Crime and Disorder Bill [H.L.]

HL Deb 24 February 1998 vol 586 cc634-74

8.36 p.m.

House again in Committee.

Clause 48 [Drug treatment and testing orders]:

Lord Henley moved Amendment No. 219: Page 37, line 9, at end insert— ("() The Court shall not make a drug treatment and testing order until it has obtained and considered a pre-sentence report.").

The noble Lord said: We broadly support the provisions set out by the Government in Clauses 48 to 51 dealing with drug treatment and testing orders. We wish them well with their aims in this series of clauses. As the noble Lord will see, I have tabled only one amendment, Amendment No. 219, which is perfectly self-explanatory. It suggests that the court should not make a drug treatment and testing order until it has obtained and considered a pre-sentence report. No doubt I shall be told that that is exactly what will happen and that it is somehow dealt with in these clauses and I have missed it.

However, there is one other point that I wish to deal with. I hope that I shall not take up too much of the Committee's time, but it is a matter to which I wish to return. It was brought to my attention by the Standing Conference on Drug Abuse (SCODA), which raised concerns that these clauses apply to persons aged 16 or over and are not confined merely to those aged 18 or over. A number of concerns were expressed and I should like briefly to run through them. I hope that the noble and learned Lord the Solicitor-General will possibly respond to some of them and, if not, perhaps he will deal with them in writing. They are matters to which I and possibly some others will wish to return at Report stage.

Young people aged under 18 years—and for these purposes those aged 16 and 17—are "children" under the Children Act 1989. To provide services for them with adults under the testing and treatment order would possibly go against the spirit of the Children Act. The Social Services Inspectorate report, Substance Misuse and Young People, published by the Department of Health in 1997 states: Treatment and welfare interventions with children and young people under 18 arc, in the main, governed by a statutory framework which does not apply to adults, and, Any approach needs to take into account the age and relative understanding of the child and young person.

The second point I wish to make is that it has been argued—and I should be grateful for comments from the noble and learned Lord—that to include under-18 year-olds, if a residential programme is proposed, would contravene the United Nations Convention on the Rights of the Child. Article 37(c) states that: every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so.

The third point that we wish to make is that patterns of drug misuse in children and young people are very different from those of adults. In summary, their use of drugs appears to be less dependent, to include a wider range of substances and, where use is dependent, to be linked to behavioural problems. For those reasons, adult drug treatment models are not necessarily applicable. Evidence brought together by the National Health Service Health Advisory Service thematic review Children and Young People, Substance Misuse Services indicates that most young people for whom drug misuse is a significant problem have very complex needs. Again, if I may quote from that report, it states: Vulnerable young people with problems resulting from drug or alcohol use or misuse almost invariably have other behavioural or emotional problems … and that these present a diverse range from truancy to child abuse, from criminality to homelessness. These complex needs could possibly best be met under Section 17 of the Children Act 1989 which deals with those in need and Section 47, those at risk. Under 18 year-olds' drug use needs to be addressed within this context. Adult drug services are neither holistic nor linked to children's and families' services.

The Social Services Inspection Report noted that there were some consistent general trends and factors in children's drug use: namely, a significant increase in the use of illegal drugs, particularly in the last five years: a greater range of drugs being used than ever before: a drop in the age of initiation into drugs and alcohol: regional variation in patterns of drug use and trends within different groups within any community: and most drug use among young people is experimental and one-off.

There are, however, a number of young people whose drug use is dependent and harmful to them. This was noted in the Social Services Inspectorate Report. For example, it noted that: All local authorities reported small but significant numbers of young people who were dependent or chaotic drug users. The Social Services Inspectorate Report has, therefore, recommended that both for the majority of young people and for those at risk from serious harm, there is need for Substance misuse services for young people … need to relate to the age and developmental stage of the child and [for there to he] a range of services at different levels of intervention.

The report was concerned that young people were dealt with separately from adults because the, models and methods of drug and alcohol treatment … are largely based upon philosophies and practices developed for adult misusers.

The fourth point I wish to make is that to make the testing and treatment order fit with the young offender strategy would take some considerable reworking with regard to under 18 year-olds and would, for example, need to have built in the involvement of parents, particularly with regard to revocation, review and the making of the order.

The last point I wish to make is one where, again, I apologise to the noble and learned Lord for deviating slightly beyond the scope of the amendment which I put down, but it is something to which I should like to return. In the main, young offender strategy is positive and the provision of young offender teams should provide the right source for young offenders to access appropriate and holistic treatment, rather than them being covered by Clauses 48 to 51.

I hope that the noble and learned Lord will find that of use. If he would prefer to write to me in further detail on the amendment, I should be perfectly happy to accept that. I appreciate that I have raised the matter without giving him notice. It is something that I think is important and I would wish to come back to it at a later stage, on Report. I beg to move.

8.45 p.m.

Viscount Tenby

I wish to associate myself with Amendment No. 219 just moved by the noble Lord, Lord Henley. Although his remarks about young offenders' drug abuse may be slightly wide of the amendment, I wish to say how much I agree with some of the points that he made.

I am aware of the pressure on the probation service with the increasing number of requests for pre-sentence reports, but I am sure we all agree that they are a vital tool in evaluating sentencing options and building up a full picture of the defendant's background and patterns of offending behaviour, if there are any. It seems to me that a pre-sentence report would be a necessary preliminary to getting a drug treatment and testing order into existence. So I support the amendment.

Lord Falconer of Thoroton

Two separate points were raised by the noble Lord, Lord Henley. The first was the one specifically covered by his amendment which says: should one have a pre-sentence report before one makes a drug treatment and testing order? We accept entirely the principle that a court should obtain and consider a pre-sentence report before making a drug treatment and testing order and we believe that this will often happen in practice. A court will in any event be obliged, under Section 6 of the Criminal Justice Act 1991, to obtain and consider a pre-sentence report before making a drug treatment and testing order, unless it considers that the circumstances of the case make it unnecessary to do so.

So from Section 6 of the Criminal Justice Act 1991, there will be an obligation to obtain a pre-sentence report unless circumstances make it unnecessary to do so. Such unforeseen circumstances may arise in practice and there is little to be gained by specifying in statute that a pre-sentence report must be obtained. To do so would separate the drug treatment and testing order from the general context of community orders in the sentencing framework established by the Criminal Justice Act 1991.

Moreover, it is a statutory requirement that the offender consents to the making of the order. It would be unreasonable to expect the offender to consent without having been informed of the expectations of the treatment provider. That means that an assessment interview should have taken place. The pre-sentence report would be the primary mechanism for that information to be reported to the court. It is therefore unlikely that a court would wish to make a drug treatment and testing order without having considered one.

It is intended that the drug treatment and testing order should be strictly targeted and that courts should only use this disposal where the offender is assessed as suitable for it. It is our expectation that a pre-sentence report assessment will be made in the vast majority of cases. We intend to issue guidance to probation services, sentencers and to treatment providers on the use of the order, which will set out for sentencers the need to obtain a PSR in all but the most exceptional circumstances.

I hope that in the light of this explanation, the noble Lord, Lord Henley, will agree to withdraw his amendment. We are all in effect singing the same song in relation to that.

Perhaps I may deal with the broader points that the noble Lord made, which he rightly pointed out were not in effect covered or prefaced in any way by the terms of the amendment. In essence, his worry is this and I am grateful to him for raising it. The drug treatment and testing orders apply not to over-18s but to 16s and over. So there are people, children who will be affected by them. Is that right and proper? Is it a breach of the UN obligations imposed in relation to the treatment of children?

First, as to the second point, DTTOs (drug treatment and testing orders) are intended to replace the requirement as to treatment for drug dependency which can be attached to any probation order by virtue of paragraph 6 of Schedule 1A to the powers of the Criminal Courts Act 1973. A probation order can be imposed under Section 2 of that Act on any person aged 16 or over. So we think it extremely unlikely, if that is what it is replacing, that there is to be a breach of any international obligation. We think it very unlikely that it is inconsistent with the Children Act 1989.

If one looks at Clause 49, what a drug treatment and testing order involve is an order with the consent of the offender that he shall submit to testing for a period of time and that he should comply with a condition in relation to treatment; that treatment being treatment as a resident in such institution or place as may be specified in the order or treatment as a non-resident in or at such institution or place at such intervals as may be specified. The effect of the provision therefore is to give the court disposing of somebody of 16 or over convicted of an offence an additional piece of armoury in their locker. The court will be able, I respectfully submit, to consider whether or not in relation to the facts of a particular case the drug treatment and testing order is an appropriate order to make. They will be able to consider whether, on the facts of a particular case, a 16 or 17 year-old would benefit from that.

It seems to me that it must be to the advantage of the court to have that additional power in its locker to deal with an individual aged between 16 and 18. It must be appropriate to be able to deal with that in the appropriate case rather than having to refer the matter to the family proceedings court, which appears to be what underlies the concerns of the noble Lord, Lord Henley. So giving courts the power seems sensible. They do not have to use it. One can, I think, trust courts to at least consider when it is appropriate to do so. That does not seem to me to be either a bad thing or a harmful thing: it seems to me to be a positive thing.

We know all too well that those aged between 16 and 18 are very often just the sort of people who would benefit from an early intervention in relation to drug treatment and testing to perhaps get them out of the sorts of habits that led them into crime. I hope I have dealt with some of the concerns raised by the noble Lord. If there are any that I have not dealt with, then I undertake to write to him. I shall check Hansard to see that I have dealt with them all.

Lord Henley

I am very grateful to the noble and learned Lord. I note that we now have to refer to the drug treatment and testing order as a DTTO. I rather hoped, when I left the Ministry of Defence some three years ago, that I had got away from acronyms but it seems that wherever one goes one can never quite escape. I am very grateful, as I say, to the noble and learned Lord for his response to my substantive amendment. I also noted what he had to say on the further points that I made. As he has done, I also promise to look very carefully at his response and possibly come back to these points at a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Clause 49 [Requirements and provisions to be included in orders]:

Baroness Hilton of Eggardon moved Amendment No. 219A: Page 38, line 9, after ("officer") insert (", or in the case of a person under 18, a member of the youth offending team for the area.").

The noble Baroness said: With the leave of the Committee, I will present the amendment in the name of my noble kinswoman, Lady David. I align myself with what the noble Lord, Lord Henley, said about the specific needs of young drug takers. They are often immature and often children, and those between 16 and 18 therefore need to be part of the general system of strategies for dealing with young people and children within a particular area. This amendment therefore seeks to ensure that the supervising officer will be a member of a youth offending team which will be familiar with the needs of particular young people in a particular area and will have well placed strategies for dealing with young people, juveniles and young children. It is therefore more appropriate that they should be supervised by a probation officer more used to dealing with adult offenders who may not have at hand all the facilities and the awareness of what may be done for children in particular areas. I beg to move.

