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Lord Williams of Mostyn: I understand the principles which lie behind a number of speeches made to the Committee tonight. However, without being harsh, I say that the noble and learned Lord, Lord Ackner, has indicated that many of the speeches, although they are well meaning, do not attend to this problem or to this amendment. I say specifically to my noble friend Lord Judd and to the right reverend Prelate that we express in the Bill precisely their concerns. Perhaps I may cite, for instance, Clause 11(5). One must take into account and consider what is:

As the right reverend Prelate implied, proper control may be necessary before a child can have appropriate care, appropriate protection and appropriate support. It does no child any favour to believe that in some circumstances a properly considered control is not in its best interest. Obviously, the opposite is true.

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The right reverend Prelate spoke about some children needing a return to belonging and a decent future-- I believe that I paraphrase fairly. Yes, I agree. He also spoke of appropriate responsibility. Yes, that is our view; but in some circumstances the appropriately responsible adult approach must be to offer a particular child intervention, treatment, rehabilitation, help and support.

It is in that context that I turn to the amendment. My noble friend Lady Mallalieu made a most effective speech dealing with a different evil, as the noble and learned Lord, Lord Ackner, mentioned. The noble Lord, Lord Goodhart, spoke of the recent trial at the Old Bailey. The question of doli incapax has nothing to do with the recent trial at the Old Bailey. If the amendment were carried, and those children had been tried in the case to which my noble friend referred, there would still have been delay before they reached the Old Bailey; they would still have had the ordeal of listening to the evidence as they coloured their books. But the evidence would have been directed to the proposition that they had to demonstrate on the balance of probabilities that they did not know that their actions were seriously wrong. I say this with no sense of reproach because I recognise my noble friend's concerns and I recognise the force of her arguments. But this amendment has nothing to do with that particular trial.

Everyone who has spoken this evening agrees that the ancient presumption of doli incapax is wholly out of date. It was historically based as an attempt to mitigate the savagery and barbarism of the criminal law. As the noble and learned Lord, Lord Ackner, indicated in his citation, that was intended to protect children from the gallows, from transportation and from gross punishment.

Here we are saying that the Crown Prosecution Service has a duty to decide, in conjunction with the police, whether or not a caution is sufficient or whether or not the sanction of the criminal law needs to be invoked. If it needs to be invoked, the presumption of doli incapax has gone. We then need to demonstrate that the child has the appropriate mens rea and that the act itself was committed. However regrettably, and no one regrets it more than me, if that act has been done, the child is guilty of a criminal offence. I endorse entirely what my noble friend Lord Judd and the right reverend Prelate said, but some children do wicked acts. No one rejoices in that. No one is happy that at the age of 10, which is very young indeed, those children have done evil things. Very often it is not really their fault because they have been formed by others who have failed to care for them. But the fact is that the act has been committed and the intent demonstrated; otherwise no conviction is possible.

We turn to the situation outlined by the noble and learned Lord. What does one then do? One does not consider barbarous punishments which have now, thank God, been done away with. But one must deal with the circumstances of the individual offender. I say that in no harsh or indeed reproachful way. The objective fact is--and it is a brutal but implacable fact--that the child has committed a criminal offence.

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We then need to attend to what happens at that stage. I repeat that we need to deal with intervention, rehabilitation and beginning to assist the child, if at all possible with the parents, to start the long journey back which the right reverend Prelate mentioned. Therefore, we are talking about appropriate intervention and the decent opportunity for rehabilitation with care, help and support.

I repeat that I am not being harsh. But it is true, however unpalatable it is--and I put it as gently as I can--that what Professor Granville Williams said in the citation of the noble and learned Lord is right. The paradoxical result would be that the more warped the child's moral standards--and I am not blaming the child for that but I am recognising that the world we live in is no longer a Garden of Eden--the safer in those circumstances the child is from the correctional treatment of the criminal law. As the noble and learned Lord said, that was written 30 plus years ago and I should not perhaps use words as harsh as,

    "the correctional treatment of the criminal law",

but the principle remains. In those circumstances, a child needs assistance and we should attend to the best possible regime of assistance and rehabilitation that we can find.

I have spent a few moments on this matter. I know that principled people can honourably differ in their views. I simply add that we consulted widely. We put forward our consultation document Tackling Youth Crime. Of the 180 who responded on this point, 111 felt that the presumption should be abolished; 48 felt that it should be reversed; and 21 felt that it should be retained in its current form. Therefore, we have not reached our conclusion without very careful and--I say in this context--anxious thought.

7.30 p.m.

Lord Goodhart: The noble and learned Lord, Lord Ackner, suggested that the abolition of the doli incapax rule would benefit children by enabling them to receive appropriate treatment. He went on to say that they would be deprived of that opportunity if they were not convicted in consequence of the application of the present doli incapax rule. The speech of the noble and learned Lord, Lord Ackner, was adopted by the noble Lord, Lord Williams of Mostyn, as very much the basis for his justification of the line taken by the Government in putting forward Clause 27 as it now stands.

My answer is that if a 10 year-old child does not have the capacity to understand that he or she has done wrong, that child should not be in court. Of course the child needs help but that help should be provided through the social services or through the education system. The conviction of a child who genuinely does not know that what he or she has done is wrong offends my sense of justice and I believe that it must offend the sense of justice of most Members of the Committee.

I shall not take the matter further on this occasion and I shall ask leave to withdraw the amendment. However, it is a matter to which we may return on a later occasion.

Amendment, by leave, withdrawn.

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On Question, Whether Clause 27 shall stand part of the Bill?

