Lords Sitting of 10 February 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.

Iran
Lord Montagu of Beaulieu Lord Montagu of Beaulieu asked Her Majesty's Government:
What obstacles exist to establishing full diplomatic relations with Iran and when they anticipate that these obstacles will be removed.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we have full diplomatic relations with Iran. Our embassy in Tehran is headed by a chargé d'affaires, however, not an ambassador. This is a reciprocal agreement. We have been encouraged by recent political developments in Iran and would welcome a more constructive bilateral relationship. However, we still have major concerns about Iran's attempts to acquire weapons of mass destruction and ballistic missiles, its support for terrorism, including groups opposed to the Middle East peace process, its poor human rights record and the continuing and wholly unacceptable threat to the life of Salman Rushdie and those associated with his work.
Lord Montagu of Beaulieu: My Lords, since it is obvious that the people of both Iran and Britain want closer relations, can the Minister confirm that it is the policy of the Government to support and encourage closer links for commercial and cultural reasons? Further, does the Minister agree that it may be a good idea to send to Iran an all-party parliamentary delegation led by a Minister in order to clarify issues and perhaps find a better way forward?
Baroness Symons of Vernham Dean: My Lords, we have been encouraged by recent developments. As I informed the House about 10 days ago, we hope for an improvement in the relationship. We are reviewing the relationship under our presidency of the EU. It is too early to commit ourselves to the kind of exchanges with Iran that the noble Lord suggests, but if that country is able to demonstrate its willingness to go forward on human rights, terrorism and in particular the unjustifiable fatwa on Salman Rushdie the picture in that respect will appear much brighter.
Baroness Williams of Crosby: My Lords, I accept the comments of the Minister as to those matters that Iran must put right. However, has she considered the possibility of extending cultural relations, perhaps through the British Council, as a way of encouraging the more liberal elements that at long last are beginning to emerge in Iranian society?
Baroness Symons of Vernham Dean: My Lords, yes, as and when Iran takes the right steps. but they must be definitive steps. At the moment cultural exchanges are bound not to sit well with a country that has expressed a fatwa on the life of a British citizen for writing a book. Such exchanges are bound to be a little difficult, to say the least, until Iran addresses that point.
Lord Healey: My Lords, I welcome my noble friend's remarks about Iran. But does she agree that all the complaints she makes about that country apply equally to Israel? Indeed, even the case of Salman Rushdie is reciprocated in Israel by the treatment of Vanunu. Therefore, should we not at least have as good relations with Iran as we have with Israel?
Baroness Symons of Vernham Dean: My Lords, I cannot agree with my noble friend. The state of Israel has a democratically elected government. We may not agree with many of the actions that that government take. I have had occasion to express that view in this House in relation to Jerusalem and illegal settlements. The Israeli Government are, however, democratically elected. We are discussing with them how to take forward the peace process. We are not at present engaged in that kind of discussion with Iran about the matters that that country must address, notably terrorism, its record on human rights, and the question of Salman Rushdie.
Baroness Gardner of Parkes: My Lords, can the Minister inform the House of the cost of the special protection that has been provided to Salman Rushdie since the fatwa was placed upon him and what proportion of that is borne by the public purse?
Baroness Symons of Vernham Dean: My Lords, I am unable to give definitive figures for the cost of the special protection provided to Salman Rushdie. I shall ensure not only that the answer is sent to the noble Baroness but also that it is placed in the Library of the House. I believe that the noble Baroness raises an important point. But the issue must be seen in the context of protecting the life of a British citizen. Whatever the costs, they have been fully justified. I believe that when the Opposition were in government they would have taken a very similar view.
Lord Avebury: My Lords, is the Minister aware that the editor of the English language newspaper published in Tehran, the Iran Daily News, has just been sentenced to death on a charge of spying for Great Britain? Is the Minister also aware that 200 people were executed by Iran last year, some by the barbarous method of stoning? Does the Minister agree that the Iranians have a very long way to go before they satisfy the criteria of human rights to which she referred?
