§ 2.45 p.m.
§ Lord Elton
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Elton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 20 [Requirements in supervision orders]:
Baroness Birk moved Amendment No. 39:
Page 21, leave out lines 18 to 23.
§ The noble Baroness said: At first glance, the subsection in the Bill which the amendment is seeking to delete would appear not only to be innocuous but to be extremely useful. However, on a fairly careful reading and understanding of what it entails, one sees that the subsection could not only have certain dangers but be completely impracticable. It is the experience of many courts, and certainly of the probation officers, that the requirements which seek to proscribe certain activities—which is what this subsection in the Bill does —such as to refrain from frequenting certain places, are unworkable. That is the first point I should like to make. They are impossible to enforce. A breach of such conditions will only exceptionally come to light.
§ We are all agreed that it is a great mistake to put something into legislation which cannot be enforced and which then brings that particular part of the law into abuse. It tends to encourage such breaches and can therefore undermine the credibility and authority of both the courts and supervisors in the eye of the offender. Any attempt to enforce such conditions—and this, realistically, is the second very important point—would greatly alter the nature of the supervisor's task.
§ The success of the relationship between the young person and the supervisor, whether a probation officer or social worker, is based upon what is established between them and the confidence that the young person is encouraged to feel in the supervisor. Therefore, it would be very difficult for probation officers. I have spoken personally to not only the senior probation officer of my own court but other probation officers, and they are extremely reluctant that this subsection should be part of the Bill. They recognise the difficulties of enforcement and also the dangers of doing so.
§ It may be argued that some of these requirements are put in bail conditions. It can also be shown that in the first place this does not always work very well in hail conditions; secondly, bail conditions are for a very much shorter period 'than would be envisaged in a period covered by a probation or supervision order. It has been said, and was argued by the Minister in another place, that the court will be reouired to consult the supervisor and it is a pretty unlikely circumstance that the court, having consulted the supervising officer—and I am quoting the Minister—nonetheless goes ahead and makes a supervision order with a condition that that officer when consulted had disapproved. 6 Probation officers believe that it is possible in practice for such disagreements to occur.
§ It would therefore be very regrettable that, because conditions are put in, the number of supervision orders may decline since there would not be an acceptance of the conditions. The court could, of course, disregard the supervisor's advice and put the negative condition in the order because they felt strongly about it.
§ Although the consent of the young offender or, if it is a child who is involved, the parents of the child would be required, it is the experience of most people who have worked in the courts, either as magistrates or probation officers, that consent is often given right away for something which people do not quite take in at the time, or will not keep to as time goes on, because they are frightened of the alternative being more adverse, being more unpleasant for them, than the conditions they are being offered. The probation service has had long experience of negative requirements in probation orders. fortunately, they have found that they have been used less regularly in recent years—again, because they do not work. This is not in any way a political matter, and we very much hope that the Government will appreciate this fact, and will therefore accept this amendment.
§ It is very much easier to say that people should do things, rather than that they should refrain from doing them. If you want somebody not to go to football matches on Saturday afternoons, it is better—if it is felt really necessary—to make an order requiring him to go to an attendance centre rather than do something which you cannot be sure will be carried out. For magistrates to say, as we very often do, "It would certainly he in your interest to keep away from such a place", and giving that fairly strong advice, is very different from having it put in the Bill in this way and put in a probation order. I beg to move.
§ Lord Donaldson of Kingsbridge
I should like to support this amendment, but briefly, because the noble Baroness, Lady Birk, said pretty well all that there is to be said about it. It is absurd to encourage conditions which the people who have to ensure that they are carried out believe to he impossible. This is what the National Association of Probation Officers say about these negative conditions, and they are supported by the Association of Directors of Social Services, who are the other side of the picture here.
The National Association of Probation Officers quote cases where offenders have been ordered not to associate with members of their own family, not to go to within a certain distance of central London when the area is outside, and not to go into a public house or an off-licence. Their feeling is that there is no way of enforcing these conditions, and the Association of Directors of Social Services say that to enforce them would involve supervision 24 hours a day. I do not think that further argument would strengthen the case, so I support the amendment.
§ Lord Elwyn-Jones
I wish to add only one experience of how negative orders seem a little curious. It was a case in the Old Bailey, where the circuit judge was trying a lorry driver on a charge of having consumed too much alcohol. He said, "I want you to make me a 7 promise that you will never drink alcohol at lunch-time again—not even a glass of dry sherry", and that was thought to be something that it would be very difficult to enforce!But, seriously, I support what my predecessors have said.
§ Baroness Wootton of Abinger
I should like to support this amendment and I hope that the Minister will make clear by what, if any, means the Government will enforce this provision if it remains in the Bill.
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Trefgarne)
I want to start by explaining that 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, under the provision which this amendment would delete, only after the court has gone through several steps.
These have been strengthened since the provision was debated in another place. The Government have tabled an amendment to Clause 20 which would provide that, before including any requirement in a supervision order, the court must consult the supervisor about the offender's circumstances and about the feasibility of securing compliance with the requirements; and I shall be moving that amendment shortly. The court must satisfy itself that it is feasible to secure compliance. I must also consider the requirements necessary to secure the good conduct of the offender and prevent the repetition of offending by him. Finally —this is important in the context of what has been said this afternoon—the court must secure the offender's consent to the requirements. This battery of measures should quite adequately guard against the imposition of unenforceable or oppressive requirements.
