Previous Section Back to Table of Contents Lords Hansard Home Page

The Lord Chancellor: My Lords, I beg to move that the House do not insist on their Amendment No. 56B to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 56C in lieu thereof.

In bringing Amendment No. 56C before your Lordships' House the Government are fulfilling an undertaking given on the previous occasion on which this House considered this Bill. At that time we had before us Amendment No. 56B, which was moved by the noble Lord, Lord Goodhart. On that occasion I said that the effect of Amendment No. 56B would have been to broaden the effect of Amendment No. 56 so that it excluded from the scope of this legislation not only non-contentious business agreements, but any form of fee agreement enforceable at common law, typically conditional fee agreements with no uplift--often known as Thai Trading agreements--and gave reasons, which I will not now repeat, as to why that would be undesirable.

However, the noble Lord, Lord Goodhart, made it absolutely clear that all he was trying to achieve was to preserve the position of solicitors entering into Thai Trading agreements in respect of proceedings under Section 82 of the Environmental Protection Act 1990. If I may say so, this is another area of this Bill where the Government have both listened and responded positively. Section 82 allows people aggrieved by a statutory nuisance, for example inadequate housing, to seek an order for that nuisance to be put right. These cases are heard in a magistrates' court and are

26 Jul 1999 : Column 1310

technically criminal cases, although they are in substance brought to enforce a civil right. Conditional fee agreements are not permitted in criminal cases under the existing legislation, and that position is maintained by the Bill. But as a result, the effect of bringing Thai Trading agreements into the scope of the legislation so as to be able to regulate them in the consumer interest was to outlaw them in these Section 82 proceedings.

I said that after careful consideration the Government accepted that in this area an exception should be made to the general bar on using a conditional fee agreement in a criminal case. As I say, essentially these cases are about enforcing civil rights; and many of them are about the right to a decent standard of housing, an issue to which the Government attach a very high priority as part of their drive to combat social exclusion. I therefore suggested a somewhat unusual--perhaps completely unprecedented--course, which caused a little merriment around your Lordships' House but none the less, or perhaps because of that, found favour with your Lordships. I proposed that this House accept Amendment No. 56B, warts and all, for tactical purposes in order to make it possible to bring forward in another place an alternative amendment which dealt squarely with an exemption for the Environmental Protection Act. This is what Amendment No. 56C does. It amends Section 58A of the Courts and Legal Services Act 1990 so that proceedings under Section 82 of the Environmental Protection Act are exempted from the ban on the use of conditional fees in criminal cases.

I trust that Amendment No. 58C will meet with your Lordships' approval, and I would like to put on record my gratitude to the noble Lord, Lord Goodhart, for giving us the opportunity to make this useful amendment.

Moved, That the House do not insist on their Amendment No. 56B to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 56C in lieu thereof.--(The Lord Chancellor.)

Lord Goodhart: My Lords, Amendment No. 56C, in our view, brings in a small but distinct improvement to this Bill. In that respect it is the last of many improvements to the Bill which have been made both in your Lordships' House and in another place. I join with my noble friend Lord Thomas of Gresford in paying a tribute--it is certainly a genuine tribute--to the Government and to the noble and learned Lord the Lord Chancellor in particular for their willingness to listen to the arguments to make improvements to this Bill, some of which have been very much more important than this amendment.

I have to say that we are left with a number of serious concerns. One of those was aired in the debate earlier this afternoon; others have been discussed at length at earlier stages of this Bill. As Amendment No. 56C is certainly in our view an improvement to the Bill, all I need to say at this stage is that we are happy to welcome it.

On Question, Motion agreed to.

26 Jul 1999 : Column 1311

Youth Justice and Criminal Evidence Bill [H.L.]

4.37 p.m.

The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

[The page and line refer to Bill 74 as first printed for the Commons]


Clause 1, page 1, line 21, leave out ("may order the offender") and insert ("shall sentence the offender for the offence by ordering him").



That the House do disagree with the Commons in their Amendment No. 1.

Lord Windlesham: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 1. I shall speak also to Amendment No. 2 which deals with the same point.

Let me rehearse briefly the background to these amendments. Earlier in the Session, at Third Reading the House made a small but significant change in the wording of the opening clause of the Bill. The purpose of that clause is to enable a youth court or other magistrates' court to refer certain categories of young offender under the age of 18 to youth offender panels. The new power is not intended to be available where an offence is one for which the sentence is fixed by law, nor where the court is proposing to impose a custodial sentence, or to make a hospital order, or is proposing to make an absolute discharge.