Baroness Symons of Vernham Dean: My Lords, I am aware of the sentence of death to which the noble Lord refers. We have protested about that matter to the Iranian Government. We have also made our views clear about the case of Mr. Hofer, a German national, who at the moment is also under sentence of death.
Baroness Nicholson of Winterbourne: My Lords, as chairman of the All-Party Parliamentary Group on Iran, may I ask whether the Minister is aware of Iran's exemplary work with regard to refugees? That country has opened its borders to no less than 4 million refugees in the past decade with virtually no help from United Nations agencies or the European Union. Is the Minister prepared to draw this work to their attention?
Baroness Symons of Vernham Dean: My Lords, yes. It is because we are aware of positive developments in Iran in recent months, which we have noted and which our EU partners have been watching with interest, that we are encouraged by that country's recent attempts to make better relationships, not just in respect of the refugees mentioned by the noble Baroness but also with its neighbours. It has reduced its rhetoric about the West; it has condemned terrorist atrocities in Algeria and Egypt. Another positive step has been the recent decision to ratify the chemical weapons convention. For those reasons, we feel that it is right to review our relationship in a positive way.
Lord Moynihan: My Lords, given that the Foreign Secretary has said that we and our EU partners cannot forge a new partnership with the US on Iran while we are looking down the barrel of the sanctions Act gun; while the US Secretary of State has said that "we"—in other words, the US and the EU—are working together to achieve convergence in our approaches to Iran; and while faithfully implementing US law, how is that convergence to be achieved?
Baroness Symons of Vernham Dean: My Lords, the noble Lord is right. As I said to the House on a previous occasion, we take a different view from the US about Iran—a point which some noble Lords might wish to know in view of some of the ill-founded remarks made about the UK Government always following the lead of the US. We do not believe in isolating Iran. Our long-term goal is not the containment of Iran. We do not accept the ILSA legislation—the US extra-territorial legislation—nor do we accept its isolation. We shall continue to argue those points with our friends in the US so that we can find a point of agreement upon which to go ahead.
Lord Montagu of Beaulieu: My Lords, is the Minister aware that under Iranian law only the person who placed the fatwa can remove it? Since it was put on by Khomeini, there is an impasse that cannot be removed because he is dead.
Baroness Symons of Vernham Dean: My Lords, I hope that the noble Lord is taking an unnecessarily negative view on that point. If we did not believe that there were grounds for furthering the relationship, we should not have made the point under our presidency of looking forward to improved relations with Iran. I have made clear the point about Salman Rushdie. That is non-compromisable, but let us hope that the Government of Iran can meet us on that important matter.

Alcohol: Excise Duty Fraud
2.46 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What progress has been made in reducing fraudulent disposal within the United Kingdom of alcoholic liquor, after it has been taken out of bond without payment of excise taxes, for the supposed purpose of exporting it abroad.
Lord McIntosh of Haringey: My Lords, Customs continue to pursue vigorously those involved in excise duty fraud and have had notable successes. Figures for this type of fraud are not recorded separately, but it forms a high proportion of the achievements of the Customs National Investigation Service. In the financial year 1995–96 the revenue evasion-prevented value of cases was some £150 million and in 1996–97 it rose to £572 million.
Lord Campbell of Croy: My Lords, I thank the noble Lord for his reply. Since his reassuring Answers to my Question on 30th June, at least one large racket has been broken up, with convictions of the culprits. Is he aware that that confirms our impression that his power and influence extend far beyond this House? Is he satisfied, though, that the special investigators whom he mentioned then can now detect the sophisticated forgeries which play a major part in these frauds, and which are so damaging to industry and retailers?
Lord McIntosh of Haringey: My Lords, I cannot tell a lie: I did not do it all by myself. The noble Lord is of course right. The assignment of 130 additional investigators under the spend-to-save initiative has been notably successful. However, I fear that the ingenuity of fraudsters advances as well as the skills of the investigators.
