Criminal Justice Bill

HL Deb 19 July 1982 vol 433 cc702-43

Report stage resumed.

Lord Elton moved Amendments Nos. 17 to 22: Page 21, line 11, after first ("of") insert ("paragraph (a), (b) or (c) of"). Page 21, line 12, leave out ("days or such shorter period") and insert ("or such lesser number"). Page 21, line 15, leave out ("period or periods") and insert ("total number of days"). Page 21,line 20, leave out from ("with") to end of line 23. Page 21, line 37, leave out from first ("to") to ("but") in line 38 and insert ("the following provisions of this section and to section 19(13) of this Act,"). Page 21, line 45, at end insert— ("(aa) to remain for specified periods between 6 p.m. and 6 a.m.—

1. (i) at a place specified in the order; or
2. (ii) at one of several places so specified;").

The noble Lord said: My Lords, I spoke to Amendments Nos. 17 to 22 immediately before the dinner break, and with your Lordships' leave I beg to move them en bloc.

On Question, amendments agreed to.

Lord Mishcon moved Amendment No. 22A: Page 22, leave Out lines 1 to 6.

The noble Lord said: My Lords, I apologise to the House that this amendment is in the form of a manuscript amendment and was delivered very late. I know not where the source of the error lies, but if it is with my noble friends or myself I apologise very deeply to the House. But this is an amendment that was dealt with at the Committee stage, although, as I remember, no conclusion was reached upon it.

If I may put the point very briefly, it is that we are here dealing with a stipulation which provides for negative restrictions in regard to supervision orders. The paragraph at the top of page 22 of the Bill reads: to refrain from participating in activities specified in the order … on a day or days so specified; or … during the period for which the supervision order is in force or such portion of that period as may be so specified". If I may say so, if there was a case for the last series of amendments that we were dealing with in regard to curfew orders or night restriction orders (call them what you will), there is a very much stronger case, I would submit, in regard to the amendment I am moving for the deletion of these words.

The case for the deletion is, first, that it is undesirable, and thought to be undesirable by those who would have to administer this provision; namely, the probation officers. I see that the Association of Directors of Social Services have pithily put the point for the amendment by saying: This provision is unworkable and would bring the law into disrepute". That it is unworkable to try to enforce a negative stipulation is pretty obvious, because it means that the people who have the job of supervising and who can indeed report the breach would have to be watching the person they are supposed to be looking after, the subject of the supervision order, presumably all day and all night, and all the week. That, of course, is the reason why I say it is unenforceable.

It is even worse than that. It is undesirable, one would have said, because, again, if the curfew order had its undesirable features in that parents might be brought into a bad relationship with children by virtue of it, this will bring a bad relationship with the supervising officer and, indeed, with the police. The police could do nothing about it, indeed, if they did manage to monitor it and saw that the negative order was not carried out. But if the resultant effect of the subject of the supervision order, finding that by sneaking out at all sorts of odd times, or whatever be the restriction which has been imposed, leads to a successful breach, undetected, of the supervision order, that again, obviously, puts the authorities into a position of contempt.

Thirdly, and lastly, it is so much easier to put in a positive condition. I see that in one of the documents put in front of me the example is given (all too common these days) of hooliganism on a football ground. If one puts in the negative stipulation, which is that the subject does not attend a football match on a Saturday afternoon, it is, of course, as I said before, an almost impossible thing to enforce. If, however, you put the positive condition, that on a Saturday afternoon the subject of the supervision order should attend a certain place or do a certain thing, then quite obviously it is something which is easily monitored. My Lords, I do not think I make the case any stronger by making an elaborate speech. It seems to me, as I have said, that the people who would have to enforce this provision regard it as unenforceable and as bad. I hope that the House will therefore agree with the amendment.

The Deputy Speaker (Lord Ampthill)

The amendment proposed is, on page 22, leave out lines 1 to 6. I should point out to the House that if it should be agreed to I cannot call Amendments Nos. 23 or 24.

Lord Donaldson of Kingsbridge

My Lords, I am happy to support this amendment. I think that during the course of this Bill the Government have several times ignored the views of the people who have to carry out the orders contained in the Bill. I hope that on this occasion they will not do the same thing again. If the noble Lord has had the opportunity to talk with probation officers, he will find almost total unanimity as to the impossibility of keeping a good relationship with the client while enforcing negative provisions. I do not think it necessary to say more at this moment than that I hope very much that the Government will not persevere in this attitude, which seems to me to be absolutely wrong, because the people who have to do the thing, are those whose advice in the end you must take. I hope that the Government will accept the amendment.

Baroness Faithfull

My Lords, I rise to say that I support this amendment.

Lord Trefgarne

My Lords, as the noble Lord, Lord Mishcon, has pointed out, the purpose of this amendment was discussed at the earlier stage. The purpose of enabling the courts to include negative requirements is to strengthen the supervision order. Our intention is to restore the confidence of the courts in the use of this non-custodial measure, particularly in cases where the offender might otherwise be given a custodial sentence. A negative requirement can be included in an order only under the provision which this amendment would delete and after the court has gone through several steps—and these have been strengthened since the provision was debated in another place.

A court might think it right when making a supervision order to require that the offender should not attend a football match for the remainder of the season. I make no apology for following the noble Lord, Lord Mishcon, in his example. The supervisor cannot necessarily personally ensure that the juvenile never does so. It is not the supervisor's job to police the offender's every movement; his role is to make sure the offender understands his obligations under the order and the consequences of breach and generally to advise and assist the offender. If, on the other hand, it is discovered that the offender has attended a football match, there is no question but that he is in breach of the requirements of his order and can be brought to court and punished for it.

The views of both the supervisor and the offender would be taken into account in making the order. The supervisor would be consulted and the court would have to be satisfied that it was feasible to secure compliance. The offender, too, would have to consent to the provision. There is no question of detecting a breach in that sense. The police would never be involved. The supervisor could use breach proceedings to strengthen this hand if necessary.

The Government are fully aware that this provision has been greeted unenthusiastically in some quarters, but there may well be some courts which will find it useful, and, if they use it instead of custodial sentences even on a small scale, the Government's aim will have been fulfilled. I ask your Lordships to recognise that the Government regard it as very important to restore the courts' confidence in the supervision order. The use of the order has declined so dramatically in the last ten years and the use of custody by contrast has risen so dramatically that something has obviously gone wrong. The provision which this amendment would delete may not command universal support, but, if it is of some use to some courts, then it is, I believe, worth retaining. For those reasons, I hope that the noble Lord will not press his amendment.

Lord Mishcon

My Lords, I rise again somewhat disconsolate at the Minister's reply. It seemed to have this result. First, it is conceded that the supervising officer could not possibly monitor the subject of the supervision order and that the Minister is, therefore, content to rely upon the off-chance of the offender being detected breaching a supervision order—hardly a way of commanding respect for the law and for the order by those whom we are anxious to impress. The second point that the Minister made was that the supervising officer would be consulted, and had to be consulted, in regard to a negative restriction as in regard to any restriction.

What would be the result of that if this clause was in? The magistrates would, presumably, ask the supervising officer and say: "There is a negative provision enabling power in the Bill. Do you think you could enforce this? If you could, then we would think in terms of making a supervision order". Presumably, on the basis of the professional opinion we have had, the answer in many cases would be that it would be impossible to supervise and enforce. Therefore, we are encouraging the court to do the exact opposite of what we want, because the court would then have to say, "In those circumstances, we think we had better look to the alternative sentence here"—and that could be the very sort of order and the very sort of sentence that we are trying to avoid.

There is never any point in putting into an Act of Parliament something which is completely unenforceable when you know that from the beginning. All you are doing is encouraging not only disrespect for those who are supposed to enforce it but encouraging a disrespect for Parliament itself.

Baroness David

My Lords, I have not spoken very much during this Report stage, but I have been listening. I have been very surprised particularly about the attitude to magistrates of the Front Bench opposite. It seems to me that the Home Office is out of touch with most magistrates' courts and how they think about things. I do not think that the courts need to be helped towards giving non-custodial sentences. I believe that nearly every magistrates' court would prefer to give non-custodial sentences. A speaker said that if in breach the young person could be brought to court and punished for it. I do not like that attitude. If they are in breach, they may get custodial sentences, and that would be a great pity, but the whole attitude about this is wrong. There is a misconception about the way it works.

I have listened to the noble Baroness, Lady Faithfull. She seemed to be totally in touch with the way it works. I have a number of friends who are social workers. I spoke to our own director of social services over the weekend. Their attitude is the same as that of the noble Baroness I think that the Government are misguided when they try to do this. I wish they would listen.

Lord Trefgarne

My Lords, I wonder whether I have permission to speak just once more. Both sides of the House appear to agree that we need to provide the court with the maximum number of non-custodial options. These supervision orders are one of those options, but they have unhappily fallen into disuse in recent years because of their shortcomings. One of their shortcomings we seek to reduce—if not eliminate—by providing for these negative conditions.

I do not say that negative conditions are the be-all and end-all so far as supervision orders are concerned and that every magistrate will hasten to use these orders with this new capability. But it is a short step in the right direction. I think that your Lordships will be mistaken if they were to think that it was not that. I say again that I do not think that we are eliminating all the shortcomings of these orders in one step by the provision of this negative condition procedure, but I think it is a help. I think that it will enable magistrates to consider on more occasions than they are able at present the use of these orders which again will keep a few people out of custody who would otherwise have no alternative. I hope therefore that the noble Lord, Lord Mishcon, and his noble friends will not wish to press this amendment and remove this provision from the Bill.

Lord Donaldson of Kingsbridge

My Lords, the noble Lord's argument is very difficult to understand. The position, roughly speaking, is that we all agree with him that there has been a sad falling off in the use of supervision orders, the reason for which nobody knows and nobody has been able to explain. He says that one way to deal with this is to produce a remedy with which everybody concerned with executing that remedy disagrees. This really is not a very serious argument. I should like the noble Lord to speak again, with the leave of the House, and put up something more serious. The probation service is wholly against negative orders. How can it be said that this is a way of making supervision orders work better?

8.52 p.m.

On Question, Whether the said amendment (No. 22A) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 55.

DIVISION NO. 4
CONTENTS
Airedale, L.	Hutchinson of Lullington, L.
Avebury, L.	Hylton, L.
Birk, B.	Irving of Dartford, L.
Bishopston, L.	Jeger, B.
Blease, L.	Kagan, L.
Brockway, L.	Llewelyn-Davies of Hastoe, B.—[Teller]
Brooks of Tremorfa, L.
Cledwyn of Penrhos, L.	Longford, E.
Collison, L.	Masham of Ilton, B.
David, B.—[Teller]	Mishcon, L.
Davies of Leek, L.	Mountevans, L.
Donaldson of Kingsbridge, L.	Oram, L.
	Peart, L.
Elwyn-Jones, L.	Pitt of Hampstead, L.
Elystan-Morgan, L.	Stewart of Alvechurch, B.
Evans of Claughton, L.	Stewart of Fulham, L.
Faithfull, B.	Stone, L.
Gardiner, L.	Tordoff, L.
Hall, V.	Underhill, L.
Harris of Greenwich, L.	Wigoder, L.
Houghton of Sowerby, L.	Winstanley, L.
Hunt, L.

