is, is unworkable. In doing that I do not want to be side-tracked on to the path of my noble friend Lady Faithfull, because I do not accept her approach on this matter at all. The fact that we happen to sit on the same side of the House does not mean that I, from my experience or from the process of reasoning I have adopted, adopt what she has said at all. To deal with the intellectual analysis of the noble Baroness, which was tight and is something with which one ought to deal because it is a question of reasoning, she says it is accepted as the easier way out. That is true; it is. But surely it is better than the prison sentence which in practice, at this stage of the sentencing quandary for the judge, is usually the only other viable option.

Secondly, she refers to "mutual confidence destroyed". Why should it be? Now is not the time to argue in fine detail, but the mere assertion on one side or the other that confidence is destroyed or that confidence in not destroyed takes the argument no further. In my submission, there is no reason why it should be destroyed. Thirdly, on the problems of parental control, I am not going into the business of nails on the door and one thing and another. It is perfectly plain that there has to be a full measure of consent. True, I concede against myself that there are circumstances where there is a temptation for consent to be given because, as I have already said, the only viable option is the prison sentence. But one has to take the broad view and simply has to try—whether or not one succeeds is another matter—to instill a sense of responsibility on the part of parents.

For these reasons I would support my front Bench over this. I would support it with caution; but one does not have to be certain. This is an experiment which will do no great harm. If it is unworkable it can at some future time be dealt with; but to kill an experiment before it gets off the ground, especially in this sphere, would in my submission be most unwise.

Lord Hunt

May I intervene briefly in this discussion and take up the noble Lord, Lord Campbell, on his concluding words. It is my conviction—and I really am speaking with considerable knowledge of the probation service and of their national association—that this experiment will do great harm. It is axiomatic that the experiment is going to depend on the active and willing co-operation of the probation service, and I should like to say to my friends in the national association that whereas they do not always represent the view of probation officers working on the ground, in this case I am sure they do. I am sure that the great majority of probation officers will have a rooted objection to operating curfew orders. I realise the noble Lord, Lord Elton, may say, "In that case the curfew order will not be imposed". But I think it is a great pity to launch an experiment which ab initio one can say with strong confidence is opposed by those who have got to make it work.

I do not believe that the imposition of negative conditions into a supervision order, whether it is in parole or for other reasons, is necessarily a bad thing. I know this is unenforceable. I would repeat what others have said: that whatever may be agreed in the circumstances of a court is not a true test of what the young person or the parents really would accept if they were in a relaxed discussion working out a contract such as was mentioned by the noble Baroness opposite. Therefore, I am quite sure this is not enforceable. I am pretty sure that, being unenforceable, it would be breached; and I would forecast confidently that the breaches will do harm in terms of the young offender's respect, if he has any, for the law, because it will merely increase his disrespect or his contempt for the law. It will undoubtedly damage relationships with some parents, and the relationship with the probation officer, which is the most important element of all. I do not believe that relationship will be other than harmed by the imposition of a curfew order.

6.57 p.m.

Lord Wigoder

My Lords, this is a new, imaginative and constructive proposal. Therefore, like all good conservatives, I view it with considerable suspicion. My doubts arise because of the factor which has been referred to, though not directly in this context, that there are so many youngsters who get into trouble and who in fact come from homes where conditions are totally unsatisfactory—not always visible to the outsider, but nevertheless homes where there is marital discord and where there may be drunkenness and the pressures of poverty and squalor. It is precisely those children who get into trouble. I do not want to suggest that their domestic conditions are the sole, or even necessarily the principal, cause of their getting into trouble, but that they form a contributory factor I do not think can be doubted.

If we have a situation, which I believe is true, where a very large proportion of juvenile offenders come from unsatisfactory homes, the real effect of this provision is that it is going to be precisely those children who are going to be ordered to spend long hours in the homes from which they have been seeking to escape. I do not suggest, therefore, that the home conditions are going to get worse, but simply that the children are not going to put up with the restrictions imposed upon them. They are going to break them and they are going to do so on a substantial scale.

In that situation, the question then arises: how enforceable is it going to be? Of course you can enforce a military curfew without any difficulty: you merely order the troops to arrest or shoot on sight anybody who is out at night. But in these conditions the question really does arise: to what extent are conditions of this sort enforceable? I accept what the Minister has said, that no law is fully enforceable. Of course not. It is obviously a matter of degree. But if you conceive of the situation in which youngsters subject to this sort of order decide to go round to the local public house at night with some of their friends, and then ask whether there is even a remote possibility that breaches of these orders will be detected, I think the almost inevitable answer is going to be, "No". And if the answer will be, No, and the orders, inevitably, by their very nature, will be broken on a substantial scale, then there is something to be said for the views of your Lordships who have indicated that all this will achieve is still further disrespect for the law in the minds of those whom we are attempting to teach to respect and obey the law. I do not think that the arguments in this are all one way. In many ways, we are arguing in the dark. I accept the view of the noble Lord, Lord Campbell, that this is a matter where there is scope for a difference of opinion.