Lord Mackie of Benshie: My Lords, how did this type of evasion become so profitable and so widespread? Was it due to a reduction in staff in the Revenue? How did it happen? It used to be that one could hardly get a nip in a distillery and now apparently the land is flowing with duty free alcohol.
Lord McIntosh of Haringey: My Lords, legitimate duty free goods form a separate issue. As the noble Lord will be aware, it is planned to come to an end in July of next year. As to his first question, there has been an increase in the amount of fraud over a considerable period. There are many reasons for that. They include, but are not dominated by, differences in duty.
Lord Mackay of Ardbrecknish: My Lords, is not part of the problem that, as a result of the single market, we have had to take certain steps with regard to excise duty and how people can take whisky out of bond for export which allow these crooks to get into the business? Does the noble Lord realise that I greatly welcome his assurances that steps are being taken, and

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will be taken legislatively if necessary, to prevent that? Does he further agree that the problem is not just one for the Excise, it is one for legitimate businessmen who find that other businessmen can, by buying this whisky which was due for export, indulge in predatory pricing?
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for nearly everything he says. He is right to say that we are taking action to review—if that is not a dirty word, too—the whole issue of fraud, smuggling and cross-border shopping. That was announced in the July Budget. The results of the inquiry are in their final stages and will be used in the run up to the forthcoming Budget. Concurrently, a high level group of states of the European Union is due to report by March this year. Therefore, as the noble Lord suggests, a great deal is going on.
Lord Campbell of Alloway: My Lords, as part of the review system, could consideration be given to offering the bond system so that a rebate is paid against viable shipping or transport documents at the time the goods are removed from the warehouse for export? In other words, could we not introduce a new system which could be verified at the time with documents that are difficult to forge because they can be checked by Customs and Excise?
Lord McIntosh of Haringey: My Lords, the noble Lord's question contains two aspects. The first is a review of whether and when duty should be paid. Drawback fraud—that is when duty is paid and then claimed back as though the goods had been exported—is an important source of fraud and I do not think that the noble Lord's solution would work well. Secondly, documentation is as simple as it can be consistent with keeping proper records. The difficulty is the sophistication of those who continue to forge the documentation. We spend a great deal of time on checking cases of fraud and forged documentation.
Lord Stoddart of Swindon: My Lords, my noble friend mentioned the end of duty free shopping next year. Is he aware that many people are concerned that the end of duty free shopping will cause not only a great deal of discomfort to the ordinary public but will result in the loss of more than 100,000 jobs? Has my noble friend had representations from my old trade union, the Amalgamated Engineering Union—I declare an interest—which is concerned about the matter and is mounting a national campaign to oppose it?
Lord McIntosh of Haringey: My Lords, I am aware of the concern and that claims of job losses are circulating. They seem to the Government to be grossly exaggerated. The ending of duty free shopping has been presaged for many years as a natural and necessary part of the single market. The continuation of duty free shopping would require the unanimous vote of all states.

Strategic Defence Review
2.53 p.m.
Lord Chalfont Lord Chalfont asked Her Majesty's Government:
When they expect to complete the strategic defence review.
The Minister of State, Ministry of Defence (Lord Gilbert): My Lords, the strategic defence review is now looking at possible missions for our forces, military tasks, future force structures and capabilities, procurement and a wide range of efficiency-related issues. Once all work on the review has been considered by Ministers, we will publish a White Paper setting out our overall conclusions. I envisage that the White Paper will be published in the first part of this year.
Lord Chalfont: My Lords, I thank the Minister for that Answer. Can he assure the House that the defence review is still determined by foreign policy and defence requirements and not by pressures for further cuts in the defence budget? In that context, will he take an early opportunity to discuss these matters with officers and men and women of the Armed Forces, where he will find considerable concern and anxiety about their future?
Lord Gilbert:: My Lords, I am happy to confirm that the review is and will remain foreign policy-led. The noble Lord is right in saying that we are discussing. and will continue to discuss, these matters with members of the Armed Forces. It is particularly important that we maintain well equipped and well motivated forces and that is part of the strategic defence review. I am happy to be able to tell the noble Lord that later this week I shall be visiting British service personnel in Kuwait and Bahrain. I shall also be visiting Qatar, when I hope to be able to brief our friends in those countries about our efforts to find a diplomatic solution to the Gulf crisis.