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. Of course, 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 rather to make sure that 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 in fact attended a football match, there is no question that he in breach of the requirements of his order and can be brought to court and punished for it.
This measure builds on an existing provision in Section 12(3B) of the Children and Young Persons Act 1969. That provision, which was modelled on the probation order, was inserted in 1977 and does in fact allow a court to impose negative requirements on a juvenile offender, though without any of the safe-guards which we propose in the Bill. We have no evidence that that, even without those safeguards, has caused any difficulty.
The Government are fully aware that this provision has been greeted without enthusiasm in some quarters.
8 But there may well be some courts which will find it useful, and if they use it instead of custodial sentences the Government's aims will have been fulfilled. I ask your Lordships to recognise that the Government regard it as very important indeed to restore the courts' confidence in the supervision order. The use of the order has declined so dramatically in the last 10 years and the use of custody 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, surely it is worth retaining. On those grounds, I hope that your Lordships will reject this amendment.
§ Lord Donaldson of Kingsbridge
It is curious to hear that the views of the people who will have to operate this provision have been completely ignored in this way. Let there be no misunderstanding. The people who have to deal with this are the probation service, and the National Association of Probation Officers—both the noble Baroness and I have informed the Government of this—think that it is unworkable. What is the point of instructing people to do something which they who have to operate it think is unworkable? It seems very lacking in understanding not, at least, to look at this again and to talk to somebody about it. It is so very difficult to make any progress in anything if, when the only people who know what is going on express a strong view, the government entirely ignore it. I hope that the noble Lord will be able to say rather more than he has said.
§ Lord Trefgarne
On the contrary, we have taken into account the views of those who would be concerned, as the noble Lord describes. That is why my noble friend Lord Elton tabled Amendment No. 40, which we shall come to in a moment and which I shall move, with your Lordships' permission, on behalf of my noble friend, which specifically requires that the views of these people be taken into account at the moment when they are most valuable.
§ Lord Avebury
I wonder if the noble Lord could help by telling the Committee whether or not NAPO were aware, at the time when they made representations concerning this clause, that the noble Lord, Lord Elton, was going to put down the amendment which the noble Lord, Lord Trefgarne, has mentioned, because it seems to me to go some way towards meeting the case which the noble Lord, Lord Donaldson, has underlined yet again. If the probation officers were anxious in case the courts imposed conditions which could not be monitored, then the amendment which we shall be coining to shortly would largely take care of that. As the noble Lord, Lord Trefgarne, has said, the courts do not have to use this provision. It is there for them if, having consulted the supervisor, they are satisfied that it is feasible to secure compliance with those conditions. Having regard to that, I should have thought that the use of these provisions by the courts would tend to expand, and to do so with the full approval of the probation officers.
§ Lord Trefgarne
Without looking at all the correspondence, which I cannot do in a second, I am not quite certain when it was that this amendment 9 was tabled and when it was that the probation officers made their last representations on this matter. But this amendment was certainly tabled by my noble friend in response to what he knew was a widely held view, and one which had been aired in the other place.
§ Lord Hutchinson of Lullington
May I ask the Minister why, under this proposed clause, the court is given not only the same powers as the supervisor—I understand that was really the purpose of the clause—but, in being given these negative powers, is not limited, as is the supervisor, by the limitation of 90 days? It would appear that for some reason the court is being given not only the same powers as the supervisor but is being given the added negative powers, of which complaint is made, without any limitation. On the face of it, therefore, a court, unlike a supervisor, can impose a negative limitation of unlimited amount.
§ Lord Trefgarne
It may be of assistance to your Lordships if I say that my noble friend Lord Elton will have something more to say on that matter when we come to Clause 20 stand apart.
§ Baroness Birk
From what the Minister has said so far, I do not think that he has answered the points which have been raised both by myself and by my noble friends and other noble Lords. Whether, when we come to Amendment No. 40, this will light up the whole question very much better than it is at the moment, I do not know, but I am doubtful. Amendment No. 40 still leaves it to the court to impose these negative requirements, and it is the basis of these which the probation officers and the directors of social services, among others, as well as many magistrates, are against. I should have thought that the Association of Directors of Social Services were aware of Amendment No. 40 when, within the last day or so, they sent out their views.
The Minister's answer does not get past two important factors. Negative requirements are extremely difficult, almost impossible, to monitor. If the attention of the police is drawn to them, they can take no action if the youngster is covered by a supervision order. Secondly, it still does not answer the very fundamental fact which has been put in particular by the noble Lord, Lord Donaldson of Kingsbridge: that this is something for which probation officers in particular have to take responsibility and which is their close concern. If it is their view, first, that it is unworkable and, secondly, that it is highly likely that it could destroy the relationship which they are trying to build up with the person who is subject to the supervision order, then it seems to me that it is very dangerous and unhelpful ground upon which the legislation will then be treading.
For the time being, and reluctantly, I shall withdraw the amendment in order that we can hear the noble Lord, Lord Elton. We have just had a "trailer" that he will say a little more than we had anticipated that he would say. I hope he will get round the core of our argument on this amendment. It has nothing to do with the intentions behind it. We are concerned about what the Bill says without the amendment: how it will work out and how it will not work out, 10 and the very strongly expressed views of those people who will be responsible for implementing it.
