HL Deb 18 January 1999 vol 596 cc367-91

3.4 p.m.

The Minister of State, Home Office (Lord Williams of Mostyn)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause [Referral of young offenders to youth offender panels]:

Viscount Colville of Culross moved Amendment No. 1:

Page 1, line 8, after ("section") insert ("(subject to subsection (4A))").

The noble Viscount said: At Second Reading everyone welcomed the creation of the remedy of the new disposal of courts for young offenders in the form of a referral to the youth offender panel. This is a necessary paving amendment to Amendment No. 6, in which I seek to remedy what I believe to be a small missed opportunity.

In the Crime and Disorder Act a number of new disposals for young offenders—particularly, under Sections 67 and 69, reparation orders and action plan orders—are available to the Crown Court. They will probably not be used by the Crown Court very often because people of that age do not often come before the Crown Court. Nevertheless, as a matter of principle the Government decided to make those disposals available. I am wondering why in this case the referral to a youth offender panel is confined to magistrates' courts.

I suggest that it is a mistake so to do, and for this reason. Young offenders can come before the Crown Court in two circumstances. First, they can come if they are on the same indictment with an adult and have been involved in the same offence. In those circumstances they would be joined in the indictment and tried and dealt with by the Crown Court as such. But perhaps more appositely in this case they could come before the Crown Court, consisting of a judge sitting with two justices, by way of an appeal from the youth court. They could come there in their own right, without being associated with any adult offender.

When one is dealing, particularly in the Crown Court, with young people of the sort of age that this part of the Bill has in mind, it is extraordinarily difficult to decide what to do with them. Those Members of the Committee who are magistrates will have struggled for years with that very problem. I see the noble Baroness, Lady Macleod, nodding her head. But it is no easier for the Crown Court.

I understand the idea that referrals to the youth panel should be able to be done extremely quickly. When the provision becomes available in a sessional area, there will be a very short time between the arrest and bringing the offender before the court and this form of disposal. That must be all to the good, because the more quickly justice operates in relation to people of that age, the better.

The problem is, however, that in the limited number of cases for which the Bill provides a referral to a youth offender panel by way of a disposal, there is still the possibility of an appeal. If there is an appeal, the disposal will be postponed until after the appeal is heard. In the case of such an appeal, the Crown Court judge will sit with two magistrates who, one assumes, will be familiar with and trained in the sort of cases that are suitable for a referral to the youth offender panel. Therefore, it is not a matter of the judge alone charting unknown territory. He or she would have the assistance of, and, if necessary, could be overruled by, the two sitting magistrates.

I therefore suggest to the Committee and to the noble Lord, Lord Williams, that the small extension provided for in my Amendment No. 6 is warranted because occasions do arise, albeit rarely, when the Crown Court does not know what to do. I was recently involved in a case of this kind and we still have not decided what to do about it. One of the difficulties about the disposals that are available at the moment is that the children concerned are still at school and are preparing for their A-levels. In those circumstances it beggars belief what one can do, even though one of the offences concerned was a very serious one.

I suggest that there should be a minor extension of the ability to use these orders, which are a very good idea, and that in the circumstances where the Crown Court consists also of two skilled and trained magistrates this disposal should be available to them. I beg to move.

Lord Cope of Berkeley

I rise briefly to express my view that the noble Viscount's proposal has merit. It seems to me that when young people come before the Crown Court in either of the circumstances which he outlined it would be an advantage if this new method of disposal were available to the Crown Court. The noble Viscount suggested that it might be more apt when a young person came before the Crown Court on their own, as a result of appeal, and so on. I do not disagree with anything the noble Viscount said, but it seems to me that it could also be extremely relevant in a case where a young person appeared before the court with an adult charged with the same offence and where, as presumably in most cases, the young person had been led into the offence by the adult. In those circumstances a disposal of this kind may be exactly the right way in which to deal with a young person. I think it is entirely apt that it should be available when a young person appears before the Crown Court with an adult on the same offence as well as when they appear on his own.

Lord Williams of Mostyn

Clause 1 of the Bill makes referral orders available in both the youth court and the adult magistrates' court. We did not propose to make them available to the Crown Court because by and large the Crown Court would not be dealing with the young offenders for which the sentence is intended and, where such cases do arise, it is open to the Crown Court to remit to the youth court for sentencing.

Not for the first time, the noble Viscount has raised an extremely important point and I am most grateful for the care he has given to these matters. He has identified a situation where the Crown Court requires the power to consider a referral order; that is, as his amendment makes plain, where the court is reviewing sentence on appeal.

I am happy to say that, having researched the matter, we do not believe that we need to specify this on the face of the Bill because that power already exists by virtue of Section 48(4) of the Supreme Court Act 1981, which provides that the Crown Court, sitting in its appellate jurisdiction, may award any punishment which the lower court appealed against might have awarded.

I repeat that I am grateful to the noble Viscount for raising this point. I have had it researched and I believe that the answer is there.

Viscount Colville of Culross

I am grateful to the Minister for that answer. I do not suppose that many judges who sit in the Crown Court would have found that section. No doubt guidance will be given, area by area, about the use to be made of the new powers when they come into operation. I hope that the Home Office's guidance for the use of Part I of the Bill will include guidance to the Crown Court about that matter because I believe everyone is now agreed that it would be desirable to be able to use this power on a suitable occasion. As it is already in the law, albeit in a somewhat obscure corner of it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.15 p.m.

Lord Cope of Berkeley moved Amendment No. 2:

Page 1, line 9, leave out ("under the age of 18").

The noble Lord said: It is suggested that we discuss Amendment No. 3 together with Amendment No. 2, which is obviously right since they go together. These amendments seek to clarify the age of the young people to whom these new provisions are to apply. The Bill talks about the court dealing with someone under 18. I take that to mean that the alleged offender—or, by the time he is convicted, the offender—is under 18 at the time he appears in front of the magistrates and that the new sentence is not available if the offender was under 18 at the time of the offence but before coming to court and being found guilty had passed his 18th birthday.

I understand that when it was last measured, about a year ago, the average time taken to come to court was about four-and-a-half months. There will be quite a number of young people who become 18 during that four-and-a-half months and move over the borderline. Given that in certain circumstances it is compulsory for magistrates to impose this, the sentence will depend on whether the case comes to trial before or after the offender's 18th birthday.