The Earl of Carlisle: My Lords, if the strategic defence review recommends measures which will entail greater expenditure, will the Minister appeal to the Treasury for an increased defence Vote? If that is not forthcoming will Ministers in the Ministry of Defence resign their offices of state?
Lord Gilbert: My Lords, it is a little premature for us to be considering resignation. We are not without hope of obtaining certain enhancements to our capabilities as a result of the review.
Lord Bramall: My Lords, does the Minister agree that with defence commitments as they are and as they are likely to continue, with the Armed Forces so manifestly overstretched and undermanned, and with previous defence studies going back for at least nine years prying into every nook and cranny of defence value for money, there can be no logical case for reducing further the resources allotted to defence?
Lord Gilbert: My Lords, I note what the noble and gallant Lord says. He speaks with great wisdom on these

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matters, but, even after his tenure as Chief of the Defence Staff, we believe that there is still waste and that we can gain efficiency enhancements. We hope to be able to obtain additional resources for the defence Vote out of those savings.
Lord Howell of Guildford: My Lords, can the Minister confirm whether the Eurofighter is included in the strategic defence review? It is an expenditure of about £15 billion, which is possibly the largest portion of defence expenditure. It is a lot to exclude. Looking at our foreign policy as a whole and the review as part of that, can the Minister also confirm that the budgets and figures will take account of expenditure in other parts of our international policy, including a small part of the budget taken up by the Foreign and Commonwealth Office diplomatic wing?
Lord Gilbert: My Lords, the noble Lord is right that the Eurofighter is an expensive project. It will be the biggest single drain on our resources in the years ahead. We have made it clear that we are committed to buying 232 of these planes in conjunction with three of our leading allies in Europe. I am pleased to say that the programme is making a great deal of progress.
As regards other elements of expenditure, I draw the noble Lord's attention to the initiative of my right honourable friend the Secretary of State for Defence on defence diplomacy. As the noble Lord indicated, it costs a great deal, but we believe that it will bring considerable bonuses in enhanced security.
Lord Dean of Beswick: My Lords, the Minister must be aware that one of the major features of our survival during the last war was that we had the largest merchant navy in the world. It was able to suffer tremendous losses while continuing to supply the logistics. During the past 25 years it has disappeared from the oceans. Can the Minister tell us whether the White Paper will deal with the delivery of logistics? We have no merchant navy. We were called to action in the Falklands and managed to get away with it, but we could not do so again because we have no ships.
Lord Gilbert: My Lords, I must invite my noble friend to await the outcome of the review, but I can assure him that questions of our strategic lift capabilities figure highly in our thoughts at this moment.
Lord Burnham: My Lords, may I express my sympathy with the Minister for his inability for months to answer any Question that has been asked because of the imminence of the strategic defence review? Will he draw to the attention of his honourable friends in the Foreign and Commonwealth Office, and particularly in the Treasury, the lowering of morale among our Armed Forces because of the delay in the review and their fears for the future, which seem to be justified?
Lord Gilbert: My Lords, of course I do not accept for one moment the quite preposterous postulate put forward by the noble Lord that the morale of our Armed
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Forces is very low. I am quite sure that I shall very shortly be able to bring back detailed refutation from the Gulf on that point.
Lord Craig of Radley: My Lords, in view of some alarming reports that the Government are considering forming a tri-service logistics monolith, will the Minister assure the House that the logistic command of our forces will continue to be exercised separately by each of the services? Does he agree that the doctrine and practice of support for the Royal Air Force, which is very mobile, differs from that for the Army and that both are different from that for the Royal Navy?
Lord Gilbert: My Lords, the noble Lord is quite right that the requirements of the three services differ considerably in areas of logistics, supply and maintainability. However, he will recognise, from his vast experience in these matters, that there are still many savings which can be made in those areas.