§ Amendment, by leave, withdrawn.
§ 3.5 p.m.
§ Lord Trefgarne moved Amendment No. 40:
§ Page 21, line 32, at end insert ("as to—
- (i) the offender's circumstances; and
- (ii) the feasibility of securing compliance with the requirements,
§ The noble Lord said: On behalf of my noble friend Lord Elton, I beg to move Amendment No. 40. This amendment gives effect to an undertaking which my honourable friend Mr. Mayhew gave during debate on the Bill in the other place. Clause 20 specifies that a court must not include requirements in a supervision order on a juvenile offender unless it has first consulted the supervisor. There was some concern, however, that the court should go further and consider specifically whether the requirements it had in mind were appropriate for the particular offender and satisfy itself that they were practicable. This amendment therefore expands paragraph (a) of the new subsection (3E) in Clause 20 to ensure that the court addresses itself fully to these questions and consults the supervisor about them.
§ This is a small improvement to the Bill but it goes some way towards allaying the anxieties which have been expressed in connection with the previous amendment, and I hope your Lordships will accept it. I beg to move.
§ Lord Elystan-Morgan
As the noble Lord, Lord Trefgarne, has said, the Government have indeed sought to give legal form to an undertaking which was given at Report stage in another place. Most certainly the view which we on these Benches take is that the Government have come a very long way towards fulfilling that undertaking, and I have no doubt at all that they genuinely intended to carry out the very letter of the undertaking given in the other place. The question which arises, however, is whether the wording of the new provision in fact executes what clearly was the intention of the Government all along.
I wonder whether I may be allowed to quote very briefly from the amendment which was proposed by Mr. Kilroy-Silk at the Report stage in another place. It is worth bearing in mind the exact wording of that amendment which gave rise to the undertaking in the first place. The wording was:(d) it is satisfied, after considering a report by a probation officer or by a social worker of a local authority social services department about the offender and his circumstances and, if the court thinks it necessary, hearing a probation officer or a social worker of a local authority social services department, that provision can be made for the offender to participate in any activities specified in the requirements.It is obvious that the purpose of the amendment was to make it clear beyond peradventure that the facilities for the carrying out of that particular order were already in existence. The amendment had nothing at all to do with the question whether the juvenile offender or his parent or guardian agreed to it. That is another provision in the Bill, and already incorporated in it.
11 In his reply, the Minister of State, Mr Mayhew, said at col. 895 of the Committee stage report on 12th May of this year:I appreciate that the purpose of the amendment is to make quite sure that a supervision order will not be made which will, for example, require the offender to do something for which provision does not exist in the area in which he will live or work so that it would either be a nullity or a great difficulty, thereby detracting from the quality of the supervision he receives and the effect of the supervision order generally. Therefore, I am happy to accept the principle of the amendment".Then the Minister resorted to the time-honoured riposte from which all of us have suffered from time to time when drafting amendments in this way: that the wording of the amendment was incomplete and imperfect and that it was necessary for it to be reconsidered, purely so far as drafting was concerned.
If, however, we look at the amendment, we come to the conclusion that the wording of the amendment may very well not be such as to carry out the undertaking. The mendment refers to the consideration to be given, first, to the offender's circumstances, and, secondly, to the feasibility of securing compliance with the requirements; and then there follow the words,and is satisfied, having regard to the supervisor's report, that it is feasible to secure compliance with them".It may be argued that the formula employed by the Government is wide enough to include both the physical capabilities in so far as the authority is concerned as well as a number of other factors. However, it might be the case that the words employed in the provision are such as to refer basically to the attitude of the offender towards what has been offered to him. That is already covered in Clause 20, extra Clause (3E) subsection (c), which reads:the supervised person, or if he is a child, his parent or guardian, consents to their inclusion".It is therefore out of an abundance of caution that we on these Benches ask the Minister very humbly to look at this matter again to see whether some form of words cannot be devised which would more clearly carry out the purport of the undertaking that was given in another place.
Speaking personally, although I am speaking from this Bench, I am bound to say that the amendment in the name of the noble Lord, Lord Elton, goes a long way towards removing my own concern that I had when I read the Bill originally about the imposition of negative conditions:in supervising orders. It may be that the court, after consulting the supervisor, will find in most cases that the supervisor will satisfy the court that it is not feasible, and it is to be hoped that the court will abide by that advice. I myself do not find that objectionable.
Although it is not an exact analogy, my noble friend Lord Harris of Greenwich knows only too well that there have been occasions, not very frequently, when in devising the conditions for prisoners who are to be released on parole we as members of the Parole Board have thought it necessary to impose negative conditions. We have always taken great trouble to ensure that those conditions were practicable. It may well be that members of the probation service would prefer not to enforce negative conditions, but provided 12 such conditions are carefully thought out—and in this case they are imposed only with the agreement of the supervisor and of the offender himself or herself—then I personally would support this amendment.
§ Lord Renton
I was merely going to say that the Government have got this about right. Having listened to what has been said by the noble Lords, Lord Elystan-Morgan and Lord Hunt, I would not have thought that this amendment needed any variation.
§ Lord Digby
This amendment deals with the same points covered by Amendments Nos. 41 and 42 tabled by my noble friend Lord Ridley—who apologises to your Lordships for his absence abroad but who has asked me to speak to these amendments on behalf of the Association of County Councils.
