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Viscount Astor: I thank the Minister for that reply which clears up my understanding. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 22 I must inform the Committee that if it is agreed to I cannot call Amendment No. 23.

Lord Williams of Mostyn moved Amendment No. 22:


Page 4, leave out lines 18 to 20.

The noble Lord said: Amendments Nos. 22, 24 and 63 are government amendments and therefore worthy of the Committee's support. They clarify the position regarding the availability of parenting orders and bind-overs when young offenders are referred back to court having breached the terms of a contract and the court then decides to exercise its power of re-sentence. In many ways, the amendments were triggered by the thought of the noble Lord, Lord Cope, when tabling his amendments. We wish to make it plain that where the parent of the child is responsible for the breach the court should have the option of issuing a parenting order and that a bind-over should also be available in those circumstances.

Having considered the amendments tabled by the noble Lord, Lord Cope, it is right to say that the Bill as drafted is not sufficiently explicit. We therefore propose amendments to Clause 4 and Schedule 1 to make it plain that the prohibition on the use of those disposals when making a referral order does not affect the ability to use them when the young person is being dealt with by the court. I hope that that response, which I readily concede derives from the amendments tabled by the noble Lord, Lord Cope, meets what was sought to be achieved.

Viscount Astor: On behalf of my noble friend Lord Cope, I thank the Minister for the amendments. They meet the point which my noble friend raised in his amendments.

6 p.m.

Lord Renton: Of course, the noble Lord, Lord Williams of Mostyn, is right about the substance of his amendments. But it is regrettable when we have to have, within a subsection, references to other paragraphs; for example, here we have references to paragraphs 5 and 14. It is a pity that we must have cross-references of that kind.

I know that it is often necessary in order to avoid lengthy repetition, but when it can be avoided, it should be. I do not object to the amendment. I merely say that

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if one can avoid those cross-references in the Bill, then it becomes much easier for lay people--and many magistrates are lay people--to understand what we are getting at.

Lord Williams of Mostyn: I take the noble Lord's point. I also always bear in mind the contrary view which has been expressed frequently to me by the noble and learned Lord, Lord Simon of Glaisdale, that less is better.

On Question, amendment agreed to.

[Amendment No. 23 not moved.]

Lord Williams of Mostyn moved Amendment No. 24:


Page 4, line 28, at end insert--
("( ) Subsections (2), (3) and (5) do not affect the exercise of any power to deal with the offender conferred by paragraph 5 (offender referred back to court by panel) or paragraph 14 (powers of a court where offender convicted while subject to referral) of Schedule 1.").

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 25:


Page 4, line 29, leave out subsection (6).

The noble Viscount said: Amendment No. 25 comes from reading the Notes on Clauses. Paragraph 45 states:


    "When a referral order is required or considered appropriate the court cannot exercise its usual power to defer sentencing (usually exercised in order that conduct after conviction, or the effect of a change in circumstances, can be assessed) but it may still adjourn for pre-sentence reports",
and the paragraph concludes by quoting the example of where the court is considering a custodial sentence.

I wonder why the court should not be allowed to have that usual power. It seems to me that that is a useful tool for the court and it is used fairly regularly. We have tabled the amendment in order to ask the Government what is their thinking behind that and why they have decided to remove that option from the court. I beg to move.

Lord Williams of Mostyn: We have deliberately taken away that option from the court. Delay has been the curse of the juvenile justice system. The noble Lord, Lord Cope, rightly observed that the national average is 4½ months and that is half a lifetime to young offenders. We must connect punishment or disposal with rapid court appearances and sentence.

One needs to bear in mind an extremely important difference in relation to the referral order. The referral order itself is the flexible disposal. In itself, it is capable of adapting to the changing circumstances of the young offender as well as underlining the strong element of reparation. Therefore, there is no purpose in delaying sentence for those matters to be taken into account because, by necessary definition, all those matters will be taken into account by the panel.

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If delay is available to courts, it is notorious that delay controls the process and very often pollutes it. We wish to avoid that and to learn from the lessons of the past. I stress that flexibility is inherent and built into the referral order procedure.

Lord Renton: In relation to subsection (6) of this clause, the Notes on Clauses and the Notes on Sections, which will eventually be provided in order to explain the Act when it becomes an Act, should be helpful.

I have before me the Notes on Clauses for this Bill. Although there is an extremely general statement under paragraph 45 of the Notes on Clauses, which explains subsection (6) up to a point, I believe that when the Bill becomes a statute, the notes on that clause will need to be amplified greatly. There is a great deal of cross-referencing in the Bill. Here we have references to no fewer than six other statutes. I do not say that there should be a great deal of repetition but a slightly more amplified description of the effect of subsection (6) would be extremely helpful.

Lord Williams of Mostyn: I shall certainly bear in mind what the noble Lord said when it comes to the drafting and dissemination of guidance for the magistrates' courts.

Lord Mackay of Clashfern: I fully support the view which the Minister expressed about the desirability of avoiding delay. That has been the curse of the criminal justice system, the youth justice system and possibly the entire justice system for some time. Any effort to reduce that delay must be supported.

However, I am not quite clear in my own mind as to how the clause referred to in the amendment relates to the situation which the court faces before it reaches a conclusion as to whether or not it is obliged to make a referral order; in other words, when it is considering the question of whether a custodial sentence is appropriate.

At that stage, one would obviously wish the court to have proper time to consider the matter. I assume that subsection (6) does not preclude the court from making the necessary inquiries and also having the necessary adjournment if that should prove essential in order to decide that question.

Lord Williams of Mostyn: First, perhaps I may say how great a personal pleasure it is to see the noble and learned Lord speaking to us. On hearing his voice, I still automatically turn to the left because he was such a notable and gracious incumbent of the Woolsack.

The noble and learned Lord is quite right. Clause 4(6) states:


    "Where section 1(2) ... requires a court to make a referral order".
Therefore, Clause 1(2) bites only when the compulsory referral conditions are satisfied. It seems to be implicit that if the court is proposing to impose a custodial sentence, it is entitled to have the materials available to reach that conclusion.

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We wish to avoid what happens sometimes when sentencers really wish to put off what may be regarded as the evil day. The imposition of a referral order is not an evil day. It is a positive benefit to all concerned, not least the young offender.

Baroness Carnegy of Lour: I may be being somewhat dim about this but I am not absolutely clear about what the Minister has said. Paragraph 45 of the Notes on Clauses states:


    "When a referral order is required or considered appropriate the court cannot exercise its usual power to defer sentencing".
It then goes on to state that,


    "it may still adjourn for pre-sentence reports (where, for example, it is considering a custodial sentence)".
Is deferring sentence and adjourning the matter something different? I should know that but I do not know the answer. Are they different? Is it that only a custodial sentence is a justification for adjournment? From the Notes on Clauses, it looks as though there may be other situations in which that may be done.

Lord Williams of Mostyn: I believe that I have answered the noble Baroness's concern when I answered the noble and learned Lord, Lord Mackay of Clashfern. If one looks at Clause 1, it states that the section applies in certain circumstances and the circumstances are (a), (b) and (c). Adjournment is different from referral as a term of art, as it were, and of practice. If the sentence is not fixed by law, or if the court is not going to impose a custodial sentence, or if it is not going to give an absolute discharge the court must follow the mandatory route set out, which we discussed earlier.

The noble and learned Lord asked whether or not, if a custodial sentence were in prospect--this was echoed by the question of the noble Baroness--a court would be able to adjourn to acquire the usual materials before imposing a custodial sentence. But deferral of sentence is different from adjournment in order to obtain the necessary sentencing materials.


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