All I venture to say at this stage is that it is something that has been thrown up very suddenly, and very abruptly, in the course of the passage of this Bill. No serious research has been done upon it, and I should have thought it would be very wise, before we take a step which could have considerable repercussions, to withdraw this measure at this stage. It could then be seriously looked at and researched, in order that if the research looks hopeful it can be reintroduced at a later stage.

Baroness Macleod of Borve

My Lords, I am very sorry this evening to have to disagree with my noble friend the Minister, for the reasons that other noble Lords—in particular, the noble Lord, Lord Wigoder—have given. We are in danger of putting into a Bill something which a child will know is not enforceable. He will see to it that it is not enforceable because, as other noble Lords have said, a child, or the parents, will agree to anything in court, whether they are told to agree or are just persuaded, because they are given the problem of deciding what is to be done.

But I go one step further than that. I wonder in what circumstances this would be put as part of a supervision order. I have been trying to think of any reason, and the only one might be that, if a child was on supervision because he had behaved badly at a football match, he might be told that he could not go out at night to see another football match. But, after all, we also have it within the Bill—and it has always been part of the juvenile court's discretion—to make the parents enter into recognisances for their children's good behaviour to the tune of £50 or £100. In my view, that has always been a very useful part of sentencing.

I have to think of the one-parent family, perhaps the mother, bringing up a child and being out at work all day. She might want to go and have a drink at the pub. What can she do? She will have to leave the child by himself because he has to be at home, so she cannot supervise whether he is really at home or not. The local authority also come into this and, if they are responsible for a child, they will have to see that he is within the home in which they are keeping him during all the hours that the court has suggested.

I put down a query as to whether it is worth trying, as the noble Lord, Lord Campbell, suggested. As a magistrate, I have not sat on a juvenile court for two years since I moved house. But I am not certain whether it is worth trying, much as I like to think that the Government are trying to do their very best, and I do not think that I can support this amendment this evening.

The Earl of Onslow

My Lords, there is one small point which I should like to suggest to your Lordships. At first, I thought "What a good idea to have a curfew. How sensible." But one has listened very carefully to the arguments, and one is persuaded that the points which are against it, such as unenforceability, probably make it unacceptable. I should like to suggest that this will introduce a certain amount of class feeling into punishment, in that a child from a middle-class home or a well-off home will be more likely to have a curfew order put on it, and the parents will have a greater ability to look after the child than one from a less well-off or less privileged home. If two children are going out to commit some "yobbery" and one of them comes from a bad or a poor home, and gets a more serious sentence than a child who comes from a better class of home, then there will be an air of injustice and privilege, which will do the law, and respect for the law, no good at all. Instinctively, I thought, "What a good idea". But, on listening to the arguments, I am not at all sure it is a good idea.

Baroness Masham of Ilton

My Lords, I should like to ask the Minister a question, and I apologise for the fact that I was not here at the beginning of his speech, I was trying to pay a call down the passage, which I failed to do. I should like to ask the noble Lord whether, before a curfew is imposed by a court, there will always be a social report, because nearly all the boys whom I see have worrying drinking habits, as well as home problems. One example is the broken home, where the mother has an "uncle" living with her. That is the term which the boys use for her lover, because they like to be respectable. So, often, there is frustration and disharmony between the lover and the son. Shutting them up with their frustrations might create a very great problem for the mother, who wants to keep her son from custodial treatment, as has already been said. If the curfew could take place by giving offenders evening classes with a probation officer or a youth worker until the pubs close, then I would support it.

Lord Harris of Greenwich

My Lords, I think on one issue we are all agreed; that is, that we want to do everything we possibly can to avoid children or adults being sentenced to a period of custody. Therefore, it is perfectly reasonable to look at what the Government have come forward with, to see whether this is a workable proposition. It turns exclusively on the issue of enforceability, and, initially, I certainly did not approach this issue as a dedicated opponent to the idea.