It seems to me that in these circumstances either the offender or another party, such as the prosecution, may think it desirable either to expedite or delay the trial in order to affect the sentence, which does not seem to me a satisfactory way to proceed. In addition, it is in the nature of things that in some parts of the country courts have a shorter waiting time than in other parts of the country and that some courts are able to respond more quickly than others. The availability of this sentence will therefore also depend on the court at which the young offender is to appear. Later in the Bill the Secretary of State is given the power to vary the offender's age for many purposes. I refer to Clause 2(4)(a). Therefore this age might in any case vary.

It seems to me at least worth asking whether it would not be better if the crucial date which decided whether or not this sentence were available should be the date on which the offence was committed rather than the date on which the young person appeared before either the youth court or the magistrates' court, whichever was by that time appropriate. In addition, the fact that the adult magistrates' court might be involved suggests to me that it might be thought proper to sentence some people over 18 in this manner. It is in that spirit of inquiry as to whether it might not be preferable to make this change that I move the amendment. I beg to move.

Baroness Carnegy of Lour

I strongly support my noble friend's amendment. Unless there is, unseen by him, a provision elsewhere in the Bill that clarifies this point, it seems completely against natural justice that the length of time taken to bring a young person to court should affect the sentence which that young person receives. Young people and the public would see this as unfair. If there is no other provision to clarify the point, I hope that the Minister will be able to accept the amendment.

Viscount Brentford

In supporting my noble friend's amendment perhaps I may make one further point. The amendment would benefit the administration of the courts. Otherwise, if the age of a person changes in the run-up to the hearing the courts' administration may or may not make the right guess as to when the hearing will take place. Having started work in the youth court it may have to move the matter to the magistrates' court and resume all of the administration a second time. I believe that my noble friend's amendment will assist the administration of the courts.

Lord Williams of Mostyn

The noble Lord, Lord Cope, identifies correctly the approach we have adopted; namely, that the referral order should be available for young offenders between the ages of 10 and 17 at the time they are dealt with by the courts. I cannot agree with the suggestion of the noble Baroness that this is against natural justice. It is found quite commonly within the justice system. The noble Lord referred to an average period of four and a half months, and that is so. If the prosecution sought to delay the trial for the purpose of ensuring that the young offender was over the age of 17 at the time of disposition it would be a wholly illegitimate use of power, and I believe that it would not happen.

We have tried to make youth justice the top law and order priority because we need to divert people away from crime as early as possible. We need effective interventions to tackle the causes of offending by young people and prevent recurrence. We believe that that is the right intervention for this group which is rightly specified as being between the ages of 10 and 17. The amendment of the noble Lord would focus the attention of the court on the age of the offender at the time of the commission of the offence rather than when he would benefit from the intervention. The amendment would mean that if many years elapsed between the commission of the offence and its detection and prosecution young offenders way beyond the 10 to 17 age band would be given referral orders, as he rightly observed.

Referral orders are disposals tailored specifically to prevent reoffending by young offenders. That is the purpose of these orders. In the case of young adults beyond that age group we believe that the courts should have disposals available to them to reflect those offenders' maturity and attitude. The noble Lord is right. We must keep this carefully under review. After all, the courts will have available to them a wholly new remedy. Self evidently, we shall want to see how it pans out in practice. For the moment I believe that we have got it right; namely, 10 to 17 as the age of disposition for this entirely novel remedy. I hope that that explanation assists the noble Lord who moved the amendment.

Lord Cope of Berkeley

I am not sure that I am wholly convinced. One question remains in my mind, the answer to which may be obvious to others but not to me. Why should adult magistrates' courts be involved if all of the offenders concerned with the possible disposal will be under 18? Another point raised by the Minister, which I believe has considerable weight, was that there might be a very long delay which was not the fault of the prosecution between the commission of the offence and the time when the trial took place if the offender was not detected for a long period and the matter arose much later. The Minister is right that it would be a disadvantage if somebody aged 25 or perhaps 30 was sent compulsorily to the youth offender panel under the terms of the Bill. But, as I shall explain when I turn to later amendments, I am in any event against compulsion. However, I do not argue that point at the moment. I shall deal with the matter at the appropriate time. But this is the way out of a particular difficulty rather than leaving very much in the air the question of the availability of the sentence according to whether the 18th birthday of the youth happens to fall before or after the trial.

I understand the Minister's point about the prosecution misbehaving if it tried to fix or affect the date so as to achieve that result. However, it would be entirely open to the defence to do so. It may be improper but that does not mean that it will not necessarily happen. I do not believe that that is a very satisfactory position in which to leave the law. I do not know wether the Minister is able to respond to my question about the adult courts and the youth courts.

Lord Williams of Mostyn

I deal first with the general points raised by the noble Lord. If someone under a particular age commits an offence and comes up for sentence having passed the time gap for sentence the usual rule is that the sentence is passed appropriate to the age at the time of sentence. We do not believe that it will be possible for a defendant in this category simply to manipulate the system as has been notoriously done in the past. This is the whole purpose of the Narey reforms to which the Home Secretary is personally committed. We want to reduce the national average of four and a half months. As to magistrates' courts or other adult courts dealing with an under 18 year-old, in the main this will not happen. The purpose of the present draft is simply to establish that the youth court is a class of magistrates' court. Therefore, one is not looking at the circumstances to which the noble Lord refers.

The fundamental point is that we have selected this group which is suitable in the limited circumstances already outlined—a first time offender who pleads guilty—for early intervention of this particular type. We shall keep the matter under review. But the usual practice in the criminal regime is that an individual is sentenced to the appropriate range of penalties according to age at the time of sentence, not the time of conviction for an offence. The noble Lord makes the perfectly legitimate point that he wants a discretionary, not mandatory, resolution. He rightly says that that is a story for later today. I believe that there is a fundamental difference between us in that respect.

Viscount Colville of Culross

Before the noble Lord sits down, if the Government consider that they may think again about the age of the offender at the time that he or she comes to court, I observe that in Clause 2(3) the Secretary of State's powers to make amendments by regulation do not include a power to deal with Clause 1(1). In the light of what the noble Lord has said, it may be advantageous if it does so.

Lord Williams of Mostyn

I did not say that the Government had it in mind to alter it. I said that plainly these matters would be kept under review. I am grateful as always for what the noble Viscount says. I shall think about his proposal but I cannot give any clearer indication than that.

Lord Cope of Berkeley

We have been given some food for thought on this matter by the Minister. I am grateful to my noble friends for their support for my amendment but in the circumstances I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

3.30 p.m.

Lord Cope of Berkeley moved Amendment No. 4:

Page 1, line 17, leave out subsection (2).

The noble Lord said: As it turns out, it has not been such a long wait for discussion on whether or not this new form of sentence should be compulsory in some circumstances.