NOT-CONTENTS
Alexander of Tunis, E.	Greenway, L.
Ampthill, L.	Gridley, L.
Avon, E.	Hornsby-Smith, B.
Bellwin, L.	Ingleby, V.
Beloff, L.	Kilmany, L.
Belstead, L.	Kinnaird, L.
Boardman, L.	Long, V.
Brougham and Vaux, L.	Lyell, L.
Camoys, L.	Mackay of Clashfern, L.
Campbell of Alloway, L.	Mottistone, L.
Cathcart, E.	Norfolk, D.
Chelwood, L.	Onslow, E.
Coleraine, L.	Rankeillour, L.
Cork and Orrery, E.	Sandford, L.
Craigavon, V.	Sandys, L. —[Teller]
Craigmyle, L.	Sharples, B.
Crathorne, L.	Skelmersdale, L.
Davidson, V.	Stanley of Alderley, L.
Denham, L.—[Teller]	Stodart of Leaston, L.
Drumalbyn, L.	Swinton, E.
Eccles, V.	Teynham, L.
Elliot of Harwood, B.	Trefgarne, L.
Elton, L.	Trenchard, V.
Ferrers, E.	Trumpington, B.
Gainford, L.	Vaux of Harrowden, L.
Gardner of Parkes, B.	Wynford, L.
Glanusk, L.	Young, B.
Glenarthur, L.

Resolved in the negative, and amendment disagreed to accordingly.

9 p.m.

Lord Elton moved Amendments Nos. 23 to 30: Page 22, line 3, leave out ("day or days so specified") and insert ("specified day or days during the period for which the supervision order is in force"). page 22, line 4, leave out from first ("the") to end of line 6 and insert ("whole of that period or a specified portion of it."). page 22, line 6, at end insert— ("(3CA) A requirement under subsection (3C)(aa) of this section is referred to in this section as a "night restriction"."). page 22, line 7, leave out ("aggregate of any periods specified by the court") and insert ("total number of days in respect of which a supervised person may be subject to requirements imposed"). page 22, line 8, after ("(a)") insert ("or (aa)"). page 22, line 9, leave out from ("90") to end of line 12. page 22, line 29, at end insert ("by virtue of subsection (3C) of this section"). page 22, line 37, at end insert— ("(3G) The place, or one of the places, specified for the purposes of a night restriction shall be the place where the supervised person lives. (3H) A night restriction shall not require the supervised person to remain at a place for longer than 10 hours on any one night. (3J) A night restriction shall not be imposed in respect of any day which falls outside the period of three months beginning with the date when the supervision order is made. (3K) A night restriction shall not be imposed in respect of more than 30 days in all. (3L) A supervised person who is required by a night restriction to remain at a place may leave it if he is accompanied—

1. (a) by his parent or guardian;
2. (b) by his supervisor; or
3. (c) by some other person specified in the supervision order.

(3M) For the purposes of this section a night restriction imposed in respect of a period of time beginning in the evening and ending in the morning shall be treated as imposed only in respect of the day upon which the period begins.").

The noble Lord said: My Lords, we now return to the block of amendments to which I spoke before dinner. I beg to move Amendments Nos. 23 to 30 en bloc.

On Question, amendments agreed to.

Lord Harris of Greenwich moved Amendment No. 31:

Page 22, line 37, at end insert— ("( ) In section 15 of the Children and Young Persons Act 1969 (variation and discharge of supervision orders) at the end of subsection (2A) (which was inserted by section 37(2) of the Criminal Law Act 1977) there shall be inserted the following words— ; or (c) if the application is brought within six months of the date of the original order, deal with him for the offence in respect of which the supervision order was made in any manner in which it could deal with him if it had just convicted him of an offence.".").

The noble Lord said: My Lords, I beg to move this amendment. It is one which I moved at Committee stage, and the noble Lord, Lord Trefgarne, at column 15 of Hansard of 28th June, indicated that the Government would reconsider carefully whether it was possible to deal with the issues raised in that amendment. This is a matter on which I rose in Committee, as I said then, following discussions I had had with the conference of Chief Probation Officers and the Council of Aftercare Committees—in other words, the management of the probation service. I am sure they would have rejoiced to hear the noble Lord, Lord Trefgarne, saying a few moments ago that something has to be done about the supervision order: it is falling into disuse and, by implication, that too many custodial penalties are being handed out.

I agree with him and I think that probably the whole House will agree with him. Our intention in this matter is one which unifies both sides of the House; namely, that we should do everything we can to avoid custodial sentences. The issue is slightly complicated but it is worth reminding the House of it. Essentially the issue behind this amendment is that if the supervision order is breached the court can deal with the offender as though it had just convicted him of the original offence.

What I have done is slightly to change the amendment in character by laying it down that the application would have to be made within six months of the date of the original order. The noble Lord, Lord Trefgarne, indicated some of the arguments against this proposition when he spoke on the last occasion, and I would not for a moment suggest that the course of action I am putting forward tonight is manifestly and demonstrably the right course of action. Nevertheless think it is one that we should look at seriously because, quite apart from the fact that the noble Lord said time and time again on the last amendment that the supervision order is falling into disuse, there is an even greater danger; that is, that as a result of the provisions of this Bill, when enacted, the magistrates will have the power to award a new range of custodial sentences from 21 days upwards in the case of detention orders. The problem is that some magistrates, I know, find the supervision order at the moment wholly inadequate. They do not believe they have adequate powers to deal with a breach of the supervision order.

I am looking forward with interest to hearing what the noble Lord, Lord Trefgarne, proposed to say to the House, given the fact that he very kindly undertook to look at this matter again when we discussed it on the last occasion. I would remind him that the two organisations representing the management of the probation service believe that this is the most appropriate course of action in order, in their judgment, to safeguard the position of the supervision order itself. I repeat that it is not only a matter of the current position but of the prospective position which will apply once the new range of custodial penalties is on the statute book. That is the proposal and I look forward to what the noble Lord, Lord Trefgarne, will say, and whether he will give us some indication of the Government's thinking on this matter, now that they have had the opportunity to review it since the Committee stage. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, the whole House is evidently on tenterhooks to hear what careful consideration over the last fortnight will produce from the Government. I would only say that it seems to be enough to mention that the National Association of Probation Officers is in favour of anything or that the Council of Chief Probation Officers are in favour of anything for the Government totally to ignore it. So I, too, am on tenterhooks and will now sit down, hoping to hear something useful from the noble Lord, Lord Trefgarne.

Lord Trefgarne

My Lords, it may come as something of a surprise or as a disappointment to your Lordships that the performance which I am about to give, so widely foreshadowed and expected, is unlikely to achieve the rave reviews that are hoped for. During our discussion in Committee I described this as a serious and thoughtful amendment which deserved proper consideration. Indeed, the noble Lord, Lord Harris, has himself given it further consideration, for the power to resentence for breach would now be available only within six months of the making of the supervision order and not, as in his earlier amendment, nine months. We have ourselves looked into this matter in considerable depth. The amendment is in accord with the Government's policy and we should, if possible, not discard any measure which could lead to an increased use of the strengthened supervision order as an alternative to custody. It is, therefore, with reluctance that the Government have concluded that this amendment cannot be accepted.

The supervision order is not a conditional sentence, where the juvenile simply has to keep out of trouble. He has to comply with directions and requirements and it is when he fails to do that that he can be brought to court to be dealt with for the breach. Very often, the breach will have nothing to do with further offending. Breach proceedings are really a way of enabling the supervisor's authority to be reinforced when the offender is being wayward. The present penalties of a fine or an attendance centre order are quite appropriate for that purpose. The Government are, I am afraid, not happy about the possibility of a custodial sentence being made at that point.

If the juvenile under supervision commits a further offence, he can of course he sentenced for it. But what we are concerned with here is behaviour which is not criminal, but which constitutes a breach of the supervision order and is therefore punishable. The amendment would, therefore, allow the court to impose a custodial sentence which is not an immediate consequence of a criminal offence. That is the focus of the Government's concern. The whole of Part I of this Bill directs the courts towards making a clear and unequivocal decision at the time of sentencing that a custodial sentence is wholly unavoidable. It is preferable that they should not be able to return to the issue some months later and decide that, although the juvenile has committed no further offence, perhaps a custodial sentence would have been better after all.

Turning to a more detailed point, I would point out that the amendment still creates difficulties arising from the lapse of time. Juveniles become eligible for different penalties at various ages. The supervision order can be made on children aged 10 and over, but boys become eligible for custodial sentences only at the age of 14, and girls at the age of 15. If a boy is given a supervision order when he is 13, and commits a breach when he is 14, is it right that he should then receive a custodial sentence when he could not have been given one when he was convicted? For these reasons, I hope that the noble Lord, Lord Harris, will not press his amendment.

Lord Harris of Greenwich

My Lords, I am in a state of some puzzlement, if the noble Lord, Lord Trefgarne, will forgive me for saying so. He is such an agreeable Member of your Lordships' House that it is quite impossible ever to become cross with him, but if he were not so agreeable one might be mildly tempted to be a little cross. He having delivered that speech, which I think he would agree was remarkably reminiscent of a speech which he made at Committee stage, I fail to understand why the Government said that they would consider the matter between Committee and Report, because the argument which the noble Lord has addressed to the House is an argument against the principle of this amendment. That being so, I am in something of a difficulty of wanting to apologise to the House for troubling it again on this issue, which I certainly would not have done had I realised that the Government were wholly opposed to the principle of the amendment. However, having said that, and having reassured the noble Lord, Lord Trefgarne that he is still affectionately regarded on this side of the House, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 [Charge and control of offenders]:

Baroness Faithfull moved Amendment No. 32: Page 26, line 31, after ("appropriate") insert ("because it appears to the Court that he is unable or unwilling to respond to other non-custodial penalties or because the offence was so serious that another non-custodial sentence cannot be justified.").

The noble Baroness said: My Lords, this amendment deals with the criteria for the making of a residential care order. Your Lordships will remember that, under Clause 1(4), the criteria are laid down for custody and detention in criminal cases. As your Lordships know, I have never agreed with the residential care order, and still do not agree with it. The noble Lords, Lord Trefgarne and Lord Elton, have said continually that they support non-custodial care and not custodial care, and therefore it seems to me that any criteria that can work towards helping not only magistrates, but social workers, probation officers and clerks to the court should be looked at very carefully.

I wonder whether I may have the indulgence of your Lordships' House, since I feel very strongly against the residential care order. I realise that it is with us, but I would point out to your Lordships that, despite what the Front Bench say about supporting supervision orders and non-custodial care, they have allocated £6 million for residential care resources and only £2 million for intermediate treatment. With that, I would also point out that, as things stand at the moment, there are 17,150 social workers working in residential care, of whom 14,000 are untrained, leaving only 18 per cent. trained. Many of the untrained as well as the trained are seeking to do very good work, but it is essential—I am sure this is in line with the views of noble Lords on the Front Bench—that we should go as far as possible towards helping non-custodial care orders to be made. As we asked earlier in the Bill for criteria to be laid down in criminal cases, I ask now for criteria to be laid down in care cases. I beg to move.

Lord Elwyn-Jones

My Lords, I hope that the noble Lord, Lord Elton, will pay great attention to the admirable speech of the noble Baroness, Lady Faithfull. This is a very important part of the Bill. The noble Baroness is unrelenting in her attitude towards almost all forms of custody. The addition of this provision to the Bill would be of assistance to the courts in preventing them from falling into error unintentionally. Therefore, I hope that the Minister will give his enthusiastic support to this amendment.

