HL Deb 16 February 1989 vol 504 cc359-82

Consideration of amendments on Report resumed.

Clause 65 [Care and supervision orders in criminal proceedings]:

The Lord Chancellor moved Amendment No. 124H: Page 58, line 40, leave out subsection (2) and insert— ("(2) The power of a court to make a care order under section 7(7) of that Act is hereby abolished. (3) Section 12 of that Act (power to include requirements in supervision orders) shall have effect subject to the amendments made in Schedule 8.").

The noble and learned Lord said: My Lords, this is a drafting amendment. Subsection (2) of Clause 65, as it currently appears on the face of the Bill, suggests that the new power of the court to attach a "removal from home" requirement to a supervision order in certain circumstances, is a direct replacement for the care order in criminal proceedings, which is to be abolished. That is not our intention. The new power is a disposal in its own right. The grounds for making it are quite different from those which currently apply to the making of a care order in criminal prceedings, and it is not our intention that it should be seen as a direct replacement for the care order. The proposed amendment clarifies our intention. With that short explanation, I beg to move.

On Question, amendment agreed to.

Clause 68 [Courts having jurisdiction under this Act]:

[Amendments Nos. 125 and 126 not moved.]

Clause 73 [Reporting officers and guardians ad litem for purposes of Adoption Act 1976]:

[Amendments Nos. 127 to I28A not moved.]

Clause 75 [Regulations and orders]:

Lord Simon of Glaisdale moved Amendment No. 128B: Page 64, line 5, beginning insert ("Save for any made under section 15(4) of this Act,").

The noble and learned Lord said: My Lords, this amendment is important in its social implications and even more so in its constitutional implications. Your Lordships will remember that, when in the Report stage we came to Clause 15, my noble and learned friend Lord Elwyn-Jones moved to leave out subsection (4) of that clause. That was on the grounds that that clause gave extraordinary powers to the Secretary of State by regulation to modify, repeal (although that power has almost gone), add to and so on—in fact virtually to rewrite a part of the Act of Parliament—in particular, Part I of Schedule 2—which this Bill will become.

In spite of the great importance of this matter, I propose to deal with it as briefly as possible because my noble and learned friend on the Woolsack, when replying to my noble and learned friend Lord Elwyn-Jones, made what I took to be at least mildly encouraging noises regarding the amendment.

The measure deals with the status of the regulations that can be made by the Secretary of State in a legislative capacity, modifying and adding to the statute on which your Lordships are at present engaged. If your Lordships look at Clause 75, you will see that all the regulations under this Bill are subject to the negative resolution procedure. These amendments—I am speaking to both Amendments Nos. 128B and 128C, which are connected—seek to state that the statutory power given to the Secretary of State under Clause 15(4) by regulations to legislate in a way that modifies an Act of Parliament should be by affirmative resolution. Your Lordships will probably consider that that is the very least that can be done. The practical difference is that, by the affirmative procedure, the Minister has to lay the regulation before both Houses and explain what he is doing. Your Lordships will probably think that that is constitutionally the very least that can be expected.

Your Lordships will see that the amendments have wide support. I am sorry that, owing to limitation, the parties above the gangway on the noble Earl's side of the House could not be named. I have had assurances of wide support throughout your Lordships' House.

The appropriateness of negative and affirmative procedures respectively was considerably canvassed on the Legal Aid Bill and an extraordinary consensus emerged. We were greatly guided by my noble and learned friend Lord Hailsham, who unfortunately cannot be here this evening owing to a throat infection, by my noble and learned friend Lord Elwyn-Jones and by my noble and learned friend on the Woolsack.

The consensus was that one should look at each regulatory power and it should be classified as subject to affirmative or negative procedure according, in general, to its importance. If that is the right test—I have the quotation with me—this is the plainest of all possible cases. The subject matter of the regulatory power is most important. There have been a number of attempts, based on its importance, to move the subject matter from the schedule to the main body of the Bill. In addition, my noble friend Lord Henderson, with his authority as a member of the Renton Committee, felt that those provisions in Part I of Schedule 2 stated matters of principle as regards the basis on which the Renton Committee proceeded which quite apart from the social importance should have been in the body of the Bill.

Part I of Schedule 2 imposes important duties on local authorities. My noble and learned friend the Lord Chancellor in his skilful defence of Clause 15(4) said that the law there is developing and it may be necessary to add new powers. So be it. But should they not be justified to Parliament? Should not the powers that are duties on local authorities be explicitly justified, albeit that they are in favour of children.

So much for the subject matter. There is also the constitutional aspect. These are unusual powers. They are powers to legislate statutorily. We are giving power to alter an Act of Parliament to a Minister to exercise by regulation. The Donoughmore Report of 1932—which your Lordships considered at an earlier stage when we were considering Clause 15(4)—found very limited use of those powers.They were all transitional or transitory. They were nevertheless at that time known as "Henry VIII clauses", being based on the power that was given to Henry VIII during the last eight years of his life, as a Statute of proclamations. It would hardly be possible to exaggerate the constitutional import of the regulatory powers with which these amendments are concerned.

However, there is also the question of precedent. The noble Lord, Lord Jay, asked my noble and learned friend on the Woolsack what recent precedents there were. My noble and learned friend mentioned three. The first was the Health and Safety at Work Act. I am bound to say that I found the regulatory power under that Act almost impenetrable. There was a commission that had regulatory powers. There were two Ministers. Sometimes they had to act jointly, sometimes after consultation with each other, and often after consultation with the commission.

However, the next two Acts to which my noble and learned friend referred delicately by date—in order to remind my noble and learned friend Lord Elwyn-Jones, who was in charge of the amendment at the time—were the Sex Discrimination Act and the Race Relations Act. In each of those Acts there was clear discrimination between negative and affirmative procedures. In the case of the Henry VIII clauses, both of those Acts stipulated for the affirmative resolution procedure.

It therefore comes to this. Both on principle and on precedent these amendments ought to be accepted, at least in spirit. I am not wedded to the drafting. The draftsman generally has his own way of setting about these matters, though I cleared them with the highest authority as to their form. But I shall be more than content if my noble and learned friend will accept the amendments in principle and bring forward his own amendments to implement that at Third Reading. I beg to move.

8.30 p.m.