The Bill provides that the sentence is compulsory so far as concerns the magistrates. They have no discretion in the cases set out in Clause 2(1). Where those conditions are fulfilled, the magistrates have no option whatever. An important point of principle is involved. It is a point of principle that we have sometimes discussed at the other end of the judicial hierarchy when discussing whether or not judges should be obliged to pass life sentences in the case of murder. The Lord Chief Justice, and many others before and since, have argued that it would be advantageous if judges retained a discretion as regards sentences for murder. In view of the special nature of the crime of murder, I agree with the Government that the judges' discretion should be limited; and that a life sentence is the correct sentence for a conviction for murder.

However, at the other end of the judicial hierarchy there is no question of the special considerations applying to the offence of murder. Many of the arguments used by the Lord Chief Justice about the necessity for discretion seem to apply in this situation. Only the magistrates on the spot who have heard the case and know the offence, the offender, and so on, are in a position to say that such a disposal is the appropriate course of action. The fact that it is a first offence, and that the other conditions in Clause 2(1) are fulfilled, are matters that they would take into account in deciding whether or not to use their discretion in that way and to pass the new sentence. It seems unwise to fetter their discretion in that way.

Why should the Government think it essential to tie the magistrates' hands in these cases? Perhaps the Government do not entirely trust the magistrates to use the new form of sentence. I hope that that is not the case because it should not be; I do not believe that there is justification for it. As time goes on, magistrates will judge for themselves whether it is an effective sentence, and the correct sentence under Clause 2(1); or whether the provision should be used only in some cases and the criteria for deciding in which cases such a course would be appropriate. No doubt different magistrates will take slightly different decisions, but that is always the case when an individual appears before the courts, and there is nothing that we can do to ensure that the courts always take precisely the same course of action. We have to rely on the discretion of the magistrates. We usually do so and are not let down.

The thought also occurred to me, but I immediately dismissed it, that it might be part of the Government's obsession with wishing to control everything. However, I am sure that that is not so in the case of the Minister. I do not believe that it is desirable for the magistrates to be compelled to use the provision automatically whenever the circumstances of Clause 2(1) occur.

The amendments grouped with Amendment No. 4 are intended to be consequential to the main amendment. Whether I have all the consequential amendments correct is not clear. I have attempted to do so, but if the principle is agreed no doubt we can settle the consequential amendments at a later stage. I beg to move.

The Chairman of Committees (Lord Boston of Faversham)

I must point out to the Committee that if Amendment No. 9 is agreed to I cannot call Amendment No. 10.

Lord Campbell of Alloway

As a matter of principle, perhaps I may support my noble friend. As the Minister may remember, I am in favour of discretionary life sentences for murder, as I believe that he was at one time, and may still be. The principle in question is that if one removes discretion one tends to impair the quality of justice if the quality of those judging is reasonably high. I ask the Government to think again about the question. An important principle is involved.

Viscount Tenby

Rather irritatingly, I can see both sides of the argument. On the one hand, I understand a situation where one has established youth panels and one has to put in hand the machinery for them to come into existence. The moment one makes the position discretionary, individual benchers may decide not to pass such cases on and a coach and horses may be driven through that important aspect of the Bill.

On the other hand, the Minister will not need reminding that at present youth justice panels on benches are grappling manfully (and no doubt "womanfully") with the forest of new orders under the Crime and Disorder Act. I am sure that the Minister and his colleagues have taken that factor into account. However, if at the same time as those panels seek to deal with that problem they find they are being emasculated in their discretion as regards disposals, it may have an adverse effect on their morale at a delicate time. Perhaps the Minister will be kind enough to reassure me that that matter has been taken into account.

Baroness Carnegy of Lour

It seems likely that the Minister will answer my noble friend by saying that there is a wide menu from which the court may choose when agreeing the programme for the young offender. The point of my noble friend's amendment is that the Bill fetters the discretion of the court on the decision whether the offender is the right person with whom to make a contract. Should there be a contract? Is that person likely to respond to a contract? If the young person is extremely truculent and unwilling to co-operate at the outset, it may do more harm than good to enter into this sentence.

There is a strong point in my noble friend's amendment. It would affect a number of other issues which will arise later in Committee.

Lord Williams of Mostyn

It is not a desire to control everything. I can only repeat publicly, as has the noble and learned Lord the Lord Chancellor on so many public occasions, our trust in the virtue and value of the magistrates of this country.

I take the point of principle put forward by the noble Lords, Lord Campbell of Alloway and Lord Cope. The important difference of principle is this. What makes the new referral order different from the ordinary sentence disposition is that its purpose is not a sentence (full stop). Its intended purpose is to ensure that the conviction of the young offender, who has to be a first offender and plead guilty, will trigger on a basis of mandatory obligation an inquiry into the reasons for the offending behaviour. That is the real importance of the youth panel. It is not a sentence in itself; it is the triggering of an inquiry.

We believe that it is essential to break the cycle of continued offending and re-offending and to go immediately to the first offender who has pleaded guilty and say, "It is necessary, it is obligatory, it is mandatory to have this inquiry at this stage." I respectfully suggest to the noble Lord, Lord Campbell of Alloway, that that is the difference between the sentence to which he and I are accustomed in the criminal courts and the mandatory triggering of an inquiry. It is an intentional and fundamental shift in the way we deal with young offenders.

Lord Campbell of Alloway

I take the point of distinction but I cannot see that it makes any substantial difference. Perhaps I am being obtuse about the matter. I agree with the Minister 100 per cent. that we should break the cycle. I have faith in the quality of the magistrates and I believe that they should be given a discretion to exercise as they see fit in order to break the cycle. Of course I take the distinction, but for the life of me I cannot see the difference.

Lord Williams of Mostyn

There is a big difference. We are for the first time imposing on a young offender who pleads guilty the principle of restorative justice. That is to be obtained only by the intervention of a panel. That is why it is mandatory.

We recognise that this is a fundamental shift—it is intended to be such—in the way that the youth court deals with young people in such categories. We are separating the question of guilty or not guilty from the process of dealing with the offending behaviour. The noble Lord, Lord Cope, is right in saying that the measure would alter completely the arrangements for mandatory referrals. His amendment removes the conditions which make compulsory referrals necessary and it would allow a court to make a referral in any case where a first-time offender was being sentenced, including an offender who offered a not guilty plea.

We have set the mandatory criteria on a deliberate basis. We believe that we need to focus our attentions and qualities in a way that has not been done previously on the category of young offender most likely to benefit from the approach. We believe that a necessary precondition for that is an admission of guilt.