Gibraltar: NATO Activities
3 p.m.
Lord Hardy of Wath Lord Hardy of Wath asked Her Majesty's Government:
Whether the present position of Gibraltar is causing any difficulty in regard to activities associated with NATO membership.
Baroness Symons of Vernham Dean: My Lords, there continue to be some restrictions on NATO military activities in and around Gibraltar, affecting aircraft movements, naval movements and the participation of Gibraltar-based military assets in NATO exercises. We are discussing those bilaterally with Spain in the context of Spanish integration into the NATO command structure.
Lord Hardy of Wath: My Lords, I thank my noble friend for that reply. Are she and her colleagues fully aware that over recent years Spain has been particularly enthusiastic to support self-determination and international recognition throughout every part of Europe except Gibraltar; notably in the cases of Liechtenstein, Andorra and San Marino? Could not our policy be one of seeking to ensure that Spain is consistent and extends the same approach to the Rock? Let it be based upon democracy.
Baroness Symons of Vernham Dean: My Lords, I hope that Her Majesty's Government have in no way been anything other than straightforward in their views on that question. We have no hesitation whatever in making that clear not only to Spain but to our friends elsewhere. Our commitment remains steadfast. As my right honourable friend the Foreign Secretary said in his speech on 4th February to the Dependent Territories Association Conference, we stand by the assurance given to the people of Gibraltar in the preamble to the 1969 constitution. We shall never allow the people of

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Gibraltar to pass under the sovereignty of another state against their freely and democratically expressed wishes.
Lord Merrivale: My Lords, will the Minister confirm in the light of the changes in the structure of the Allied Command Europe Southern Region that COMGIBMED will be retained; in other words, the retention of the Commander Gibraltar Mediterranean?
Baroness Symons of Vernham Dean: My Lords, I can give the noble Lord an undertaking that we shall not allow Spanish military command over Gibraltar nor the presence of Spanish military personnel on the Rock. We have made that clear.
Lord Thomas of Swynnerton: My Lords, given that Spain has certain responsibilities of her own in relation to defence in the straits; that Spain has been a member of NATO for some years; and that Spain is a full member of the European Union, would not the Government give some thought to making it a higher priority in their foreign policy aims to reach a solution of that problem? That would be of great assistance to the future development of our relations with Spain and the rest of Europe.
Baroness Symons of Vernham Dean: My Lords, the Government give a very high priority to that issue, as I said in my original Answer. We are currently discussing those issues bilaterally with Spain. Moreover, my right honourable friend the Foreign Secretary raised those issues with his Spanish counterpart on 10th December last year and we have discussed those matters in the margins of the conference to which I referred a few moments ago with Peter Caruana.
Lord Janner of Braunstone: My Lords, will my noble friend accept that on both sides of the House we are grateful for her robust repetition of this country's position; namely, that there is no circumstance in which Gibraltar will change its status without the consent of its people? In those circumstances, will she please consider following the American example as regards its dependent territories and allow Gibraltar to send a delegate to this Parliament without voting powers but with the right to sit and speak, as a signal to our friends in Spain of our Government's determination?
Baroness Symons of Vernham Dean; My Lords, I thank my noble friend for his support for the Government's forthright commitment on Gibraltar. He raises the question too of representation in the Houses of Parliament of those from Gibraltar. Mr. Caruana has put forward various suggestions to my right honourable friend which are being considered at present. I ask the House to await the outcome of my right honourable friend's considerations of various constitutional points and other matters of practical application which Mr. Caruana has put forward.
Lord Stoddart of Swindon: My Lords, is my noble friend aware that I am delighted with her splendid and
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unequivocal statement that British interests will be upheld as they have been over a long period of time in relation to the Rock of Gibraltar? But is she aware that there are many complaints that the Spanish authorities are harassing tourists and lorry drivers who wish to cross from Spain to Gibraltar? Will she put pressure on the Spanish authorities to cease that harassment since it is non-communautaire—if I may put it in that way?