Lord Elton

My Lords, during the Committee stage my noble friend embarked upon a successful course of adding guidelines to the powers of the courts in sentencing young offenders. I accept that the House has expressed its support for this course and we have followed it by introducing guidelines for the imposition of care orders in criminal proceedings. I wonder, though, whether or not this amendment takes this a little to excess. Clause 23 provides for a charge and control condition to be attached to a care order imposed on a young offender. Following the guidelines which the Bill will now attach to the making of a care order in criminal proceedings, the court must have found that the offence which gave rise to the care order was serious and that the young offender was in need of care or of control. Before Clause 23 comes into play the young offender must re-offend while subject to that care order.

It is highly desirable that, despite the re-offending, the court should hesitate before imposing a custodial sentence, but Clause 1, as now strengthened, secures this. It requires the court to satisfy itself that there is no alternative to custody. Clause 23 increases the options available to the court before it has to resort to custody. Under Clause 23 as it stands, the court must be satified that no alternative to the charge and control condition is appropriate. If the re-offending is a minor one a lesser alternative may well be preferable, but in the context of an offender already in care for offending I do wonder whether guidelines inviting the court to consider whether the offender is unable or unwilling to respond to other non-custodial penalties is either apt or helpful. The Government's own preference would be to leave it to the good sense and discretion of the courts to decide when custody can only be avoided by adding the charge and control condition.

Baroness Faithfull

My Lords, before my noble friend sits down, would he not agree that once one has got on the ladder—in other words, if a child is in care and commits a further offence—it is almost an automatic reaction on the part of magistrates then to say that the care order has failed and that therefore they will make a residential care order?

Lord Elton

My Lords, the noble Baroness may have more experience of this than I, but as I look at the law as it is now written it seems to me that the magistrates are required to see that there is no alternative to custody before they resort to custody. To my innocent eye, therefore, it seems that what this does is superfluous.

Lord Mischon

My Lords, it may be superfluous to the lawyer and it may be superfluous to the ardent student of this important Bill. However, one must remember that although a court has the guidance of a clerk it is very important for the court to know precisely what Parliament intended. The words here are "as appropriate". It is left at that. In other instances we have decided that it is sensible to spell out what we mean by the word "appropriate"; we then go on to say what the court has got to be satisfied about.

I could understand it if the noble Lord the Minister said that this is otiose: that this is repeating something which is in the Bill and therefore we need not have it. I could understand that as a statement of fact. But does it do any harm at all if it repeats what the noble Lord the Minister says the court ought to consider in any event? And if it does no harm, is it not about time that the noble Lord the Minister bent just a little bit and said that it does of course underline something which we are all anxious to do and therefore the Government agree with the amendment? I say that especially when an amendment is moved by such a charming person as the noble Baroness, Lady Faithfull.

Lord Mottistone

Really, my Lords, the blandishments of the noble Lord, Lord Mishcon, beggar imagination. I am sorry to say to my noble friend Lady Faithfull that, having had my eyes directed by my noble friend the Minister to Clause 1, it seems to me to be totally comprehensive. If a magistrates' clerk is not going to have full knowledge of what is in this particular Act, when it becomes an Act, he is more likely to look at Clause 1 than at a hidden little part of a subsection in Clause 23. Therefore, it is probably just as well that Clause 1 is so very comprehensive. I should have thought that my noble friend the Minister won his case.

Lord Campbell of Alloway

My Lords, surely your Lordships would not wish to legislate on the basis that it does no harm. Surely the whole concept of legislation is that it should seek to do some positive good. If it is superfluous, with the greatest of respect and even at this hour of night, ought it not to be left out?

Lord Donaldson of Kingsbridge

My Lords, with respect, the noble Lord is more ambitious than the Home Office.

Lord Sandys

My Lords, I believe that the noble Lord, Lord Donaldson of Kingsbridge, has spoken already on this amendment.

Lord Donaldson of Kingsbridge

I have not spoken before, my Lords, and what I had to say was very short, and I have finished.

Baroness Macleod of Borve

My Lords, I would like to support my noble friend. We are making a very long Bill of this. It has to be "put into paperback", if I may say so, for clerks and even magistrates to understand it. To add something that is already in the Bill is, as my noble friend has said, quite unnecessary.

Baroness Faithfull

My Lords, I believe I have made my point. I regret that my noble friend the Minister is not able to meet this point. I quite agree that it is in the Bill and I only hope that everybody reads all the Bill that they can. My knowledge of social workers and magistrates is that they only read the particular bits of a Bill with which they are dealing at any point in time. However, I am not going to press this amendment today, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

9.23 p.m.

Lord Elton moved Amendment No. 33: Before Clause 24, insert the following new clause:

("Criminal Justice Act 1967. Criteria for making care orders.

In section 7 of the Children and Young Persons Act 1969—

1. (a) in subsection (7) (under which a court has power to make a care order where a child is found guilty of homicide or a young person is found guilty of any imprisonable offence) after the word "Subject" there shall be inserted the words "to subsection (7A) of this section and"; and
2. (b) the following subsection shall be inserted after that subsection—

(7A) A court shall not make a care order under subsection (7) of this section in respect of a child or young person unless it is of opinion—

1. (a) that a care order is appropriate because of the seriousness of the offence; and
2. (b) that the child or young person is in need of care or control which he is unlikely to receive unless the court makes a care order.".").

The noble Lord said: My Lords, this amendment introduces into the Children and Young Persons Act 1969 criteria for the making of care orders on juvenile offenders who are sentenced in criminal proceedings. It is not quite in the same terms as the amendment proposed by the Parliamentary All-Party Penal Affairs Group which was discussed in Committee, but its purpose is the same and I hope that it will commend itself to the House.

Section 7 of the 1969 Act already provides that the juvenile must have been found guilty of an imprison-able offence before a care order be made. Under this amendment a court would not be able to make a care order unless it was of the opinion that such an order was appropriate because of the seriousness of the offence. In addition, it is necessary that the "care or control" test now used in care proceedings should be satisfied—that is, the court must be of the opinion that the child or young person is in need of care and control which he is unlikely to receive unless the court makes a care order. The 1969 Act provides that, in the expression "care or control", "care" includes protection and guidance and "control" includes discipline.

The amendment thus introduces a twofold test in terms which are consonant with the existing provisions of the 1969 Act and which, with its reference to the seriousness of the offence, is in accord with the guidelines for custodial sentences which have been introduced into the Bill. The principle behind our approach is that the care order is a substantial intervention and should be made only in appropriate cases but that, in serious cases, it provides an essential alternative to custody. This principle informs our amendment. I believe it is in sympathy with what has been advanced before, and I commend it to the House.

Lord Donaldson of Kingsbridge

My Lords, this goes a long way to meeting the inter-parliamentary proposals and I am grateful for it.

Baroness Faithfull

My Lords, I cannot forbear from thanking my noble friend the Minister for this amendment.

Baroness David

My Lords, I think it is not an inter-parliamentary but an all-party group and so we are grateful for what we have got.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 34: Insert the following new clause:

("Restriction on making care orders in respect of persons not legally represented.

The following section shall be inserted after section 7 of the Children and Young Persons Act 1969— Legal representation. (1) A court shall not make a care order under section 7(7) of this Act in respect of a child or young person who is not legally represented in that court unless either—

1. (a) he applied for legal aid and the application was refused on the ground that it did not appear that his means were such that he required assistance; or
2. (b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.

(2) For the purposes of this section a person is to be treated as legally represented in a court if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before a care order is made, and in this section "legal aid" means legal aid for the purposes of proceedings in that court, whether the whole proceedings or the proceedings on or in relation to the making of the care order; but in the case of a person committed to the Crown Court for sentence or trial, it is immaterial whether he applied for legal aid in the Crown Court to, or was informed of his right to apply by, that court or the court which committed him.".").

The noble Lord said: My Lords, the Government are glad to be able to bring forward this amendment which is almost identical to that tabled at Committee by my noble friend Lady Faithfull. Indeed the only difference is that this amendment inserts the legal representation provision as a new section in the Children and Young Persons Act 1969, following section 7 to which it relates. I need say no more than that this improves the Bill. It ensures that a care order can generally not be made on a convicted juvenile offender unless he is legally represented at the time of the disposal. I commend the amendment to your Lordships.

Baroness Faithfull

My Lords, I am feeling almost schizophrenic. I must again thank my noble friend the Minister for this amendment. It goes to meet the point we made at the previous stage of the Bill.

Lord Elwyn-Jones

My Lords, this is a very happy interlude. The Government are actually doing what the overwhelming weight of opinion in the House has suggested they should do, which is not a universal practice, and we thank them for it. Obviously the need for legal representation of a child or young person in the circumstances set out in the new clause is of great importance. My noble friend Lord Mishcon had the pleasure of supporting the noble Baroness earlier on this matter, and we are grateful that the light has dawned like a great flash—if the noble Lord the Chief Whip will not interrupt my purple passage, as I am finishing. We thank the noble Lord very much for his acceptance of this amendment.

On Question, amendment agreed to.

Clause 24 [Criteria for accommodation of children in care]:

9.27 p.m.

Baroness David moved Amendment No. 35: Page 27, line 39, at end insert ("and for different periods of time").

The noble Baroness said: My Lords, we now actually arrive at Clause 24, which contains the criteria for the accommodation of children in care. There has been anxiety over the criteria for depriving children, and children as young as ten, of their liberty and putting them in secure accommodation. Our own amendments, Nos. 35 and 36, and the all-party Amendment No. 38, reflect this anxiety. There has also been anxiety about children being deprived of their liberty for more than 72 hours without being able to appear in court and have their restriction of liberty backed by a court order. Anxiety was also expressed about this being in contravention of the European Convention on Human Rights.

After the discussion in Committee I wrote to the Minister, the noble Lord, Lord Trefgarne, and I had a letter from him in which he said that he had now received the Attorney General's advice, and that in the light of that advice … we think it better not to run any risk regarding the compatibility of the arrangements currently governing the use of secure accommodation in community homes with the European Convention on Human Rights. So I take it from that that they are willing to agree that some action should be taken, and that the children who are put into secure accommodation should be brought before a court within a certain amount of time. In our amendments at Committee we said 72 hours.

Lord Trefgarne

My Lords, I apologise for interrupting, but I rather thought that the noble Baroness would have preferred to deploy her arguments on this point, and listen to the fairly long response that I fear I have to make, on the following amendments and not on this one, which deals with a slightly narrower point.

Baroness David

My Lords, I apologise. I should have said that I was speaking to Amendments Nos. 35, 36 and 41 all together. I had it at the top of my paper and forgot to read it out. As we have that amount of give on the part of the Government, I think that we should now really consider what we should do, the Government having agreed that some action has got to be taken and that there would be a contravention of the European Convention. The letter says: better not to run any risk regarding the compatability arrangements currently governing the use of secure accommodation and community homes with the European Convention on Human Rights ". It seems to me that it is going quite a long way, if not the whole way. I, of course, should like them to go the whole way and to take action now in this Bill, which seems to me the perfect place. We are dealing with secure accommodation and we are dealing with the restriction of liberty of children. There is a clause in the Bill which deals with this, and so it seems the perfect place to take action.

It would appear that the Government would be prepared to allow the present practice to continue unrestricted and in breach of the convention, until such time as suitable legislation can be introduced. The excuse, which is a familiar one, is the need to consult widely, and this is mentioned in the letter which I have received from the noble Lord. However, preventing further breaches of the European Convention on Human Rights is, as the Minister accepted during the Committee stage of the Bill, a matter for immediate action. The Government have already acknowledged that this Bill is an appropriate vehicle for legislation on this matter by themselves putting forward an amendment permitting regulations to be issued on criteria; and, indeed, we have a new amendment—I think that it is Amendment No. 39—to be issued on criteria for admission to secure accommodation. However, the proposals in the clause for criteria are not only weak and ineffectual, but by its silence on the matter of judicial review it effectively condones the breach of the convention. The Government have received a legal opinion from the Attorney-General, as I have said, and there is now ample time to make any technical changes that are necessary and to include in the Bill legislation along the lines of our amendments, and particularly, of course, the new clause—Amendment No. 41.