First, I should like to make one point in commenting on what the noble Lord, Lord Campbell of Alloway, said; and my noble friend Lord Hutchinson, with his very substantial experience, confirmed that this is correct. It is untrue to say that experiments of this kind have never been tried before. In fact, on a number of occasions, sentencing judges have discussed with probation officers whether some form of curfew is an appropriate way of dealing with the persons appearing before them and, invariably, the answer is, No. That guidance is given by the probation officers simply on the grounds that there is no way of ensuring that the curfew, as I like to call it, or the night restriction order, as I see it has now become, could be enforced.

With the noble Baroness, Lady Faithfull, with her very substantial experience as a director of social services, and the noble Baroness, Lady Birk, I have in the last few weeks discussed this matter with a number of organisations and a substantial number of magistrates. It is rare to find such unamimity. I have found no such organisation, with the exception of the Magistrates' Association, which has come out in favour of this proposal. All the others have indicated their opposition, or a very restrained degree of enthusiasm for this proposal.

That is borne out by what the Minister said earlier today, I reminded him that I had asked him a Question which he replied to by Written Answer on 7th July. I asked him which organisations the Government had consulted before putting down these proposals and he listed them in Hansard. I should like to remind the House of the names of those organisations, which were: the Association of Directors of Social Services, the Association of County Councils, the AMA, the British Association of Social Workers, the Central Council of Probation and After-Care Committees, the Conference of Chief Probation Officers, the Greater London Council, the Justices' Clerks' Society, the Magistrates' Association, NACRO New Approaches to Juvenile Crime, the National Association of Probation Officers, the National Intermediate Treatment Federation and the National Youth Bureau. I ask the Minister—no doubt he will give an answer to the question when he replies—which of these organisations, apart from the Magistrates' Association, have endorsed these proposals. I am bound to tell him that I know of no organisation, apart from the Magistrates' Association which has.

The views of the organisations can be fairly briefly summarised. The Minister referred to the British Association of Social Workers. Their comment was: We think it is likely that the responsibility for enforcement of a curfew requirement could cause considerable practical problems to supervising officers as well as damage their relationship with the young people concerned". We then turn to the views of the National Youth Bureau, with their very substantial experience. They draw attention to the point raised by the noble Lord, Lord Avebury: what an intolerable dilemma the parents will face. After their child has agreed to the night restriction order—and they will do so for exactly the reason which the noble Baroness, Lady Faithfull, indicated; they will be fearful of the consequences of not agreeing to the night restriction order—what are the parents then to do? Are they going to collude with their child and not inform the supervising officer that their own child has breached the terms of the order, or are they going to inform the supervising officer? It will be an extremely difficult decision for the parents to make.

This brings me to the point made by the noble Earl, Lord Onslow. We are talking here about some of the most acutely disadvantaged children. They are exactly the children who appear before the courts. There are of course a number of children from middle-class backgrounds who find their way before the courts. For the reasons which the Minister indicated, these are the kind of cases which in some circumstances might attract a night restriction order. But in many cases there are grievously damaged personal relationships within the home and often that is precisely the reason why the child has come before the courts. It is because of a breakdown in family relationships. It seems to me to be quite clear, on the basis of what is contained in the Government's amendment, that these relationships will be even more acutely put under pressure if we pass these particular amendments.

I have one last point to make to the Minister. It relates to the parole scheme. As I think my noble friend Lord Hunt, would agree, panels of the Parole Board have on a number of occasions made all kinds of recommendations to the Home Secretary. They have recommended that special conditions should be attached to a parole licence. Sometimes because of a great problem which is perceived—that the offender concerned has a very substantial amount of drink abuse in his background or has consistently got into trouble in one particular area of the country—the recommendation of the panel of the Parole Board has been that special conditions should be attached to the parole licence: that he should not go to public houses or to a particular town. In every case, so far as I can recall, the view of the Home Office has been that these conditions are unenforceable. I was told on a number of occasions that there is no point in attaching unenforceable conditions to parole licences. I see the force and logic of that view but, that being so, I find it extremely difficult to understand why suddenly, when we are talking about juveniles, the unenforceable becomes enforceable. I very much hope that the noble Lord, Lord Elton, will address his mind to the matter and answer it.

In conclusion, although I am certainly in favour of a firm policy for dealing with the problem of juvenile delinquency, I do not believe that a firm policy for dealing with juvenile delinquency is aided by giving to the courts a power to make orders which are unenforceable. All that that does, I believe, is to bring our system of criminal justice into disrepute.

Earl Fortescue

My Lords, I should like to speak very briefly in favour of this amendment. I believe that it would provide a very useful non-custodial sentence which might be used on many children and many families but by no means all. It will be particularly useful in rural areas where no attendance centres are available. I would stress that obviously it will not be the right sentence for all children and all families. The courts will get reports on the children, their families and their background before they decide on such a sentence.