I have listened carefully to the arguments. We adhere firmly to the necessity of a mandatory principle here. It is not an attack on the discretion of the magistracy generally. There will be an opportunity to review the conditions attached to mandatory referrals. The new arrangements will be piloted so that we can assess whether we have got them right. As has been indicated, the Bill gives the Secretary of State the power to change the availability criteria in the light of experience.

We are at a fundamental difference of approach. We believe that there should be a uniformly required inquiry into first-time young offenders who plead guilty. We have reached that belief as a matter of fundamental principle. I believe it right that young people who offend for the first time and who plead guilty should be the subject of required intervention at a very early stage. That is the only way in which we will effectively break the cycle.

3.45 p.m.

Lord Cope of Berkeley

I support the idea of restorative justice and the youth offender panels.

I believe that they will prove valuable in tackling youth crime. However, I hesitate about making them compulsory in every case which falls under Clause 2(1).

The Minister said that to be sent before a youth panel was not a sentence in itself but would set in place an inquiry. In many ways it will be seen as a sentence by the young person whether or not the Minister or I see it as such. It can involve a financial penalty, even though it is not called a "fine" and even if the money goes to the victim or to the local community. It can involve restrictions on the person's movements. He may not be sent to a youth offender centre but he may be restricted from going to certain places or going out at certain times. Those options will be available under the contract. I believe that something imposed under the authority of the court which involves taking money away from an offender and restricting his movements is akin to a sentence, however we like to look at the niceties.

The Minister said that an inquiry would be set in place. I hesitate over the term. We are familiar with the fact that after someone is found guilty there may be a delay before sentence is passed in order to obtain inquiry reports from the Probation Service, or whoever, so that a more effective sentence can be passed. This is not of that character. It is not so much an inquiry as a discussion. There will be a discussion about the possibility of agreeing a contract. That is desirable, but it will be a discussion rather than an inquiry.

The Minister made his position clear. We shall consider what he said. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 5:

Page 2, line 9, at end insert— ("( ) If the area in which the offender resides, or will reside, is not an area in which referral is available under subsection (4), the court shall sentence the offender as if he had always resided in a place where referral was not available.").

The noble Lord said: The amendment seeks to remedy an omission from the Bill. The Bill provides for what should happen if an offender moves to live in another area in which youth offender panels function. We hope that soon there will be youth panels everywhere, but initially they will be available to the courts only in some parts of the country. I cannot see what will happen if an offender moves to an area where there is no youth offender panel. He cannot be sent to the panel in the area from which he is moving because it may be a considerable distance and he cannot be sent to a new one because there is not one in the area to which he has moved. I believe that in those circumstances he should be sent back to the court and sentenced as though no youth panel were available. It is a temporary situation but not one we can ignore.

The Bill is long and complicated and I hesitate to be absolute on the matter. However, I do not believe that the situation has been provided for in the Bill. I beg to move.

Lord Renton

My noble friend Lord Cope of Berkeley has raised what I consider to be one of the most difficult points on this part of the Bill. Paragraph 34 of Notes on Clauses states: Subsection (4) limits the availability of the new order to those courts that have been notified by the Secretary of State that arrangements are in place for a youth offending team to implement referral orders. It is intended that the new orders will be introduced at different times across the country", that means in different places at any one time, also on a pilot basis", and I ask what that means, so that their effectiveness and the resource implications can be fully assessed in advance of nationwide implementation". It has generally been the practice and, indeed, a principle of the administration of justice in England and Wales that the same system of justice, the same powers of the courts, apply throughout England and Wales. But here we are to have a system in which in one area—and I shall ask the meaning of the word "area" in a few moments—we may find that the courts have a particular power and in another area they have not. That is a very strange situation which may have a strange effect. It may mean that in some cases where an offence has been committed a well-informed young offender—17 is not so young—may decide to commit his offence in a place where a referral is available rather than the court exercising its usual powers of sentence.

I find that a strange situation. I hope that the Government will consider it very seriously. Frankly, if my noble friend's amendment were accepted, there would be an answer to that problem. But perhaps I may say, with respect to him, that if his amendment is accepted, Clause 1(4) could not stand. There would be a contradiction within Clause 1 between the new subsection proposed by my noble friend and subsection (4) as it now stands.

This is the most important matter raised so far today. I hope that the noble Lord, Lord Williams of Mostyn, will give a helpful answer.

Lord Williams of Mostyn

I hope so. Pilot schemes are quite well known now in the criminal justice system. One has schemes which, in the nature of things, have not been tried in the past. Resources are focused on particular areas—probation or magistrates' courts areas—to see how schemes work. There is nothing novel about that. For example, one may have bail support schemes in a particular area in a format which does not exist in another area, even an area which is contiguous. For example, there are all sorts of pilots in relation to tagged bail which are tried out in some parts of the country and not in others.

Pilots are an extremely useful tool because one can monitor results in practice. For example, rather than saying to your Lordships that something is a good idea, a pilot scheme enables me to say, "This is an excellent idea because it has worked well in practice." That is an extremely important additional tool in the armoury of criminal justice, in particular in relation to the question of restorative justice.

At the moment it is plain that the operation of the youth offender panels depends on the existence of a local youth offending team which has taken on specific responsibilities for the implementation of the orders.

That is why Clause 4(4) restricts the availability of the orders to the courts in those areas where a youth offending team is in operation in the young offender's home area or the area in which it is expected that he will be living during the currency of the order. The court will be notified where that is the case and referral orders will then be available to the court unless or until that notice is withdrawn.

The existence of the notice is a necessary pre-condition before the court can start to consider a referral order. If one has the sort of devious criminal identified by the noble Lord, Lord Renton, one must bear in mind that under the provisions of Clause 1(1)(b), the court may impose a custodial sentence if it wishes or, alternatively, at quite the opposite end of the spectrum, it can issue an absolute discharge for this particular category of offender.

The point which the noble Lord, Lord Cope, identified was: what happens if a young offender is sentenced in area A where there are youth offending panel facilities available and he moves away to another area where there are no such facilities? He asks whether there is possible injustice or lack of symmetry. The answer is in the Bill. There is no question at all that a young offender should be required to attend a panel away from his home area even when he has recently resided in an area where referral orders were available.

If a young person's family moves out of the area, even after the contract has been agreed, we find a solution to the noble Lord's legitimate concern in Clause 11. That offers the opportunity to the court, if a young person's family moves out of the appropriate sentence area—that is, appropriate because the facilities are available—to consider alternative disposal. We included that provision to meet the possibility which the noble Lord identified.