During previous stages of the Bill the Government suggested that the promised review of the community homes regulations would provide a suitable opportunity for looking at what further safeguards, if any, young people locked up in the care system need. The Government have now acknowledged that further breaches of the European Convention can only be avoided by primary legislation. We accept that further detailed controls on the use and provision of secure accommodation can be dealt with during the review of the regulations—a review which must, of course, be preceded by full consultations. However, this primary legislation is long overdue.

Government figures released belatedly—and only after considerable parliamentary pressure—on 28th June, suggest that as many as 2,000 young people a year (some as young as 10, as I have already said) are being locked up for indefinite periods, in some cases for two and a half years or more, at the discretion of child care staff and local social services departments, and without any judicial review. My noble friend Lord Elystan-Morgan will say a little more about the new clause, Amendment No. 41, on judicial review, and so I think that I might now leave the matter and suggest that the need has really been recognised and that I hope the Government will respond and accept that their own criteria are totally unsatisfactory. I am not altogether happy with the criteria suggested by the all-Party group, although it is a good fallback situation. However, I hope that they will accept that our amendments are more apt for the moment.

Baroness Faithfull

My Lords, with your Lordships' permission, I should like to speak to Amendment No. 39 so that we do not go over the same ground all over again. The noble Baroness, Lady David, inserts "7 days", and Amendment No. 39 is the same amendment but puts in a longer period than that—it puts in three months. It seems to me that seven days is very short and also rather impractical to administer.

Lord Trefgarne

My Lords, I should like to deal briefly, first, with Amendment No. 35 and, before I sit down, deploy, what I fear will be, my rather slightly lengthier thoughts on Amendment No. 36. On Amendment No. 35, I am totally sympathetic to the intentions of the amendment, but I hope that the noble Baroness will not wish to press it because I believe that it is superfluous. The Government are already committted to revising the Community Homes Regulations 1972 and to introducing criteria for admission to and retention in secure accommodation. The existing regulations include a large number of references to periods of time; for example, the permission of the managers of a home that includes secure accommodation must be obtained if a child's placement is to extend beyond 48 hours, and that of his care authority if a placement is to extend beyond 28 days. There is, of course, the requirement for the three monthly reviews.

I can assure the noble Baroness that the revised regulations will also include references to periods of time, although not necessarily the same periods of time, and that our new proposals will be subject to full consultation. We do not need additional powers to achieve this and I hope that the noble Baroness will, therefore, not wish to press that particular amendment—that is, Amendment No. 35.

Turning to Amendment No. 36, and coupling with it Amendments Nos. 39 and 41, there are two aspects to the amendment. The first concerns criteria for the admission of children to secure accommodation. As I said on the earlier amendment, I am sympathetic to the intentions of the amendment; noble Lords will be aware of the amendment that follows this one, tabled in the name of my noble friend Lord Elton, actually covered much of the same ground.

I must say that I am attracted to the noble Baroness's introduction of the phrase: that no other method of dealing with him is appropriate", and I shall certainly wish to bear those words in mind when it comes to revising the Community Homes Regulations in order to give effect to the criteria. The second aspect to this amendment concerns the introduction of a requirement that placements in security be subject to confirmation by a juvenile court after seven days. I was asked during the Committee stage whether present arrangements for the placement of children in secure accommodation are in breach of the European Convention on Human Rights, and I was unable at that time to give a definitive reply since the matter was still then the subject of consideration following preliminary legal advice. I said incidentally, that the matter was before the Law Officers, and I must apologise to the Law Officers since, at that time, it had not quite reached them. We had, however, sought an opinion from the legal advisers to my department.

Noble Lords pressed me about how long we might have to wait for an opinion, and I should like to pay tribute to the exemplary speed with which my right honourable and learned friend has been able to act in this matter. I understand that the case was sent to him on 2nd of July and my right honourable and learned friend, the Attorney-General provided his opinion on 12th July. I am extremely grateful to my right honourable and learned friend and his officials.

In the light of my right honourable and learned friend's advice, we think it better not to run any risk that our present arrangements are not compatible with the European Convention on Human Rights. During the Committee stage I told your Lordships that if legislative changes were thought to be necessary, we should seek the earliest feasible opportunity to introduce them. That remains the Government's position. We believe that legislation will be required, and we intend to introduce it as soon as possible. But we think the matter much too important to be rushed. May I explain to your Lordships how we intend to proceed.

Proposals have been drawn up which represent my department's first thoughts on arrangements to govern the use of secure accomodation. These proposals are intended to meet the criticisms that have been made and also the special needs of our residential child care system.

I should now like to describe, very briefly, the tentative scheme that we have devised. A local authority might be allowed discretion to place a child in security for up to seven days, provided that the criteria that will stem from Clause 24 are met. Any extension of the placement beyond seven days would require an application and a hearing before a juvenile court. The court may authorise the local authority to continue the placement. If, however, the court is not satisfied that the placement should continue, they may order that the child is transferred to open accommodation. The child and his parents or guardian would be encouraged to attend the hearing and they may be legally represented, and we are looking into the possibility of the court being able to sit in the community home involved.

The normal local authority three-monthly professional reviews of all children in secure accomodation would continue. After each review, the local authority would be obliged to inform the child and his parent or guardian of their decision and the reasons for it, and the parties concerned would be able to appeal to the juvenile court against any decision to continue the placement. It is thought that a suitable appellate body would be the Crown court, probably in cases like these consisting of a circuit judge and two lay juvenile magistrates.

Our intention is to consult widely on this tentative scheme. We intend to start the consultation process immediately. We think it very important that the local authority, the Magistrates' Association and the various professional bodies have the opportunity of giving careful consideration to what we are proposing. We shall wish to pay the closest attention to their views and to those expressed in this House and another place before bringing proposals to Parliament.

The arrangements to be introduced must be acceptable and workable. I hope the process can be concluded speedily. However, as you Lordships will readily appreciate, the process cannot possibly be completed in time for the legislation to be incorporated in this Bill. We would envisage similar but special arrangements governing the placement of youngsters subject to interim care orders and place of safety orders. In the case of those remanded to care we would envisage the review authority as being the juvenile court that makes the remand.

I would like to say something, if I may, about the children who would be affected by the arrangements we shall eventually introduce. Secure accommodation is available for all children in care whose behaviour is so disruptive that they represent a danger to themselves or to other people, or who might place themselves at serious risk if they absconded. Placement in security is not a punishment and it is not confined to children who have offended. Secure accomodation in an environment for care and treatment for any child in care whose needs might best be met in those conditions.

At any given time, about 44 per cent. of the children in care are those who have been received voluntarily into care because their parents are unable to look after them, either for a short period or in the longer term. These children are unlikely ever to have appeared before a juvenile court. A further 6 per cent. are in care under matrimonial legislation and are there because special arrangements are necessary for looking after them because of divorce or other marital problems of their parents. The remaining 50 per cent. would be in care under the various provisions of the Children and Young Persons Act 1969, the largest category being those who are neglected or ill-treated by their parents. Only 15 per cent. of the total number of children in care are in care because they have offended, and a further group of a little less than 1 per cent. have been remanded to care because they have been charged with an offence.

The information available to us in fact suggests that the majority of children placed in security have either been charged with, or convicted of, an offence, but a sizeable proportion have not. In particular, children who have been neglected or ill-treated have often failed to develop the necessary social skills, or they exhibit violent responses, and there are children from unsatisfactory home backgrounds who have such a low self-image that they are prone to self-mutilation and may even present a serious risk of suicide. These are the frightened and unhappy children for whom a period in security may offer the best opportunity for developing the skills necessary for controlling their behaviour and learning to become successful adults. The DHSS working party report published in 1981 suggested that secure accommodation should be reserved for those children whose behaviour has demonstrated that the risks to themselves and/or society are too great for alternative forms of care to be appropriate.

The report said it should be a facility of last resort, to cope with persistent and serious offenders and children who repeatedly attempted self-destruction or serious mutilation, particlarly where those symptoms were associated with persistent absconding For such children it is suggested that a period in security may improve their social skills and basic education attainments, as well as providing the public with the protection it deserves and for the child with the opportunity for treatment. I do not think I could seriously disagree with that.

Those, in bare outline, are the proposals on which we shall shortly be consulting, and I now come to the amendment. As I said, the Government are sympathetic with the amendment's intentions, and the proposals I have just outlined have much in common with what is contained in it. I hope that in the light of such consultations we now propose to undertake, and the firm commitment I have given to seek subsequently an early legislative opportunity to introduce fully-considered proposals, the noble Baroness will withdraw the amendment.

Lord Donaldson of Kingsbridge

My Lords, I shall not start a long argument on this subject because it is a very difficult one. The philosophical background to what has been said is one of total confusion and the disaster emerges from having a criminal and a non-criminal care order. We in the All-party Penal Reform Group have always said we were against the criminal care order. But to suggest that if you say to a child, "You are in trouble. Your mother is unsound and is apt to beat you. We will take you to somewhere where you can be looked after and be kept safely", is in any way equivalent to saying to a child, "You are a very naughty child, a danger to the public, and we are going to put you somewhere where you cannot get out" seems so crude as to be almost unbelievable. It is like so many of the arguments we have had; they are not thought out at all. I shall not go any further now, except to say that I am totally dissatisfied with the philosophical background to the argument.

Lord Avebury

My Lords, nobody disputes the fact that secure accommodation is necessary for some children of kind the Minister described, although it was alarming to read of the nature of some of these units in a recent Guardian article in which it was stated that a great deal of money, I think £14 million, had been spent on units which had not in fact been used for the accommodation of children because when they came to be examined it was thought that the public outcry against the use of such accommodation would be so tremendous that no one could face it.

The important point the Minister brought out was that the advice that had been given by the law officers was that we might possibly run the risk of being in contravention of the European Convention on Human Rights if we did not provide for some access to the courts in the cases of children placed in such accommodation. The question really before your Lordships is whether we can do something in the course of these proceedings or whether, as the Minister said, it has to await substantive social security legislation at some future opportunity—and that, from the sound of it, would not be in the next Parliamentary Session because the noble Lord said that some extensive consultations would be necessary.

I accept that one could not proceed to an important and substantial new legislative commitment of this kind without taking into consultation all those who would be concerned with its implementation. There is, however, a contrast between this issue and what the Government have done in the case of night restriction orders—or curfews—where, so far as I am aware, the idea had never been ventilated until it arose in Committee in another place. There were then consultations which were rapidly rushed through so that the proposals could be incorproated in the Bill. Here, however, although the warning was given to the Government that they might be in contravention of the European Convention, only at the beginning of July were the Government in a position to take the advice of the law officers. I accept that they responded with remarkable alacrity. I congratulate the Government on obtaining a reply from the Law Officers within a space of two weeks. In my experience that would be totally unprecedented. Certainly if one writes to the Law Officers, one does not receive an answer within a month or two, and even then only if one is lucky.