We have been very concerned about the resource implications of the requirements in these supervision orders. I would like to thank my noble friend for this attempt to allay our fears by consultation on feasibility. I think this will work and I hope it will work. It is very important that unrealistic supervision requirements should not be imposed. I believe it is fair to say that our worries are allayed if not entirely removed. However, I thank my noble friend, I welcome this amendment, and if Amendment No. 40 is passed, I do not propose to move Amendments Nos. 41 and 42.
§ The Earl of Onslow
I should like to support my noble friend Lord Elton. I think he has done rather well, if I may say so without sounding patronising. What I hope will he the result of this is that there might be a switch of resources from secure accommodation to supervision orders. If that happens it means, with luck, that fewer people will have to go inside and that more people can be secured under supervision orders. Everybody will benefit; the taxpayer will benefit because it is cheaper to keep people outside and looked after than it is to keep them inside, and there will be fewer people inside anyway. That seems to me to be a perfect example of what should happen, hut whether it will or not is of course open to doubt.
§ Lord Donaldson of Kingsbridge
It would be very ungracious for me not to say that I am very happy to support this amendment.
§ Lord Trefgarne
I should not wish to delay your Lordships any longer. I think the noble Lord, Lord Elystan-Morgan, will have appreciated that this amendment seems to command a good deal of support. May I just say that in the old days I suppose it was occasionally possible for the courts to impose conditions on supervision orders which were difficult in respect of compliance. I believe we have gone a long way towards eliminating that. I am sure no court has deliberately done that but it may have happened inadvertently from time to time. I believe we have gone a long way seeing that that does not happen in the future.
§ On Question, amendment agreed to.
§ [Amendments Nos. 41 and 42 not moved.]13
§ 3.16 p.m.
§ Lord Harris of Greenwich moved Amendment No. 43:
Page 22, line 4, 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—
(c) if the application is brought within nine 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: I should say at once that I have tabled this amendment following discussions that I had with representatives of the Conference of Chief Probation Officers. It also has the support of the Central Council of Probation Aftercare Committees. I believe that the anxiety of both organisations can be summarised fairly succinctly. The management of the probation service is anxious to ensure, as I am sure everyone is in this House, that there are realistic alternatives to custodial sentences for juveniles. There is a danger, which is certainly recognised in the probation service, regarding legislation which provides for new and in some respects a novel range of short custodial sentences, from 21 days upwards in the case of detention centres. It is that a sentencing court, when dealing with a troublesome juvenile, may be less inclined to impose a non-custodial penalty unless there are adequate sanctions for a breach of this type of order.
§ The management of the probation service believe, and I share this view, that the case for supervision orders—which often contain, as the Committee will be aware, schemes of approved activities—will be strengthened if the juvenile court is empowered to deal with any breach of that order by dealing with the offender in respect of the offence for which the supervision order was at first made: as though, indeed, it had just convicted him. This amendment provides also that the application has to be made within nine months of the date of the original order to avoid the rather heavy-handed use of the power right at the end of a particular period of supervision. I believe this amendment would strengthen the hand of probation officers in dealing with more difficult young offenders and would give the supervision order greater credibility with the courts as an alternative to custody or care orders. I hope that the Government will accept this amendment. I fear there is a risk that, unless this amendment or something on broadly similar lines is accepted, the courts may be tempted to impose fewer supervision orders containing, as they see it, inadequate sanctions for a breach of such orders and will be tempted to impose more custodial penalties. I beg to move.
§ Lord Digby
I can see the logic of this amendment, but I am slightly concerned because I believe it is important that the custodial sentence should not be seen as an alternative to supervision or as a second stage in a procedure following a supervision order. Supervision orders must stand on their own feet, but this amendment implies the threat of a custodial sentence which is merely suspended in the forlorn 14 hope that a supervision order may succeed. I am not sure that this is entirely satisfactory and therefore I do not feel that I can support this amendment.
§ Baroness Birk
I also have doubts about this amendment. I do see the point put forward by the noble Lord, Lord Harris. But, in the first place, do we really want to be as tough with the juveniles and youngsters as we do with adults? Then I question whether it would in practice serve any useful purpose. The situation today is that, if the child is brought back to the court under the terms of the supervision order, the options open are either to make an order under Section 1 of the Children and Young Persons Act, and/or—one can do one or other or both—to impose a fine up to £50 or make an attendance centre order. Incidentally, there are more opportunities for attendance centre orders than there are orders made. In addition to this, the child may have to take part in intermediate treatment activities or comply with other conditions as part of the order. In this way, the order is not the same as a probation order. Therefore, it would seem to me that it could happen that the child could be punished twice for the offence in addition to being penalised for being in breach of the supervision order.
There is a further point about the wording and the drafting of the amendment which I do not very much like. It is putting in a statute the words,if the application is brought within nine months of the date of the original order".It does seem to me that one is tying something down in a way which should not be done in a statute. There may be all sorts of exceptions. But that is perhaps a more minor point. So, although I appreciate the motives behind the amendment, I do not think I like it very much.