I hope that I have been able to deal with that specific point although I see out of the corner of my right eye, blinkered as I am not, that the noble Lord, Lord Renton, may not be entirely satisfied.

Lord Renton

The noble Lord has given an extremely interesting answer but I do not believe that it is adequate. He refers to pilot schemes; for example, pilot schemes for bail. They would not do much harm. But have there been pilot schemes in relation to sentencing or the non-availability of a sentence? That is the point. Certainly in my time, when I did a good deal of judicial work at the lower level as a recorder and relief judge, the courts had the same powers everywhere. A fairly experimental departure from that is now envisaged. But has any pilot scheme gone beyond provisions relating to bail and, fundamentally, to the courts' powers and obligations to sentence?

Lord Williams of Mostyn

Pilots relating to bail deal with the liberty of the individual. Pilots are now becoming increasingly commonplace. They are allowed for in the Crime and Disorder Act and in this Bill because, in the nature of things, one cannot always have a nationwide network of availability when one is introducing completely new concepts.

After all, there is nothing different in principle here. Quite often there may not be available the desired appropriate disposition because places are simply not available. When the noble Lord, Lord Renton, was sentencing, he would not have been able to sentence, in some categories of cases, as he wished because the available places were not available; for example, in a secure mental hospital. I merely give an example with which he will be well familiar. So there has never been total uniform availability.

We are saying to the court, "You cannot, in your area, sentence using this particular disposition unless, within your area, the resource is available for you to do it." I do not regard that as illegitimate or revolutionary. It is merely a different gloss on the noble Lord's experience, and, indeed, my experience when we were sentencing.

4 p.m.

Viscount Colville of Culross

It is not true that there have not been pilots in sentencing. Electronic tagging was mentioned earlier and that, as a disposal, has been working on a pilot basis. In that regard a probation order is supported by electronic tagging. It had to be done in that way because not everywhere was equipped with the staff, supervision and facilities to undertake the scheme.

The system was tried out in certain areas and has recently been extended to Middlesex among other places. A demonstration was given of not only how it works, but also the sorts of cases where it was found to be effective elsewhere. Therefore, even in sentencing, there are precedents—and not only under the Crime and Disorder Act.

The noble Lord, Lord Renton, therefore, should allow some encouragement for this sort of activity. It happened also with video recordings of children; that scheme began on a pilot basis. One sees how it works, if it does; if it does not, the pilot is not extended and one may have to think again about the legislation.

Lord Renton

I am grateful to the noble Viscount. We are being invited to allow an experiment to take place which will not be universal; it will be partial. That is what it comes to.

Lord Cope of Berkeley

My noble friend Lord Renton is exactly right in his description.

Lord Williams of Mostyn

Is not the noble Viscount right also in his description of the history so far?

Lord Cope of Berkeley

Indeed, the noble Viscount is absolutely correct in his description. In fact, it does not seem to me necessarily wrong for there to be pilots in the case of electronic tagging or, for that matter, in this case. On the contrary, in practical terms it is essential that such schemes are introduced gradually. It would probably be impossible to introduce this new form of disposal satisfactorily everywhere from a specific day one. The same applies to electronic tagging.

It is right also, however, to take a slightly cautious attitude to the implementation; to make sure that one has the details right in these cases before extending the scheme. I believe I am right in thinking that that was the case in relation to electronic tagging and it seems to be the case in this regard. But this cautious pilot approach sits rather badly with the compulsion we were discussing a few moments ago. However, I will not go back over that argument.

The argument on the principles behind the cautious introduction of the scheme arose from my drawing attention in the amendment to a much smaller aspect of this matter; that is, what happens if a young person moves in the middle of the scheme. At a quick glance, the Minister has been able to reassure me on that matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6 and 7 not moved.]

Lord Cope of Berkeley moved Amendment No. 8:

Page 2, line 10, at end insert— ("(6) This Part shall cease to have effect two years after it comes into force unless an order to continue it in effect, made by the Secretary of State, has been laid before, and approved by resolution of. each House of Parliament.").

The noble Lord said: This amendment brings us back to the hesitant approach about which I was speaking a moment ago. The amendment proposes that the whole system should be reviewed.

The Minister told us that the Government intend to keep the scheme under review; that officials will consider the matter to see how it is working as time goes on. At the moment only Parliament is not due to consider the matter. My amendment suggests therefore that, after the scheme has been running for two years, an affirmative order should be required in each House of Parliament in order to extend it. If all is going well and there are no major snags, there will be no difficulty in carrying an affirmative order. However, if difficulties have arisen, it is right that the matter should be considered at that time.

We have not been told what the criteria will be in the monitoring of the scheme. Presumably the rate of reoffending will be the highest item in the list, and that should be so. But I suspect that, if something like this amendment is not incorporated in the Bill, Parliament will hear little more about the scheme; it will simply trundle on unless it is involved in a scandal or something of that sort. Then one day a piece of paper will be given to a busy Minister saying, "By the way, do you remember the Bill that your colleagues passed a few years ago? It is all going smoothly; we are just banging on with it." Any Minister who is then asked the question will be able to say that it has been reviewed and agreed.

On the other hand, if this provision were inserted in the Bill, at least a Minister would have to pay attention to it and bring it before Parliament. We should then be able to have a proper review of the situation. All that the Minister was saying in relation to the introduction of pilots and trying out schemes in practice would be monitored by Parliament. The amendment therefore strengthens the hand of the Minister as well as the hand of Parliament because of the way in which it would work.

It is desirable that novel and new devices should be kept under consideration. I do not believe that there is any disagreement between myself and the Minister in that regard. The only question is how it should be done. I beg to move.

Lord Renton

It became clear, in the course of the discussion on Amendment No. 5, that the scheme to refer young offenders to youth offender panels which is to be implemented area by area is experimental. Amendment No. 8 is therefore important because it means that if we are to conduct an experiment, it should not go on indefinitely. A time limit should be placed upon it. My noble friend's suggestion that the time limit should be two years seems to me practicable and sensible in the interests of justice.

In the course of the previous discussion I asked the noble Lord, Lord Williams of Mostyn, to say what the area would be, as referred to on page 2, line 2. He did not say, but it is relevant to Amendment No. 8. If, for example, the areas are going to be large and after two years every area of the country but one has conducted a scheme, that means that the experiment succeeded. On the other hand, if half a dozen areas are still without a scheme, it has not been successful and should be brought to an end in the two years proposed by my noble friend.