Lord Northbourne

I support the amendment. It seems to me that in particular younger drug offenders are going to need support by something like mentoring or befriending. Without that the treatment which is proposed is very likely to be unsuccessful. I suggest therefore that this is a good amendment.

Viscount Tenby

I too support the amendment moved by the noble Baroness, Lady Hilton. We have created, or are going to create, these youth offender teams so let us give them some work to do. It seems to me that where you have under-age people engaged in these things you really have got to have specialist youth offender people counselling them. This is not to say anything against senior probation officers. Of course riot. But it seems to me that where you have young people they should be counselled by people from the youth offender teams. I strongly support the amendment.

Lord Williams of Mostyn

I understand and sympathise with the purpose of the amendment. What it would mean is that for any person under the age of 18 subject to a drug treatment and testing order that person could be supervised by any member of a youth offending team. Under Clause 30(4) that could be a probation officer, a social worker, a police officer, a person nominated by a health authority or a person nominated by the chief education officer. By Clause 30(5) it is provided that it might include such persons as the local authority thinks appropriate, and that might include members of the local authority youth service or of voluntary organisations.

It will be possible under the present regime, as envisaged in the Bill, for a young offender subject to a drug treatment and testing order to be supervised by a probation officer who is a member of a youth offending team. This may well be appropriate, particularly when a drug treatment and testing order is made alongside another community sentence which is supervised by the youth offending team; but it does mean that it is essential that the work be properly co-ordinated. We intend to put out guidance to ensure co-ordination, but bearing in mind the very wide span of those who could be on a youth offending team we do not think it is appropriate that such an order for drug treatment and testing should be supervised by any member of a youth offending team. The intention is that probation services will be funded to buy treatment for those subject to the orders outside the usual community care arrangements. They will have to establish contracts and protocols with treatment providers, with which other members of the youth offending team may not be familiar. Therefore, I sympathise with the purpose behind the amendment, but it casts its net too wide, I suggest, to obtain what we believe would he the maximum benefit. The proposed arrangements that we suggest allow for maximum flexibility based on local judgment hut do not set it as wide as the amendment would.

Baroness Hilton of Eggardon

Looking more closely at the amendment, of course the Minister is right: it is too widely drawn. I think the intention was that it would be a probation officer who was a member of the youth offending team. I therefore beg leave to withdraw the amendment and reserve the right to try to devise an amendment which is more strictly drawn so as to ensure that it is a probation officer who is included as a member of the youth offending team. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

Clause 50 [Periodic reviews]:

The Earl of Mar and Kellie moved Amendment No. 220: Page 38, line 27, leave out from ("at") to end of line 28 and insert ("specified intervals").

The noble Earl said: This amendment makes, I believe, a useful rearrangement of the review procedure for what I would prefer to call the DT and TOs. As it stands, Clause 50 (1)(b) requires a review to be held in open court at least once a month. I have no problem with that. At the start of the order it is useful for the DT and TO holder to know that his progress is going to be monitored and reviewed at frequent intervals. This is likely to ensure compliance with the order. Any backsliding will be picked up speedily.

Where I find this procedure to be inadequate is in the middle and later stages of the order. I acknowledge that Clause 50(6) allows the court to dispense with the offender's personal appearance at the review hearing. I believe that there will be merit in allowing the court to lengthen the period between the review hearings in the middle stages of the order. It is important for the offender to gain confidence in avoiding the use of illegal substances or, indeed, prescribed drugs and at the same time to gain confidence to enable him to make personal appearances at the review hearings.

Without the power to vary the review period, I fear that the courts will implement Clause 50(6), sooner than may be efficient. That would be a mistake in the middle period of the order and in the middle period of the treatment. It could lead to offenders believing that they had overcome their involvement with drugs at a premature moment. That would be a dangerous signal to a fragile resolve. The opportunity to move the review hearing steadily to a mature position would be useful. I beg to move.

9 p.m.

Viscount Colville of Culross

Amendment No. 220A in my name has been grouped with Amendment No. 220. I listened with interest to the noble Earl and agree with him. Though I do not know a great deal about how things happen in Scotland, I know a good deal about how they happen in England. I tabled my amendment as a vehicle to ask the Minister a little more about these orders.

First, I should say that I welcome the addition of this form of treatment among the armoury that we have to deal with these difficult cases. As the noble and learned Lord the Solicitor-General said, we use probation orders with suitable conditions in order to provide, usually residential treatment but not necessarily so, over a substantial period of time for people who, first, show some inclination to accept treatment and, secondly, who are then assessed by the experts as being suitable for it. That period usually takes a minimum of four weeks.

There are just two things in this series of clauses which run contrary to the practice that is already widespread in the courts. First, instead of relying, as we have up till now, on privately-funded provisions and usually not many of them—I can think of one outside Bristol, another near Oxford and one in Norwich—and funding to send somebody there, we will have successive instalments of local services under Clause 48. I should have thought that, with the court working together with specially provided services in the area, there would rapidly be built up a considerable amount of mutual respect and understanding between the courts and the treatment services provided. We will not be able to use one of the orders until the treatment services are provided and presumably probation orders will continue where they are not provided.

In those circumstances, are the Government saying that they are sure that it is necessary to lay down all these rules in relation to how the courts should handle the matter? The noble Earl put his finger on the intermediate period. He is quite right. What usually happens—at least in severe cases—is that somebody starts off in a residential setting. After he has progressed through that treatment, he is moved to a halfway house, probably in the community, and begins to get himself back into ordinary life. All that is done under supervision with gradually relaxing rules and the offender gradually picking up the threads of normal life.

The supervision that is suitable at different stages is not the same, nor is it necessary to come back for reviews as often as may be necessary in the first few months. Amendment No. 220A therefore seeks to address the frequency with which such hearings should take place. However, does the Minister assert that he has not over-provided rules for the courts? He has done exactly the same in Scotland in Clause 75. I suggest, with great humility, that if I table an amendment to include all the provisions in Clause 50, subsections (1), (6) and (7), the Minister will say that it is unnecessary to include any of that in the Bill and that we must be able to trust the courts; they are able to make their own arrangements; they are sensible people and we do not have to lay it all down for them.

On the other hand, the Government have not followed that course. They have laid down some stringent guidelines and I am afraid that they may be too stringent, too circumscribing of the circumstances in which one can make the orders and will therefore put off the courts from using them because it will be too difficult to make sure that one complies with all the details. I do not want that to happen. Can the Minister say whether all of the statutory provisions in primary legislation are necessary for something that is, in essence, an experimental scheme? It might be better to leave out some of the detailed provisions and enable the Government, by guidance or, if necessary, by statutory instrument, to see how it works and fill in such gaps as may be left.

I put that forward as a helpful suggestion. I want it to be as easy as possible for the courts to use these orders and I want there to be built up a good liaison between providers in the local area and the local courts who send people to them. The last thing I wish to see is that this should fail as a result of over-restriction and over-complication of the rules. I therefore support the amendment of the noble Earl at the same time as speaking to mine, and make those points to be helpful to the Minister.

Lord Williams of Mostyn

I am grateful for those helpful observations from the noble Viscount and accept the amendment in the spirit in which it was offered.

Amendment No. 220 would enable the court to order a daily or a weekly review of a drug treatment and testing order. We think that the minimum frequency is right; namely, monthly. If Amendment No. 220 was adopted, it would deprive the courts of any statutory indication of the desired frequency of reviews which we believe are generally suitable. We therefore see no benefit in accepting the amendment.

Sentencers particularly queried the necessity for frequent review hearings during our consultation process and the provision at subsection (6) of Clause 50 was drafted with the specific intention of preventing unnecessary hearings. We do, however, believe that the court ought to have an involvement in reviewing the offender's progress. We think that may well have a positive effect on the offender's motivation in treatment. Therefore, we have kept the requirement that there is at least one review hearing, followed by paper reviews where appropriate, at the intervals specified by the court. That is the purpose of Clause 50(6).

In respect of the noble Viscount's amendment, Amendment No. 220A, we believe that it does not produce anything that would have a significant effect beyond what is already offered in the Bill. Under Clause 50(6) the court may decide at a review hearing that the offender's good progress is such that further reviews may take place without a hearing. That gives flexibility to the court. By virtue of subsection (2) of Clause 50, at a review hearing the court, after considering the responsible officer's report, may amend any requirement or provision of the order. So we again believe that subsection (2), as part of the general regime of Clause 50, and subsection (6), as part of the same regime, give flexibility to the sentencing court.

I turn to the specific point made by the noble Viscount. He asked whether we have over-provided by way of restrictions. We think not. We have wanted to have a regime which is intended to be firm and supportive; to give a structured regime to young people who will be in difficult circumstances, many of whom would benefit from such a regime—I think many would welcome it—but equally we recognise the need for flexibility in the court regime which we have sought to provide by subsections (2) and (6). On the basis of those explanations, I hope the noble Earl will not wish to press his amendment.

The Earl of Mar and Kellie

I am grateful to the noble Viscount for his support. The Minister pointed out to me that I had misunderstood Clause 50(1)(a). I thought that "intervals of not less than one month" meant four weeks. Those who suggested the amendment to me thought that they had to be at least once a month or possibly even more frequently. That is why I was asking for a longer period. That point has now been cleared up in my mind.

I turn now to drug treatment and testing orders. I am concerned that the supervision involved does not seem to refer to getting offenders to look at their offending behaviour. It seems to be wholly concentrated on their drug habit or misuse. When it comes to drug testing, which can be very frequent, I believe that cannabis lasts in the bloodstream for far longer than any other drug. I have heard people talk about 28 days. A single breach would show up quite frequently if the person was to be tested weekly. I wonder whether something about that can be incorporated in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 220A not moved.]

Clause 50 agreed to.

Clause 51 agreed to.

Schedule 3 agreed to.

Clause 72 agreed to.

Clause 73 [Requirements and provisions to be included in drug treatment and testing orders]:

Lord Mackay of Drumadoon moved Amendment No. 221: Page 60, leave out lines 29 and 30 and insert ("and the nature of the treatment shall include a requirement to attend regular drug counselling sessions while the order is in place.").

The noble and learned Lord said: The terms of the amendment are relatively self-explanatory. They seek to place on the face of the Bill—in new Section 234C of the 1995 Act—a mandatory provision that as part of the treatment requirement of a drug treatment and testing order the accused upon whom the order is pronounced should, in addition to the other forms of treatment he may be receiving under the direction of the specified person, also attend regular drug counselling sessions.