I believe that the situation shows the sensitivity of the Government to the warnings which were given that we might be in contravention of the European Convention. I am not at all happy that we cannot do anything whatsoever at this stage, though I accept entirely what the noble Lord said about the consultations. I really dread to think that we shall be subject to yet more proceedings in the European Commission. I think that we have lost more cases there than has any other country in Europe, and this may well be because the Government are so reluctant to listen to advice which is given, often on the Floor of the House. I cannot refrain from pointing out to the noble Lord the Minister that on the question of husbands and fiancés I have twice warned the Government that in accordance with advice that had been given by Mr. Lester and the noble and learned Lord, Lord Scarman, they were in contravention of the European Convention on Human Rights, they are about to be found guilty, and they will have to alter the immigration rules.

Now we are going to do the same thing again. We know, and even the Government accept, that the advice is that we might possibly be in breach of the European Convention—the noble Lord himself admits it—and yet we have to start on rounds of consultation, and it might be 18 months before legislation can be introduced. I say that because I am fairly sure the noble Lord will have to tell us that the legislative programme for the Session 1982–1983 is already fully committed. So there is a risk that in the meanwhile proceedings will be started in respect of some of the children taken into the accommodation, and we find ourselves yet again in the dock in Strasbourg.

Therefore I wish that there had been an opportunity of including interim proposals in the Bill, even though one accepts that they might need to be altered later. I would ask the noble Lord whether, even at this late stage, it is not possible to think of some way of getting us in the clear on the convention and making arrangements, even within the scope of the present Bill, for coming back to Parliament later and securing alteration in the interim proposals, if the consultations that he has outlined would seem to demand it.

Lord Trefgarne

My Lords, with the leave of the House, I should like to respond to the point raised by the noble Lord, Lord Avebury. I have said that we would wish to bring forward legislation at the earliest possible moment. It is not possible for me to foreshadow precisely when that would be, but I can say that I should be very surprised if it proves to be as long a period as the noble Lord appears to fear. With regard to the Guardian article to which the noble Lord referred, I wonder whether he saw the letter from my honourable friend the Joint Parliamentary Under-Secretary at the Department of Health and Social Security, Mr. Newton. He wrote to the Guardian pointing out the number of inaccuracies that there were in the article.

9.54 p.m.

Lord Elystan-Morgan

My Lords, I should like to join the noble Lord, Lord Trefgarne, in congratulating the Law Officers on having so expeditiously delivered a joint opinion on this most important matter. It would come as no surprise to any Member of the House that it is now beyond any doubt that the United Kingdom is in breach of the European Convention. Indeed, anyone who looked carefully at Article 5, paragraph 4 of the convention would say that there is no way in which the present provisions could ever have come near the four corners of that most important paragraph. As the House will remember, the paragraph stresses two matters. It states: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful". While we are now grateful for the fact that the matter has been definitively settled by the Law Officers, nevertheless there is a feeling of disquiet that it was only in June or July of this year that instructions were given to them to deliver their opinions on it. The whole issue had been canvassed in very great detail in another place at Committee stage in March and, later, at Report stage in May. Some very firm decisions were taken. Indeed, it was on the basis, no doubt, of some very specific legal advice that Clause 24 as it now appears in the Bill was drafted. Was that legal advice of the same nature as that now tendered by the Law Officers, or was it different? If it was of the same nature, how possibly could the Government have taken the decision they did in May in relation to Clause 24? If in fact no legal advice was obtained, was it surely not the most imprudent course conceivable to draft Clause 24 without having that fundamental matter settled once and for all?

My Lords, the undertaken given by the noble Lord, Lord Trefgarne, both on 28th June and today, is one that I am sure every Member of the House will find totally acceptable, but it may well be that the Minister is misconceiving the situation if he thinks that any cosmetic or even fundamental changes in the regulations can make an difference at all. The regulations simply cannot cure the situation. They do not set up a procedure that allows the person concerned to have recourse to a court—and it has not of necessity to be a court of law, but it has to be an independently constituted tribunal.

The regulations are made under a permissive piece of legislation that allows the Secretary of State the discretion whether or not to make regulations. The decision is not the decision of a court; it is not made by a court; it is not reviewable by a court, and therefore the regulations simply cannot accommodate the situation. There has to be primary legislation that brings about the very rights, and enshrines the very rights, that are referred to in Article 5.

I am sure that I speak for many in all parts of the House when I say that I personally am extremely disappointed when the Minister says that it will not be possible to incorporate legislation in this Bill. It may be much longer than the 18 months referred to by the noble Lord, Lord Avebury, before such legislation is introduced. Miscellaneous provisions Bills so far as criminal law reform is concerned tend to be rationed to one per Parliament, more or less; and, indeed, comprehensive legislation of the nature referred to from the DHSS again is something which comes only once every few years.

There is the grave danger that in the meantime the United Kingdom will be held up to the ridicule of other countries by being found guilty again and again in the European Court. We have indeed an embarrassing and shameful chapter of error and of failure in that connection; and I join completely with the noble Lord, Lord Trefgarne, in what he said on a previous occasion, that everything must be done as speedily as possible to remove this error in so far as the European Convention is concerned. But the noble Lord, with all his natural blandishments, comes to the House and says there will have to be consultations on this matter, and that, indeed, appears to be sweetly reasonable. But were there no consultations in relation to Clause 24? That was a radical review of the situation.

If the Government are now saying that there were no consultations before drafting that provision, then it seems that there is a strong case for saying that the eminently reasonable suggestions made by the Minister could now well be embarked upon without consultation. If, on the other hand, as I suspect to be the case, there were consultations embarked upon previously to drafting Clause 24, then those consultations must indeed be generally relevant as a background to this very issue. Therefore, we say that, although there is a case for consultations, the issue of consultations should never be used as an alibi for delay and inaction in regard to this most crucial matter.

I appreciate that the article in the Guardian of 6th July has been answered by the noble Lord's ministerial colleagues. Nevertheless, many questions still remain unanswered. Obviously, there has been embarked upon a substantial plan of very expensive capital expenditure in relation to the provision of further secure places. When was that decision made? Was that decision made in the light of the stricter criteria which already had been incorporated in the Bill; or was it made previously? If that decision was made previous to that, how realistic is it? We are talking of a very considerable amount of money, £14 million. The cost of placement of a child in any one of these places, we are told, is between £20,000 and £45,000 per annum.

My Lords, I have spoken for longer than I intended, but there is one point which should be made additional to what has been said. Being in breach of the European Convention on Human Rights is a very grave and important matter. What is even more important is that the House should recognise that there exists in our community a system that is utterly unacceptable and intolerable, a system whereunder as many as 2,000 children per annum are detained in conditions of secure custody without there being any decision of a court to sanction such and without such a situation being reviewed judicially. What is more disturbing is that over the years there is a clear pattern that the age level of those detained is falling all the time; so that now we have reached a situation when almost two-thirds of those detained are under 14½ years of age.

The Earl of Onslow

My Lords, I rise for a moment to support my noble friend on the Front Bench. He has surely acknowledged that there was something which we were all very worried about at Committee stage. I remember drawing a slightly exaggerated possibility of what could happen to a 10-year old locked up for ever. If my noble friend has said, as he has said, that he recognises that we are probably or possibly (call it what you will) in breach of the European Convention on Human Rights, and has promised that he will bring in legislation as early as possible—and I would suggest that it would be appropriate legislation to be brought into this House first because there will be nothing controversial in it—we should give him all the support we can to let him produce that legislation and resist this series of amendments.

Lord Trefgarne

My Lords, with permission, I should like to make two points arising from the remarks of the noble Lord, Lord Elystan-Morgan. Clause 24, about which he asked me closely, is a permissive power. It allows regulations to be made, and we shall be consulting about the regulations themselves. On the decision to embark upon the building of adequate secure accommodation, that, I understand, was made by the Labour administration of 1974–1979 mainly in order to provide adequate secure facilities to enable the practice of remanding juveniles to prison department establishments to be ended. That is a policy with which everyone agrees.

Incidentally, the number of children who were admitted to secure accommodation for periods of more than 48 hours during 1980 was just under 1,000 and not 2,000; and the average age was around 15. I have undertaken that we should bring legislation in at the earliest moment to rectify this possible difficulty with the European Convention on Human Rights. I hope that that will be of satisfaction to your Lordships.

Baroness David

My Lords, of course we are very glad there has been an advance from the Committee stage at the Report stage and a good many things that we said then have been accepted by the Government. What we are not prepared to accept is that it is still impossible to do something in this Bill. I imagine that we are not going to have Third Reading until after the Summer Recess—that means October—and that gives several months. I am doubtful about the need for all the consultations which have been mentioned. There must have been consultations about this Bill and if we are likely to be in breach, we are in breach and action ought to be taken now. This seems to be the ideal opportunity. Talk of what goes on in the regulations is nothing to do with that matter but they cannot cope with that situation.

I think that there is a good deal of support for action being taken now. What I should like to do is withdraw these amendments now. There is not much doubt that we shall come forward at Third Reading with proposals—having read very carefully what has been said by the Minister today—and these will cover the situation at Third Reading, if the Government does not come forward with them. I hope that they will. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

10.7 p.m.

Lord Trefgarne moved Amendment No. 37: Page 28, leave out lines 3 to 6 and insert ("it appears—

1. (a) that he has a history of absconding and is likely to abscond from any other description of accommodation; or
2. (b) that if he is kept in any other description of accommodation he is likely—
1. (i) to injure himself or other persons; or
2. (ii) to damage or take other person's property.".").

The noble Lord said: My Lords, this amendment has been brought forward to give effect to an amendment which the noble Lord, Lord Donaldson, moved in Committee. The argument was, if I may paraphrase, that it was not good enough simply to say that a child could be held in secure accommodation if he was likely to abscond. That left the matter completely to a subjective judgment. The likelihood of absconding should instead be measured against a history of absconding. This amendment rearranges part of Clause 24, to provide that the child must have a history of absconding as well as being judged likely to abscond at the time when he is placed or kept in secure accommodation. I hope that this amendment will meet the noble Lords' purpose. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I do not off-hand accept paragraph (b). I accept paragraph (a) with gratitude. That is what we asked for and the noble Lord has given it to us. I want to say something about paragraph (b); and, having done so, I expect I shall be able to withdraw Amendment No. 38. In any case, if this amendment is agreed to I cannot move Amendment No. 38.

The subsection with which we are concerned reads: Without prejudice to the generality of this section, regulations under this section may contain provisions to ensure that a child may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless … The first proviso is the one which the noble Lord has just granted me. Instead of saying "to abscond" he says: it appears—that he has a history of absconding and is likely to abscond from any other description of accommodation …". That seems perfectly reasonable and a good reason for putting such a child in conditions of restricted liberty.

The second paragraph covers to injure himself or other persons; or to damage or take other persons' property. That remains the same in the noble Lord's amendment. We have suggested that instead of saying: "to damage or take other person's property" we should say: commit a serious offence involving damage to or taking of other persons' property". What we are trying to do is obvious. We are trying to see that if a boy tries to steal an apple—which every boy does—it is not a good enough reason for any magistrate—and there are some bad as well as many good ones—to send him to secure accommodation without the slightest justification. As it stands, he would be within the terms of this Bill if he did so. This is what we want to get right. In his argument against it, the noble Lord has had to fall back on the drafting officers, who say that "a serious offence" is impossible to define. That may or may not be so, but the noble Lord or his colleague was perfectly prepared to use it in Amendment No. 33, which says that a care order is appropriate because of the seriousness of the offence.

