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Session 2001- 02
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Standing Committee Debates
Justice (Northern Ireland) Bill

Justice (Northern Ireland) Bill

Column Number: 297

Standing Committee F

Tuesday 12 February 2002

(Morning)

[Mr. Derek Conway in the Chair]

Justice (Northern Ireland) Bill

10.30 am

The Chairman: Before we begin, I want to draw hon. Members' attention to an error in the amendment paper. New clause 5, tabled by Mr. Mallon, appears as a new clause relating to part 4. Instead, it should appear as a new clause relating to part 5. It has not been selected for today's business in any case, as it is starred.

Clause 53

Aims of youth justice system

Amendment proposed [7 February]: No. 278, in page 30, line 31, leave out subsection (1) and insert—

    '( ) The principal aim of the youth justice system in Northern Ireland is to prevent offending by children and to promote the child's reintegration and the child assuming a constructive role in society.

    ( ) Every child in contact with the law shall be treated in a manner consistent with the promotion of the child's sense of dignity and worth, reinforcing the child's respect for the human rights and fundamental freedoms of others.'.—[Lembit Öpik.]

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are taking the following amendments: No. 223, in page 30, line 32, after 'children', insert

    'having taken into account the best interests of the child as the paramount consideration, as identified in the United Nations Conventions on the Rights of the Child; the International Covenant on Civil and Political Rights; The United Nations Guidelines for the prevention of Juvenile delinquency; the United Nations Standard minimum for the Administration of Youth Justice and the United Nations Guidelines for the protection of juveniles deprived of their liberty.'.

No. 264, in page 30, line 32, after 'children', insert 'and young persons'.

No. 277, in page 30, line 37, leave out 'welfare' and insert 'best interests'.

No. 284, in page 30, line 41, at end insert—

    '(3A) All persons with responsibility for the youth justice system shall have regard to the United Nations Convention on the Rights of the Child.'.

Mr. Seamus Mallon (Newry and Armagh): I thank the hon. Member for Montgomeryshire (Lembit Öpik) for moving the amendment on Thursday last, in my unavoidable absence. It was most interesting to read the report, which gives a certain flavour of attitudes.

I will be pretty brief, because the debate has already taken place. My three amendments try to fulfil the obligations of recommendation 169 of the review group, which was that

    ''a clear statement of the aims of the juvenile justice system''

should be developed, agreed and incorporated in legislation. The clause attempts to do that, but it is

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parsimonious and lacks the detail and humanity that one would expect on the issue. In many ways, it has a turn-of-the-century tone about it—and I am not talking about the last century. Although I recognise the validity of what the Minister has said and will say about stating the aims, I ask him to consider the importance of the issue—I know that he has—and to try to reflect its importance by agreeing to the amendments.

In a Bill such as this, it is important that we ensure that the wording reflects the challenges that we face and the world that we live in. It is not adequate simply to state the principles in bare terms, as the Government do. That is deficient, because it does not expand on them as it might. It is also incomplete, as it ignores several elements that the review group felt should be included among the aims. I know that they will be dealt with—somewhat parsimoniously, I suggest—in other parts of the clause.

I have no quarrel with the aim of the prevention of offending and the encouragement of children to take responsibility for their actions, but the provisions should deal with the rehabilitation of the offender, which they do not. Nor do they deal with the duty to regard the best interests of the child as a primary consideration, in accordance with article 3 of the United Nations convention on the rights of the child. That convention is the most widely adhered to of all international human rights instruments. It is unacceptable for its fundamental provisions to be ignored when the principles of a system of justice intended to deal with children are under consideration. It will be argued that those principles are reflected elsewhere in the Bill—I do not dispute that—and that they are presented in practical terms—I do not dispute that either. However, I believe that the principles have such weight and importance that they should be stated clearly in the clause.

The amendments derive from the views put forward by the Northern Ireland Human Rights Commission in its submission to the Northern Ireland Assembly. Its approach was accepted by all the political parties. It is important for the relationship between the Administration and the Human Rights Commission, the Equality Commission and all the other agencies to be such that the more we respect and reflect their views, the stronger the legislation becomes. Their input does not weaken its objectives; it strengthens them. Rather than the negative function that is implied in subsections (1), (2) and (3), the justice system should have the positive function of reintegrating children into society and enabling them to play a constructive part in future. That is crucial.

It will be argued that the amendment is redundant, and that those aims are stated elsewhere. So be it. However, those aims are so important that we should live with the possible redundancy and include a declaration of our intent.

Mr. Tony McWalter (Hemel Hempstead): My hon. Friend has anticipated one of the counter-arguments to his assertion. Does he agree that the best thing that we can do for a young person who has a strong propensity to offend is to get him to the stage at which that propensity is much weaker? Subsection (2)

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promotes the development of conscience in young people. Surely that is doing the right thing both for the young person and for the wider society.

Mr. Mallon: I could not disagree with a word that my hon. Friend has said. However, I am attempting to ensure that the tone changes and, with it, the declaration of intent in the legislation to make those aims a priority, which the clause does not seem to make them. We must ensure that children in the justice system are treated with dignity, and that all actions taken within the system are taken with the best interests of the child firmly in mind, not just his welfare.

I do not want to argue about semantics, but there is a substantial difference between welfare and best interests. Welfare is the fulfilling of responsibilities in a fairly cold way, whereas dealing with a young person's best interests goes beyond that. I know that hon. Members who have dealt with young people will recognise that substantive difference.

The amendment is important because it provides a declaration of intent. It sets out not only what we shall do, but what our approach will be. The tone that it gives the Bill could help us to achieve our aims.