Clearly, the treatment that an offender with a dependence on drugs might receive could include drug therapy, some form of psychiatric advice, or opportunities to improve his self discipline such as work opportunities of a voluntary nature—a great range of ideas which the specified person—the treatment provider—might feel would be helpful. Equally, there is a view that the courts should be seen to be injecting a measure of discipline into the order which has been pronounced. It is suggested that the requirement that there should also be drug counselling sessions on a regular basis might provide that measure of discipline.

I turn to Clause 76 of the Bill where one sees the provision which deals with the breach of drug treatment and testing orders. It is only a breach of the requirement of an order that gives rise to the commission of a statutory offence. That may be felt as a further reason why the order should not be in quite as general terms as Section 234C(2) would currently permit. That is why I am moving an amendment which seeks to delete lines 29 and 30 on page 60 of the Bill and substitutes the words that I suggest. I beg to move.

Lord Hardie

The intention of this amendment appears to be to strengthen the requirements placed on offenders who are placed on drug treatment and testing orders. But the amendment as proposed goes against one of the central principles of such orders; namely, that we should not ask the courts to prescribe the appropriate treatment for each offender. Indeed, the amendment removes the very flexibility to which the noble and learned Lord, Lord Mackay of Drumadoon, referred in his comments a few minutes ago.

The question of treatment is a matter for consideration and decision by the identified person who will be providing the treatment in the light of an assessment of the individual offender's needs. It is very important that the treatment element of an order is as flexible as possible for the reasons explained by the noble and learned Lord since an offender's needs and requirements will change within the duration of an order. We do not want to be prescriptive. The exception is that the court should indicate whether the treatment should be on a residential or non-residential basis. That is provided for in subsection (2).

Moreover, the suggested provision for treatment to include drug counselling sessions may be less appropriate for many experienced and knowledgeable users who may require a menu of options other than counselling. The options that they may require may include access to maintenance, reduction and de-toxification programmes to support their continuing efforts to reduce drug misuse. Drug counselling may be appropriate—it is accepted that in many cases it will be appropriate—for some users at particular points in the order, but that is best left to the discretion of the person who is providing the treatment in the light of the continuing assessment of the offender's circumstances. I ask the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

I am not sure that I entirely accept what the noble and learned Lord says that the effect of this amendment would be to remove flexibility. All it would do as I understand it and as those who suggested it also understand, would be to impose counselling in addition to what other forms of treatment are appropriate. It is important that these new orders that I personally welcome should command respect. I very much hope that they will. One can only hope that those who are specified as treatment providers recognise that it is important that the orders give a measure of discipline to the offenders and are perceived to do that by members of the public. However, having listened to what the noble and learned Lord the Lord Advocate has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 222: Page 61, line 20, leave out from ("to") to ("him") in line 21 and insert ("ensure compliance with the requirements of the order, and to enable").

The noble Earl said: This is a probing amendment which is designed to find out why drug treatment and testing orders are to be afforded such minimal supervision. The minimalist supervision required by the Bill is unlikely to meet the needs of those seeking to end their addiction to drugs. Although involvement with drugs is easy to start, it is true to say that it is much more difficult to get away from it. If the drug treatment and testing orders are to be aimed at addicts then the supervision will be inadequate. If, however, the drug treatment and testing order is aimed at the casual user, it may well be effective.

I think I am establishing an order of scale among community disposals for drug users. It seems that the probation order with an extra condition of treatment for drug addiction will be superior to the drug treatment and testing order, which may be judged to be the more lightweight.

I am both amused and concerned by the new style of the monthly review. Unusually, it will be carried out by the sheriff in open court and with the person subject to the order presumably in the dock. It is a tragi-comical situation and I rather suspect that it will create sufficient stress in the individual concerned in the preceding week as to cause him or her to breach the order! I wonder whether the new procedure is designed to bring home to the person on the order the urgency and seriousness of it and, I suppose, the possibility of immediate retribution for failure.

Review of an activity such as drug rehabilitation is necessarily a complex and sympathetic process. A more conducive location may be more appropriate. As I believe that more supervision will be necessary than is prescribed by the Bill, I beg to move.

Lord Mackay of Drumadoon

I rise briefly to support the amendment as a probing amendment. I pose this question: what activities that a supervising officer might carry out is the subsection designed to exclude? As I understand it, he is limited to activities which will enable him "to report" in the first two instances and "to determine" in the third instance. What activities might he carry out which would be a mischief which the subsection seeks to prohibit?

Lord Hardie

As I understand it, the intention of the noble Earl's amendment appears to be to ensure that an offender will comply with the terms of a drug treatment and testing order. However, if the amendment were accepted, it would place a specific obligation on the local authority's supervising officer to ensure that the offender complies. That would be contrary to the main thrust of the order, which is not primarily about supervision, but rather about the provision of treatment to eliminate or reduce the offender's dependency on drugs. An order may not be made unless the offender agrees to comply with the terms of the order. It is a little like a probation order: the offender has to agree to comply with it. We hope that by doing so he is indicating a willingness and a preparedness to endeavour to break his drugs habit.

The onus of compliance rests with the offender and it is not necessary or appropriate to seek to place an additional burden on the supervising officer to ensure compliance. In any event, giving practical effect to such an additional requirement would almost certainly be problematic. The supervision element of the drug treatment and testing order exists only to allow the supervising officer to report back to the court on the offender's progress. If the court—this is the point I want to emphasise—considered either at the beginning or in the course of the monthly reports that the offender required closer supervision, it would be open to the court to make or to alter the order in conjunction with another order with a more specific supervision requirement. It may be a probation order, to which the noble Earl has referred. In light of that explanation I invite the noble Earl to withdraw his amendment.

I turn to the point raised by the noble and learned Lord. Lord Mackay of Drumadoon. I am not sure how I can indicate the particular functions that may not be covered. Subsection (8) of the clause indicates that supervision is to be carried out for the specific purpose of enabling the supervising officer to report on progress to the court and to report any failure on the part of the offender or recipient of treatment to comply with the specific terms of the order, as would happen with a probation order where a breach would be reported to the court. The supervising officer has an obligation to consider whether he should apply to the court for variation or revocation. One example would be where he believed that closer supervision was required and that perhaps an additional order such as a probation order should be imposed to provide additional support or encouragement to the recipient of treatment to break the habit. I hope that that answers the question posed by the noble and learned Lord, but I suspect not.

Lord Mackay of Drumadoon

The noble and learned Lord may suspect wrongly. As I understand his answer, the clause specifies the purposes for which the supervising officer shall carry out inquiries. The purpose is not to exclude him from any activity that he can reasonably be anticipated to pursue. If that is correct I suggest that perhaps further thought be given to the way in which lines 19 to 21 are framed. As I read them they appeared to limit the way in which the supervising officer went about his duties. However, as I understand the response that I have received I may be wrong about that.

The Earl of Mar and Kellie

I am grateful to the noble and learned Lord the Lord Advocate for spelling out that drug treatment and testing orders are focused on the drugs element of a person's life and do not deal with his or her offending behaviour. Perhaps the situation that I describe in which a probation order with an additional condition of drug treatment is the more onerous of the two community disposals is right. Perhaps that is the way it is supposed to be. I believe that those who read Hansard will be keen to understand what a drug treatment and testing order is all about and how closely focused it is.

This is a new task for the sheriff. He does not normally review progress on orders. Usually the sheriff ends up hearing about the failures in the sense that breaches of probation appear before him. One wonders whether this is a new era in the supervision of community sentences by sheriffs or whether it will be unique to drug treatment and testing orders. Following those one or two wee comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73 agreed to.

Clauses 74 to 77 agreed to.

9.30 p.m.

Schedule 5 agreed to.

Clause 78 [Interpretation provision in relation to drug treatment and testing orders]:

Lord Hardie moved Amendment No. 223: Page 66, line 37, leave out ("234D to 234G") and insert ("234B to 234J").

The noble and learned Lord said: This amendment rectifies an error which was made when the Bill was drafted. The reference to drug treatment and testing orders in Clause 78, which concerns interpretation provisions, is inaccurate because it does not include all relevant parts of the Bill. This amendment rectifies that. I beg to move.

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 52 [Reprimands and warnings]:

Lord McNally moved Amendment No. 224: Page 40, line 36, at end insert ("or (c) where the offender has previously been warned, the constable considers that to continue a rehabilitation programme arranged under section 53(2)(b) below would be more likely to prevent the commission by the offender of further offences than prosecuting him for the offence and the constable considers the offence to he not so serious as to require a charge to he brought;").

The noble Lord said: The amendment provides for a greater discretion for young offenders to receive a second warning for a minor offence when the police consider that continuing with a programme of guidance and rehabilitation would be more likely to prevent reoffending than prosecuting the young person for a further offence.

This could be appropriate in cases where the young person has committed a further minor offence but the police and the youth offending team nevertheless consider the work being done with the child and family, under a programme of guidance and rehabilitation, is showing signs of success which it would he unfortunate to jeopardise.

It could also be appropriate where a minor offence, committed before the earlier warning, comes to light only after the young offender has received a warning and begun a programme of guidance and support.

The clause, as drafted, would apparently also require prosecution in these circumstances. The National Association of Probation Officers welcomes the inclusion in the Bill of the possibility of a repeat warning in appropriate cases. It supports a second warning on the specific ground that the police consider persisting with a programme would be a better option than a prosecution for a further minor offence.

NAPO is surprised—in my amendment I commit the same sin—that the term "offender" is used throughout this clause when there has not yet been a finding of guilt. It would welcome its revision.

Lord Northbourne

I support the amendment. I recognise that we are on the horns of a dilemma here. Repeated cautions have proved counter productive and have led to cautions becoming a mockery. On the other hand, many young offenders have got into the habit of habitual offending before they are caught for the first time, and it takes time for them to get out of that habit during the process of rehabilitation.

To make one warning the only warning they can have before they become criminalised is a mistake. In Toynbee Hall we run a befriending programme and we have a very high rate of rehabilitation. It takes time and during the process of intensive befriending—six hours a week, one-to-one befriending—sometimes the children slip back once or twice. Usually, by the end, it is successful. Therefore this amendment is enormously helpful.

Lord Williams of Mostyn

The noble Lord, Lord McNally, made the point about the use of the term "offender". That is because by virtue of Clause 52(1)(a) the offender is defined as a child or young person who has committed an offence. That can only lead to a caution where the child or young person has admitted the commission of the offence. So it is not unreasonable, the offence having been proved by way of admission, to call that person an offender.

I take the points made by both noble Lords. We are resolved to avoid the dangers mentioned by the noble Lord, Lord Northbourne, about repeated cautions or—it is just as fundamental—the opportunity that a final warning will not really be such. We share a deep public unease about repeated cautions, which are very often linked to delays in the system.