Lord Rippon of Hexham

My Lords, I should like warmly to support everything that the noble and learned Lord, Lord Simon of Glaisdale, has said. This is a matter that has concerned me and which I have raised before. Everything that he said is of supreme importance not only in relation to this Bill but in the way that we are handling all our legislation at the present time. I was not present when the debate took place on Clause 15 but I read what the noble and learned Lord, Lord Simon, said in his very erudite speech. I cannot match such erudition but I share his feeling about provisions of this kind.

I noted that it was suggested that it might be possible at some stage to delete the word "repeal". However, the power to amend can be very wide also. It will be within your Lordships' recollection that a number of recent Acts of Parliament have given powers not only to amend but to repeal. I raised this matter on the Local Government Finance Bill on 13th July 1988, at col. 915 of Hansard. My concern then was that so many Bills were coming forward which gave quite extraordinary powers, permitting governments in effect to make new law as they go along.

Perhaps I may refer to what Section 147 in the Local Government Finance Act 1988 provides. Subsection (1) provides: The Secretary of State may at any time by order make such supplementary, incidental, consequential or transitional provisions as appears to him to be necessary or expedient for the general purposes or any particular purposes of this Act or in consequence of any of its provisions or for giving full effect to it". Subsection (2) states: An order under this section may in particular make provision for amending, repealing or revoking (with or without savings) any provision of an Act passed before or in the same session as this Act, or of an instrument made under an Act before the passing of this Act, and for making savings or additional savings from the effect of any amendment or repeal made by this Act". Subsection (5) states: In this section 'Act' includes a private or local Act". I asked noble Lords to be aware of what they had done. We give these extraordinary powers to amend what is skeletal legislation. I suggested that one of the reasons is that Parliament cannot and does not deal adequately with the legislation that it is supposed to be scrutinising. The truth is that there are not enough draftsmen to go round.

I subsequently put down a Question to my noble friend Lord Belstead asking him how many parliamentary draftsmen are employed in the public service and what their average salary is. I was told that in the United Kingdom as a whole there are 45 full-time and three part-time draftsmen. Their average salary is £34,254 per annum. I suggest that that is why so much of the legislation coming before Parliament at the present time is in skeletal form, often totally incomprehensible, and includes these wide-ranging powers either to repeal or to amend the legislation by orders and regulations.

I suggested then that what we had to do was to monitor rather carefully these orders which were dealt with by negative resolution. However, I understand from the earlier debate that my noble and learned friend Lord Simon said that it is not the practice in this House to consider orders that are dealt with solely by negative resolution. If that is the practice, I think it ought to be amended.

Lord Simon of Glaisdale

My Lords, if I may interrupt, I think I was incorrect about that. It is the practice not to divide against them.

Lord Rippon of Hexham

My Lords, perhaps that ought to be the practice with some of them if I may respectfully suggest it.

I noticed that my noble and learned friend the Lord Chancellor (Hansard on 6th February 1989 at col. 1366) said: I accept that the scope for revision is not so great in a statutory instrument as it is for an ordinary Bill". I may be wrong, but my understanding is that it is not possible to amend but only to reject the statutory rule and order. Perhaps it is not wholly correct (if I may say so with respect) simply to say that the opportunities of amendment are not so great. The trouble with so many of these orders and regulations is that when they come forward we are told that it is a matter of urgency. Therefore if it is rejected, some benefit will not be able to be paid and so the pressure is on. The pressure is on not only in terms of letting it go through, but there is also the pressure on parliamentary time.

Reference has been made to the various precedents which are cited. The noble and learned Lord, Lord Simon, has referred to some of those. This matter came up again on 14th February in relation to the Companies Bill which contains similar provisions. It was then that the noble Lord, Lord Williams of Elvel, raised this question. The Secretary of State for Trade and Industry said: Similar order-making powers are contained in Section 449(1 B) of the Companies Act 1985, Section 180(3) of the Financial Services Act 1986 and Section 84(2) of the Banking Act 1987. These order making powers are not novel, they are part of the accepted form".—[Official Report, 14/2/1989: col. 113]. I ventured to suggest then that although they were precedents, they were dangerous precedents and we are building up on dangerous precedents. I know from my own experience that Bills have for a long time contained these provisions. One also knows that Lord Justice Fennell was quite right when he said as long ago as 1911 that if ministerial responsibility were more than the shadow of a name, the matter would be of less importance. Ministers are not only shadows, they are shadows that move about very quickly: sometimes up, and sometimes out, as the case may be.

I found myself in an unusual position when as former Secretary of State for the Environment I appeared in court to defend an order which I had made, which was said to be ultra vires. Law officers' opinions are not or should not be widely quoted; but there was some doubt about the matter. What was purported to have been done by me—in fact the order was signed by a junior Minister—was that a hereditament was rated outside the jurisdiction, double rated and rated according to an almost incomprehensible formula. When it reached the Court of Appeal, Lord Justice Cairns said to me, "Are you saying to me, Mr. Rippon, that the Secretary of State could rate this hereditament at twice the salary of the chief executive?" I said, "Indeed, my Lord, that is exactly what I am saying. Parliament gave the Secretary of State absolute powers and he exercised them". Of course I won. I had mumbled something about an annual report to Parliament and a negative resolution; but we all know what that means.

I feel that the time has come when we ought to look very carefully at the way these powers are being exercised. It is true that the provision is in a fairly common form, but it is now being attached to Bills which I have said are in a skeletal form. I would hope, if I may say so with respect, that those members of the Cabinet who are responsible for scrutinising legislation before it comes before Parliament should try to ensure that the departments put their Bills in proper form before they bring them forward. I do not now know what is the composition of Cabinet committees, but I recall when in my time the legislation committee was chaired by the Lord Chancellor and the then Attorney-General, Sir Reginald Manningham-Buller (Viscount Dilhorne as he became), was most careful to scrutinise the legislation. Where these powers were slipped in he would ask on every occasion "Why can't you put it in the Bill? That is what you must do so go away and redraft it". I hope that in future we shall not let these clauses pass without a debate of this kind and that we will seize upon an opportunity to debate the whole problem which is arising now in Bill after Bill.

8.45 p.m.