What on earth is the difference? This is a trivial argument. The noble Lord is not being serious. The difference between the seriousness of an offence and "a serious offence" can only be trivial, so I do not regard this as serious, but I am not going to divide the House because the noble Lord has written me a very civil letter, in which he acknowledges his inability to deal with the drafting officers—and we have all had experience of this. I am reading from his letter now because I should like it on the record and I want the noble Lord to confirm what he means and what the Government mean. I quote: We certainly do not intend that a child could be placed in secure accommodation because he had committed a trivial offence of some sort and I can assure you that this intention will be made clear in the revised regulations which we intend to lay before Parliament in the next Session. We will be consulting widely about the revision of the Community Homes Regulations, and I am hopeful that a satisfactory way will be found of expressing in regulations the principle that the criterion of 'to take or damage other persons' property' does not apply to minor offences. That is exactly what I am asking for. I would much have preferred to have it in the Act but, if the noble Lord will confirm that he has said that to me and also that it will go into regulations, I shall not press the matter further.

Lord Trefgarne

My Lords, again with your Lordships' permission, I happily confirm that the noble Lord accurately read a passage from the letter which I wrote to him and also that it is our intention to bring it forward with the regulations incorporating this point during the next Session.

Lord Donaldson of Kingsbridge

My Lords, I am grateful to the noble Lord.

On Question, amendment agreed to.

[Amendment No. 38 not moved.]

Baroness Faithfull had given notice of her intention to move Amendment No. 39: After Clause 24, insert the following new clause:

("Children not to be detained in secure accommodation for more than three months without the approval of the juvenile court.

.—(1) Where a child is for the time being in the care of a local authority, he shall not be kept in accommodation provided for the purpose of restricting liberty for a period exceeding three months unless within that period the authority has brought him before a juvenile court.

(2) A court before which a child is brought in pursuance of this section may, if it is of the opinion that no other method of dealing with him is appropriate, make an order permitting the placing or keeping of him in accommodation provided for the purpose of restricting liberty.

(3) An order made under subsection (2) above shall cease to have effect at the end of three months beginning with the date of the making of the order unless before the expiry of the order the local authority has brought the child before the juvenile court and the court has made a further order under subsection (2) above.

(4) A juvenile court shall not make an order under subsection (2) above in respect of a child who is not legally represented in that court unless either—

1. (a) he applied for legal aid and the application was refused on the grounds that it did not appear that his means were such that he required assistance; or
2. (b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.").

The noble Baroness said: My Lords, I hope that the other signatories to this amendment will agree with me that we have had a very full debate on it already when we were discussing Amendments Nos. 35, 36 and 41: and I do not propose to move this amendment.

Baroness Faithfull moved Amendment No. 40: After Clause 24, insert the following new clause:

("Review committees.

.—(1) Sections 20 and 90(3) of the Child Care Act 1980 shall have effect subject to subsections (2) and (3) below.

(2) Each local authority shall appoint a committee for the purpose of reviewing in pursuance of section 20 of the Child Care Act 1980 the cases of children in their care under care orders made under section 7(7) of the Children and Young Persons Act 1969.

(3) A committee appointed under subsection (2) above shall have among its members at least one justice of the peace.").

The noble Baroness said: My Lords, I beg to move this amendment, and I should like to make two points on it. The first is the point that I appreciate that there are regulations for reviewing children in care. When a care order is made, that order is made until the child is 18 years of age. Where there is good practice among social workers in the social services departments, reviews are taking place regularly and many children return home, or perhaps alternative arrangements are made for them. But, sadly and unfortunately, a number of children are either reviewed and perhaps the arrangements are that the children shall remain where they are in custody, or alternatively the organisation of a department is such or there are such pressures upon it that there are no reviews.

The second point is that I think we all hope that there will be much more relationship between magistrates and social workers. If there was much more interchange of information, work, ideas and views, there would be more understanding between the Bench and social workers. My social services department used to consult with the magistrate every six months, about every child that had been committed to care in the previous six months, and other departments do the same. This amendment recommends that there should be regular reviews, but that on the review committee of the social services department there should be an independent person of the local authority, who should be a magistrate. My Lords, I beg to move.

Lord Elwyn-Jones

My Lords, I hope that the noble Lord will find this a helpful suggestion, to involve the magistracy in this important stage of proceedings. It is a modest proposal. It means the involvement of at least one magistrate in six-monthly review committees, reviewing young offenders who are subject to care orders. There has been a good deal of concern about the position of young offenders who are subject to these orders, and I accept the importance of not letting the magistracy think that it is remote from what happens to the children after they have left juvenile courts. This is the kind of suggestion which I should have thought would be most helpful not only for the protection of children who are subject to care orders, but, as I said, for the increasing of confidence in the magistracy, because it is not wholly satisfactory if the determination of these matters passes out of their hands the moment that the child has left the court.

Lord Trefgarne

My Lords, may I first stress that I sympathise very much with the intention behind my noble friend's amendment. It reflects the widespread concern, which of course I share, about the need for careful and regular reviews of the case of every child in care. There is already a firm statutory requirement for authorities to carry out such reviews at not less than six-monthly intervals. There is also on the statute book a provision, originally enacted in the Children Act 1975 and now consolidated in the Child Care Act 1980, enabling the Secretary of State to make regulations which would govern the way in which such reviews are carried out. We are anxious that there should be such regulations and very much regret that we have been unable to bring them in for want of the very considerable resources—estimated at some £7.2 million a year—which would be needed. But when we are able to do so, we shall certainly be consulting widely with all interested bodies on the content of the regulations. There will be an opportunity for comprehensive consideration of the way in which cases should be reviewed. And that will be the right time, to my mind, to consider the very important ideas which underlie this amendment. In the meantime, I do not think it would be right or helpful to institute a procedure for one group of children in advance of this wider consideration, and in isolation from children in care generally for whom reviews are equally important. But I thank my noble friend and, indeed, the noble and learned Lord opposite for their views on this matter. I happily give the House an assurance that we shall bear these views most carefully in mind when we come to consider the specific matter of reviews. With that assurance, I hope that my noble friend will feel able to withdraw her amendment.

Lord Donaldson of Kingsbridge

My Lords, did I understand the noble Lord to say that it would cost £7 million a year to have these reviews? I understood from our discussion last time that we already had these reviews. All we are asking is that magistrates should be added to them. Who is going round the bend—am I, or is it the noble Lord? It cannot cost a penny, except the magistrate's fare, to add that to what is done now.

Lord Trefgarne

My Lords, with the leave of the House, as I understand it the existing reviews are conducted within the local authority, and thus the additional resources would be related to the magistracy, as the noble and learned Lord said. This costs money and that is the figure which I am advised it would cost.

Baroness Faithfull

My Lords, before the noble Lord sits down, may I query this figure of £7 million? I do not understand it, either. I am used to consulting the magistracy over care orders. As the noble Lord, Lord Donaldson, said, it costs not a penny. The magistrates meet in court. Therefore there is no rent. The only cost is their fares, which they probably do not claim. Could we have more information about this figure of £7 million?

Lord Harris of Greenwich

My Lords, it seems to me to be a very substantial sum. It may well be that the matter has been carefully thought through by the noble Lord's department, but could we be told how the figure of £7.2 million is reached? Would the noble Lord be helpful to the House and tell it precisely what are the constituent elements which go towards making up this total?

Lord Trefgarne

My Lords, I am not in a position to give to your Lordships a detailed breakdown of the sum to which I have referred, but surely it stands to reason that an additional load upon magistrates' courts or upon magistrates costs money. The magistrates' courts system is already a quite expensive system—not so much because of the salaries, because magistrates do not draw salaries, but they do draw expenses. And the premises in which they work are not constructed "for free". Where there is a total increase in the burden, additional facilities, like additional accommodation, have therefore to be provided. It is not necessarily the case, as my noble friend appears to think, that the existing courts can accommodate the extra load which will be imposed upon them by these new arrangements.

Lord Harris of Greenwich

My Lords, I apologise for pressing the noble Lord, but he will realise that the whole basis of his argument rests upon his statement that this will cost £7.2 million. It seems to me that if that figure is correct it is not at all unreasonable for us to ask the noble Lord how it is made up. Bluntly, it does not seem to me—and I suspect it does not seem to others—that that figure can deal with the question of magistrates' expenses. Magistrates' expenses are not quite on the scale which the noble Lord seems to suggest.

Lord Trefgarne

My Lords, the cost of introducing the regulations, for which statutory backing already exists, was assessed, I understand, by a working party of my department. It includes the cost of assisting parents and children who may wish to appear before magistrates. I wish to stand by the figure which I have given to your Lordships. I regret that I am not in a position to give a more detailed breakdown, but I have referred to some of the elements which go towards making up the cost. I accept that by themselves magistrates' expenses will not make up the £7.2 million, but there are the costs of the parents and the children appearing before the magistrates, the costs of the premises, to which I have already referred, and other, similar matters.

Baroness Faithfull

My Lords, before the noble Lord sits down may I ask this question—I am very sorry to press him but, as the regulations stand at the moment, there must be reviews. These reviews are held at the moment. I was used to having a computer in the department. It turned up every six months when the children had to be reviewed. The reviews took place in the children's section of the social services department, in a room which was not even hired because it was part of the office. It was heated because it was part of the office. Reviews automatically take place now. The only thing which this amendment asks for is that on those reviews which take place—because there are regulations for them to take place now—there should be one magistrate. One magistrate added to a committee which is already sitting could not cost £7 million.

Lord Mishcon

My Lords, would the noble Lord the Minister agree between now and the next occasion upon which we meet to review the review expenditure which he has just spoken about and let us have details, either by letter or otherwise, so that we can consider a figure which at the moment seems quite absurd?

Lord Trefgarne

My Lords, again with the leave of your Lordships, I have explained some of the elements which go towards the costs to which I have referred. However, I shall be happy to write to my noble friend and to the noble Lord, Lord Mishcon, with a whole page of information if that would be helpful to them.

I do want to explain to your Lordships that there is nothing between us on the principle of this matter. We certainly agree that these reviews ought to be brought in as soon as possible. I should not be inventing a difficulty, because I assure your Lordships that we like the idea advanced by my noble friend and supported by the noble Lord opposite, that magistrates should be involved in these arrangements. If there were no costs attached to this new arrangement I would certainly be accepting my noble friend's amendment. Unhappily, there are costs, and thus I am precluded from agreeing that we should introduce these arrangements forthwith. I want to introduce these arrangements just as soon as possible and as soon as we have the resources to meet the costs I have described.

Lord Mishcon

My Lords, I hope the House will forgive me for speaking twice; my intervention was short last time and will be just as short this time. If the noble Lord the Minister is saying that he agrees in principle and indeed wants to put this proposal into effect, and that the only thing standing between him and that very desirable result is the question of expense, does not the question of expense and its analysis by the noble Lord the Minister become imperative? Many of us feel that the figure he has put forward cannot be the correct one. If he finds indeed that it is a minimal figure, would he not agree that he could then carry out his promise and make this effective?

Lord Trefgarne

My Lords, again with the leave of your Lordships—and I am stretching procedure more than somewhat, I understand—certainly if I find myself to be seriously mistaken in the figure I have offered to your Lordships (which I do not think will happen) I will hasten to come and explain that to your Lordships.

Baroness David

My Lords, I hope that the noble Lord the Minister will question his department as we have questioned him, because this seems to be a totally unreal situation. As a member of a social services committee and as a magistrate, I find the whole situation totally unreal.