Turning to the question of its non-enforceability, I think exactly the same argument applies to a driver who has been disqualified from driving. One knows that disqualified drivers do drive from time to time and get away with it, but it is a serious offence and many of them do get caught driving while disqualified. A child who breaks its curfew may get away with it. If it does not get away with it, it is in for worse trouble. Breach of the order is another offence. It will be a deterrent. To sum up, I am all in favour of the amendment.

7.16 p.m.

Lord Elton

My Lords, your Lordships have asked me many questions. I shall not always attribute the question to the asker. Certainly the noble Lord, Lord Harris of Greenwich, was among those who were keenest that I should come clean—I do not know whether that is the right phrase—and should say a little more about what support and what opposition we have had to this requirement in our consultations.

It is very difficult to give a head count of pros and cons, given the nature of the consultation process and the nature of the question. I accept, as I did at the beginning, that there was not much unqualified support. NACRO and the British Association of Social Workers gave qualified approval, at least in principle, as I mentioned earlier on. To that I could add the Justices' Clerks' Society. A number of other bodies certainly did criticise what we proposed, without rejecting the requirement altogether. I would quote from that list the Association of Directors of Social Services, the Central Council of Probation and After-Care Committees, the Conference of Chief Probation Officers. Those are all bodies representing the management of the supervisory services.

I note that I am asked to accept that whereas the National Association of Probation Officers represents its membership when they do not want this measure I am asked to accept that the Magistrates' Association does not represent its membership when it does—which, in spite of what individual members may have said, is something in the nature of partial pleading. The noble Lord, Lord Avebury, was anxious to know the terms on which we consulted. We did so after the debate in another place on what was then the curfew proposal. We asked for comments, in perfectly neutral terms, on the general principle of the proposal and the specific terms.

May I now try to deal fairly briefly, as I think noble Lords would wish with their dinners cooling on the table, with the points which have been made—treating them none the less with due respect because of the weight which has been given to them. I can assure the noble Baroness, Lady Masham, that there will have to be a report about the offender and his circumstances. That is contained in subsection (3E)(a). The court must be satisfied, in the light of that report, that it is possible to secure compliance with the order. I hope that those of your Lordships who have talked about the enforceability of the order will note that preliminary reference to it; the court has to be satisfied that compliance can be secured before the order is made.

If the magistrate is a magistrate not represented by the Magistrates' Association and is one who does not want to see this kind of legislation; or if the probation officer advising the court is a probation officer who does not wish to see his relationships put under strain; or if the parent of the child in question is in doubt as to whether this would be a good thing; or if the child himself feels he is not willing or able to make this undertaking—then of course the order cannot or will not be made.

Certainly some wives say what their husbands would regret, and certainly some children undertake what they cannot deliver—but, as my noble friend Lord Fortescue has rightly said, it is not in generality regarded as a reason for throwing out a law that it cannot always be made to stick. If your disqualified driver was required, first, to agree that he would not drive and his parents, if he lived with them, had to agree as well, and enforceability was a question, then maybe the number of drivers who drive when disqualified would be reduced because the numbers disqualified would be reduced. It seems to me that we have to be a little more hard-headed and practical about this than we are being at the moment.

On the next point on enforceability, I have not said, but I should say, that the supervisor will take special action to check that the night restriction requirement is being obeyed under differing circumstances. It will be for him to judge how far he should do that. There are clear limits on the extent to which, in practice, compliance can be checked. Most of your Lordships are parents, for goodness' sake, and most of your Lordships know the extent to which authority can be exerted; to which, when your child is away from home, you can depend on him or her to do what you bid and not to do what you bid him or her not to do. What he or she does or does not do will depend in part on your relationship and in part on his or her relationship with the people with whom he or she is staying, or is with at camp, or whatever the circumstances may be.

As to where he will be, I was at pains to say at the beginning that the child need not be restricted to his home. All this emotive question of a top floor of a high rise block of flats, or my noble friend Lord Onslow—in one of his less well-chosen interventions—linking yobbery with snobbery, seems to me to be wide of the mark. The child may be required to reside at an intermediate treatment centre, for instance, where there will be no difficulty of supervision and where there is a good deal of engaging in activity to be undergone. I have been to one of those places and have seen the children actually under contract to stay for various weekends enjoying it, profiting from it, and becoming more adult and responsible as a result. This is the sort of thing we want to foster; not to have a timid approach and say, This is a difficult experiment—we have not tried it before." For God's sake let us try something new. It is worth trying, and I beg to move.