§ Lord Trefgarne
I certainly accept that this is a serious and thoughtful amendment which deserves our proper consideration. Its purpose, which is to strengthen the confidence of the courts in the supervision order as an alternative to custody, is entirely in accord with the Government's policy. Indeed I am aware that the amendment commands influential support outside your Lordships' House. I am afraid I feel, therefore, something of a killjoy in asking your Lordships to consider some of the difficulties involved in this amendment, although I am reinforced in the view that some of those will have occurred already to the noble Baroness, Lady Birk, and indeed to my noble friend Lord Digby.
In effect, what the amendment does is to open up the possibility that the court can re-sentence a juvenile offender for the original offence and substitute a custodial sentence in place of the supervision order made in the first place. If the juvenile under supervision commits a further offence he can of course be sentenced for it. What we are talking about here is behaviour which is not criminal but which constitutes a breach of a supervision order and is therefore punishable. The amendment could thus be a double edged weapon. It could have the effect we all hope for, which is to get the courts to use supervision instead of custody. On the other hand, it allows the court to impose a custodial sentence which is not an immediate 15 consequence of a criminal offence, and indeed one that it did not see fit to impose originally.
The noble Lord, Lord Harris, has of course been a distinguished chairman of the Parole Board, but matters concerning parole, as I am sure he will readily admit, mainly affect adults and touch upon juvenile offenders only in exceptional cases. I should perhaps point out that conditional and suspended sentences are not, on the whole, an advisable way of dealing with young people. Adolescence is a period of change and development, sometimes very rapidly, with the passage of time. It is in recognition of this that there are important differences between the probation order that can be made on adult offenders and the supervision order that can be made on juveniles. The probation order is a system for withholding a sentence on an offender with his consent during his good behaviour under supervision. The supervision order, on the other hand, is a full sentence in itself and is made without the youngster's consent. There is no question of a potentially harsher sentence being withheld during his good behaviour.
More particular difficulties could arise from the lapse of time. Juveniles become eligible for different penalties at different ages. A supervision order can be made on a child aged 10 and over, but boys become eligible for custodial sentence 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 of the order when he is 14, is it right that he should then receive a custodial sentence when he could not have been given one at the time when he was convicted?
The proposed power would, of course, apply to supervision orders made under the strengthened powers contained in Clause 20 of the Bill. It is right to encourage the courts to use these for difficult offenders. I accept that the terms of the amendment go some way towards recognising the difficulties by restricting the re-sentencing power to the first nine months of the order. But a more careful restriction would be needed if it were not to work unfairly.
If the noble Lord is content not to press this amendment, I can undertake that the Government will reconsider carefully whether it is possible to strengthen the breach provisions along these lines.
§ Baroness Masham of Ilion
May I just ask the noble Lord one question? If a 14 year-old boy can be given a custodial sentence, what sort of institution would he go to?
§ Lord Trefgarne
I think that varies. I am speaking from memory here, but I think he could go either to a borstal of some sort or to a detention centre.
§ Lord Harris of Greenwich
My Lords, the noble Lord has, if I may say so, given a most reasonable reply, and, on the basis of what he has just said, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 20, as amended, shall stand part of the Bill?
§ Baroness Faithfull
I should like to speak for one moment about resources. We are all very worried 16 over the whole question of resources for non-custodial care. The figures are quite alarming. In 1980–81, £85 million was spent on community schools for education, observation and assessment centres, and only £7 million on non-custodial care. We believe that we should develop non-custodial care. in the voluntary sector, as the noble Lord, Lord Hunt, will know, we have got the Rayner Foundation Fund, to which the voluntary organisations can apply, and have clone, and have done some extremely good work. When it comes to local authorities it is extraordinarily difficult. The local authorities have not enough money. Secondly, from a procedure point of view, if they have to take money from the block grant which they receive for their services, many local authorities do not allocate that money to non-custodial care.
I know that this is an extraordinarily difficult problem. it does mean that there should be a way of dealing with local authorities in the same way as voluntary organisations are dealt with—that is, by means of money earmarked for a specific purpose. If we are going to swing away from custodial to non-custodial care, the local authorities must have the resources, the earmarked resources, to do this.
§ Lord Elystan-Morgan
The proposals in this clause, to give the courts new powers to impose supervised activity requirements on juvenile offenders, are an important step forward in giving the courts greater confidence in using intermediate treatment schemes as a genuine alternative to custody or residential care for young offenders, at what might be described as the heavy end of the delinquency spectrum. There is, however, as the noble Baroness, Lady Faithfull, has said, the gravest danger that these provisions, to borrow the words of St. Paul, could be but the "tinkling of a cymbal" if the financial resources arc not deliberately and specifically channelled to this purpose.
Let me quote the words of the then Parliamentary Under-Secretary of State at the Department of Health and Social Services, Sir George Young MP, in an address to the Leicester Action for Youth Trust on 12th February last year. He said:At present, the development of intermediate treatment is too patchy. Some areas can boast a wide range of activities provided from a variety of sources; in others, almost no facilities are available. Everywhere intermediate treatment at the heavier end—that is, for youngsters convicted of more than just petty crimes and beyond the reach of many of the programmes—is very sparsely available".As the noble Baroness has pointed out, the total expenditure in 1980–81 on intermediate treatment by local authorities in England and Wales was approximately £7 million. That is only a fraction of the £85 million spent in the same financial year on running local authority community homes with education, observation and assessment centres. One could go into very great detail about the wide disparity of investment on the part of local authorities in intermediate treatment schemes. Indeed, 10 per cent. of authorities in England and Wales spend annually less than £5,000 on such activities—that is, less than the annual cost of keeping one juvenile in a custodial or residential establishment.