Lord Campbell of Alloway

My Lords, I hesitate to intervene but I feel that my noble friend on the Front Bench may truly have been misled by his department. It is a most important matter—this review of young people—and I do not know how one can get to £7.2 million, from what I understand of it. I believe that a mistake has ensued, and if a mistake has been made it would be wrong to allow this matter to stand. If a mistake has not been made, and instead I am mistaken, then I will withdraw my remarks.

Baroness Faithfull

My Lords, I am in very real difficulty. I am absolutely stunned at the figure of £7 million when £6 million is going to be apportioned to residential care orders and only £2 million elsewhere. I would rather the money went on intermediate treatment and residential care orders. I, like my noble friend Lord Campbell of Alloway, can only think that a mistake has been made. We all make mistakes and this is rather a stupendous mistake. Nevertheless, everyone is very busy and perhaps very tired bearing in mind the travelling of last week, et cetera. My noble friend the Minister has said he will look into this matter and that he will write to noble Lords who have spoken.

Lord Sandys

Order! My Lords, I believe that my noble friend Lady Faithfull is under some misapprehension. My noble friend did not say that he was going to write to all those noble Lords who have taken part. I believe that my noble friend should take this opportunity, if I may so commend it to her. Since my noble friend Lord Trefgarne has made a very reasonable suggestion for examining the situation, perhaps she will withdraw her amendment.

Lord Harris of Greenwich

With great respect, my Lords, this is a most important issue and that does not deal with the issue at all. The issue which has been raised on the Floor of the House is the accuracy of the figures. All we are asking for is a letter to those of us who have spoken in the debate, so that we may consider the matter before the Third Reading of the Bill to see whether we should come back to the matter and table further amendments.

Lord Avebury

My Lords—

Lord Sandys

Order!

Lord Avebury

My Lords, I have not spoken before.

Lord Trefgarne

May I say that I am certainly willing to write to my noble friend Lady Faithfull, and I will be happy to see that a copy of that letter goes to Lord Elwyn-Jones and perhaps to Lord Harris of Greenwich. I think Lord Mishcon would like a copy as well.

Lord Avebury

My Lords, it is no good the noble Lord, Lord Sandys, shouting "Order!" when I have not spoken on this amendment. I am determined to have my say. It would not be good enough, if the noble Lord has made a mistake on such a substantial issue, to write to noble Lords who have spoken. He must come to the Floor of the House and correct the no doubt unintentional misinformation given to the whole House. This is such a substantial error and it makes such a big difference to the way in which this amendment has been treated that it would be wholly inadequate for the noble Lord to limit himself to writing to those who have taken part in the debate.

Baroness Faithfull

My Lords, my noble friend Lord Trefgarne has said that he will look carefully at this matter, and I am sure he will; he is the last person to want to spend money that need not be spent. In the light of his assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

[Amendment No. 41 not moved.]

Baroness Masham of Ilton moved Amendment No. 42: After Clause 24, insert the following new clause:

("Governors for community homes.

.—(1) Where a local authority provides, manages, equips and maintains one or more community homes under section 34 of the Child Care Act 1980, it shall be the duty of the local authority concerned to appoint for each community home a committee of governors which shall have among its members at least two persons independent of the authority.

(2) A local authority may make an arrangement for the appointment of a single committee of governors for any two or more homes provided by the authority.

(3) Any arrangement under subsection (2) above shall require the approval of the Secretary of State.

(4) A committee of governors appointed under subsection (1) above shall arrange for one or more of their number to visit the home at least once in every month and to report in writing to them on the conduct of the home.").

The noble Baroness said: My Lords, at Committee I moved an amendment so that community homes had boards of visitors as borstals have. All noble Lords and Baronesses who spoke were in agreement with having governing bodies or visitors, but some did not agree when I spoke of adjudication duties. The noble Lords, Lord Donaldson of Kingsbridge and Lord Harris of Greenwich, like myself, know what a help this can be, with the experience of borstal. I took the point of those who were not happy about this and now bring before your Lordships an amendment that ensures that all community homes have active governors who will visit these homes. Some community homes already have good systems of visiting governors, but others, such as the one my noble kinsman knows, are not so well equipped. It is important that we legislate for homes that need bringing up to a good standard of practice.

Community homes have a mixture of children; some are sent by the courts, and others need care and protection. Children are in the care of the local authority. Some of the children are very disturbed; some can cause a great number of problems. I am sure your Lordships will agree that not only can the governors become the friends and advisers of some of the children, who often have inadequate parents or parents who are in prison or hospital, but they can give support to the staff who often have to overcome many problems themselves inside and outside the homes. Governors can be a very important link with the community, who may not feel comfortable having a community home in their district. This amendment ensures what is already good practice in some community homes. I would have liked to have more safeguards written in when I think of the difficulties and problems some community homes must have, especially those with secure units. But it is a compromise. I hope the Government will accept it. If not, I hope your Lordships will, because this amendment brings local authority homes into line with the requirements laid upon the voluntary community homes. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I am happy to support this amendment. I must point out that it will cost money, though I doubt if it will cost £7 million. It does not mean one magistrate's bus fare; it means a number of governors coming from various places. The second point which is important is that, at our discussion in Committee, the feeling was that these governing bodies should not have adjudication powers. I do not think that this is implicit in this amendment and I think that it ought to be added.

Lord Trefgarne

My Lords, I have listened carefully to the remarks of the noble Baroness, supported by the noble Lord, Lord Donaldson. It may be helpful if, before addressing the particular issue raised by this amendment, I very briefly outline the different arrangements for management of community homes.

As your Lordships may be aware, community homes are either maintained, controlled or assisted. Maintained homes are provided, managed, equipped and maintained by the local authority. The Community Homes Regulations 1972 require the local authority to arrange for each maintained home to be visited at least once a month and for a report on the home to be made to them in writing by such persons as they consider appropriate. Controlled homes are provided by voluntary organisations but managed, equipped and maintained by the local authority. The local authority provides two-thirds of the managers and the voluntary organisation, one-third. Assisted homes are provided by voluntary organisations and are managed, equipped and maintained by the voluntary organisations, who provide two-thirds of the managers, with the local authority providing the remaining one-third. The Community Homes Regulations require the managers of both controlled and assisted homes to arrange for one or more of their number to visit the homes at least once a month and to report in writing to them on the conduct of the home. In all community homes, therefore, the local authority has some responsibility as to the proper conduct of the homes.

The amendment of the noble Baroness seeks to require local authorities to appoint a committee of governors which would include at least two independent persons. Members of the committee would visit local authority maintained homes and would report on their conduct. As I have explained, however, local authorities are already required to visit homes at least once a month and to receive a written report. This amendment, therefore, would duplicate existing provisions, with the exception that there would be a requirement to appoint independent persons. The local authority would thus be required to carry out the same duty twice, and I confess that I cannot see a great advantage in that.

While I cannot accept the amendment, I do not wish to dismiss it without further comment on the proposal to involve independent persons. During the Committee stage, the noble Baroness said that she considered it important to have independent people who can take an interest in the homes. I find the idea of involving independent people in visiting the homes an interesting one and one which we should like to consider further, but it would be illogical to introduce such an arrangement with respect to maintained homes only, excluding assisted and controlled homes. The most appropriate context for further consideration of this proposal will be the revision of the Community Homes Regulations which I have already referred to approximately 25,000 times during the passage of this Bill! I have already stated that we shall be revising these regulations shortly, and I can assure the House that the points which have been raised will be taken into account. I hope that the noble Baroness will be satisfied with that assurance and will feel able to withdraw her amendment.

The Earl of Swinton

My Lords, I am delighted to hear that reply, and even more delighted to see sitting on the Front Bench my noble friend the Leader of the House. I recollect the Education Act 1980 going through, and the stress that was laid upon bringing governing bodies into line and making sure that the best practices were established. I can absolutely assure my noble friend the Minister, because I have checked on this since Committee, that in two community homes in my area there has not been a member of the social services committee near the places for at least six years. They establish as their governing body the social services committee, and not one elected member has been near either of the two community homes in my area for six years. So I do not know who is preparing the written report—I suspect that it is probably one of the social services workers and maybe they can get away with it.

But having said that, I am absolutely delighted that my noble friend is going to look into the matter, and I hope that I might get some sympathy from my noble friend the Leader of the House. I am sure that it is something that must be dear to my own party when I think of all the hard work we have put into making sure that governors of every single school in the country were right and how much surely we need them for these children in these particular homes.

Baroness David

My Lords, may I suggest—and I think that I may have mentioned this in Committee—that, when the independent people are being considered for governors, people in the locality of the home should be borne in mind and not just magistrates? It is a very good thing to have local people on the governing body because they can strengthen relations between the children in the home and the community, and perhaps make the community more sympathetic to the purposes of the home and the children within it.

Baroness Masham of Ilton

My Lords, as this amendment is supported and actually drafted by the All-Party Penal Reform Group and it is meant to bring all community homes into line with each other, I hope that the Government will look at this very seriously and perhaps themselves come up with something at Third Reading. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

l0.42 p.m.

Baroness Masham of Ilton moved Amendment No. 43: After Clause 24, insert the following new clause:

("Education in community homes.

. In Schedule 1 to the Local Authority Social Services Act 1970, at the end of column 1 of the entry relating to the Child Care Act 1980, there shall be inserted— Provided that the education of children in a community home with education on the premises shall be the responsibility of the local authority in their capacity of a local education authority.".).

The noble Baroness said: My Lords, it is because I believe that there is an anomaly that I move this amendment today. There are 2,165 community homes in England and Wales. That is the latest figure available. Out of those 2,165, 111 provide education on the premises. It is the 111 community homes with education with which this amendment is concerned.

Children at community homes which are not community homes with education are educated at ordinary schools, and their education is, thus, the formal responsibility of the local education authority, as is the education which is supplied to children in borstals and hospitals. But at the 111 community homes with education, for some reason which is far from clear, the education is the responsibility of the social service departments. I agree that if children have to be in a community home, that place of residence for the time he or she is there is home. But equally important is his or her education. Education for these children is vital and the standard of teaching—be it remedial or examination level—should be taught by motivated, experienced and first-class teachers.

At the moment the teachers in these 111 community homes are seconded by the local education authorities to the social services. This seems to be a second-hand situation. Why, if education in borstals is provided first-hand by the local education authority, is it not provided likewise in a CHE—a community home with education? At one of the most progressive boarding schools, Millfield, children live in houses with house parents. Their education is separate, coordinated by a tutor. Their care and home life is divided from their education. Is this not natural, like a child in a community home without education who goes out to the normal school to get his or her education?

These children would not be in community homes with education unless they had serious problems. This amendment seeks to raise their standard of education so that the education authorities take direct interest and responsibility. In the borstal to which I am attached we have an excellent education unit run by Leeds education authority. The teachers have a very good relationship with the other staff and find the work rewarding, and their pupils keen to learn.

I remember so well when I said goodbye to a gypsy who was being discharged. He proudly told me that he could now read a newspaper. When he came into borstal he could not read, write or tell the time. If children have to be kept in secure community homes costing the country a tremendous amount of money, I feel that school education is the best investment for the future we can give them. In 1978 a survey of educational provision in 21 CHEs on the premises was undertaken by some members of Her Majesty's Inspectorate of Schools. I quote from a passage of the discussion paper: Because CHE is not part of the normal education system, it provides an education isolated front general educational practice as well as from educational support services in the locality. Not surprisingly, under these conditions the education provided in CHEs is frequently at fairly low overall standards in spite of the commitment of many of the teachers. A radical reappraisal of assessment procedures of methods and of the curriculum as a whole is required. I do not think I need say more. I hope that your Lordships will agree that there is a need to remove this unnecessary anomaly. I beg to move.