Baroness Seear

My Lords, I want to make it quite clear that although there is no name from these Benches against the amendment on the Marshalled List, we are wholeheartedly in support of it. Like the noble Lord, Lord Rippon, we have been increasingly concerned at the extent to which regulation is being used for matters which in our view ought to be embodied in the statute and therefore properly debated by both Houses of Parliament. The powers now existing to make regulations go far beyond what is appropriate in our kind of democracy, particularly where there is no written constitution and therefore no way of having any control over what is put into these regulations. If there have to be regulations, at least they should be affirmative regulations. We do not particularly like that. We would much rather have it written on the face of an Act, but to have negative regulations for matters of this importance is in our view totally improper.

Lord Henderson of Brompton

My Lords, I briefly support my noble and learned friend who has moved the amendment from the Cross-Benches. I need not say much except to repeat what I said in Committee. Part I of Schedule 2 is a most unusual substance to find in a schedule. Every local authority shall take steps". Each of the paragraphs is as important as that on different subjects, except for one where it states: Where it appears to a local authority that a child within their area is in need, the authority may". All the others are imperatives upon the local authority. That is not what one ordinarily expects to find in a schedule. Though I agree with the noble and learned Lord the Lord Chancellor that a schedule is valid as a clause in the Bill, nevertheless, matter such as this is normally dignified by having the status of a clause.

The kind of material that one expects to find in a schedule one can find by turning to Part II of Schedule 2 where one finds Regulations under section 19(2)(a) may, in particular, make provision for this, that and the other. That is the kind of detail that one ordinarily expects to be relegated to a schedule.

I floated the idea that these important matters might be translated into a clause instead of a schedule when I was speaking in Committee. I realised that that was rather a hopeless proposition because it would upset the structure of the Bill. On the other hand, I was most happy to say that what would please one the most, if this had to remain in the Bill as a schedule was, first of all, that the matter should not be allowed to be repealed by subordinate legislation. Secondly, I supported the idea that if it was to remain as a schedule, an important matter of this kind should only be altered or moderated, not repealed, by affirmative resolution. I believe that the noble and learned Lord, Lord Simon, has made out a very powerful case especially in relation to Part I of Schedule 2, and I strongly support him.

Lord Mottistone

My Lords, I too should like to support the principle of the amendment. I should have preferred to see it as an affirmative procedure for cancellations, deletions—I forget what the phrase is—rather than additions. An addition could be negative procedure in this case. Much more, I should like to support as a matter of principle—I hope he will continue the battle—the general argument of my noble friend Lord Rippon. From time to time, starting from the Benches opposite and particularly from the Benches opposite, we have been grumbling about too much secondary legislation for matters which should not have secondary legislation. BackBenchers from all sides of the House ought collectively to mount a great campaign against that. Perhaps my noble friend Lord Rippon would care to be the band leader. I agree with the amendment in principle and hope that my noble and learned friend will also agree.

Lord Elwyn-Jones

My Lords, the House is grateful for the determination, persistence and skill of the noble and learned Lord, Lord Simon of Glaisdale, for again presenting it with an important parliamentary and constitutional issue.

The increasing habit of governments to by-pass serious consideration of orders and statutory instruments in which more and more legislation is cast is becoming pernicious. It is excellent that we now have an opportunity of being at the foothills of possible change.

As regards Clause 75, I found intriguing the nature of the exceptions to the requirement that everything should be done by way of annulment. I assumed that they must be of tremendous importance for the Government to have excepted them from annulment procedures. However, I discovered that they are Sections 44(2), 46(4)(a) and 47(3), all of which deal with management issues. I realise that it would be most embarrassing to have interruptions and interference with management but it is nothing of gravity. Otherwise everything is to be done by the procedure of annulment.

It is familiar ground. There was a strong energetic debate in our considerations of the famous provisions in Clause 15(4) of the Bill. I make no complaint in saying that we do not yet know the outcome of those discussions. The noble and learned Lord appeared to repel—if that is not too strong a word—the idea of a power to repeal provisions in the Bill by statutory instrument. I shall not press him tonight about where the considerations have reached. He expressed the hope of being able to explain the position before the Third Reading of the Bill. We await with interest to know how far the considerations have gone.

Elimination of repeal does not begin to cope with the anxieties that have been expressed by noble Lords who have spoken tonight. It is a most flagrant example but the amendment can also almost reach a point of repeal. If I may say so without putting it too dramatically, it is a great moment in the history of Parliament, when so much legislation is now passing through, that we should face up to the practice—I shall not call it "conspiracy"—of introducing legislation in skeletal form so that when either House considers it the meat of the matter is not available for inspection. When one considers the pressure which is being exercised tonight in relation to the amendments one realises that they arise at an historic moment.

The proposal has received the approval of the three noble Lords and the noble Baroness who have spoken entrenchantly and powerfully. On the strength of what has been said on this occasion and on the previous occasion when we discussed the famous Clause 15(4)—and I expressed my views somewhat forcefully—I hope that, now time has elapsed giving the noble and learned Lord time to consider the issue, we may receive a positive outcome to this very important part of parliamentary procedure.

The Lord Chancellor

My Lords, when Clause 15(4) was debated I undertook to delete the word "repeal" and I stand by that undertaking. On that occasion I made remarks which encouraged the noble and learned Lord, Lord Simon of Glaisdale, to believe that I would accept the principle of these amendments. I do so—I am prepared to accept the principle of the amendments. The draftsmen wish to have the opportunity of casting them in words which accord with the general style of the Bill but I am certainly prepared to accept the amendments in principle.

However, I should like to say more about the subject than may have been immediately apparent as being necessary. My noble friend Lord Rippon has raised other situations. I should like to make clear the fact that I do not regard the provision as dealing with skeletal statutory provisions. It is not that at all. I am dealing with detailed provisions in Part I of Schedule 2 which are as detailed as we can make them at the present moment. I wish to provide for the distinct possiblity that the practice in this area will develop and that we may be able to improve the provisions still further in the light of those developments. Other situations may arise—and I know that they have done so—in which regulation-making powers are sought for different reasons. The reason which obtains in this respect is the desire to have scope to develop the existing provisions in the light of developing practice.