We have gone this way before. It is exactly the tragedy which occurred, in my submission, in relation to the Children and Young Persons Act 1969—a bold 17 Act, and an Act which undoubtedly brought into force provisions for which there had been a crying need for a long time; but an Act that never, up to now, has properly fulfilled its purpose, because it was never given the essential resources that were necessary for its implementation. I therefore join the noble Baroness in an urgent plea that the necessary financial requirements should be planned at this stage, otherwise a great deal of the force of Clause 20 of the Bill will be lost.
I have no desire to delay the Committee, but I join the other speakers very briefly at this stage, if only to emphasise the point that, in my opinion, Clause 20 is arguably the most important part of Part I of the Bill, as it now stands. I cannot stress its importance too much.
The noble Baroness has mentioned one of the crucial questions that arises; namely, will the Government make adequate resources available and specifically for the purpose of intermediate treatment? The other question which arises and which is equally obvious is: will the courts make use of this provision if the resources are provided? The record is not very encouraging. In the last decade the courts have increased sentences to borstal training from 6 per cent. to 12 per cent., and there has been a decline in supervision orders, in probation orders.
One can say that here is a provision which is really cost-effective. It may cost as little as £100 per young person per annum; it can cost as much as perhaps £2,000 for very intensive intermediate treatment. Moreover, the results in terms of deterrence are not discouraging compared with the very discouraging results of putting people away in community homes, in borstals and in detention centres. Under 40 per cent. re-offend, so far on current statistics, within two years. We must compare that with the cost of putting a young person away in a community home to the tune of £10,000 per head per annum; £9,000 for borstal and £8,000 for detention centre, with failure rates up in the range of 80 per cent. Therefore, I think we must hope that both these crucial questions will be satisfactorily answered.
§ 3.35 p.m.
§ Lord Elton
It might perhaps be helpful if I put my oar in at this stage and your Lordships could perhaps occasionally pick up a few points that I propose to make and for which my noble friend trailed his coat earlier on.
We are looking at a clause the main function of which is to increase the efficiency of non-custodial sentences, and that is something about which I think we are all agreed. We all realise that it is necessary to get the support and confidence of the courts if this is to work. The noble Lord, Lord Hunt, has just said that it is all very well having a provision and even having resources, but if the courts do not use the provision, then the resources go to waste. I shall address myself to that point in a moment.
Let me pick up a few points that were left on the table, as it were, after earlier amendments. As regards the probation officers knowing about our proposals in Amendment No. 40, let me say that we gave clear 18 indication at Third Reading in another place; that debate was closely followed and our intentions were known. As your Lordships will know, the magistrates are strongly in favour of what we propose. In fact, they asked for negative requirements to be built in. My noble friend was asked about the 90-day limitation applying only to the supervisor and not to the courts. What in fact has been done is this: it applies to positive requirements because positive requirements can involve residence away from home and there should, therefore, be a limit on them. This is distinct from negative requirements. The 90-day limit will apply to the requirements which can in future be added to the supervision order under the provisions of Clause 20. I think that that is what the noble Lord, Lord Donaldson, wished to know.
I should like to mention the question of resources. My right honourable friend the Secretary of State for the Department of Health and Social Services has said that the provisions will not be implemented without the resources being available. Your Lordships will have seen that the figure in the Explanatory and Financial Memorandum is worth a little more than the "tinkling of a cymbal", although whether it will reach the braying of a sackbut, shawm or psaltery, I could not tell your Lordships.
Let me return to a matter that has been of considerable interest in another place as well as among your Lordships. I say "let me return to", but the question is whether I can find it in the first place!As I have said, the purpose of the clause is to keep people out of prison and to strengthen the confidence of the courts in a non-custodial sentence. Your Lordships have certain anxieties about negative orders which I think may be less than justified in the event when it is seen how they are used, particularly as there is restraint as regards the participation of the supervisor in the decision to place a negative order, but also it is—is it not?—the sort of thing that as a good parent one does oneself. One tells a child that there arc certain things that he must not do, and of course sometimes he goes and does them and is found out, and other times he does them and is not found out, but in the end he gets caught.
We are not suggesting having a sort of Tom Tiddler's ground in which somebody has to watch the child every minute of the day. That is relevant to the question of what I think has, rather unfortunately, become known as the "curfew order", which was debated for a long time in another place during both Committee and Report. The issue was not raised by amendments on the Marshalled List and that is why I thought that I ought to intervene on the point now. My honourable and learned friend the Minister of State made it clear in another place that the Government had come to the conclusion that a free-standing curfew order raised too many problems. In particular, it was clear from the comments made on the proposal that the enforcement of the order would be problematical and would risk damaging relations between the police and the young people concerned. The Government regretted this since the curfew proposals seemed an imaginative addition to the powers available. As the Minister of State indicated, comment on the curfew proposal led the Government to conclude that a more promising 19 approach might be to incorporate the curfew proposal in the supervision order powers in the Bill. He indicated that we would be examining urgently the possibility of extending the provision for the strengthened supervision order for which Clause 20 of the Bill makes provision.