Repeated cautions and delays are counter-productive for many young people. We need to provide a clear, unambiguous message that offending is wrong and that continued offending will be met by a progressively tougher response. We want to have a system that is straightforward and well understood, and which we believe therefore would be properly respected, which cautioning, by many young people at the moment, is not. There should be clarity within the youth justice system if we are to get young people to respect the criminal justice system and to have the opportunity of early intervention on their behalf by way of support and assistance.

The amendment moved by the noble Lord, Lord McNally, gives an additional ground for issuing a second warning. I concede that there is already provision for a second final warning in the tightly defined circumstances in the Bill. We believe that that discretion would be too wide. Apart from the point of principle, we believe that it would be cumbersome for a police officer to have to come to a conclusion about rehabilitation, and time would therefore pass. In many circumstances, delay is the enemy of the offender as well as the enemy of the system.

We have pondered about this carefully, and thought that we should draw the line in this way. Having reflected on the lessons of the past, we have come to the conclusion that many young people are just not helped at all by too flexible an approach. We believe that we have struck the balance about right. I cannot claim that we think that we have done more than that, but that is the response that I offer the noble Lord.

Lord McNally

I recognise the dilemma that the Minister faces in drawing a line in these cases. Some experienced people and bodies are concerned about where he has drawn the line. I am sure that they will read what he has said this evening. We may have to come back and explore this again. I thank him for the spirit in which he responded. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 225: Page 40, line 40, at end insert ("(4A) Before administering a final warning to a person a constable shall as soon as practicable refer the person to a youth offending team. (4B) A youth offending team—

1. (a) shall assess any person referred to them under subsection (4A) above, and
2. (b) unless they consider it inappropriate to do so, shall arrange for him to participate in a rehabilitation programme.

(4C) A constable may administer a final warning to a person where it is considered inappropriate for that person to participate in a rehabilitation programme. (4D) When a person has completed a rehabilitation programme under subsection (4B)(b) above, the youth offending team shall as soon as possible deliver a report to the constable referring the person under subsection (4A) above, indicating whether or not they are satisfied with the manner in which that person has participated in the rehabilitation programme. (4E) Subject to subsection (4C) above a final warning may not be administered by a constable unless the constable has received a report from the youth offending team indicating that they are satisfied with the manner in which that person has participated in the rehabilitation programme.").

The noble Lord said: I shall speak also to Amendment No. 230. Within the group is Amendment No. 233, and I can assure the Committee that I shall not move it when it is reached. For the convenience of the Committee, I say also that I shall not be moving Amendment No. 232A to Clause 53 when I come to it.

As my noble and learned friend said in regard to an earlier amendment, I believe that these amendments speak largely for themselves. They merely provide for a greater involvement of youth offending teams—a point to which the noble Viscount, Lord Tenby, referred on an earlier amendment, as something that we should be pursuing—by making greater use of them. The amendments merely allow for greater use of the youth offending teams when final warnings are to be given. The amendment provides: Before administering a final warning … a person … shall as soon as practicable". be referred to a youth offending team which will then obviously assess the individual and, unless it considers it inappropriate, shall arrange for him to participate in a rehabilitation programme.

Amendment No. 230 suggests that the Secretary of State shall publish appropriate guidance on what should be included in a rehabilitation programme arranged for a person under the subsection. As I said, the amendments speak for themselves. I look forward to hearing the Government's response which I shall consider. I beg to move.

Lord Williams of Mostyn

We return to consideration of a principle, which I sought to address in response to the amendment tabled in the name of the noble Lord, Lord McNally. We believe that a final warning is critically important. If it is to be of central significance it must be administered quickly. There must be a clear link between crime and punishment or sanction in the mind of the young offender. Three months to Members of your Lordships' House is not a very long time. Three months in the life of a young offender is a lifetime. One must bear in mind that children are not just small adults, but that their perspectives are completely different.

I understand that the amendments are put forward with good motive, but they involve deferring the issue of the warning until after assessment by the youth offending team and, where appropriate, participation in a rehabilitation programme. I stress that I understand the good motive behind them, but they would undermine the Government's central objective. We are not talking about potential delays of a few days or even weeks. The interval between the offence being committed and the young person receiving a final warning would be many months. That would destroy the whole purpose, structure and concept of the final warning.

For an intervention programme to be successful, it will have to be tailor-made for each young offender. It will involve a detailed implementation plan, probably including counselling, reparation action with victims where appropriate, referral to some supervised community or youth activities and work to improve school attendance and performance. Those activities cannot be completed quickly, nor will the young person's commitment to the programme be clear in many cases until some time has passed. If the final warning cannot be issued until all those steps have been taken, with the youth offending team satisfied with the young offender's participation in the programme, there will plainly be significant delay.

Again, arguments of principle are involved. If a final warning is dependent on a satisfactory participation and intervention programme, assuming that an intervention programme continues for some months, is it fair that when a young offender fails to complete satisfactorily he is prosecuted for the original offence? That would be the implication of the amendments. We do not believe that that would be satisfactory in the interests of the individual child and it certainly derogates from the structure and the scheme which we put forward. The rehabilitation programme would not be the sentence of the court. Failure to complete it could not be dealt with in the same way as a breach of a community penalty.

As regards legal principle, there is the question of whether one ought to induce a child into an intervention programme with the possibility that if he fails to comply, and as a warning would not then necessarily be appropriate, prosecution might be the only alternative. We believe, therefore, that delay is the enemy of the young child. We want a warning delivered promptly so that it firmly focuses a connection between sanction and offence in the young offender's mind. Despite the fact that the amendments are well meant, we believe that they would have harmful consequences.

Lord Henley

I am grateful to the Minister for that helpful explanation. I ought to have listened more closely to the explanation which he gave to the noble Lord, Lord McNally. However, to offer the Minister some succour as we head towards ten o'clock, I assure him that I shall not return to this point on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 226: Page 41, line 3, at end insert— ("() Subsection (5) above shall have effect in relation to a young person who has attained the age of 17 as if the words "in the presence of an appropriate adult" in paragraph (a), and the words "and the appropriate adult" in paragraph (b), were omitted.").

The noble Lord said: There are a number of amendments before us tonight concerned with the requirement that an appropriate adult must be present when a warning or reprimand is issued to a young person. Obviously, that is intended as a safeguard for a young person at a police station and to ensure that the young person is aware of the consequences of receiving the warning or reprimand. An "appropriate adult" in the Bill includes a parent, guardian, representative of a care home, social worker or, if none is available, •any responsible person of 18 or over who is not a police officer or employed by the police service.

The Government seek to make an amendment to the clauses which concern "appropriate adults". That is really to mirror the existing "appropriate adult" provisions under the Police and Criminal Evidence Act 1984. However, in one important aspect, as presently drafted, the Bill is not consistent with PACE. Under PACE a juvenile is a young person aged under 17 whereas Clause 52 regards 17 year-olds as juveniles. Therefore, there would be an anomaly and the consequence would be that a 17 year-old could go through the process of arrest, detention and interview without a parent or appropriate adult, only for one to be called in at the very last stage. That would be an absurdity.

That does not mean that parents should not be present when a 17 year-old receives a warning or reprimand. In most cases, if the young person is still living at home, the presence of one or both parents is a valuable means of ensuring that they are fully aware of the child's offending behaviour and, one would think, may well in some cases be a further sanction to assist in preventing further offending.

Therefore, we shall issue guidance to police forces to make it clear that the presence of a 17 year-old's parent or guardian should always be looked for and that obviously parents can play a critical role in helping a young person not to reoffend.

Where the parents or guardian are unable to attend the police station for some practical reason or, as in some cases, they simply refuse, there will be no statutory obligation to secure the presence of an alternative appropriate adult. On the basis of that explanation, I beg to move.

9.45 p.m.

Lord Henley

I rise in a spirit of genuine inquiry. I have nothing against the amendment as explained by the noble Lord but I am perplexed by its drafting. I do not know why it should be drafted in such an obscure manner which makes it virtually impossible to understand exactly what the amendment is doing to subsection (5). Once those words are added on page 41 at the end of line 3, one then has to look at that and then refer back to paragraph (b). I ask the Minister to try to do that himself. Perhaps he will ask the parliamentary draftsman to find a simple way of achieving his objective. It should be possible for someone like me and for others to understand exactly what is intended without having to refer to the noble Lord's lucid speech which will appear in Hansard tomorrow.

Lord Williams of Mostyn

If we can improve it, then we shall try to.

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 227: Page 41, line 21. at end insert ("or a probation officer").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 228. The amendments relate also to the definition of "appropriate adult" in relation to who should be present when a juvenile is reprimanded or warned.

In these amendments I seek both to widen and to narrow the definition of "appropriate adult". As drafted, the provision that any responsible adult may act as the appropriate adult is totally inappropriate when one is dealing with young persons who need, as has been said already, to treat the reprimand or warning with considerable seriousness. As has also been said, over the years police cautions have fallen into disrepute often because the conditions in which they were administered have varied enormously. There has been a lack of uniformity and a tendency to treat them with considerable casualness. Therefore, it is extremely important that the appropriate adult should be clearly defined. It should be made clear to the child that it is someone with whom he is likely to have a continuing relationship and not just any old adult over 18 who may be brought in off the streets to act as a witness that the police are behaving properly.

I also feel that to include social workers in the definition of an appropriate adult but not to include probation officers is a mistake. Therefore my other amendment seeks to define probation officers as one of the appropriate adults who may be present. I beg to move.

Lord Williams of Mostyn

As I indicated a few moments ago, we want to make the definition of an appropriate adult consistent with that already provided for under PACE. The PACE provisions, of course, seek to safeguard a young person's interests through all investigative processes including charge.

If these amendments were accepted, we would have a situation—as I mentioned a few moments ago—where we had two quite different definitions of "appropriate adult", one for the investigation, as provided for by PACE, and another at the point at which a reprimand or warning is issued. We do not think that that is logical; we think it is impractical. We believe that the system of appropriate adults which operates under PACE works well and we do not see the necessity to introduce a different system here.

However, I reiterate, we appreciate that the role of appropriate adults needs to be covered by guidance to be produced by the Government. I have already undertaken that that will be done. The guidance will make it absolutely clear that, wherever possible, the adult with direct responsibility for the young person should be the appropriate adult present when a warning or reprimand is issued. The aim is to ensure that parents are aware of the extent and nature of the young person's offending behaviour and that they recognise their responsibilities for their children. I hope that with that explanation the noble Baroness will not seek to press these amendments.

Baroness Hilton of Eggardon

I do not seek to press the amendments but I am disappointed that the provision concerning any responsible adult will remain in place. I hope that the guidance that is issued will encourage police officers when organising reprimands and warnings not to resort to any responsible adults except in extreme circumstances. It should be someone who currently knows the child, or is responsible for him or her, or is likely to be responsible in future; otherwise, I think that reprimands and warnings will fall into the same disrepute as police cautions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 228 not moved.]