Moreover, to be eligible for referral the young person before the court needs to have pleaded guilty, and never to have been previously convicted of a criminal offence, nor bound over to keep the peace or be of good behaviour. I wish to stress that none of these requirements is affected in any way by the amendment.

It has been made clear that the policy objective of the legislation is one that we can all accept; that is, to prevent reoffending by as many young people as possible who are appearing in court for the first time. Rather than attending the court in a detached, resentful, and often uncomprehending manner, the aim is to divert young first offenders away from the procedural formalities inherent in the penal system. Instead, they will be referred to youth offender panels designed to help young people to understand the effects of their actions on the victims and on a wider community.

The ideals of reparation and taking personal responsibility are far from new. But now, under the general rubric of restorative justice, it is a concept whose hour has come. The proposed referrals

26 Jul 1999 : Column 1312

complement the provisions of the Crime and Disorder Act 1998 and form part of what we should acknowledge as a carefully thought-out series of policies designed to combat the widespread harm done by youth offending. All of that is common ground and is welcome.

The only aspect which divided the House on Third Reading was whether the referral orders should be mandatory, provided that certain conditions were met, or the sentencing court should have discretion whether or not to make such an order, taking account of all the circumstances of the actual case once the facts had been established. After a full debate the House agreed, albeit by a narrow majority of four, on a vote in which 293 Peers took part, to an amendment moved by myself and supported by four leading counsel--the noble Lords, Lord Carlisle of Bucklow, Lord Renton, Lord Campbell of Alloway and Lord Thomas of Gresford, from the Liberal Democrat Front Bench. All, save the noble Lord, Lord Carlisle of Bucklow, are present in the Chamber this afternoon, and all have experience of sentencing as Recorders in the Crown Court.

The effect of the amendment was to leave the making of a referral order within the discretion of the court. Other notable speeches in support were made from the Cross Benches by the noble and learned Lord, Lord Lane, former Lord Chief Justice of England, and by the noble Viscount, Lord Runciman, Chairman of the Royal Commission on Criminal Justice.

The debate continued in the House of Commons and covered much of the same ground. It was the subject of a full-day session in Standing Committee and later occupied some two hours of debate on the Floor of the House on Report. On each occasion Ministers declined to make any concession to meet the objections of principle that had been raised towards mandatory sentencing, and the Lords' amendment was reversed on a Division in Standing Committee.

Earlier this month, on 8th July, some carefully drafted alternative wording was proposed from the Opposition Benches for Clause 1. But that, too, was rejected in another place, once again on a Division at the Report stage. In the course of that debate the Home Secretary declared that he accepted the case for flexibility. But his speech concentrated on the way in which referral orders are to be drawn up in the form of a contract with the offender.

These details will be important, especially as it is intended that the duration of the order may vary between three to 12 months, with the actual term being specified by the sentencing court. The noble Lord, Lord Williams of Mostyn, may recall that he used the same example in his unsuccessful attempt to head off defeat the last time we debated this matter.

The Home Secretary took the reasoning further when he replied to the debate on Report in another place. He pointed out that if what he referred to as "unanticipated inflexibilities" should arise, the Secretary of State would have power under Clause 2(3) of the Bill to make such amendments by regulation as he considered necessary to vary the descriptions of the offenders to whom the compulsory or discretionary referral conditions should apply.

26 Jul 1999 : Column 1313

But varying the conditions does not go to the heart of this dispute. Whatever criteria are adopted to describe the categories eligible to be referred to youth offender panels, and however carefully constructed the contract that is drawn up by the panel for each individual young person, the reality remains that the court must--not "may"--make a referral order when sentencing any offender to whom the Act applies. This is the central feature of the procedure which remains objectionable for the reasons that have already been comprehensively rehearsed in both Houses.

As the Bill stands, the first two clauses attempt to define the sort of person it is envisaged should be subject to the new order. The objection is that sentencing in a just society is not, or should not be, directed towards categories of people at all. Once guilt has been established, the court should treat each offender as an individual and decide on the penalty appropriate to the harm done and other relevant factors. Treating people before the courts by category inevitably produces hard cases at the margin.

I submit that we should heed the warning of the noble and learned Lord, Lord Lane, with his great experience of sentencing over a long period of time. In the previous debate he said:

    "the sad fact is that the mandatory sentence or mandatory disposal order will inevitably be a potential miscarriage of justice".--[Official Report, 23/3/99; col. 1159.]

I beg to move.

Moved, That the House do disagree with the Commons in their Amendment No. 1.--(Lord Windlesham.)

Next Section Back to Table of Contents Lords Hansard Home Page