Lord Donaldson of Kingsbridge

My Lords, before the noble Lord, Lord Elton, resumes his seat I wish to correct an inaccuracy in his speech. He may wave at me as much as he likes, but I am more difficult to stop than that. He said that NAPRO had given qualified approval. If he will turn to the letter from the director of NAPRO of 14th June he will see that the disapproval was unqualified.

7.24 p.m.

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 64.

DIVISION NO. 3
CONTENTS
Airey of Abingdon, B. Lane-Fox, B.
Alexander of Tunis, E. Lauderdale, E.
Allen of Abbeydale, L. Long, V.
Atholl, D. Lyell, L.
Avon, E. Margadale, L.
Bellwin, L. Masham of Ilton, B.
Beloff, L. Merrivale, L.
Belstead, L. Mersey, V.
Bessborough, E. Morris of Kenwood, L.
Birdwood, L. Mottistone, L.
Boardman, L. Mowbray and Stourton, L.
Brougham and Vaux, L. Northchurch, B.
Camoys, L. O'Neill of the Maine, L.
Campbell of Alloway, L. Orkney, E.
Cathcart, E. Pender, L.
Chelwood, L. Rankeillour, L.
Colville of Culross, V. Redesdale, L.
Colwyn, L. Reigate, L.
Craigmyle, L. Richardson, L.
Davidson, V. Sandys, L.—[Teller.]
De Freyne, L. Seebohm, L.
Denham, L.—[Teller.] Shannon, E.
Drumalbyn, L. Sharples, B.
Eccles, V. Skelmersdale, L.
Elliot of Harwood, B. Stamp, L.
Elton, L. Stanley of Alderley, L.
Ferrers, E. Stodart of Leaston, L.
Fortescue, E. Strathclyde, L.
Gainford, L. Strathcona and Mount Royal, L.
Gardner of Parkes, B.
Glanusk, L. Sudeley, L.
Glenarthur, L. Swinton, E.
Gridley, L. Teynham, L.
Hailsham of Saint Marylebone, L. Trefgarne, L.
Trenchard, V.
Holderness, L. Trumpington, B.
Home of the Hirsel, L. Vaizey, L.
Hornsby-Smith, B. Vaux of Harrowden, L.
Hylton, L. Wynford, L.
Kilmany, L. Young, B.
Kinnaird, L.
NOT-CONTENTS
Airedale, L. Gardiner, L.
Ardwick, L. George-Brown, L.
Auckland, L. Greenway, L.
Avebury, L. Hall, V.
Aylestone, L. Hampton, L.
Bacon, B. Harris of Greenwich, L.
Beswick, L. Hatch of Lusby, L.
Birk, B. Houghton of Sowerby, L.
Bishopston, L. Hunt, L.
Blease, L. Hutchinson of Lullington, L.
Brockway, L.
Brooks of Tremorfa, L. Ingleby, V.
Cledwyn of Penrhos, L. Jeger, B.
Collison, L. Kagan, L.
Craigavon, V. Lincoln, Bp.
David, B. Llewelyn-Davies of Hastoe, B.—[Teller.]
Davies of Leek, L.
Donaldson of Kingsbridge, L. Longford, E.
Lovell-Davis, L.
Elwyn-Jones, L. McGregor of Durris, L.
Elystan-Morgan, L. Macleod of Borve, B.
Evans of Claughton, L. Melchett, L.
Ewart-Biggs, B. Mishcon, L.
Faithfull, B. Monson, L.
Northfield, L. Stewart of Alvechurch, B.
Onslow, E. Stewart of Fulham, L.
Oram, L. Stone, L.
Paget of Northampton, L. Taylor of Mansfield, L.
Peart, L. Tordoff L.
Phillips, B. Underhill, L.
Pitt of Hampstead, L. Walston, L.
Ponsonby of Shulbrede, L.—[Teller.] Wells-Pestell, L.
Wigoder, L.
Seear, B. Winstanley, L.

Resolved in the affirmative, and amendment agreed to accordingly.

7.32 p.m.

Lord Lyell

My Lords, I believe that it might be the wish of your Lordships who have been sitting here through the heat of the afternoon that we should adjourn this business now for the dinner break. Accordingly, I beg to move that further consideration of the Bill on Report be now adjourned. I understand that it has been agreed through the usual channels that further consideration of this Bill on Report will not start before 8.35 p.m.

Moved, That further consideration on Report be now adjourned.—(Lord Lyell.)

On Question, Motion agreed to.