Lord Hardie moved Amendment No. 229: Page 41, line 26, leave out ("and any") and insert— ("(9) Any").

The noble and learned Lord said: In moving this amendment, I wish to speak also to Amendment No. 339. These amendments are purely technical. References to cautions given by the police in England and Wales to children or young persons occur in United Kingdom legislation. They can also occur in Scottish as well as purely English and Welsh legislation. It is therefore necessary for reasons of consistency to extend to Scotland the provisions that references in statute to such cautions should in future be taken to include a reference to a child or young person being reprimanded or warned. This is achieved by Amendment No. 339.

In order to avoid ambiguity we have introduced Amendment No. 229 which will ensure that the provision prohibiting future cautioning of children or young persons does not extend to Scotland where we do not have a formal system of police cautions and where therefore the provision would at best be meaningless. I beg to move.

The Earl of Mar and Kellie

I am certainly interested in the explanation of the noble and learned Lord the Lord Advocate because to me what is called a caution—I shall give it the correct Scots pronunciation of "kayshun"—is a form of temporary financial penalty. I wonder whether I am right about the spelling.

Lord Hardie

The noble Earl is, of course, correct. The word in Scots law pronounced "kayshun" is spelt "caution'", but what we are talking about here is something quite different. We are talking about formal police cautions in England which do not apply to children or young persons in Scotland.

On Question, amendment agreed to.

Clause 52, as amended, agreed to.

Clause 53 [Effect of reprimands and warnings]:

[Amendment No. 230 not moved.]

Baroness David moved Amendment No. 231: Page 41. line 31, leave out ("Where") and insert ("Before").

The noble Baroness said: I shall also speak to Amendment No. 232.

This amendment provides that a warning shall be given to a young offender after—not before—an assessment by a youth offending team.

The Bill provides that a warning will prompt an investigation of the young persons's circumstances and behaviour, which will normally be followed by a programme of intervention planned by the youth offending team which will provide guidance and support to help prevent reoffending. The Government consultation paper. Tackling Youth Crime, published in September, said that a warning, will need to he issued without unnecessary delay, possibly before a detailed assessment has been made of the scope for providing a suitable intervention programme and of the likelihood that the offender would complete the programme and benefit from it".

The Government invited comments on two options. Option A was that the warning would be issued before an assessment: the police or an invited member of the youth offending team would explain the likely demands of an intervention programme and the warning would be issued provided the young person agreed to undertake the programme in principle. Option B was that the warning would he issued after the case had been referred to the youth offending team for assessment, to be completed within a time-limited period of, say, two weeks. The Bill as drafted incorporates Option A.

We favour Option B, whereby a warning would be issued after an assessment by a youth offender team. In practice it would be more difficult to gain meaningful consent by the offender to a diversion programme when the details of the programme were unknown or hypothetical. This amendment therefore provides for Option B to he inserted into the Bill. As the Government invited comment, I hope that this comment will be taken seriously. It seems to have a lot of good sense attached to it.

Amendment No. 232, grouped with Amendment No. 231, would leave out subsection (4) of Clause 53, which provides that courts should not, except in exceptional circumstances, conditionally discharge a young offender who is convicted of an offence within two years of receiving a warning.

A conditional discharge can be over-used—but one reason for this is at present the current absence of any low-tariff non-financial penalty, which will be rectified by the introduction of the reparation order. However, there are many situations in which conditional discharge is entirely appropriate. These include cases where there are strong mitigating features, welfare considerations or developments since the offence which make a merciful sentence appropriate, but an absolute discharge (which should be used where the offender is technically guilty but no real blame attaches to him or her) is inappropriate or insufficient; where the court judges that the effect of a court appearance coupled with the threat of punishment for the current offence and any new one if the young person reoffends, constitute a useful and sufficient deterrent; or where the offence is trivial.

A high proportion of offenders who receive a conditional discharge on their first court appearance are not reconvicted. We would have no objection to a provision requiring courts to give reasons for giving a conditional discharge, as a useful discipline to ensure that there are positive reasons for using it.

Both these amendments are important and I hope that they will receive very sympathetic consideration. I beg to move.

Lord Williams of Mostyn

The noble Baroness is quite right in saying that the two options included in the consultation paper, which she described as A and B. were respectively the provision in the Bill and what the noble Baroness contends in Amendment No. 231.

The consultation paper highlighted the fact that there is a cost in giving the police more information upon which to base their decisions. The costs are: slowing down the process, introducing delays and therefore, for the reasons I mentioned on a number of occasions earlier in this general context, significantly reducing the impact of both the warning and the intervention. Responses to the consultation paper suggested that, in practical terms, there is or may be no clear distinction between the assessment and implementation phases of the youth offending teams' work. A number of respondents suggested that assessment may well take considerably longer than the two weeks suggested in the paper. We considered those comments extremely carefully. The noble Baroness said that the consultation paper invited comments and we considered them carefully. The Government decided that in the light of the comments the benefits of allowing for assessment before issuing a warning did not outweigh the crucial importance of providing a swift response to the young person's offending behaviour.

I need not repeat the observations I made earlier on related amendments. The second amendment, Amendment No. 232, removes from the Bill the proposed restrictions on the use of conditional discharge following a final warning. We believe that those restrictions are an essential component of the final warning scheme and should be retained.

If a young offender offends again after receiving a final warning, having taken part in a rehabilitation programme, effective action must be taken to break the cycle of offending behaviour. A conditional discharge would have quite the opposite effect, we think. It tells the young person that the court regards his or her continuing offending behaviour as insufficiently serious to warrant substantial punishment. It would do nothing actively to divert the young person from crime. We think that common sense would suggest that a young person who has already received a final warning and taken part in a rehabilitation programme is hardly likely to be dissuaded from crime by a conditional discharge.

Therefore, we do not believe the amendment to be necessary or appropriate. We think that the balance is properly struck in these respects.

10 p.m.

Viscount Tenby

Perhaps I may interpose before the noble Baroness, Lady David, makes her response to the Minister. I am always reluctant to endorse any measure which restricts sentencing options. Over the years, a conditional discharge has proved its value. I understand entirely what the Minister said about a person who has been subject to all the reprimands and various stages of the reprimand process not being perhaps susceptible to conditional discharge. But nevertheless I feel that it has earned its way over the years.

The point is that it has been used so much in the past because there has been no alternative. But we now have an alternative in the form of the reparation order. Surely the problem about the over-use of the conditional discharges can be easily overcome by making courts state the reasons for giving conditional discharges at any given time. I am sorry to interpose at this delicate stage of the amendment, but I urge that we come back to the point at a later stage.

Lord Williams of Mostyn

Perhaps I may respond to the noble Viscount. As the Bill is drafted at present, the conditional discharge as a sentencing option will be available but only in exceptional circumstances relating to the offence or offender so that flexibility is retained there. I shall not trespass on a further amendment about the giving of reasons, Amendment No. 232A, but I take the noble Viscount's point.

Viscount Tenby

I am sorry, I jumped the gun.

Lord Williams of Mostyn

Not at all, it was helpful that the noble Viscount referred to that in the context.

Baroness David

We are getting used to having not very good responses—or not very satisfactory responses, should I say. I am disappointed. I think that Amendment No. 231 and Option B are superior to what is in the Bill. I was glad to have the noble Viscount's support for keeping the conditional discharge. It can be used in exceptional circumstances, but I shall not ask the Minister to give me a list of what those possibly are at this time of night. I am not satisfied with the answer, so although I shall withdraw the amendment at the moment, I am likely to come back to it at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 232 to 233 not moved.]

On Question, Whether Clause 53 shall stand part of the Bill?

Baroness Anelay of St Johns

I raised objections to Clause 53 on Second Reading, and I am grateful to the noble Lord, Lord Williams. for writing to my noble friend Lord Henley, on these issues. However, I have to say that he has not quite allayed my anxieties just yet. Of course, like other noble Lords, I support the objective of preventing reoffending and securing the rehabilitation of young people, but I believe that Clause 53 goes substantially beyond the current local schemes for cautioning. I believe it is important that the new proposals should be as fair and workable as possible now that they are being put into a statutory framework. I gave notice that I would oppose Clause 53 stand part simply so that I could raise specific points which have been put to me by individual lay magistrates and by individual justices' clerks. I ask the Minister tonight to address the following points which they have made.

It has been put to me that it is plainly wrong for an offender to be sentenced by anyone other than a court and it is believed that this is effectively what can happen under Clause 53. Quite apart from the main principle involved, a number of other questions have been raised. For example, suppose that the requirements of the rehabilitation programme are unreasonable, disproportionate or objectionable. If the offender declines to co-operate is it then really fair or acceptable that such disinclination is to be recorded and notified to others as a failure within the terms of this clause? Let us suppose that the offender does have a reasonable excuse: is there really to be no independent arbiter of that?

In future criminal proceedings of course the failure may be cited. What notice is the court expected to take of that citation? Is it right or acceptable that the citing of the failure should increase the severity of the sentence for later and different criminal proceedings? The implication of Clause 53(5)(c) is indeed just that. What if the offender challenges the correctness, or the whole basis on which the failure was itself recorded? What is the court to do then?

It has been put to me by two separate people that the potential for unfairness is incalculable and I respect their views because they are closely involved in the running of the court system. It is worth noting at this stage that subsequent clauses impose statutory constraints upon the court's powers to make an action plan order; yet at this stage the Bill imposes no restraints on the youth offending team and their activities under Clauses 52 and 53.

Clause 53(3)a) appears to make any constraints which might be imposed dependent solely upon the decision of the Home Secretary of the day. Far be it from me to argue against the Home Secretary playing a role in determining sentences. To do so would be to run counter to the arguments I myself put in the Unstarred Question asked by the noble Earl, Lord Longford, just last Wednesday. However, surely such action should be reserved for only the most serious offences which carry a penalty of a mandatory life sentence. I should be grateful if the Minister could tonight address those concerns.

Lord Williams of Mostyn

I am most grateful for the way in which those questions have been put. The first question is: how is it to be fairly safeguarded so that only unreasonable non-compliance should draw a sanction? I can assure the noble Baroness that guidance will be issued to youth offending teams to make sure that only unreasonable non-compliance is recorded. There are always going to be some circumstances where a young person may well be unable to fulfil some aspect of a rehabilitation programme for reasons beyond his or her control. The guidance will also make clear—and I hope this will find approval in the Committee—that the young offending teams would be obliged to inform the young person and his or her family in writing of the consequences of continued non-compliance, so that the young person has an opportunity to comply before the non-compliance is recorded.