Therefore I believe that this power is to be distinguished from a number of others that have been considered. It is not my business now to seek to offer a defence of other provisions. For all I know perhaps I shall have occasion to do so; therefore I had better not give too many hostages to fortune. However, for the present I am content to say that this provision is not within the general category to which my noble friend referred.

I am perfectly content that the provision should be by affirmative resolution. They are important matters. Although formally it is true that a regulation once laid is not normally voted on in this House, and it is not competent formally to amend, I believe that in regulations of this kind the Government seek as far as possible to obtain consensus out of consultation. If there was real difficulty about a provision the person who made the orders lost the whole order. Therefore I justify the use of the expression which I used on the last occasion; that the power for amendment is more limited. However, it can be extremely effective. I have seen colleagues placed in a difficult position by putting in regulations a particular provision to which there was strong objection. The danger is that one loses the whole order. Therefore, I believe that parliamentary control of regulation-making powers is an effective instrument, particularly so when the amendment is carried by affirmative resolution.

Clause 75 deals with regulations which will be made with regard to the allocation of individual cases. They proceed by virtue of negative resolutions. If noble Lords permit, it may be of interest if I say a few words about them, although they are not directly raised by the amendment. As regards the allocation of individual cases, the vast majority of proceedings under the Bill will be self-allocating in that by far the largest number of orders about children are and will continue to be made in the course of divorce proceedings. We intend to preserve that position. It would be wasteful and pointless to involve anyone in taking individual decisions about allocations in those cases.

It is also the case that many other private law orders concerning children are made in the course of domestic disputes between parents and similar arguments apply. The result is that the need for an active allocation process in individual cases will arise only in a minority of cases under the Bill, the most significant class of which will be applications by local authorities for care or supervision orders. The Bill proposes that there should be regulations to deal with that matter.

If those regulation-making powers are to be satisfactorily administered, there needs to be an effective machinery that ensures close co-operation, especially between the magistrates' court and the county court. We intend to provide that.

I should like to say that with the agreement of the President of the Family Division—and it is particularly appropriate that I should be saying this in reply to an amendment moved by my noble and learned friend Lord Simon of Glaisdale—I have asked Her Honour Judge Bracewell QC to be responsible to the president for the judicial administration necessary to ensure the best possible transition to the new procedures. Hereafter, the judge will have responsibility for developing a standard practice for deciding which cases should be heard at which level of court and for overseeing and coordinating judicial aspects of the operation generally, including the transfer and listing of cases.

I see the judge as having a vital role to play in ensuring effective liaison between all those involved in care cases from senior judges to the magistrates and local authorities. She will also provide advice and assistance to the judicial studies board on the training of judicial officers working in this area. More generally the judge will be responsible to the president for monitoring the new arrangements to ensure their effective operation in the future.

Judge Bracewell's appointment will take full effect from October. She will continue to sit judicially from time to time to maintain her first hand contact with the developing law and practice. I have decided that these arrangements will have to operate through two court systems. The success will depend on the cooperation of all concerned. We are not seeking wide powers of compulsion under this Bill. It is perhaps appropriate I should say that, having regard to the matters we have discussed. We rely on the goodwill of all concerned and a common desire to secure effective access to justice for children. Goodwill and the desire to co-operate on their own are not enough. It is necessary to provide a focus.

I believe that the judge, working closely with those operating the system under the direction of the president, will, together with an appropriate committee structure, provide the necessary focus. The committee will operate under the president and will bring together those responsible for the operation of the system both locally and at the centre. The shape and extent of the committee's structure, terms of reference and membership have not been settled but are matters for discussion and consultation with those concerned.

Perhaps I should also take the opportunity, in further elucidation of this matter, to explain the provision in the Bill dealing with the inherent jurisidiction because the regulation—making power does not seek to trench on that. However, it is relevant to the general structure which we are seeking to set up and which I am seeking to describe. There seems to be a misunderstanding about how the Children Bill will affect High Court wardships in cases concerning local authorities. In a nutshell, the purpose of the Bill is to prevent the High Court's inherent powers being invoked as an alternative to orders which are available to local authorities under the Bill and thus to circumvent the statutory protection provided for children and their families against unwarranted state interference. The Bill otherwise leaves intact those powers to provide a safety net for serious cases arising from unforeseen or unlikely circumstances. Perhaps that is not an immediate answer to this particular amendment; but I believe that it is relevant to the general context in which the powers, subject to the amendment, are to be operated. I hope that in the light of the undertaking I have given to my noble and learned friend, he will feel that he has succeeded in the argument and will be able to withdraw the amendment.

Lord Simon of Glaisdale

My Lords, I should like to express my gratitude to those who have spoken in support of this amendment. Not only that, but the support came from all sides of the House. The speeches were of extraordinary authority. And the unanimity of view on the constitutional and parliamentary issue seems likely to be of permanent value.

I should also like to express my appreciation of what my noble and learned friend on the Woolsack said. He has not only accepted in principle the amendment. As a most valuable by-product, we have been given further information about matters of judicial administration. I noted with pleasure the hint he gave that your Lordships should not necessarily be bound by a constitutional convention not to divide against statutory instruments. That seems to me a most important intimation.

I noted that my noble and learned friend undertook to bring forward an amendment to leave out the word "repeal" in Clause 15(4), and I took it that that was as good as out. He made a further concession in accepting the affirmative resolution procedure, and for that I am most grateful. I am more than content now, with your Lordships' leave, to withdraw this amendment and leave it to the draftsman to put it into the appropriate form. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128C not moved.]

Clause 76 [Interpretation]:

The Lord Chancellor moved Amendment No. 129: Page 65, line 5, at end insert— (" "ill-treatment" has the same meaning as in section 26(8);").

The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 70. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 129A: Page 65, line 24, leave out ("has") and insert ("and "to foster a child privately" have").

The noble and learned Lord said: My Lords, Clause 56 presently defines "privately fostered child" and "to foster a child privately" for the purposes of Part IX. We referred to this matter a little earlier in answer to a question from the noble Baroness, Lady Seear. Under Clause 76 only the first of these definitions is currently applied to the whole Bill. This amendment will merely add the definition of "to foster a child privately" in Clause 76. I beg to move.

On Question, amendment agreed to.

Lady Saltoun of Abernethy moved Amendment No. 130: Page 65, line 35, after ("step-parent") insert ("or first cousin").