Lord Trefgarne

My Lords, I am grateful to the noble Baroness, Lady Masham, for having tabled this amendment because of the opportunity that it has given for consideration of the provision of education in CHEs. All but a very few children who are accommodated in CHEs are of school age, and it is of the utmost importance that the education they receive is or high standards and is relevant to their needs. Education in this context may also make a significant contribution not only to their adolescent development generally, but also to the alleviating of those difficulties that have led to their placement in a CHE.

My Lords, CHEs are multidisciplinary institutions. The majority of the staff are residential care workers. Teachers usually form the second largest group. And in addition there will usually be health staff, psychiatrists and nurses, and also psychologists, either employed or associated with the home on a sessional basis. The activities of these different professional staff need to be co-ordinated, and the head of the home, who has the day-to-day responsibility for such coordination, is usually a residential care worker. The management of CHEs is the responsibility of social services departments in the case of maintained and controlled community homes, and by the voluntary organisation in the case of assisted community homes, and it is these bodies that are responsible for the provision of education as well as care.

In some cases the teachers are employed by social services or by the voluntary organisation, and in some cases they are employed by the education authority and seconded. The noble Baroness has put forward the view that these arrangements weaken the ties between the education authority and the teachers to the detriment of the quality of education. Perhaps I may return to this in a moment. But I would like to point out that if the noble Baroness's suggestions were to be implemented, there would be a risk that co-ordination arrangements might be undermined, so that the children might receive care from one group of people, and education from another, and play one group off against the other. The quality of education is important, but co-ordination of provision is important too.

My Lords, under our existing arrangements, the proper support of teaching staff in CHEs is of the highest importance and we are broadly satisfied that their links with education authority advisers are adequate. Her Majesty's Inspectorate of Education inspected the education provided in 21 CHEs during 1978 and their report was circulated to all local authorities. As might be expected, they found much that was to be admired, and much that was capable of improvement, and matters like the need for in-service training for the teachers were highlighted. Signifiantly, although they made critical comments about the need for improved liaison with education departments, they did not recommend that responsibility be transferred.

The Warnock Report in 1980 did recommend the transfer of responsibility, and this recommendation was then the subject of discussion between my department and the Department of Education and Science. A series of regional conferences were held to ensure that the debate took place at local as well as at national level. The need for improvements was accepted, but there was no general conclusion that transfer of responsibilities would greatly assist in this. I am sympathetic to the intentions of the noble Baroness, but I hope she will withdraw her amendment. The quality of the provision of education in CHEs must be maintained, but her suggestions are not necessarily a panacea. They could create as many difficulties as they solved. I hope therefore that she will withdraw the amendment.

The Earl of Swinton

My Lords, for the second time this evening—it must be a record—I am actually supporting something proposed by my noble kinswoman, and that gives me pleasure. I am fairly satisfied with my noble friend's answer, but there are two small points I would mention. First, I think that there should be a close liaison. Obviously these children are coming from school when they go into CHEs and they will probably go back into school when they go out, so there needs to be a strong link between the schools they have come from and the schools they are going back to. Secondly, some form of career for the teachers would be welcome to ensure that they did not go into this form of teaching as a dead-end alley, as it were. There should be some way in which they could get back into the service, perhaps with promotion prospects, having done their spells. I hope my noble kinswoman does not press the amendment because I am glad the Government are aware of the problem and are keeping it under review.

Baroness Masham of Ilton

My Lords, I thank the Minister for his full reply. I tabled the amendment because I thought it odd that CHEs should be "one-outs", as it were, in that they are different from any other establishment which has education. Having read the review, which I recommend to your Lordships because it contains many interesting facts, I think there are some worrying things in it. Some of the education provided at CHEs is good and some not so good; it is patchy, whereas what we should all like is an overall good standard. Because I think the Minister will continue to look at the matter and because I hope the Warnock Report will be examined again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Payment of fines by parents and guardians]:

10.52 p.m.

Lord Mishcon moved Amendment No. 44:

Page 28, line 31, at end insert— ("( ) In taking the decisions required by subsection (1) above, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—

1. (a) whether the parents have neglected to exercise due care and control of the child or young person,
2. (b) whether it is desirable that the child or young person himself should assume responsibility for payment of the fine, compensation or costs,
3. (c) the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the fine, compensation or costs to be paid by the parent or guardian, as well as to any others which appear to be relevant.").

The noble Lord said: My Lords, at this time of night I think it would be sensible if I briefly outlined the points I wanted to make on this amendment and then did not attempt to divide the House; it would be an unfortunate and unaffectionate thing to do at this hour. I will therefore make those points now and give notice of them to the Government, so that we may deal adequately with them on Third Reading. Although there was a discussion of this clause—which deals with the imposition of fines made on young people, which under the Bill are payable by parents—I do not think it was picked up in Committee that this is a mandatory provision. One is slightly misled by the note beside the clause, in that it talks in terms of power of the court to make parents pay the fines of young people. The House will see that after paragraphs (a) and (b) in the new Clause 55 which is to be inserted in the Children and Young Persons Act 1933, the words follow: it shall be the duty of the court to order that the fine, compensation or costs awarded be paid by the parent or guardian of the child or young person". Two conditions have to be fulfilled, but it is still the duty of the court to do so unless those conditions are fulfilled.

Secondly, I do not think the point was picked up in Committee that the provision in the Act gives no power at all to apportion between parent and child the fine, costs or compensation; it is an all-or-nothing provision. What we have sought to do in the amendment—though we have not picked up the question of apportionment, which we shall try to do by way of an amendment at Third Reading—is to see what considerations the court should have in mind before making such an order against the parent or guardian.

Having outlined the points that I wanted to make, what I feel I ought to do—I believe that it would meet the wish of the House—is formally to move the amendment, and then take it for granted that I shall have my contest on the matter at Third Reading. My Lords, I beg to move.

Lord Donaldson of Kingsbridge

My Lords, may I wait to Third Reading to make my comments?

Lord Trefgarne

My Lords, I am constrained not to wait to Third Reading but to give your Lordships a short recital of the Government's position on the amendment. As I made clear when we debated an identical amendment in Committee, the Government's aim is to clarify and simplify the existing law. Section 55 of the Children and Young Persons Act 1933 provides that the courts must, in the case of a child, and may in the case of a young person, order that any fines, costs or compensation awarded against him be paid by the parent or guardian, unless they cannot be found, or the courts are satisfied that they have not conduced to the commission of the offence by neglecting to exercise due care and control. We have simplified that by relying on the concept of reasonableness, trusting to the good sense and experience of the courts in deciding what is, or is not, unreasonable in the circumstances of each case.

We doubt whether "reasonableness" can be improved upon. No list of guidelines as to what "reasonableness" might be can cover every eventuality. After listing the three main factors which the All-Party Penal Affairs Group recommended should govern the decision whether parents should be ordered to pay their children's fines, the amendment has to end, rather weakly, with a catch-all reference to "any other" factors "which appear to be relevant". Why, when we have at bottom to rely upon magistrates' good sense—even in this amendment—can we not be honest and practical about it and return to the concept of sheer reasonableness which is already present in Clause 25? The amendment has only the dubious value of making Section 55 appear much more complicated than it really is. The Government have not come to that view without a good deal of thought. We have reconsidered Clause 25 carefully in the light of the long debate on it in another place, and the attention paid to it by the noble and learned Lord and his friends, and other noble Lords, during Committee. I should like to set out again the principles upon which Clause 25 is founded—

Lord Mishcon

My Lords, before the noble Lord does that, I should like to say that I hoped that he was not going to give a detailed reply, because I very fairly said what had not been considered last time. The noble Lord the Minister is repeating, with glorious paraphrase, the very arguments that he advanced last time; they are the same arguments. If the Minister will look at the Bill, he will see that it is not correct to say that the section provides that it is mandatory in the case of a child and only permissive in the case of a young person. I do not want to continue the argument now, but perhaps the noble Lord will follow the wording with me, and correct me if I am wrong. We are looking at Clause 25 which states: The following section shall be substituted for the section referred to in the Children and Young Persons Act. If the Minister will follow me, as I earlier asked him to do, he will see that the provision states it shall be the duty of the court"— that means, that it must— to order that the fine, compensation or costs awarded be paid by the parent or guardian of the child or young person… The noble Lord the Minister was seeking to tell the House that the Bill at present states that it is permissive in the case of a young person and mandatory in the case of a child. With great respect, his brief is wrong—unless he wishes to correct me; in which case I shall apologise.

Lord Trefgarne

My Lords, again with the leave of the House—I think that the noble Lord intervened—I would say that I was referring to the present law which distinguishes between children and young persons. I accept that Clause 25 of the present Bill does not distinguish—

Lord Mishcon

Of course not.

Lord Trefgarne

My Lords, I was describing the principles upon which Clause 25 is founded. The family is the first and foremost influence for good or ill on a child's development. It is of the highest importance that parents exercise their influence for the good, and in this they most certainly must be supported by the law. The responsibility which parents have is one of the weightiest of the citizen, Parents cannot disown this responsibility. Parents may have difficulty; they may not be very good at exercising their responsibility; but they cannot disclaim responsibility for their children. Clause 25 is intended to reinforce this when children become delinquent. We start with the presumption that parents should be expected to accept responsibility for what their children do, not just up to 14, as in Section 55 of the 1933 Act, but up to 17. This is the basis of our approach in strengthening Section 55, and it is in this light that the Government looked at the tests proposed in this amendment and in the similar amendments which were tabled in another place.

I entirely accept that one cannot make the parents' responsibility for a child's wrongdoing absolute. Many young offenders come from broken homes. A single parent may well have done all possible, in most difficult circumstances, to bring a child up to be a responsible law-abiding citizen, but may not succeed. There will certainly be occasions when it would be wrong to make a parent pay the fine imposed on a child. That is already provided for in Clause 25. All that Clause 25 says is that the courts should be entitled to presume that a parent must accept a responsibility for a young offender's wrongdoings. To that extent one might almost say that the fact that a youngster had offended gave rise to a presumption that the parent had failed in his responsibilities.

This amendment seems almost to reverse the approach we have adopted by inviting the courts to seek out some positive signs of failure on the parent's part before requiring the parent to accept responsibility for the fine. I for one would have the strongest objection to the intricacies of the parent-child relationship being examined, criticised and argued over in this type of proceeding. And let us not forget that the fine is quite low on the sentencing tariff. If courts are considering the imposition of a fine, it is one indication that the juvenile offence is not likely to have been very serious. Yet this amendment might well encourage courts to direct the child-family relationship in damaging and embarrassing detail. Such an approach would be far more appropriate to care proceedings.

The Government have, after long and careful consideration, concluded that the test of reasonableness used in Clause 25 is right. We must rely on the good sense of the courts to decide what is or is not reasonable in all the circumstances of each individual case. I therefore hope that the noble Lord will not press his amendment.

Lord Mishcon

My Lords, at this time a dream has been turned into a nightmare. I indicated to the House that I felt it was quite wrong to deal with a matter of this kind, especially when the noble Lord the Minister and I were at issue about what the clause actually means. It is not fair to the House and it is not fair to the public. Therefore, what I propose to do is to ask leave to withdraw this amendment at this stage and to come forward again at Third Reading, when we can have a proper debate on it.

Amendment, by leave, withdrawn.

Lord Denham

My Lords, I think we have probably reached the right stage, the end of Part I, at which we should interrupt the proceedings on this particular Bill. I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.