Baroness Carnegy of Lour

It is essential that there should be some provision for Parliament to look at how the scheme progresses. I have not had the opportunity of discussing with my noble friend Lord Cope his reason for proposing two years. I wonder whether that is long enough. As he says, the rate of reoffending will be a major consideration in deciding whether or not the experiment should turn into a permanent feature and it takes time to discover how reoffending will be affected by such a measure. I am not sure whether a period of two years is right. However, I believe that we need such a provision. The Minister must remember that a number of people will spend a good deal of time as members of panels and, before committing themselves to such a scheme, they will want to be assured that it will be a success. The scheme should not be undertaken lightheartedly. If it is not succeeding, it should be stopped. My hope is that it will succeed. It is an extremely good idea and an extremely good experiment on which I am very keen.

This is an important point. The Secretary of State should have to bring the provisions to Parliament for consideration after two years or a little longer.

Viscount Tenby

The introduction of trial periods into the criminal justice system, which we have seen in the past few years, is to be welcomed. Trial periods have to be evaluated. Accordingly, there must be a necessary discipline and audit to establish whether the new procedures are working. Therefore, I believe that it would be desirable to have on the face of the Bill a provision specifying that there should be a period of accountability. I am not sure how long such a period should be, but a period of two years does not seem unreasonable.

Lord Harris of Greenwich

I fear that I shall be the one discordant voice. I see little merit in the proposal.

First, to echo what the noble Baroness said, looking at the matter seriously, as it deserves, a period of two years is inappropriately short to carry out a detailed evaluation.

Secondly, I want to raise questions about the alleged advantages of the affirmative resolution procedure. I must admit that, over the years, I have spent many hours in the House urging governments to accept affirmative resolution proposals, but, realistically, one knows that in the House of Commons many affirmative resolutions are agreed without any debate. There is a view in this House that we should not vote against affirmative resolutions. The Government have a majority of 179, which raises a number of other questions about how effective such a provision would be.

Apart from anything else, I agree with the noble Viscount, Lord Tenby, that trial periods are desirable. Community service orders were introduced by the then Mr. Carr, now the noble Lord, Lord Carr of Hadley, when he was Home Secretary in Mr. Heath's Government of 1970–74. The community service orders began as an experiment in, I think, six probation areas. Thereafter, they were extended to the rest of the country by the succeeding Labour Government. There was no affirmative resolution and no parliamentary procedure; the government of the day took the view that community service was a success and extended it to the rest of the country. I do not think that it is a good idea to insist that Parliament should have another look at all such experiments within a period of two years. I must confess that I do not find that a convincing argument.

Viscount Brentford

I believe that the principles that the Government want to introduce are very important. I have been looking for some time for an opportunity for restorative or relational justice to be introduced. Like, I believe, all other Members of the Committee, I am very supportive of referral orders. I think that we need a system whereby a report on progress is placed before the House. However, a period of two years is rather short in view of the time that it is likely to take the pilot schemes to report back. Perhaps the period should be three years. I am not sure whether the affirmative resolution is the right procedure, or whether the Government should undertake to report back to the House in, say, three years. The Minister may say that it is up to any Member of the House to raise a question on it. I believe that it is much more important than that and that the Government should inform us of the progress being made. I hope that in time, after the provisions have proved valid for youth cases, these principles will be applied more widely. I hope that we shall see more examples of victims and offenders, by agreement, being brought face to face. We must reconsider this and not just forget all about it.

4.15 p.m.

Lord Williams of Mostyn

In answer to the specific question asked by the noble Lord, Lord Renton, pilot schemes will be taking place in a limited number of court areas—petty sessional areas—in England and Wales where such schemes are available for the disposition to be made.

I am happy to give an undertaking once more about our intention to pilot the referral orders. We want to conduct an independent evaluation of the pilot schemes. I am happy to undertake that that will be done. Again, I am happy to undertake that reports of the evaluations will be published and made available for discussion.

Under Clause 3, a referral order may run for not more than 12 months. The noble Lord's amendment would mean that this part of the Bill would entirely cease to have effect two years after coming into force. One could not carry out any sensible or useful evaluation in such a period.

There is another point of principle here. I entirely endorse what the noble Lord, Lord Harris of Greenwich, said. One does not introduce a new form of disposal, a new sentence, and immediately say, "If it doesn't work within two years, it falls", or, "If it is not brought back to Parliament within two years, it falls".

I note the points that have been made. This is an extremely important advance. I am most grateful to the noble Viscount, Lord Brentford, for his support for a principle which I know that he has advocated for a very long time. I am trying to meet the Committee's reasonable concerns. An independent evaluation, which I promise will be published in full, is the proper mechanism for raising questions and concerns as and when the pilot schemes are running.

The point is not simply that a period of two years is too short—although plainly it is—but that the public and your Lordships should know exactly how the schemes are working. I do not believe that it is necessary to require the House to consider the procedure afresh after two years. One would be in danger of this extremely bold, effective initiative being followed by a gloomy period of two years of uncertainty. That would not help anyone because we need to ensure that people disposed of in this way understand that they are not being let off. I believe that in many fundamental ways taking part in restorative justice is a much more effective and burdensome disposition: the offender has to recognise the wrong done and do something to remedy it. That is much more difficult and onerous than a simple financial penalty, and it is capable of being more effective and long-lasting.

I hope that the assurances that I have given about an independent evaluation and, more importantly, its publication will satisfy your Lordships' reasonable concerns.

Lord Cope of Berkeley

I am grateful for the promise which the Minister has just given us and the way in which he has expanded it.

In response to remarks by other noble Lords, I am by no means wedded to a period of two years. Indeed, I am quite willing to reconsider that element.

However, the noble Lord, Lord Harris of Greenwich, poured scorn on affirmative resolutions, partly on the grounds that he did not think they were effectively treated in the other place. I can assure the noble Lord that they are frequently debated there and often lead to votes. Of course, in the nature of things, the Government normally win those votes, but nevertheless that is the case. As far as concerns this Chamber, I agree that it is the habit at present for this place never to vote against orders, whether affirmative or negative. I believe it is unlikely that that particular area of restraint will survive any reform of your Lordships' House. After the Chamber has been changed in its composition, it is likely to exert its powers in that respect much more frequently. I do not think that the agreements of the past on the matter are likely to survive.