The noble Lady said: My Lords, in Committee I moved an amendment to widen the definition of "relative" to include cousins. In reply the noble and learned Lord the Lord Chancellor said (Hansard, 23rd January, col. 572) that the word "cousin" was rather imprecise because it would include cousins of a great variety of degrees. He also said that the definition of "relative" had excluded cousins for over 100 years and that the Government have no evidence to show that that had caused any difficulties.

I have therefore narrowed the proposed definition to first cousins, which I presume would include a first cousin once removed—the first cousin of the parents of the child. That is a more precise definition. I respectfully suggest that the fact that child care law has excluded cousins for over 100 years is not necessarily a valid reason for continuing to do so in view of the fact that social workers nowadays, nurtured on the concept of a nuclear family, with possibly no experience of the wider family, tend to ignore its existence where, in the absence of grandparents, uncles and aunts, the cousins may be the people closest to the child.

I have in mind the definition of "relative" as it applies to Part IX, Clauses 56 and 57 concerning private fostering, paragraph 2 of Schedule 7, and Clause 51. I believe that to keep children, wherever possible, within the background of their own kin is important to their sense of belonging and the need, which is so apparent to me through my experience of the clan system in Scotland, that so many people feel to have roots. The noble and learned Lord will of course be as aware of that as I am.

Many parents will appoint guardians for their children in the event of their own premature demise or any other disaster, but not all parents think of doing that in time and that is the kind of situation I have in mind. I beg to move.

Lord Mottistone

My Lords, having probably more first cousins than anyone else in the Chamber—when he died in 1915 my grandfather had 60 living descendants, on one side only—I strongly support the principle of this amendment. I hope that it is technically correct. There is no doubt that cousins can be great fun and I am delighted that my own children have many first cousins who I hope will be of great benefit to them in the event that other relations sadly are not there.

The Lord Chancellor

My Lords, in answer to the amendment tabled by the noble Lady, Lady Saltoun, in Committee I said that the definition of "relative" which we use in the Bill is that which has persisted in child care law for 100 years or more. I do not mean to say that that alone is a reason to maintain the definition—not at al—but merely that apparently there has not been a convincing reason in all that time to change it.

There have been many cousins in that time, and I am sure that many people have had great pleasure in associating with them. I am not so fortunate in the number that my noble friend Lord Mottistone had, but certainly I had great enjoyment from the smaller number that I had.

However, we must look at the context in which this would be done in the Bill. The effect of a widening of the definition of "relative" inevitably will be to reduce the extent of protection that is afforded to children who are living away from their parents. I gave the definition of private fostering earlier, and the accepted categories include the relatives. If one widens the relatives, one thereby reduces those who are privately fostered and under the systematic responsibility of the local authority.

The plainest example is that a first cousin who is caring for and accommodating a child would not under Clause 56(1)(a)(iii) be a private foster parent, and the local authority would as a result have no responsibilities for satisfying itself as to the welfare of the child. This would be a relaxation of present private fostering law. We would be assuming that genealogically more distant first cousins are always suitable persons to be responsible for long-term care for children on a par with grandparents, uncles and aunts. This may or may not be a safe premise. My own view is that it is safer to err on the side of caution and require notification of such placements rather than to exclude them en bloc. There is some burden on those who wish to see a relaxation to convince us that this is desirable. I immediately accept that in many cases if it is a cousin the burden will be very easily discharged. The inquiries may be very small. But there may be other cases, and that is the point.

The other context in which this amendment would have effect is in relation to the authority's duty to take steps to secure that a child privately placed in a voluntary or children's home or who is privately fostered, and about whose welfare it is not satisfied, is looked after by a parent or relative in terms of Clauses 51(4)(a) and 57(5). This duty is not an absolute one. It applies unless the authority considers it would not be in the best interests of the child. It would be wrong to suppose that the exclusion of cousin from the definition of relative excludes them from consideration. In fact, the local authority must also consider whether it should exercise any of its other functions with respect to the child, which includes providing accommodation for the child under Clause 17.

In such a case the child might be placed with a family or other suitable person, which could include a first cousin. The government amendment to Clause I9(2)(a) to insert a specific reference to relatives even though that does not include cousins will not prevent local authorities placing a child with cousins if the cousins are suitable persons. I do not think it is necessary to change the definition of relative either in this place or in order to secure that a suitable cousin would be a proper subject for such a placement.

I hope I have said enough to persuade the noble Lady that the Bill does not prevent placements with first cousins and that in that sense the Bill already accommodates what she wishes. On the other hand, it maintains a degree of responsibility in the local authority where the cousin is the carer to investigate the matter in order to see that the arrangements are satisfactory. Having regard to experience over the years I believe that this is a fair balance and I hope that the noble Lady will feel that is so. I hope that she will feel able to withdraw the amendment.

9.15 p.m.

Lady Saltoun of Abernethy

My Lords, I am not at all surprised that the noble and learned Lord does not feel able to accept this amendment. I am very relieved to hear that there is no impediment to cousins being considered. I have a feeling that on a number of occasions they go by default. I wonder whether it will be possible to provide some guidance to social workers to consider the children of the wider family—namely, the children of the great grandparents—before strangers, other things being equal; that is, provided that they are suitable persons. Older children in this situation will be able to say with whom they would like to live. Some will be too young to do so. I do not intend to press this amendment, but I wonder whether the noble and learned Lord can consider this suggestion.

The Lord Chancellor

My Lords, I am content to consider this matter carefully. It will be the Secretary of State who will be responsible for giving guidance. I am sure that he will consider carefully how the guidance should be expressed. As my noble friend Lord Mottistone said, it may be that there are very valuable contacts with first cousins, or remoter relatives. I believe that it would be perfectly reasonable for the guidance to draw attention to that possibility so that it would not go by oversight or default. That may well meet the concern of the noble Lady. I am very happy to undertake further consideration along those lines.

Lady Saltoun of Abernethy

My Lords, I am most grateful to the noble and learned Lord for that assurance. I feel very much happier. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 130A: Page 66, line 6, leave out ("and protection").