I believe that amendment No. 286 was grouped with the present amendments on Thursday, and, if I may—

The Chairman: Order. It might help the hon. Gentleman to know that amendment No. 286 has been grouped with amendment No. 227 under clause 54, and we shall come to it later. I will allow a reasonable amount of wandering, but we should bear in mind the fact that amendment No. 286 is in the next group.

Mr. Mallon: I thank you most sincerely for that guidance, Mr. Conway, which gave me time to remember what I was going to say about the amendment.

I shall conclude by asking the Minister carefully to reconsider the amendments. Nothing in them runs contrary to the Bill's wording or objectives or to the direction that it must take. Yes, there is a softening of tone and a little more humanity in them, but it is crucial that we enshrine the UN principles, which take us away from what I called the turn-of-the-century approach and places the issue in a different context, from which it can only benefit.

Mr. Edward Garnier (Harborough): I shall be brief because we have until one o'clock to discuss 13 clauses, about 80 amendments, some schedules and, possibly, some new clauses.

I want to respond, in particular, to the hon. Gentleman's remarks about legislation containing statements of intent, a matter on which I briefly touched before the weekend. Sentencing policies change quite frequently, and the Lord Chief Justice, Lord Woolf, has quite radically changed them in the past four or five weeks. Hon. Members may have read about this in the newspapers, but I clearly remember him saying that those who were guilty of street robbery or of stealing mobile telephones should go to prison

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for a long time. Indeed, he increased the sentence of someone who had stolen a mobile telephone to five years.

As we know, most street crime is committed by youngsters, and there has now been a radical change in the way in which the courts are required to consider the issue. This year, the Lord Chief Justice has also said that, wherever possible, young mothers should not be sentenced to prison. That, again, is a change in sentencing policy, and the Court of Appeal criminal division is constraining the way in which the courts exercise their discretion in sentencing.

Mr. Mallon: The hon. and learned Gentleman makes the important point that sentencing policies change. Is it not, therefore, all the more important that principles, which do not change, should be made explicit in legislation such as this?

10.45 am

Mr. Garnier: I take an entirely different view. Legislation is not the place for statements of intent, which are to be found in policy documents, party political manifestos and papers provided by jurists and others. They should not be placed in statute.

Not only do sentencing policies change, in accordance with declarations by the senior judiciary, but so do Government responses to criminal behaviour. The ways in which the present and previous Governments have dealt with aspects of criminal behaviour have changed from time to time. Usually, in my experience, Government responses to changes in public concern are somewhat delayed and it sometimes takes as long as five years for a criminal justice Act to be passed to bring about change reflecting those concerns. None the less, I have given two examples of the constantly moving scene. By setting in stone the amendment or subsections (1), (2) and (3) we would not do any service to the courts, the Government or those whom we seek to serve.

That lesson was brought home to me at the weekend when I attended a Judicial Studies Board tuition course—one of the refresher courses that recorders attend. I was constantly reminded, as the only recorder at the seminar who was also a Member of Parliament, that much of the criminal justice legislation passed by the House is difficult to apply and does not adequately take account of what has happened before. The result is increasingly meaningless legislation. An article in issue 3 of ''Sentencing News'', for 15 November 2000, concludes:

    ''Legislators seem to be unable to learn the lesson that statutes which no one can understand cannot be put into effective operation.''

I do not suggest that the amendments or subsections (1), (2) and (3) are impossible to understand, but they are coming close, as I said last week, to being as useless as an early-day motion.

I was rebuked by the Minister on Thursday afternoon, at column 292, for failing to read the criminal justice review. I am not prepared to accept a rebuke from the Minister, whether it is right or wrong. It was wrong, in fact. In my role as shadow Attorney-General I studied the criminal justice review as it was

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published before the general election. I may even have come to it before the Minister. I cannot claim to have his detailed knowledge of it, but the points that I am making are outside that context. Simply repeating paragraphs from the review does not add to the quality of the argument that we need to get to grips with in this Committee if we are to produce effective measures.

Nothing in what the Minister said on Thursday afternoon comes close to being an answer to the points that I raised then. I am not making a party political point, but arguing that we need increasingly to be on our guard. We need to ensure that measures passed by the House, particularly on criminal justice matters, have some utility and effectiveness, instead of amounting to a collection of ill-thought-out amendments to earlier measures, or warm words that will make us feel good but fail to achieve our aims.

I of course accept that the aim of the youth justice system must reflect either the content of the amendments or the subsections that I have attacked. However, we do not need those provisions in the Bill. They will not help the sentencers to deal with the youngsters who come before them, nor will they help the people who write the pre-sentence reports. They will be hobbled and will produce a formulaic report.

After the Bill is passed, the probation service or whoever writes the pre-sentence reports in Northern Ireland will, almost as if setting out a computer matrix, write reports that reflect subsections (1), (2) and (3). The reports will then deal with the meat of the case, consider what should be done with a particular child or young person and pay no more attention to the aims set out in clause 53. They will not ignore those aims because they will always be in the mind of, and second nature to, the sentencer, but I assure the Committee that the amendment would be of no assistance whatsoever in securing proper sentences or treatment for young people, custodial or non-custodial—and I hope that, in the case of young people, they will be predominantly non-custodial.

From my experience, from the criticisms that have been expressed to me by those who are far more experienced than me in the practice of sentencing, from my understanding of the way in which legislation is, increasingly, being constructed in this House, and despite the Government's best intentions, as well as those of the two leading proponents of the amendments, I can assure them that they are barking up a tree that will produce no fruit.

 
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Prepared 12 February 2002