Accordingly, we have been consulting the bodies concerned—the Magistrates' Association, the local authority associations, and the representative bodies for the probation service and social services—on the possibility of amending Clause 20 to introduce a curfew requirement. The general reaction has been that, although there are reservations and some opposition, a curfew requirement in a strengthened supervision order would be more constructive and viable than a free-standing curfew power.
I ought, therefore, to give notice to your Lordships that the Government intend to bring forward amendments to Clause 20 at the Report stage of the Bill to enable a court to include in a supervision order a requirement that the young offender on whom the supervision order is imposed should remain in the place where he normally lives during specified hours on specified days. The requirement will be carefully drawn in order to enable it to be added to the supervision order as part of a constructive package of conditions and requirements.
I should emphasise that in the proposal there will be provision for the consent of both the young offender and the parent to this requirement before it can be imposed, and there will also be provision to ensure that the requirement is added only after consultation with the supervisor. We believe that this will be a useful addition to the powers which Clause 20 contains. Comment both on the original curfew proposal and on this new proposal has emphasised the delicacy of family relationships, particularly where young offenders are concerned. We acknowledge that cases will have to be selected with very great care, but in the context of the strengthened supervision order powers, with the co-operation between the supervisor and the court which they imply, and the need for the consent of both the supervised young person or, if he is under the age of 14, the parent, we believe that this will be a useful addition to the powers available to deal with young offenders.
It occurs to me as I close my brief that what I have just said may appear to read differently in print from what it sounded like to your Lordships. The requirement for parental consent exists for young offenders generally. It is if the child is under 14 that the parent's consent overrides that of the child.
§ Baroness Masham of Ilton
I want to raise one matter and ask the Minister what he thinks about it. It concerns the title of "intermediate treatment", because many people become confused. I wonder whether it might be changed to "supervised activities", and then people might understand it more clearly. I should also like to support what the noble Baroness, Lady Faithfull, the noble Lord, Lord Hunt, and others have said about the need for resources. Many of us know that people respond much better outside than inside an institution, with longer lasting results as 20 long as the leadership is there. But there cannot be leadership without resources. Some of the intermediate schemes are operated on a shoestring. I should like to tell your Lordships that the other day we had a party of young people come to our home and they were swimming. One of these children was aged five. Crime is being committed at a very low age and, with armies of young people doing it, it is a worry. Unless resources are given to the community, what will happen? Will there be residential care for five-year olds? It is very worrying when crime is being committed at such a low age.
I should also like to clear up the point about 14 year-olds who have a custodial sentence. I hesitate to correct a Minister, but he mentioned that they might go to borstal. I know that they will not go to borstal because they have to be between 15 and 21 years of age to go to borstal. I just wonder to what institutions they go.
§ Lord Elton
Perhaps we could revert to that in a moment. The noble Baroness raised the question of intermediate treatment. The term "intermediate treatment" is not a statutory term; nor indeed is the term "supervised activities". I suppose that one could sound as if it takes place in the dentist's chair and the other at school. So, to that extent, both are misleading. I think that intermediate treatment—which is what it is, generally speaking, known as now —shows very promising signs of being a useful alternative to custodial treatment, and one which is relatively less expensive.
The noble Baroness, Lady Masham, spoke somewhat disparagingly of shoestrings. Of course, I wish that the shoestring was longer, but a great deal of very good work indeed is done for small amounts, particularly through the involvement of voluntary agencies, and I saw some of them at work in the field before I was replaced by my noble friend at the Department of Health and Social Security. In that context, that department has increased its grant to the IT fund, to which reference has already been made. In 1981 the increase was from £273,000 to £340,000. It has also increased the number of grants made to voluntary organisations from £404,000 to £512,000. It is a fairly thick shoestring, but, if the movement continues to grow and improve as at present, then I hope that we can—I would not commit anyone other than yself—expect it also to grow in its resources.
§ Lord Donaldson of Kingsbridge
I should like to thank the noble Lord for giving us notice that the Government intend to introduce a curfew order. If I may have the noble Lord's attention for a moment, perhaps I may ask that we be given proper notice of this, because whether the curfew order is good or bad depends entirely on the conditions. We all know the objections and the fears that have been expressed about destroying family life and everything else. We shall want to consider this very carefully, and I hope that we shall be given proper notice of it.
§ The Earl of Onslow
I should like to underline what was said about resources and what the noble Lord, Lord Hunt, said about the efficacy of supervision orders. If the crime recommittal rate within a period of two years is 4 per cent. among people with supervision orders and 90 per cent. among people who have gone to borstal—and I believe that the number of people who continue to commit crime having gone to borstal is very high—surely this points almost to a switch of resources from borstal training and detention centre training to supervision orders. If we can have a system whereby more people are supervised outside and fewer people are supervised inside, it becomes infinitely cheaper for the taxpayer, infinitely more effective in stopping crime and we also become a more civilised society. Unfortunately, it appears that the borstals and detention centres are paid for by central Government and supervision orders are paid for by local government. That is an excuse for rather idiotic accounting. In other words, it goes against local government spending on one side and not against central Government spending on the other.
§ Baroness Seear
Can the Minister give us some information about the relative costs? Speaking from memory, it costs over £7,000 a year to keep a person in gaol. What are the relative costs for these different approaches? The Minister may not be able to be exact, but, following on what the noble Earl, Lord Onslow, said, I should have thought that we could be fairly lavish on supervision compared to the amount it costs to keep someone in gaol.