The noble and learned Lord said: My Lords, in speaking to Amendments Nos. 148 and 149 at the Committee stage, I said as regards the grounds for a care order that at Clause 26(2) the term "care" should be taken to include protection. I believe that is part of the ordinary meaning of care in the context of bringing up children in that it would be reasonable to expect a person caring for a child to protect him from unnecessary risk of harm. In the light of that discussion we looked again at Clause 76, which states: 'upbringing' … includes the care and protection of the child". While this is not actually wrong it suggests a more limited meaning of care than the ordinary meaning. This amendment seeks to re-establish that care embraces protection. I beg to move.

On Question, amendment agreed to.

Schedule 8 [Minor Amendments]:

[Amendment No. 130B not moved.]

Lord Elwyn-Jones moved Amendment No. 131: Page 110, line 2, after ("orders),") insert ("where the offender is over the age of 14 years at the time of conviction,").

The noble and learned Lord said: My Lords, this amendment and Amendment No. 133 are inspired by the Association for Juvenile Justice. In Amendment No. 131 we want to emphasise that the removal from home of a child is a serious act and should arise only where a serious offence has been committed and where the child is over the age of 14 and has been sentenced at a Crown Court. This aspect of legislation should not be used on those under the age of 14 as a backdoor means of taking a child into care.

There is already extensive access to local authority care under child care legislation and alternatives to custody for young offenders such as community care orders and stipulated conditions. It is felt that residential requirements should not be used for anything other than very serious offences. It is important to stress that there is already legislation to deal with serious offences committed by juveniles. I beg to move.

Baroness Faithfull

My Lords, it will perhaps save the House time if I speak to Amendment No. 132A which is very much on the same lines.

Baroness David

My Lords, Amendment No. 132 comes very much under the same heading and so it would be sensible to discuss the amendments together.

Baroness Faithfull

My Lords, Amendment No. 132A also stipulates that in imposing on a young offender the new residential requirement created by the Bill the court must be satisfied that the requirement is appropriate because of the seriousness of the offence. It is designed to ensure that young people are not removed from home for minor offences. As the Bill stands, the new residential requirement could be used to send some young people inappropriately into residental care.

At present every power which the courts have to remove young people from home is subject to a test relating to the seriousness of the offence. Under Section 23 of the Criminal Justice Act 1982, before a court can pass a care order in criminal proceedings it must be satisfied that it is appropriate because of the seriousness of the offence. Likewise, under Section 22(3) of the Criminal Justice Act 1982, a court can make a residential order only if it is satisfied that it is appropriate because of the seriousness of the offence. It must be stressed that in law every minor theft and every act of vandalism, however trivial it may be, is an offence punishable with imprisonment. Since the passing of the Criminal Justice Act 1982 and the seriousness of the offence being taken into account, the number of children in care has fallen. We ought to bring this Bill into line with the Criminal Justice Act, which lays down that the seriousness of the offence must be taken into account.

Baroness David

My Lords, Amendment No. 132 attempts to do exactly the same in a different way. It seeks to ensure that removal from home into the care of the local authority is available only as an alternative to a custodial sentence. I think that the noble and learned Lord has a choice of various ways in which to deal with the matter. I hope that he will be sympathetic to the idea behind the amendments because they are all striving to achieve the same aim; namely, keeping young people out of something which vaguely resembles custody. I very much believe that the seriousness of the offence should be taken into account. However, I shall say no more for the moment, because I hope that we shali receive a favourable response.

Lord Henderson of Brompton

My Lords, I should like to express my support for the remarks made by the noble Baroness, Lady Faithfull, in convection with Amendment No. 132A. I think that it is now widely agreed that residential care should only be used very sparingly for young offenders. Indeed, the research which has recently been carried out into community homes with education indicates that around 70 per cent. of young people leaving such homes are reconvicted within two years. That rate is very nearly as high as the reconviction rate of juvenile offenders leaving penal establishments. In my view, that is a most important consideration.

I believe that unless this amendment is accepted, or something like it, the Bill will create power to remove young offenders from home for minor offences. Surely that cannot be right. Therefore I hope that the matter can be put right in the Bill by means of such an amendment or, indeed, in the very words contained in Amendment No. 132A.

The Lord Chancellor

My Lords, perhaps I may take the amendments in order, although they do in a sense deal very much with the same problem. I shall start first with Amendment No. 131. This is the principal amendment we are discussing which was moved by the noble and learned Lord, Lord Elwyn-Jones. I think that the amendment is somewhat puzzling in its effect. In the first place, it appears to incorporate a proposed limitation of the use of the "removal from home" requirement, into the preamble to the amendment of Section 12 of the 1969 Act, rather than by a specific addition to the new subsection (1A) to (1I). As such, it has no practical effect. Secondly, it refers to an offender who is "over the age of 14" (that is someone who has attained the age of 15 years or more) rather than using the formula in the 1982 Criminal Justice Act for offenders who are eligible for a custodial sentence, which refers to someone who is "not less than 14 years of age". That is a small point but, nevertheless, it is an important one, because there are many people in that category.

Section 12 of the 1969 Act, which this part of Schedule 8 amends, deals with the powers of the court to make supervision orders on offenders, that is those who have attained the age of criminal responsibilty—10 years or more. The court has quite a wide range of options in dealing with young offenders under Section 12, ranging from a simple supervision order through to a supervision order to which specified activity requirements may be attached under Section 12A, and including those which are imposed as specific alternatives to a custodial disposal under Section 12D. The Government take the view that, subject to the conditions in the new subsection (1A) being met, it is appropriate for the new power of the court to attach a "removal from home" requirement to a supervision order, to be available for all persistent offenders from the age of 10 years.

The effect of limiting the operation of Section 12 to those offenders who have attained the age of 14 or 15 would mean that, certainly for the under-fourteens, the court would have no power to remove a serious offender from home, except for manslaughter or murder, even where all the evidence suggested that such a course of action would be in the young person's best interest. As I have already mentioned, custodial disposals are not generally available for those under the age of 14. For that reason, coupled with the defective nature of the proposed amendment, I hope that it will not be pressed.

Amendment No. 132, which was spoken to by the noble Baroness, Lady David, is designed to limit the circumstances in which a "removal from home" requirement can be added to a supervision order made in criminal proceedings, to those cases where the offender was not only subject to a supervision order with specified activities attached to it, but that that order had also been made instead of a custodial sentence.