However, I also believe that the affirmative resolution procedure is an important brake on the habit which has been growing among governments, none more so than the present Government, of inserting into Bills all sorts of flexibilities, which can be altered later at the whim of the relevant Secretary of State. Indeed, the Bill before us has many parts in it which can be altered by the Secretary of State, including some of the most fundamental provisions. In one sense, I believe that such flexibility can be useful but, in another sense, it makes the law uncertain and, therefore, less desirable. It also makes it much more difficult to consult the law because one reads the Act of Parliament as it was passed and it states throughout that certain provisions may be varied by the Secretary of State. Unless one consults the necessary reference books to find out if any variation has been made or any order passed in that respect, one cannot be sure that that is how the law stands. It makes it much more difficult for people to understand the nature of the law.

Therefore, a brake on such orders, provided by the necessity for affirmative resolutions, would also be useful in that respect. However, the amendment is all about whether or not there should be a review of the matter. We have been promised a fairly full review and I am certainly alive to the danger outlined by the Minister of appearing to put a kind of black spot on what we all hope will be a useful experiment. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

The Deputy Chairman of Committees (Viscount St. Davids)

Before I call Amendment No. 9, I should point out to Members of the Committee that if this amendment is agreed to I shall be unable to call Amendment No. 10.

Clause 2 [The referral conditions]:

[Amendment No. 9 not moved.]

Lord Cope of Berkeley moved Amendment No. 10:

Page 2, leave out lines 16 to 19.

The noble Lord said: In moving the above amendment, I shall speak also to Amendment No. 13. One of the factors which prevents a referral order being made by a court on an offender is if the latter has in the past been bound over to keep the peace. As the Bill stands, if that has happened such an offender cannot be given this new sentence, although I suppose we should refer to it as "this new disposal". I understand that magistrates find the power to bind over useful from time to time. I do not want them to be inhibited from using it by the thought that, whenever they do so, they might be ruling out this disposal for future use.

In any case, it seems to me that the fact that someone has been bound over in the past should not necessarily disbar him altogether from restorative justice, which, after all, is what this Bill is about. In a way, the power to bind over, which is an ancient power as far as I know, was of a similar character to the present experiment that we are implementing with the Bill. It was not restorative justice in the full sense that we now understand it, but thoughts have developed on the matter. Where magistrates thought that a young person had done wrong but might not do so again, they could bind him over in the hope that that would bring him to heel and make him think twice before committing the same offence again, without imposing any actual sentence upon him. If that has happened to someone before the Bill comes into force, or before it comes into force in the area in which the young person resides because of the pilot nature of the earlier schemes which we have already discussed, it seems to me that it should not necessarily rule out the use of youth offender panels in the way provided by the Bill.

I do not think that such measures should be compulsory. However, it would still be within the discretion of the magistrates as to what they did in such circumstances. It seems to me that it would be useful to leave the power in place where an individual had been bound over in the past. I beg to move.

Lord Williams of Mostyn

The referral to the YOP is a sentence, but, when speaking to the propositions put forward by the noble Lord, Lord Campbell, I was seeking to draw a distinction between the nature of the sentence. This takes us back to a slightly different aspect of what we discussed earlier. We want it focused and we want it to be the primary disposal for first-time offenders. We are quite clearly of the view that the most benefit will be directed to those who have not been involved in the youth court earlier, except on the basis of an absolute discharge. The whole ethos is to focus on first-time offenders so that we can break the cycle at the earliest possible opportunity. As I said, this is essentially another reflection of the earlier approach of the noble Lord, Lord Cope; namely, that a wider discretion ought to be left to the magistrates. They do have the discretion in Clause 1(1)(b) and (c). Other than that, we are convinced that we ought to focus as rigidly—and I use that word carefully—as we have intended in the Bill. I regret that I am unable to accept the noble Lord's amendment.

Lord Cope of Berkeley

I am grateful to the Minister for his response. As I said before, it seems to me that some flexibility and discretion is useful for the magistrates. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11, 12 and 13 not moved.]

Lord Cope of Berkeley moved Amendment No. 14:

Page 2, line 32, at beginning insert ("One year or more after the coming into force of this Act.").

The noble Lord said: The amendment takes us slightly in the opposite direction to that of some of our earlier discussions, including some of the points that I made during our probing of the Bill's details. On the other hand, although the flexibility of legislation is desirable in some respects, I have made clear that it represents a difficulty in other respects. Certainty of the law is important.

The words in the amendment seek to delay the power of the Secretary of State to change the types of offender who can be subject to referral orders for at least one year. In that case there will at least be a steady year at the beginning before we start mucking about with this particular part of this law. It seems to me that uncertain law can only be a weak deterrent, because people do not get to know what it is. I think the Secretary of State should wait and be sure that he is right in what he is proposing to Parliament, including any modifications.

One effect of delay for a year—a modest period, it seems to me, in view of what I am trying to achieve—might be that we shall have fewer alterations. That is desirable in itself. As I said a few moments ago, the Bill is littered with orders and if some of them cannot come before us for at least 12 months there will be more stability in the Bill and in the law in this respect. I beg to move.

4.30 p.m.

Lord Renton

Subsection (3) of Clause 2 will give the Secretary of State power to alter the primary legislation: in other words, it is a Henry VIII subsection. My noble friend is suggesting that that power should not be used until 12 months have expired. I would have thought that that was reasonable. If we do it rather too often and if we are giving power to Ministers to alter primary legislation, I think it is right that there should be some restraint in terms of not being able to do it soon after the Bill has been given Royal Assent. I support my noble friend's amendment.

Baroness Carnegy of Lour

When the Minister replies, can he give some idea of the kinds of change to which the subsection would apply? It has been suggested that there might be a question of people who are close to the borderline of 18 years of age. What other kinds of changes might be made? If we knew that, we would be able to assess whether this is satisfactory or not.

Lord Williams of Mostyn

Certainly. If one looks at Clause 2(3), I think the answer to the noble Baroness's question is to be found there. It says: The Secretary of State may by regulations make such amendments of this section as he considers appropriate". then the defining words: for altering in any way the descriptions of offenders in the case of which the compulsory referral conditions or the discretionary referral conditions tall to be satisfied for the purposes of section 1(2) or (3) (as the case may be)". What could be done here is to alter the restrictions upon those persons who may or may not be sentenced to the referral order.

The noble Lord's amendment says that that cannot be done for a year. I have to say to your Lordships that I think it extremely unlikely for there to be a wish that this power be taken after one year, but I do not see any virtue in forbidding such action by the Secretary of State if in fact it turns out—and it is possible even with this Government's legislation—that something has been got wrong. It is possible, though unlikely, and if it has been got wrong, then one really ought to have the availability of putting it right rather than waiting for a period of time which is purely mechanistic. It has no virtue in principle.