§ Baroness Birk
I should like to make two points: first, on the point that has been raised by many noble Lords and particularly by my noble friend Lord Elystan-Morgan, that it is absolutely essential that local authorities should be given more resources. The noble Lerd, Lord Digby, did not move the amendment in the name of his noble friend Lord Ridley. If he had moved it, I should have found myself unable to agree with the local authorities about taking over what I would partly call the decision of the courts. Nevertheless, I would have used the occasion to emphasise the need for resources to be made available to the local authorities so that they can use noncustodial treatment and penalties, which are so important.
On a further point, I should like to reinforce what the noble Lord, Lord Donaldson, said about the curfew orders. We had this trailer that the Minister would be saying something on Clause 20 stand part. Having heard it—and we shall certainly look at it with great care—at this moment I am not very happy about it. It seems to me to be very much the same sort of thing as we discussed on the earlier amendment on negative conditions, only rather wider, and at the moment it seems to me that the same objections still apply. So I feel it only fair to warn the noble Lord that we shall look at this with great care and that at this stage he cannot rely on our support for this.
§ Lord Digby
I want to raise one point about the curfew orders and the nomenclature involved. In this respect I think that "curfew" has an unfortunate 22 connotation. We are really saying that we want to increase parental responsibility and parental control. Perhaps my noble friend could consider whether some other name which is not so emotive could be used for these orders.
§ The Earl of Swinton
I wonder whether I could briefly say something supporting my noble kinswoman and the noble Baroness, Lady Faithfull, on the intermediate treatment centres. I would disagree with my noble kinswoman when she says that they are often funded on a shoestring. They seem to me to be funded on thin air. I was recently appointed by my local bench as a member of the support group of the centre from which the children she mentioned came. They had managed somehow to get hold of an old rectory from the Roman Catholic Church who kindly let them have it. They managed to get it done up and painted by young people on community service orders, and this is a good thing and just the sort of thing that they should be doing.
They have somehow managed to collect some ancient beds and furniture which they had scrounged and which had been thrown out from old people's homes, and so forth. I went over there the other day and was talking to the social worker in charge. He said, "This is fine, now you are seeing it on a summer's day, but we are never going to keep it going through the winter because we cannot afford anything to heat it with I said," Do you think logs would help? I am willing to send you some logs". His eyes lit up, and with a great smile he said, "That will be absolutely marvellous. It might just keep us going". I am not saying that because I want to appear on your Lordships as a sort of modern day Lord Bountiful, but when my noble friend the Minister speaks about voluntary effort, that is fine, but not everybody has a landlord in the area who is going to send up lorry loads of logs to keep it going through the winter. It is not a shoestring; there is absolutely nothing there at all.
§ Lord Harris of Greenwich
May I ask the noble Lord, Lord Elton, one question on his announcement concerning the curfew. It is an important announcement he has made today and a number of us would want to consider it before coming to a conclusion as to our views on this particular proposition. It would be helpful before the Report stage of the Bill to have some indication of what the balance of force has been in terms of the advice given to the Government in this matter. As I understood the noble Lord, he indicated that a large number of organisations had been consulted, and properly so. What a number of us would be interested to know is the position of those organisations, and not at the Report stage but before the Report stage. I n order to assist the noble Lord in this respect I will put down a Question, and I hope he will be able to answer it before the Report stage of the Bill so that the House can be informed on this particular question.
Whatever one calls it, a curfew condition would be most useful, and particularly valuable in rural areas where there is a shortage of attendance centres. May I ask my noble friend the Minister whether it would be possible to make a curfew condition as part of a probation order, or only in the case of a supervision order?
§ Lord Elton
The noble Baroness, Lady Masham, asked about a point raised by my noble friend. I can tell her that the disposal to which she refers is to a detention centre. A number of your Lordships have asked for notice of the curfew provision to be as long as possible. Of course we shall do our best. Your Lordships will realise that this was being argued to and fro all the way through in another place and the amendment is now in drafting. I shall do my best to table it at the earliest convenient moment, hassled no doubt with the hounds of Lord Harris' supporters snapping at my heels with his Question. I am obliged to him for providing me with this means of acceding to his request; otherwise, it would have been difficult.
The Government are well seized of the fact that supervision costs a great deal less than does any custodial form of detention. It is also more productive. It is more optimistic. It is likely to lead to less re-offending. Of course if it grows then let us hope that we can get the resources to go with it, but you do not empty one particular institution overnight by increasing the numbers throughout the country of people in intermediate treatment. Therefore, there is this awful lag when school rolls go down, for instance, and you have two-thirds empty schools but the savings are not immediately commensurate with any reduction of numbers. We should not forget either that we are only holding our own with numbers. We wish to reduce the numbers. We are fighting against a rising tide of which the members, the noble Baroness, Lady Masham, has said are sometimes as young as five years old.
I was delighted with the noble Earl, Lord Swinton, for a splendid—I think from the mutters which greeted the first half of his intervention, to the surprise of your Lordships—demonstration of uxorial co-operation with the noble Baroness, Lady Masham. He also illustrated an admirable example of the interface; the co-operation between intermediate treatment and community service orders. I think I have done as much as I should to tell your Lordships what is in the mind of the Government. We shall put our amendment down as early as may be. I beg to move that the clause stand part of the Bill.
§ Clause 20, as amended, agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.