I ask your Lordships to consider two matters in that connection. The first is that supervision orders can be made in criminal proceedings for children who have attained the age of 10 years—the age of criminal responsibility. Children under the age of 14 cannot receive a custodial sentence. The effect of the amendment therefore would be limit the use of the new "removal from home" power to those who have attained the age of 14. Now that care orders are to be abolished under the Billl as a disposal in criminal proceedings, the court would be somewhat limited in the range of options available to it in dealing with what could be very serious persistent offenders under the age of 14, if the amendment were carried.

My second point is a more general one. Under this particular provision, we are trying to tackle those young people who persistently commit offences where, in the view of the court, the underlying problem arises from the circumstances in which he has been living; essentially circumstances where parental responsibility is lacking. That applies equally whether or not the existing supervision order with requirements was made as an alternative to a custodial sentence. But if the amendment were carried, the court would not be able to consider applying a removal from home condition to a new supervision order, even if it formed the view that the child's home circumstances were, to a significant extent, a contributory factor in his behaviour, unless the existing order had been made as an alternative to custody. That seems to us to be too restrictive.

The Government take the view that that new requirement should be used sparingly and appropriately. That is why we have made quite careful provision in subsection (1A) closely to define the circumstances in which it might be applied. If I could remind your Lordships, the grounds are: that the young person must have been found guilty of an offence which would be imprisonable if he were over 21; and that the court is satisfied that the child's behaviour which constituted the offence is due, to a significant extent, to the circumstances in which he has been living, and that he is already subject to a supervision order to which the court has attached specified activity requirements.

In the Government's view those stringent criteria already tightly define the circumstances in which a removal from home requirement may be attached to a fresh supervision order. While I have listened carefully to the points which have been made in the debate, I do not believe, for the reasons that I have already explained, that it would be appropriate to go further than that. To do otherwise would in my view unduly limit the court's ability to deal with persistent offenders.

Amendment No. 132A was spoken to by my noble friend Lady Faithfull, supported by the noble Lord, Lord Henderson of Brompton. The effect of the amendment is to add a further qualification to the circumstances in which the new "removal from home" requirement may be added to a supervision order. As the Bill now stands, the conditions which have to be met before the court can add such a requirement are set out in Section 12(1A) (a) to (d). Section 12(1A) says the offence of which the child or young person has been found guilty is one which, in the case of an adult, would be punishable with imprisonment". The amendment proposes that the court should also be of the opinion that the requirement is appropriate because of the seriousness of the offence". Parallels have been drawn between that requirement and the provisions in the Criminal Justice Act 1982 dealing with custodial sentences for young offenders. In the latter case, the court is required to be of the opinion that, among other things, the offence was so serious that a non-custodial sentence cannot be justified. It has been argued, and I have a certain sympathy with this view, that—certainly from the perception of the young person himself—there is, in principle, little difference between removing a juvenile from home under the terms of a supervision order, and a custodial sentence. Both deprive the juvenile of his ability to remain at home, and accordingly it is argued similar considerations should apply when consideration is given by the courts to taking this step.

As I have already indicated, I have some sympathy with that view. However, I would ask that two points be considered. The first is to remind your Lordships of the circumstances in which a "removal from home" requirement may be added to a supervision order. Those are that the young offender must, at the time of the further offence, already be subject to a supervision order to which specified activity requirements have been added under Section 12A(3) of the 1969 Act. That existing order may, or may not, have been imposed instead of a custodial sentence; but, whatever the case, the second order with a condition as to residence can stem only from the juvenile being found guilty of an offence which would be imprisonable if he were over 21.

In other words, by the time the court is considering whether it would be appropriate to add a "removal from home" requirement to a supervision order, the juvenile will by definition have an established history of offending. Against that background, I really wonder whether it is necessary, in the circumstances I have described, to add an additional "seriousness" test to the further offence which would trigger the new requirement and which itself must already be one which, in the case of an adult, would be punishable with imprisonment.

Secondly, and I think more important, is the fact that by adding a "seriousness of offence" qualification to the existing offence ground, it tips the balance of grounds for the new requirement too much towards the offence itself. In our view this would be to the detriment of the other important condition in Section 12(1A)(c)—namely, that the behaviour which constituted the offence is due, to a significant extent to the circumstances in which the child has been living. That has to be focused on as an essential part of this provision.

It is intended that the focus of this new "removal from home" requirement should be on children and young people whose offending behaviour is primarily attributable to their home circumstances. The purpose of adding a "removal from home" requirement is to give the social services department a relatively short period, of up to six months, to work through these problems with the young person and his or her family in the hope that the home circumstances leading to his offending behaviour will be ameliorated. I suggest to your Lordships that this form of intervention might be appropriate in all cases where a juvenile has, on a further occasion, been found guilty of an offence which would be imprisonable if he were over 21, and that further qualification of the offence might well preclude the court from responding appropriately to the problems underlying a young person's offending behaviour.

I hope that I have said enough to enable your Lordships to see the grounds on which we have expressed this view. I am not sure whether the noble and learned Lord, Lord Elwyn-Jones, has moved Amendment No. 133.

Lord Elwyn-Jones

My Lords, we have not moved it yet, but I think it will be very short.

The Lord Chancellor

My Lords, in that, case I shall leave what I have to say until we come to the amendment. I hope that noble Lords proposing Amendments Nos. 132 and 132A as well as those who spoke to them will feel that they should not be pressed.

Lord Henderson of Brompton

My Lords, before the noble and learned Lord sits down. perhaps I might ask him to address his mind to one aspect of Amendment No. 132A to which the noble Baroness, Lady Faithful!, has spoken. I know that the noble and learned Lord has sympathy with the purpose behind the amendment. Does he not agree that if the amendment is not accepted there is a risk that some courts could use a new power to remove young people from home for minor offences where they have no power to do so at present? If as I believe is the case, that is so, is it not going against all trends of penal policy as expressed by the Home Office?

The Lord Chancellor

My Lords, as I understand it, this provision is in line with current Home Office policy. That is my understanding of the matter but I am of course willing to be corrected. I understand that the real thrust of the provision which the amendment seeks to address is the persistence of the offending and the connection with the home circumstances. The real focus is that the court comes to the conclusion, in the light of all the information given to it, that it is the home circumstances that are giving rise to the offending. It is true that some of the offences which are imprisonable may be regarded as not being all that serious. On the other hand, if imprisonment is thought by Parliament to be an appropriate punishment, it gives some indication that the offence is serious. Of course, imprisonable offences trigger off a number of other consequences.