Why should reprimands and warnings be cited in court? We believe that to come to a just conclusion the court should be aware of offending history—as is commonplace at present. The response of the youth justice system to young people's offending behaviour ought to be progressive and it is important that a court be aware of previous reprimands and warnings. The Home Office circular indicates that cautions issued for offences committed by a person before the present relevant offence may be cited in court. We therefore see no difficulty in principle, although I understand that the guidance needs to be carefully considered.

We believe that failure to complete a rehabilitation programme should be a relevant factor in subsequent proceedings and, subject to the proviso I made earlier, it is only unreasonable non-compliance which ought to be the basis of subsequent consideration by a court. A court may vary considerably in the weight that it pays to the failure to comply. It may come to the conclusion that some of the compliance requirements were over-onerous which may lead it to the conclusion that it was not unreasonable not to comply; or it may come to the conclusion that, if it was unreasonable, it should not feature large if at all in the determination of the sentence passed. Those are the sort of difficult, subtle problems with which magistrates in youth courts regularly deal at the moment.

One question that was the subject of discussion concerned the fact that, if reprimands and warnings can be cited and are part of a criminal record, what is the relationship to the Rehabilitation of Offenders Act? That is a useful point to make at this stage; it is part of the general anxieties that the noble Baroness and others have had. I can say to the noble Baroness, I hope helpfully, that the Government are considering whether any changes to the Rehabilitation of Offenders Act are necessary in the light of the new arrangements in the Crime and Disorder Bill. Currently, the Bill does not provide for police reprimands and final warnings to be subject to the Rehabilitation of Offenders Act 1974. We are therefore looking at the situation in the context of that Act.

The curiosity of the moment is that cautions are not covered. We believe that that is substantially because the Rehabilitation of Offenders Act is now over 20 years old and perhaps has not kept pace with changing police practice as to cautions. Cautions are now used by all police forces as standard practice and we need to look at that in the context also of the rehabilitation of offenders. I am not giving any guarantee, but it is recognised by the Home Office that the Act of 1974 needs to be looked at in the context of cautions, reprimands and warnings.

Amendments to the 1974 Act will be complicated and we need to give the matter careful consideration before coming to a conclusion as to the final form of any amendment to that Act. I hope that my response has been of assistance to the noble Baroness.

Lord Northbourne

In referring to the rehabilitation programme, the noble Lord drew a picture of young people striving to play their part in the rehabilitation programme supported by their parents. Can he give an assurance that, where a child does not have effective support from the parents, the youth offending team will make arrangements for the child to be supported and that funding will be made available to do that?

Lord Williams of Mostyn

I made it plain earlier that our preference is for parental support. Equally, I made it plain that preference is sometimes Utopian and, for the reasons given by the noble Lord from his own experience, quite often parental support is not forthcoming. If it is not forthcoming or is refused, as it often may be, then alternative arrangements must be made if the scheme is to have any prospect at all of working.

10.15 p.m.

Lord Thomas of Gresford

I wonder whether the noble Lord can assist me in understanding subsection (3). It states: The Secretary of State shall publish … guidance as to … the persons to whom any such failure"— the failure to participate in a programme— is to be notified". Subsection (5) states: any report on a failure by a person to participate in a rehabilitation programme arranged for him under subsection (2)". Does subsection (3)(c) have anything to do with subsection (5)(c)? Is the notification the same as the report? Has any thought been given to the persons who are to be notified? I should be grateful for guidance on that.

Lord Williams of Mostyn

Subsection (3)(c) is the consequence of Clause 53(3), which obliges the Secretary of State to publish guidance as to what should be in the programme, the manner in which any failure to participate is to be recorded and the persons to whom any such failure is to be notified—for instance, chief officers of police and people of that kind. The Secretary of State has yet to determine that. Clause 53(5) states that a reprimand under Section 52, a warning under Section 52 and a report on a failure by a person to participate in a rehabilitation programme arranged for him under subsection (2) may be cited in criminal proceedings in the same circumstances as a conviction. So what one has there is that a failure may be cited at a subsequent court hearing as part of the material at which the court will be able to look in coming to its decision about what penalty, sanction or course of action should be followed subsequently. For the reasons I gave earlier, I do not believe that to be unreasonable because it is a relevant aspect of the offender's response to court sanctions.

Lord Thomas of Gresford

Do I understand correctly that the persons to whom such failure is to be notified are not the persons who provide the report referred to in subsection (5)(b)?

Lord Williams of Mostyn

We may be at cross purposes. Clause 53(3) requires the Secretary of State to publish guidance on, first, what should be in the programme; secondly, on how failure should be recorded; and, thirdly, on the persons to whom any such failure is to be notified. Clause 53(5)(c) states that a report on a failure by a person to participate may be cited in criminal proceedings. I do not see the difficulty.

Lord Thomas of Gresford

The point that was strongly made by the noble Baroness was that the report becomes in the nature of a conviction that is to be cited in criminal proceedings. It is not clear whose responsibility it is to make the report that will become part of the record—the criminal conviction record—of the person who has failed to participate in a rehabilitation programme. Is it to be the youth offending team or is it to be the chief constable who has received notification?

Lord Williams of Mostyn

I think that the noble Lord is now making a completely different point. He asked, first, under Clause 53(3)(c), to whom the failure should be notified. He is now asking who should notify that failure. The answer is to be found in Clause 53(3); namely, that the Home Secretary will have to give guidance to designate those persons. Until the Home Secretary publishes guidance, I am not in a position to say what will be in the guidance.

Baroness Anelay of St. Johns

I thank the Minister for his courteous and full reply. Although there are still aspects of the clause which may cause concern to some, I feel that he has reassured me on the points that I raised. I do not raise any further objections to Clause 53.

Clause 53 agreed to.

Clause 54 [Reparation orders]:

Lord McNally moved Amendment No. 234: Page 42, line 29, after ("order") insert (", which arrangements shall include consultation with the victim, by mediation or other means, as to reparation,").

The noble Lord said: As I believe the Minister knows, I come very new to matters of penal policy. As a newcomer I was intrigued by the briefing that I received about reparation orders. In such an order we may have the response to young offending which meets the point made earlier by the Minister as regards getting young offenders to relate closely to the consequences of their crime. If the punishment is too far distant both in time or in kind, the enormity of what he has done does not come home to the offender. Evidence sent to me, and the remarks of my noble friend Lord Mar and Kellie about his Scottish experience, suggest that reparation orders may be a winner as regards their impact on young people and in enabling victims to come to terms with the shock that often goes with them.

It is particularly important that reparation orders include the victim if he or she is willing. That could be achieved by a conference when the specific reparation is agreed, having heard the views and circumstances of the party; or, if the victim does not want to meet the offender, by the use of mediators who visit each party in order to obtain agreement to the type and kind of reparation. The amendment underlines the importance of involving the victim. In moving it I make the more general point to the Minister that reparation orders appear to be well worth pursuing if the briefing or evidence sent to me is in any way general proof of their effectiveness. I beg to move.

The Earl of Mar and Kellie

Perhaps I may briefly support my noble friend's amendment. It is true that SACRO runs mediation and reparation projects in Scotland. These are carefully counselled and prepared experiences. It is not something to be entered into lightly or in any way as an arm-twisting experience, particularly for the victims.

I approve of the fact that the orders for England and Wales in Clause 54(2)(b) include the community at large. That is a good alternative. I note in subsection (5) that the period cannot be for more than 24 hours. These seem to be short-term community service orders and I approve of that.

Lord Falconer of Thoroton

I am grateful for the support of the two noble Lords who have spoken for the concept of the reparation order. I underline what the noble Lord, Lord McNally, said. The purpose of such an order is in effect two-fold. First, it is to make the young offender face up to the human consequences of what he or she has done; and, secondly, to allow the victim of the offence an opportunity to receive direct reparation from the young person. I also very much agree with what the noble Lord, Lord McNally, said: that in effect one should not force reparation on an unwilling victim, which in effect is what I believe underlies his amendment. We share that view, but we believe that it is not necessary to deal with it by this or any amendment that he proposes. Perhaps I may draw the noble Lord's attention to Clause 54(5)(b), which requires that a reparation order shall not require the offender, to make reparation to any person without the consent of that person". First, therefore, you need the consent of the person to whom the reparation order has been made. Secondly, and just as importantly, Clause 55(1) states: Before making a reparation order, a court shall obtain and consider a written report by a probation officer, a social worker of a local authority social services department or a member of a youth offending team, indicating … (b) the attitude of the victim or victims to the requirements proposed to he included in the order". So, before any order is made, it has to be with the consent of the victim and, separately, a report must have been written setting out the victim's views. The preparation of that report will vary in accordance with local arrangements. The flexibility of Clause 55 allows it to be written by a probation officer, a social worker or a member of the appropriate youth offending team. Similarly, the way in which each report writer will go about obtaining the victim's views will also vary from area to area. The amendment specifically refers to mediation as a suitable method of consultation.

The Government are aware of the value of such an approach, and of the successes that that approach has had in projects throughout the country. However, we do not want to be too prescriptive about the way in which a particular victim's views are sought. We hope that the new youth offending teams will be tapping into many services, both statutory and voluntary, which already exist in their areas. It will be incumbent upon each team to make the best use of local resources and experience. I have no doubt that the guidance which the Government will issue to support the reparation order will be of value here. I think that we share the same aims. I believe that our Bill reflects that and I very much hope that in the light of that explanation, the noble Lord will be minded to withdraw his amendment.

Lord McNally

In the light of that full and reassuring explanation, I shall be pleased to beg leave to withdraw my amendment. The key word in my amendment is "consultation". I hope that that is what the noble and learned Lord means when he refers to various inquiries. All this can be intimidating for a victim and there can be an element of bounce if an official comes along and suggests a way ahead.

The Solicitor-General was clear that the provisions mean genuine consultation and that if the victim is not willing, that path will not be pursued. As I have said, the evidence that I have received from a wide range of sources suggests that reparation orders could have an important impact on juvenile crime. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Nicol)

We now come to Amendment No. 235. I must inform the Committee that if this amendment is agreed to, I shall be unable to call Amendment No. 235ZA or Amendment No. 235A.

Lord Henley moved Amendment No. 235: Page 42. line 31. leave out subsection (4) and insert— ("(4) The court shall not make a reparation order in respect of the offender if it proposes to pass on him a custodial offence. (4A) Subject to subsection (4) above a court may make a reparation order under subsection (2) above instead of or in addition to dealing with him in any other way.").

The noble Lord said: I should stress that I have no intention of pressing this amendment, so there is no danger that noble Lords who wish to speak to the other amendments grouped with this will be denied their opportunity to do so in due course.