Lord Hylton: I take this opportunity to ask the Government whether, at a later stage of the Bill, they might accept an amendment, probably to the Street Offences Act 1959, designed to make it possible for young people aged under 18 engaging in prostitution, whether on a street or in a house, to be dealt with as in need of care and protection rather than as criminal offenders.

I mentioned that query to the office of the noble Lord, Lord Williams of Mostyn. Of course I understand that he may not wish to make a considered reply. If so, I should be most grateful if he would write to me.

Lord Williams of Mostyn: As always, the noble Lord, Lord Hylton, had the courtesy to inform me of his proposed course of action. Therefore, I have been provided with an answer to his question on child prostitution. The short answer is that there are a number of different responses to the social evil of the prostitution of young people under the age of 16. We need a range of remedies. We believe that to decriminalise child prostitution has certain deficiencies. If the noble Lord tables an amendment, I shall fully deploy those arguments which we believe to be appropriate. But I am responding candidly to his short question as to whether I would accept such an amendment. The answer is that I would not. If, however, the noble Lord tables an amendment, I shall study it and either to this Committee or in correspondence give a fully considered response.

Clause 27 agreed to.

Lord Hoyle: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.38 p.m.

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

House resumed.

Local Government (Experimental Arrangements) Bill [H.L.]

7.40 p.m.

Report received.

Clause 1 [Experimental decision-making arrangements]:

Baroness Hamwee moved Amendment No. 1:

Page 1, line 26, at end insert ("delegated to that committee").

The noble Baroness said: My Lords, in moving the above amendment I wonder whether, in the spirit of the Motion just taken on resuming the House, it should perhaps be Amendment No. 1¾, or something similarly precise. In moving the amendment, I shall speak also to Amendments Nos. 13 and 17 which have been grouped with it, although they cover rather different issues.

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Before I speak to Amendment No. 1, perhaps I may take a moment of the time of the House to thank the noble Lord, Lord Hunt of Tanworth, and the Minister for the very considerable amount of time that they have given to discussing the concerns that have been expressed during earlier stages of the Bill. In particular, I should like to thank them for their role as regards the amendments which are before the House tonight, some of which I realise took a considerable amount of work to achieve. The noble Lord, Lord Bassam, the noble Lord, Lord Hunt, and I, have expressed a number of concerns on previous occasions, although I appreciate that I was perhaps a little more awkward than others. Nevertheless, I very much appreciate the work that has been done. I hope that the House will feel that the amendments are worth while.

My underlying concerns--about whether this is the right approach to innovation and whether internal arrangements should be the prime target for innovation--may remain, but I am a realist. I realise that the Bill is what we have before us. Having raised matters which are now within the amendments I, like other noble Lords, have been very glad to put my name to them. I believe that they will make a better Bill.

There are some amendments, those in this group and one or two others, which are tabled solely in my name. I hope that the House will understand--indeed, I have already explained the position to the noble Lord and the Minister--that these have been tabled not in a spirit of cussedness but simply as a mechanism for getting comments from the sponsor of the Bill and from the Government on the record. That is the reason for my moving this and other amendments.

Amendment No. 1 seeks to add to the end of Clause 1(2)(d)(ii) the words, "delegated to that committee", in order to describe the functions which the members of that committee may discharge. I do so in order to understand whether the arrangements may include the delegation of some, but not all, functions of the authority; and, in particular, how this clause relates to Clause 1(3)(b) which uses the terminology,

    "any functions of the authority which the committee is able to discharge".

I remain uncertain as to whether those provisions are somewhat circular; in other words, is the authority able to discharge only those functions which fall within Clause 1(2)(d)(ii), and, indeed, how does that loop arise? I hope that I have made myself clear in that respect.

Amendment No. 13 proposes that the details of the arrangements included in the application should include,

    "arrangements for the performance of the ceremonial role of mayor of the authority".

Over a number of years in local government, I have come to realise that the mayoralty is of great importance to a number of residents and that is much more material than its importance to those councillors who take on the role. However, it is quite clear that the attendance of the mayor, demonstrating the commitment of the authority represented by the mayor, and so on, is something which many people value greatly. Therefore, I should be glad

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to have on the record--and I know that the noble Lord, Lord Hunt, has written to my noble friend Lady Thomas of Walliswood in this regard--how the ceremonial role may be performed in a situation where there is an elected mayor.

I turn finally to Amendment No. 17. Again, I draw attention to the provisions in Clause 6 in connection with any proposed change to the arrangements. I refer in particular to the provision that a mayor may have what is in effect a veto on any proposed alterations. Subsection (3) says that,

    "the local authority may not pass such a resolution"--

as part of the approach to the Secretary of State--

    "without the written consent of the ... [elected] mayor".

I am concerned about this, among other matters. I wish to understand how that provision will apply when there is a change of control in the administration of the authority. Again, this matter has been discussed privately, but it is not altogether obvious on reading the Bill. Indeed, one would not necessarily expect it to be.

When there is an election, the incoming administration may perhaps express very different views about its own internal management. Similarly, there may be no overall control of the authority in a situation where, to have an elected mayor, might--although not necessarily--go against any attempts to reach a consensual arrangement which groups in such circumstances will be striving to achieve.

Further, I am also concerned to understand how the Secretary of State can prevent what perhaps I can describe as the improper use of the veto. An elected mayor with executive authority will have very considerable powers. I have an instinctive distrust of how being in that situation may give the individual ideas about the retention of his position which might not necessarily be shared by others. Moreover, if an authority wants to move away from the model of a cabinet committee, executive ordinary mayor or an elected mayor, I am concerned to know how it could do so. With the individual having such a power of control, it would be helpful to understand more fully in what circumstances it may be used and how it may be overcome, if indeed it can be. I beg to move.

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