However, the real heart of the matter is the persistence of the offending and the connection with the home circumstances. That is the reason why it has been expressed in this way. At present a care order could be made in criminal proceedings. One has to look to see whether one is coping with all the posssible situations that could arise. Certainly my understanding is that that is in accordance with Home Office policy.

Lord Elwyn-Jones

My Lords, I shall read carefully what the noble and learned Lord said on Amendment No. 131, and in the meantime I ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

Baroness David had given notice of her intention to move Amendment No. 132: Page 110, line 14, at end insert— ("and, (e) the court had made a statement under section 12D of this Act when imposing requirements under paragraph (d) of this subsection.").

The noble Baroness said: My Lords, I was going to say something on Amendment No. 132A. The noble and learned Lord has stressed that the offence must be one punishable with imprisonment. I think it is the case that every minor theft or act of vandalism is punishable with imprisonment, including stealing a pint of milk off the doorstep. Therefore, I do not think that that is much help to us. I hope that the noble and learned Lord will think about this again.

The Lord Chancellor

My Lords, I am not sure exactly what position we are at. If we are making a kind of supplementary to the withdrawal of Amendment No. 131, I am content to consider it; but the fact is that if Parliament thinks the offence is one for which imprisonment is possible, Parliament must regard it as sufficiently serious for that to happen, if that is not an argument in a circle.

I sometimes am surprised at what imprisonment can be awarded for. This is giving a power to the court, and one must be careful not to remove the court's power to deal with matters which appear to be dealt with, and repeated offending connected with home circumstances is a matter that requires to be dealt with.

Baroness David

My Lords, I am sorry if I jumped out of line, and I shall not move Amendment No. 132.

[Amendment No. 132 not moved.]

Baroness Faithfull had given notice of her intention to move Amendment No. 132A: Page 110. line 22, at end insert— ("(1CC) A court shall not impose a requirement under subsection (1A) of this section in respect of a child or young person unless it is of opinion that such requirement is appropriate because of the seriousness of the offence.").

The noble Baroness said: My Lords, I thank the noble and learned Lord on the Woolsack for his explanation, which I understand. I am not sure that I altogether agree with it, but I should like to consider it and bring this back at the next stage. Therefore, I shall not move this amendment.

[Amendment No. 132A not moved.]

Lord Elwyn-Jones moved Amendment No. 133: Page 110, line 50, at end insert— ("(1J) Where a Crown Court is dealing with an offender who has been committed for trial by virtue of section 24(1)(a) of the Magistrates Court Act 1980, section 12 shall not apply.").

The noble and learned Lord said: My Lords, Amendment No. 133 has as its purpose to allow the use of a residential order for a first-time offender where a young person is sentenced at a Crown Court. Bearing in mind the worrying size of the prison population and prison conditions at the present time, and, what is almost equally troubling, the high reoffending rate and the cost of these operations to the community, we submit that it is important that custodial sentencing is only used in exceptional circumstances. The amendment seeks to ensure that the residential order is used rather than the Section 53 order so that young people can be worked with by social workers in the community rather than by prison officers in custody. I beg to move.

The Lord Chancellor

My Lords, as I understand this amendment, its effect is to remove the power of the Crown Court, in certain circumstances, to make a supervision order (with conditions including the new removal from home requirement) under Section 12 of the 1969 Act as opposed to conditions under Section 12A, which latter provisions relate to specified activities.

The circumstances contemplated by Section 24(1)(a) of the Magistrates Courts Act 1980 are where the magistrates' court has committed a young person who has attained the age of 14 for trial in the Crown Court, with the view of a possible sentence under Section 53(2) of the Children and Young Persons Act 1933 being imposed. Section 53 of the 1933 Act is the provision under which young people convicted of certain grave crimes may be sentenced to be detained for long periods.

I would remind your Lordships that at that stage the magistrates' court has either to be of the opinion that there is sufficient evidence to put him on trial, or it has the power under Section 6(2) of the Act of 1980 to commit him without consideration of the evidence. I believe that that point should be borne in mind when considering the range of sentencing options available to the Crown Court.

The amendment does not remove the power of the Crown Court to make a supervision order to which specified activity requirements are attached—which is in Section 12A, not Section 12, of the 1969 Act—but it preludes the Crown Court from attaching a "removal from home" requirement to a supervision order under this part of the Bill which is inserted into Section 12 of the 1969 Act.

I must confess some difficulty in understanding fully the purpose underlying this amendment. I can appreciate the point that a magistrates' court is only likely to refer a case to the Crown Court under Section 24(1) (a) of the 1980 Magistrates' Courts Act if it considers that the gravity of the offence was such that an appropriate disposal was beyond the powers of the magistrates' court. On the other hand, I take the firm view that in such circumstances the Crown Court should retain the flexibilty after hearing all the evidence to dispose of the case in a manner which it considered most appropriate. To remove the ability to make a supervision order with conditions made pursuant to Section 12 of the 1969 Act seems to me to be an unwarranted restriction on the Crown Court's powers.

There is one further consideration which I should like to draw to your Lordships' attention. Removing any non-custodial disposal from the powers of the Crown Court raises the possibility of increasing the likelihood of a custodial sentence. I understood the noble and learned Lord to be very much against that, and I share that view. I am sure that it is not what in moving the amendment he would wish to see happen.

So it may be that this amendment, in the context in which it seeks to innovate on our provisions, might have the effect of increasing rather than diminishing the chance of a custodial sentence. I hope that perhaps, once the noble and learned Lord has had a chance to consider this matter, he may be able to reconsider but that in the meantime he may feel able to withdraw the amendment.

Lord Elwyn-Jones

My Lords, I shall most certainly consider what the noble and learned Lord the Lord Chancellor has said, if the effect of the amendment is the exact opposite to what I had in mind in moving it. Now I shall have some words with the Association for Juvenile Justice. In the meantime, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 134 not moved.]

House adjourned at thirteen minutes before ten o'clock.