Amendment No. 235 has been tabled in a spirit of inquiry. I should like to know, first, why a reparation order cannot be made when, as subsection (4) puts it, the court passes a custodial sentence on an offender. If the reparation order was intended to force the offender to do certain things, he would not be able to do those things if he was locked up—that is, unless he was only required to pay some compensation. That brings me to my second question: where in the Bill are we told exactly what a reparation order is? There is a reference to a "reparation order", and subsection (4)(b) of Clause 54 also refers to a "compensation order". I presume that "compensation" implies financial compensation to the victim, whereas "reparation" implies something else. I would be grateful to receive an explanation as to where in the Bill "reparation" is precisely defined. I beg to move.

10.30 p.m.

Baroness Hilton of Eggardon

With the leave of the Committee, I speak to Amendment No. 235ZA in the name of my noble friend Lady David. The amendment has a similar purpose to the previous one but is intended to give the courts the flexibility to make a compensation order in addition to a reparation order. The noble Lord, Lord Henley, may be assisted if I paint the scenario of an Asian family that has suffered racial harassment. Perhaps the windows of the family home have been broken and graffiti scrawled on the walls. It may be of benefit if the court can make a compensation order to pay for the broken windows to be mended as well as a reparation order to make the offender remove the graffiti from the house. As I understand it, reparation orders include practical work like gardening, mending fences or cleaning up graffiti, whereas compensation orders provide for financial compensation. It is a pity that the Bill as drafted does not allow for a court to make a compensation order as well as a reparation order. Clearly, one does not want to overburden an offender with heavy financial penalties and make him do some useful work, but I believe that there are situations in which a small amount of reparation and compensation may go hand in hand.

Viscount Tenby

I do not know whether I am speaking to Amendment No. 235, or to Amendment No. 235ZA or Amendment No. 235A which have not yet been moved. I associate myself with the comments of the noble Lord, Lord Henley, and the noble Baroness, Lady Hilton. I support the concept of compensation orders. The concept of a reparation order is an admirable one. I very much endorse the warm support given to it by the noble Lord, Lord McNally. I believe that we are on to something here. It is very good. It is to be hoped that, more than anything else, its implementation will bring home to the vandal, miscreant—call him what you will—that society finds such behaviour unacceptable. One hopes that it will also go a long way towards mollifying the aggrieved in each case. Dare one say that in the right circumstances it may even build up some relationship between the parties in exceptional cases?

To exclude the possibility of a compensation order also being made may be to do only half the job. In any event it may do an injustice to the very same aggrieved. After cleaning off the graffiti, why should the perpetrator not pay also for the broken window or the damaged stock in the shop? In the senior courts, although a compensation order can be a disposal in its own right surely it is far more common to find it tied to a criminal damage or ABH case. Accordingly, I ask the Government to think again about this matter.

Lord Falconer of Thoroton

I believe that effectively two separate questions are raised by the discussion. First, what is the definition of a reparation order? Secondly, with what other penalties should a reparation order be combined? As to the first question, the only definition in the Bill is in Clause 54(2) which states that, the court by or before which the offender is convicted may make an order … which requires the offender to make reparation specified in the order to a person or persons so specified; or to the community at large". Subsection (6) provides: Subject to subsection (5) above, requirements specified in a reparation order shall be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it". Apart from that, the Bill not is intended to be proscriptive.

What in practice does it mean? My noble friend Lady Hilton and the noble Viscount, Lord Tenby, have got it exactly right. The reparation required may consist of a simple apology and an explanation, either in person or in a letter. It may also include simple tasks which are related to the type of offence committed—repairing a broken fence, weeding flower beds, washing a car or cleaning graffiti. That sort of small matter brings home to the offender what he has done and, to some extent, provides reparation to the victim for what has happened. That, in legal and practical terms, is what a reparation order means.

Clause 69(1) defines a reparation order as having the meaning given to it in Clause 54(2), which does not really help but I am grateful to the officials for telling me. That is the position in relation to what it means in practice. I again emphasise to the noble Lord, Lord McNally, that it is intended to make the offender face up to what he has done.

As to which orders it should be combined with, Clause 54(4) presently indicates that it cannot be combined with a custodial sentence and a number of other sentences referred to in Clause 54(4)(b) —those being a community service order, a combination order, a supervision order, which includes requirements, an action plan order or a compensation order. Those sentences have been excluded because, save in relation to the custodial sentence, they have an element of, using the word loosely, reparation in them.

As for a community service order, national standards require that the element of reparation to the community be taken into account in formulating what community service the offender has to do. That would overlap with the proposed reparation order. A combination order includes in part a community service order. A supervision order with requirements can include requirements for reparation. An action plan order can include provision for reparation. A compensation order, which is the one that the noble Viscount, Lord Tenby, mentioned, is in effect reparation in financial terms.

In considering what compensation order to make, the court is obliged to take into account the level and the nature of the victim's suffering. In those circumstances, if you made both a reparation order and a compensation order you would potentially be punishing the offender twice for the same thing. In those circumstances it is inappropriate to permit the court to make both a reparation order and a compensation order.

As to custodial sentences, it is inappropriate to combine reparation with somebody who is going to prison, and there has been no real dispute about that. That is the thinking behind the way that the combinations are dealt with and that deals with all the points that have been made. I invite noble Lords to withdraw their amendments.

Lord Henley

I am grateful to the noble and learned Lord for his explanation and for referring us to Clause 69(1) with its useful definition of reparation order.

I have one further question. Am I right in thinking that a reparation order could not require financial compensation? A compensation order is something different and refers to financial compensation. A reparation order is all the other things the noble and learned Lord referred to, but not financial compensation.

Lord Falconer of Thoroton

Yes, the noble Lord is right.

Amendment, by leave, withdrawn.

[Amendments Nos. 235ZA and 235A not moved.]

Baroness Hilton of Eggardon moved Amendment No. 235B: Page 43, line 8, at end insert ("; and () humiliating or degrading treatment of the offender.").

The noble Baroness said: I shall address the amendment in the name of my noble friend. The amendment seeks to add to the conditions in relation to reparation orders, which already require that they should avoid conflicting with the young person's religious belief, work, or schooling, a further requirement that whatever is required in the reparation order should not be humiliating or degrading.

One of the points of reparation schemes is that they should be agreed with the victim of an offence. There is a danger that in his or her desire perhaps for revenge, the victim may demand some aspect of work or task which the offender may find humiliating or degrading. It tends to be counter-productive if people are humiliated or degraded. They are more likely to become sullen and resentful and to commit further offences. It is not likely to be reparative, restorative or helpful in rehabilitating them. This is intended to be an additional condition which would restrict the types of reparation order that might be made. It is intended that reparation orders should essentially be constructive measures for the victim and the offender. I beg to move.

The Earl of Mar and Kellie

I support the amendment. The noble Baroness reminded us that in order that a reparation order will work, especially one related to doing work for the victim, there must be a double coincidence. There must be an offender who is suited to reparation and a victim who is also suited to reparation. By that I mean someone who can discuss with the offender what he or she has done dispassionately, and with no retribution involved.

Lord Falconer of Thoroton

I am grateful for the two contributions that have been made on the amendment. I agree with my noble friend that the purpose of a reparation order is a constructive one, not just for the victim but for the offender. In those circumstances, I can assure her that the amendment is unnecessary. If the offender's experience were humiliating or degrading, it plainly would not be a constructive one.

As I have said, the clearly stated purpose of the order is reparation: the chance to repair the damage done, both physical and mental. Not only will the victim be helped to understand the circumstances which led to the commission of the crime, and to receive some recompense for his suffering, the young person will be faced with the consequences of his actions, and the effect of those actions, and be assisted in his reintegration into society. If both those aims are to be achieved, there is plainly no room for humiliating or degrading treatment. I hope that if that is the base for the reparation order, my noble friend will see that there is no need for the amendment.

Viscount Colville of Culross

Before the noble Baroness decides what she will do about the amendment, I imagine that there would be a right of appeal against the making of a reparation order, and that if the person against whom it was made considered that it was humiliating or degrading, one of the matters that could be raised would be a failure to comply with the European convention. That will be a good ground of appeal as soon as the Bill that is going through Parliament takes effect. In any event, I should have thought that it would be a ground for doing something else on appeal, rather than imposing humiliating or degrading orders upon someone who came up from a lower court with such a provision.

Lord Falconer of Thoroton

I am not sure whether it would be a breach of the European convention, but it would be contrary to the purpose of a reparation order. If anyone had imposed upon them a reparation order that a higher court believed was humiliating or degrading, then such an order should be set aside.

The Earl of Mar and Kellie

Is a reparation order a new device solely for young offenders and not adults?

Lord Falconer of Thoroton

Yes, it is primarily for young offenders.

Baroness Hilton of Eggardon

Before withdrawing the amendment, I wish to ask the Minister whether there will be guidance incorporating his welcoming words about the intention of the reparation order. Will his words be sufficient, or will there be Home Office guidance?

Lord Falconer of Thoroton

There will be Home Office guidance and I expect that to reflect what I have said.

Baroness Hilton of Eggardon

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

10.45 p.m.

Clause 55 [Reparation orders: supplemental]:

Lord McNally moved Amendment No. 236: Page 43, line 36, after ("comply") insert (", without reasonable excuse,").

The noble Lord said: Amendments Nos. 236 and 237 are intended to make the Bill have a little less machismo and a little more common sense. In that spirit, I beg to move.

Lord Falconer of Thoroton

Subsection (2) of Clause 55 and subsection (2) of Clause 57 place several requirements on the court which it must fulfil before it imposes a reparation order or an action plan order on a young offender. One of these is that the court must explain to the young offender what may happen if he should fail to comply with any of the requirements of the order. The amendment proposes that in addition to all of the requirements already in the Bill, the court should be required to advise the young offender of the possible consequences if he should fail to comply "without reasonable excuse". The amendment would add the words, "without reasonable excuse".

We believe that such amendments would add nothing of real value to the clauses as currently drafted. Failure to comply with the requirements of reparation and action plan orders are dealt with in Schedule 4 to the Bill. Paragraph 3 indicates that a breach of proceedings would be brought before the court by the responsible officer whose duty it is to supervise the reparation required by a reparation order or the action required by an action plan order. That responsible officer will be acquainted with the young offender and his difficulties and can reasonably be expected to use his discretion when deciding whether to bring breach proceedings before the court. Breach proceedings in community sentences are normally a matter of last resort.

If there is a reasonable excuse for the young offender not to have complied with either the reparation order or the action plan order, we would expect that the responsible officer would not regard it as appropriate to bring the matter back before a court. But even if that were the position and, contrary to expectations, the responsible officer did bring the matter back to court when there was a reasonable excuse, one of the options open to the court if there is a failure to comply with either orders is to make no order. Obviously, that is the appropriate action when it has concluded that there was a reasonable excuse.

