Criminal Justice and Immigration Bill

The more I listen to this superb debate, the more I am coming to the conclusion that the right place for the amendment to Clause 1 tabled by the noble Baroness, Lady Stern, is in Clause 9. I shall go no further than to say that I am extremely sympathetic to the amendments tabled by my noble friend Lord Onslow and the noble Lord, Lord Thomas. However, I wonder whether we ought to reflect further on where we locate the excellent contribution that the noble Baroness made yesterday, because it might affect the way that we approach the question of the primary purpose of sentencing, particularly when details follow that are not consistent with what the noble Baroness wishes. I shall not pursue that point any further because I want to address the conformity of the clause with our international obligations; a matter upon which I found the JCHR report especially impressive. As your Lordships are by now well aware, the Bill provides that, "““where a court is dealing with an offender aged under 18 in respect of an offence … The court must have regard primarily to the principal aim of the youth justice system, that is, to prevent offending (or re-offending) by persons aged under 18 … The court must also … have regard to the purposes of sentencing””—" which are, "““the punishment of offenders … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation by offenders to persons affected by their offences””." The court must also have regard to the welfare of the offender, as required by Section 44 of the Children and Young Persons Act 1933. That duty is expressly made subject to the new duty to have regard to the principal aim of the youth justice system. It is extraordinary to reflect that in 1933 an Act could take such an enlightened approach in what we regard, perhaps not entirely rightly, as being a less enlightened age. The Explanatory Notes to the Bill state that: "““The Government does note that Article 3 of the Convention on the Rights of the Child provides that in all actions concerning children their best interests are to be a primary consideration. The duty under section 44 of the Children and Young Persons Act 1933, to have regard to the welfare of the particular child … will continue to apply””." However, Clause 9 clarifies that where the court is sentencing a juvenile offender it must primarily have regard to the principal aim of the youth justice system. Why do the Government consider that that provision is compatible with the obligation in Article 3 of the Convention on the Rights of the Child to ensure that the best interests of the child shall be a primary consideration in all actions concerning children? Their view, as I understand it, is that it is right that the courts should have regard primarily to the principal aim of the youth justice system when sentencing a young offender. The Government see no incompatibility with Article 3, apparently because that article only requires the welfare of the child to be ““a”” primary consideration in sentencing, not ““the”” primary consideration. The obligation in the CRC is to ensure that the best interests of the child are a primary consideration in all decisions affecting children. However, the effect of Clause 9 of the Bill is to subordinate the best interests of the child to the status of a secondary consideration below the primary consideration of crime prevention; in other words, to treat the welfare of the child as a mere supporting factor. In our view, the Bill should be amended to delete the provision which subjects the duty to have regard to the welfare of the child to the primary duty to have regard to the principal aim of the youth justice system. We also believe that the Bill should state that the sentencing court is required to have regard to the welfare of the child as a primary consideration as required by the convention. I have a second point about the consistency of the Bill with our international obligation. If your Lordships glance at proposed new Section 142A(4) in Clause 9, which they will have already done, they will see the statement about the purposes of sentencing, which are: "““the punishment of offenders … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation by offenders to persons affected by their offences””." These purposes seem to me to be indistinguishable from the purposes set out for adult sentencing. How do these purposes differ from the purposes of adult sentencing? As the Minister is well aware, we are signatories to more than one international convention which make it absolutely clear that the approach to sentencing children is entirely distinct to the approach to sentencing adults. I find none of this in the proposed new section in Clause 9, despite these obligations. So what has driven the Government in setting out a series of purposes, as they have done?