Criminal Justice and Immigration Bill

My Lords, in considering these clauses in Committee, your Lordships will have heard one of the most distinguished debates that has ever taken place in your Lordships' House, greatly enriching the pages of Hansard. It is a testimony to the self-discipline of all your Lordships this afternoon that your Lordships have restrained yourselves from repeating all those matters, but have taken them as a backcloth to the observations made on the amendments today. What underlay those debates was the concern about the failure to give welfare its proper weight in the youth justice system. We know, to some extent, why that happened. Following Section 44 of the 1933 Act—a remarkable achievement for all those years ago—and then our international commitments to the United Nations convention, we had this curious clause in the 1998 Act, which seemed to retrace our steps all the way back to the 1920s and before. Ever since then, we have been striving to work our way back. The victim of all this has been the welfare of the child. One has seen this outlined in so many ways. We have seen how children in trouble with the law are much more likely to have grown up in an environment of poor parental supervision and a lack of discipline—a factor that has been virtually ignored by the law in the past 10 years. We have seen how there are all too few opportunities for children in custody to get the kind of rehabilitation that they need in order to re-enter the world with a reasonable chance of not reoffending. I particularly remember the graphic incidents described by the noble Baroness, Lady Falkner, in which there have been serious breaches of human rights in young offender institutions. This balance desperately needs to be redressed, which is what the three non-government amendments are about. I congratulate the noble and learned Baroness, Lady Butler-Sloss, as so many other noble Lords have done, on saying right at the beginning how pleased she was that the Government have moved on this matter. If I may say with great respect to the Minister, there was no doubt that the text in the Bill simply did not conform to our international obligations, and I am delighted to see that the noble Lord has come up with a text which is a substantial improvement to what was in the original Bill. We are presented with three different texts, which all have their merits. The great merit of Amendment No. 47 in the name of the noble Lord, Lord Thomas of Gresford, is that he confronts Section 37 of the Crime and Disorder Act 1998 head on in a way that none of the other amendments does. That is extremely attractive because the law began to go wrong following our United Nations commitments. It is therefore right that it should be confronted. I share the concerns expressed my noble and learned friend Lord Mayhew of Twysden about proposed subsection (2) in Amendment No. 47, but my biggest hesitation about the amendment, which I do not have about either of the other two, is that it is not clear who should promote the welfare of the child under the amendment. Under Amendments No. 36 and 37, it is quite plain that the duty to protect the welfare of the child is on the court. The best that one can say about Amendment No. 47 is that the duty is on the system, but which part of the system will be responsible? I suppose the noble Lord, Lord Thomas of Gresford, will say that all parts of the system will be responsible, from the prosecution all the way to the moment when the child finally walks free from whatever institution in which he or she has been incarcerated. I say that not because I in any way question the spirit behind the amendment. Anyone listening to the noble Lord can be in no doubt whatever that he is coming at this problem from exactly the same place that I do; but as your Lordships will have to make up your minds this afternoon about what to do about the amendments, those, for what they are worth, are my hesitations about Amendment No. 47. Amendment No. 37, in the names of my noble friend Lord Onslow, the noble Baroness, Lady Stern, and the noble Lords, Lord Judd and Lord Ramsbotham, has many attractions. It would place responsibility squarely on the shoulders of the court, which must be right. The only real distinction between Amendments Nos. 36 and 37 is one of emphasis. When thinking about this, I have been in some considerable difficulty. The emphasis in Amendment No. 37 is much more strongly on the welfare of the offender than on the need to have regard to preventing offending or reoffending. I think that the noble Lord, Lord Ramsbotham, would agree that some of the criticisms that he made about offending and reoffending in Amendment No. 36 also apply to Amendment No. 37. The principal distinction between Amendments Nos. 36 and 37 is the weighting. The Government just get over the hurdle in Amendment No. 36. I am not very happy about the principal aim, but I have to confess that the court must have regard to the three factors equally. It is clear that the shackles that so heavily anchored welfare in the text of the Bill have been successfully unlocked.