In the light of those two safeguards—namely, the responsible officer and the power of the court to make no order if satisfied, for example, that there was a reasonable excuse—it seems to us that there is no need to include in the explanations given to the young offender the words, "without reasonable excuse", when explaining the effects of the reparation order and the action plan order. Indeed, there is a lot to be said for not including that. I hope that the noble Lord is reassured by that explanation and I invite him to withdraw his amendment.

Lord McNally

With such a reassurance, I have no other option. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 agreed to.

Schedule 4 [Enforcement etc. of reparation and action plan orders]:

Viscount Colville of Culross moved Amendment No. 236A: Page 90. line 30, after ("custody") insert ("or local authority accommodation").

The noble Viscount said: The noble Lord, Lord Williams, knows that I am very concerned about the decreasing age of young offenders who unfortunately are coming before the courts. In a letter a little while ago, I gave him a particularly severe example of the failure of the system to be able to contain a boy who was hardly 14 and was in the process of committing an enormous number of dwelling-house burglaries.

I am very much looking forward to the opportunity of being able to use reparation and action plan orders, although I dare say they will be used more by the magistrates' courts and the youth courts than by the Crown Court. However, in Schedule 4, paragraph 3(2)(c) provision is made for when such an order made by the Crown Court unfortunately fails. If it fails, the first thing that happens is that the offender is taken in front of the magistrates' court or possibly the youth court.

The youth court, of course, is capable of committing a person under the age of 15 or 16 to secure local authority accommodation. No other court can do so. Neither the magistrates nor the Crown Court can do that. There is a hiatus here which is highlighted in the wording of that paragraph because the only alternatives are custody, which is not possible for the very young, or a release on bail which very often, in the circumstances of a failure, will lead to the young offender absconding and not turning up at the Crown Court to be dealt with.

What do the Government have to offer? It is a problem. It may not affect that many people but the problem is ever-growing and the offences which are committed are ever-increasing in severity. The victims are suffering more and more. I hope that I can trail this matter this evening. We shall return to this matter when we reach Clause 80. But if the noble Lord can offer me any comfort as regards this predicament, I should be very grateful. I beg to move.

Lord Williams of Mostyn

I am most grateful to the noble Viscount not only for his approach this evening but for the letters that he has sent to me over the months.

I can be helpful. As the noble Viscount rightly observed, Schedule 4 deals with arrangements which govern enforcement, variation, discharge and breach of the new reparation and action plan orders. One of those arrangements is that when a young person is brought before the youth court for breach of requirements of the reparation or action plan order made in the Crown Court, the youth court may either commit him in custody or release him on bail, as the noble Viscount indicated.

The youth court has the power, by virtue of Section 23 of the Children and Young Persons Act 1969, to remand to local authority accommodation. Indeed, that Act obliges the court, unless the offender is a male who has reached the age of 15 and meets certain strict criteria, to remand or commit the offender to local authority accommodation. Therefore, I believe that the noble Viscount's amendment would wish to bring about a power which already exists by virtue of Section 23 of the 1969 Act.

Viscount Colville of Culross

I am obliged to the noble Lord. The problem is that the youth court will not do that if it is confronted by a local authority which says that it cannot afford to pay. It is the local authority that provides the secure accommodation and the youth court has to co-operate with that local authority and for some reason, there never seems to be enough money—as there never is for anything—and that is where the problem arises. The youth court simply does not commit. It releases the young offender on bail and then the trouble occurs.

However, perhaps encouraged by what the noble Lord, Lord Williams, has said, more youth courts will use that compulsory power and will not try to find their way out of it which, I am afraid, is not happening at the moment. Perhaps the word can be spread abroad. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 56 agreed to.

Clause 57 [Action plan orders: supplemental]:

[Amendment No. 237 not moved.]

Baroness Anelay of St Johns moved Amendment No. 237A: Page 46, line 2, leave out ("21") and insert ("42").

The noble Baroness said: Clause 57 gives details of the procedures which are to be followed when making action plan orders. After the court has made such an order subsection (3)(a) allows the court to fix a further hearing within 21 days of making the action plan order, at which point it is intended that the court will hear a review of the effectiveness of the order to date and make any necessary variations to the order. The Notes on Clauses state that this is to provide the court with an early opportunity to check progress, modify any requirements if this is desirable, and suggest and encourage the young person in completing the order. I can well understand the desirability of such an early opportunity for the court, but I can foresee difficulties in making it work.

As will be obvious to the Committee, this is a probing amendment. I would like the Minister to tell the Committee why the Government have fixed on the period of 21 days. What did they take into account in so doing? Are they sure that the responsible officer will be able to make an effective report at such an early stage? Will he or she be able to judge whether the young person has been keeping to the terms of the order in an acceptable manner, and if he has not been keeping to it, whether he has acceptable reasons for so doing, or not so doing? Will the responsible officer in practice even be able to provide the court with a report so quickly? Is it physically possible to do so? I am aware that it is common to have a waiting period of three weeks in courts before pre-sentence reports can be prepared and presented to courts. Or, is this method intended to be more in the nature of a stand-down report which can be given orally to the court? If so, would this really be acceptable and would it mean that the directing officer would have to give the report himself or herself, and not a deputy? That would make it difficult to schedule the hearing of the report. I should be grateful if the Minister could address those points. I beg to move.

Lord Falconer of Thoroton

I am grateful to the noble Baroness for giving me an opportunity to explain why the period is 21 days. We are extremely keen that action plan orders should be effective. That means they should be completed by the offender as efficiently and effectively as possible. One of the important elements in an action plan order is that they should affect the offender as quickly as possible by reference to the timing of the offence.

Moreover, the action plan order, as defined in the Bill, can last only for a period of three months. It is therefore imperative that any problems surrounding the requirements of the action plan are ironed out as soon as possible. A vehicle for achieving this is the further hearing, which Clause 57(3)(a) stipulates must take place not more than 21 days after the making of the action plan order itself. I must stress that this is not a duty of the court, but simply a power available to it; no court will be obliged to fix this further hearing if it feels such a hearing to be unnecessary.

The proposed amendment would have the effect of doubling this period of time to 42 days. To allow such an amendment would run a considerable risk of undermining the usefulness of the action plan order to a great degree. Six weeks is almost half of the total duration of the order itself; much too long to wait for the court to discover that the order is not working as successfully as it had anticipated. If, after an intensive three month disposal, one discovers half way into it that it is not working, one has lost the point of it to a large extent.

The noble Baroness may well have been motivated, as her speech indicated, by concern that the action plan may not be fully up and running after so short a period as 21 days. That is the very reason why that period must not be extended. In a short but intensive disposal such as this one, it is essential that the requirements of the order should be put into successful operation at the earliest opportunity. There is no scope here for the requirements to reach full strength slowly several weeks after the order has been made. That would destroy the intensive nature of the action plan.

With the improved co-operation and efficiency of the youth justice system and its agencies that will be delivered by this Government's plans, there should be no reason why the requirements of an action plan should not be put into effect very shortly after the order is made, thereby allowing the responsible officer to make any report that is required within the 21-day timeframe.

I should add that in the consultation document, Tackling Youth Crime, published in September last year, the proposal was a 14-day deadline for that further hearing. It was in response to replies to that document that we extended it to 21 days. That is the thinking behind the 21 -day time frame; if it is extended to 42 days, effectively the benefit of an intensive disposal such as this is lost. So we think it appropriate to keep it at 21 days.

11 p.m.

Baroness Anelay of St. Johns

I am grateful to the Minister for that response and his explanation of the reasoning behind the 21 days and wanting to achieve an accelerated system of putting the order into procedure and also checking on it.

I am not quite as sanguine as he in relation to the ability to prepare and present reports within such a short timespan. The Minister referred to the fact that that would be dependent upon the overall youth justice system being speeded up considerably in its operation. I still have residual concerns—for example, a court might feel disinclined to order a further hearing within the 21 days because it is aware of local difficulties in staffing, particularly at peak periods of holidays or sickness, which would mean people not feeling they could get the report up and running. That could completely stymie the whole system. It might not be possible to achieve the early report to which the Minister referred. However, I shall read carefully in Hansard the assurances he has given. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clause 58 agreed to.

Clause 59 [Breach of requirements in supervision orders]:

Baroness Hilton of Eggardon moved Amendment No. 237B: Page 47, line 17, after ("court") insert ("which stated in open court that it was making the order instead of a custodial sentence").

The noble Baroness said: With the leave of the Committee I shall address the amendment in the name of my noble friend Lady David. It has always been an important principle that breaches of a supervision order attract a custodial sentence only where that was warranted by the original offence for which the supervision order was made, and that the custodial sentence is not for the breach but for the original offence and where the supervision has broken down.

This amendment seeks to restore that situation, so that a custodial sentence can be awarded only if it has been stated in open court that the magistrates were making the supervision order instead of a custodial sentence—so that it has always been clear to offenders that a custodial sentence is hanging over them if they fail to keep to the conditions of the supervision order, and in all fairness they have understood that it was the original offence which attracted the custodial sentence and not the subsequent breach. The amendment seeks to re-establish that situation, to ensure that neither the offender nor the court is under any illusion as to the reason for effecting the custodial sentence. I beg to move.

Lord Williams of Mostyn

The point of Clause 59 is to make simple the over-complex arrangements for dealing with breaches of supervision orders. This amendment would require the courts to state every time a supervision order was imposed instead of custody. The consequence would be that if the original court had not made such a statement or had not been considering custody, the court would not be able to re-sentence for the original offence following a breach of supervision requirements.

Therefore, the court's ability to impose custody on an offender who had breached supervision requirements would be restricted unless the court stated that the original supervision order was imposed as an alternative to custody. It is that kind of restrictive condition that Clause 59 seeks to remove.

We believe that the requirement which is proposed in the amendment is not necessary. Courts, in re-sentencing for the original offence—I entirely agree with the noble Baroness that that is what they sentence for—will have to consider the seriousness of the original offence. They are not able to impose custody unless the original offence was serious enough to justify custody, in which case the supervision order was de facto imposed as an alternative to custody.

The amendment would have a further unfortunate effect. If the original court overlooks the need to state that the supervision order was imposed instead of custody, the court cannot re-sentence for the original offence if the supervision order is subsequently breached. Therefore, the amendment will hamstring the courts in less serious cases where they might want to impose a different community sentence for the original offence following a breach, but could not do so, if the amendment became law, because the original supervision order was not declared to have been imposed as an alternative to custody.

Baroness Hilton of Eggardon

I find that rather a confusing response. It does not seem to me that it would be impossible to impose some sentence other than custody for the breach if no statement about custody had been made in the first place. It sounded to me rather as though the Minister was producing a circular argument, but I will read carefully what he said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 agreed to.

Lord Carter

I beg to move that the House do now resume.

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

House resumed.

House adjourned at six minutes past eleven o'clock.