Clause 2(4)(c) states: the offence (or offences) of which the offender has been convicted". I do not see any virtue at all in the amendment. I have given the undertaking that we shall monitor the pilots; I have given the undertaking that we shall have independent evaluation and that we shall publish it. I really do not see the point of saying that you cannot alter something which you may have found to be wrong or misguided and that you have to wait a year to put it right. That seems not entirely consistent with what the noble Lord was asking for earlier: a flexible approach to the administration of the criminal law. I do not think that the power will be needed but I do not see the virtue of stopping it.

Viscount Tenby

Can the Minister say whether the provision entitles a Minister at a future date to go beyond the present restriction which confines referrals entirely to first offenders who have pleaded guilty.

Lord Williams of Mostyn

I believe that the answer to the noble Viscount's question is yes. That is one of the useful purposes of having monitoring, evaluation and published evaluation, so that if the scheme is working well it can depart from its precise focus and be extended to others who might be assisted.

Lord Cope of Berkeley

I am grateful for the assurance of the noble Lord the Minister that it is extremely unlikely that the amendment would actually stop the Secretary of State from doing anything he might otherwise wish to do. However, the intervention of my noble friend Lady Carnegy has drawn attention to the fact that the powers are extremely wide and that the orders could alter anything to do with them. Certainly, they could mean that the provision was not only applied to first offenders and those who have pleaded guilty regardless of previous convictions or how they have previously been dealt with. It could be made compulsory in every case, with the criteria altered in any way. The power to alter or widen the conditions under which it is compulsory on magistrates are just as wide as a result of the clause as the power to widen the discretion was, but in view of the fact that it is extremely unlikely that the Secretary of State, as we have just heard, is going to use the power within the year, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Lord Cope of Berkeley moved Amendment No. 17:

Page 2, leave out line 41.

The noble Lord said: The amendment would remove the offender's age from matters which the Secretary of State could alter by order. My purpose is partly to probe why the Government think that it might be necessary to alter the offender's age, particularly in the light of the discussion we had earlier about those under and over 18 at certain periods of time. The noble Lord seemed firm about that at the time but here we are asked to give powers to the Secretary of State to vary the offender's age at which these things can apply.

There is absolutely no restriction. We could, for example, delete 18 and insert 19, should the Secretary of State so wish. Certainly, he could insert 25 and widen it very considerably. Maybe that is why other magistrates' courts are to be given these powers as well as youth courts. It did not seem to me that the Minister's explanation regarding the inclusion of other magistrates' courts, giving them powers under this Bill, was very satisfactory. He said words to the effect, if I recall correctly, that that was to show that youth courts were also magistrates' courts. I do not know whether it is necessary for that purpose, but adult magistrates' courts are to have these powers and so presumably that means that at some stage the offender's age is anticipated as probably going to be lifted above 18. Maybe the reason for line 41 on page 2 being included is so that the offender's age can be altered by the Secretary of State in the future. The amendment probes the reason for including this provision in the Bill. I beg to move.

Lord Williams of Mostyn

As I said earlier, the referral order is intended to be targeted at the group we think it is most likely to benefit; namely, first time offenders aged 10 to 17 who plead guilty. However, we are aware that in the light of experience of piloting the new arrangements it may become apparent that our description does not precisely catch the group that is most likely to benefit. As we discussed on the previous amendment, Clause 2(3) empowers the Secretary of State to make changes by regulation if we decide in the light of experience to alter the description of those who are eligible for the referral order either on a mandatory or discretionary basis. Clause 2(4) sets out a list of factors that the Secretary of State should particularly consider. I emphasise that point. The noble Lord's amendment would remove the offender's age from the list contained in Clause 2(4) on page 2 of the Bill. It is possible that the youth offender panel approach may be found to be less effective with younger children within the age range of 10 to 17. If that were found to be the case in practice, we would not wish to continue to include them among those for whom a referral order would be mandatory. We need to have a degree of flexibility to respond to experience.

However, I take the noble Lord's point that all his amendment seeks to achieve is to remove age from the list of factors to which the Secretary of State must pay particular regard. It would not however preclude age from being a factor that might be altered by regulation. There is no hidden purpose here. It is simply a matter of offering flexibility in the light of the experience of the pilots. I believe I have dealt with the noble Lord's point on flexibility.

In some circumstances an adult magistrates' court may deal with a juvenile where he is tried with an adult on the same charge or—I concede this is much rarer—where there may be a genuine error as to age. As I said, there is no hidden purpose here. We want to retain a degree of flexibility. The criteria set out in Clause 2(4) are not prescriptive or restrictive criteria. They do not rule out other approaches.

Lord Renton

I for once agree with the noble Lord, Lord Williams of Mostyn, and reassure my noble friend at the same time. It may comfort him to know that if the Secretary of State exercises the powers that have been referred to, they will be subject under Clause 59 to an affirmative resolution in each Chamber, although I wish the time would come when your Lordships would use that power.

Lord Cope of Berkeley

I am grateful to my noble friend Lord Renton for pointing that out. If the age of 90 was to be suggested instead of 18, he would be in a position to object to the great privilege he would be given of being one of the few among us—

Noble Lords

Oh!

Lord Cope of Berkeley

He would be the one who was not about to be subjected to the new provisions. This is an important example of a proper use of the affirmative procedure. As I believe I said not long ago, I too believe that our present restraint as a Chamber with regard to affirmative instruments may not survive reform and probably should not survive reform of this Chamber. I beg leave to withdraw Amendment No. 17.

Viscount Colville of Culross

Before the noble Lord withdraws the amendment, I ask the noble Lord, Lord Williams, whether it will be possible to increase the age above 18? I understand that it could be limited so that it did not apply to children who were, for the sake of argument, under 14, but I do not see that the powers as they are at present drafted would enable the age of 18—which appears in Clause 1(1)—to be altered so as to increase the age above that level. Therefore the ages of 19 and 25 are completely irrelevant. We are talking only about the area below the age of 18.

Lord Williams of Mostyn

I believe the noble Viscount is correct. Clause 1(1) deals specifically with those under the age of 18. The whole philosophy and spirit of the measure is early intervention, not for those who might be aged 90.

Lord Renton

If I may say so, the Long Title of the Bill makes that clear.

Lord Cope of Berkeley

I am put right in every direction. I accept the correction. Once again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath

I beg to move that the House be resumed.

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

House resumed.

Lord Hunt of Kings Heath

My Lords, before we discuss the Statement on Kosovo I take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

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