Baroness Symons of Vernham Dean: My Lords, I was not aware of my noble friend's approbation but I am very pleased to hear it. In addition, he raised the important question of the harassment around the Gibraltar-Spanish border. We are aware of those incidents as and when they arise; and when they arise, we make very clear to the Spanish authorities what we think of them.
Lord Moynihan: My Lords, specifically, is it still the firm position of the Foreign Secretary to continue to defer agreement on Spain's integration into NATO's military command structure unless all the current Spanish restrictions on the movement of military aircraft in and out of Gibraltar are dropped since, as the Minister knows, NATO decisions must be reached by consensus?
Baroness Symons of Vernham Dean: My Lords, as I said in answer to the original Question, we are discussing those matters at present. It is not wise to prejudice the outcome of those decisions. But I have made it very clear that many of the Spanish ambitions in relation to Gibraltar are unacceptable to Her Majesty's Government.

Business
Lord Carter: My Lords, at a convenient moment after 3 p.m. today, my noble friend Lady Symons of Vernham Dean will, with the leave of the House, repeat a Statement that is to be made in another place on Iraq.
I take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to,
"brief comments and questions for clarification".
There is a mandatory limit of 20 minutes from the end of the Minister's official reply to the Opposition spokesman.

Crime and Disorder Bill [H.L.]
3.8 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to. House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 18 [Anti-social behaviour orders]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 43:
Page 14, line 30, leave out ("16,") and insert ("12,").
The noble Earl said: This amendment is a probing amendment. It is always a privilege and a joy to address the Committee while feeling as though one is being trampled underfoot by noble Lords leaving the Chamber after Question Time. I have to say that I hope that that will not be a procedure in the future Scottish parliament.
The amendment is designed to find out why it is considered unwise to include secondary school pupils in the scope of antisocial behaviour orders in Scotland. This is a particularly relevant issue in Scotland, where the peak age of offending is one year before the school leaving age; namely, 15 years. If the merit of an antisocial behaviour order is that it is forward looking and, hence, likely to control future behaviour, why is it not appropriate to use such a civil remedy in the worst cases of juvenile offences?
I can anticipate, with respect, that the noble and learned Lord the Lord Advocate will say that introducing antisocial behaviour orders into the children's panel system would be too complicated, and that children can be referred to the reporter if they are behaving antisocially. Should he do so, I would reply that the public do not know that the reporter can receive complaints about antisocial behaviour as opposed to specific offences.
I strongly suspect that local authorities will receive complaints about under 16 year-olds. As the bulk of the antisocial behaviour will be generated by that age group, the antisocial behaviour officer—or whatever the person concerned is called—will have to send the complainants away dissatisfied. Alternatively, the antisocial behaviour officer will have to send them to the reporter. That would be in breach of the policy of having a one-stop shop.
Perhaps—and this is, I hope, an important "perhaps"—as an afterthought, the noble and learned Lord will say that it is the Government's intention that parents of children who behave antisocially will be made the subjects of an antisocial behaviour order. I can give a serious example to the Committee of where that might be appropriate. Despite the kind words last week of the noble and learned Lord about Clackmannanshire, it is from there that I want to draw such an example.
Youthful off-road motorcyclists are becoming a real pain to many citizens in Clackmannan. They are riding inadequately silenced motorbikes around the Back Wood, within 50 metres of the flats. I should declare an interest here in that I live 300 metres from the same woods, and I should say that the noise is intrusive at that distance. Therefore, I leave it to of the Committee to imagine what it is like at 50 metres for those who live in the flats. The motorcyclists are riding on, and demanding priority on, a legally-asserted public footpath, among other footpaths. The surface of that public footpath is being broken up, and pedestrians are now avoiding that footpath because of such misbehaviour.
The case I make is this: if an antisocial behaviour order is not available for these youthful motorcyclists, will the order be appropriate for the parents who bought the motorcycles? A child brought before the children's panel is usually cited as being "beyond parental control", and an offence is libelled in evidence. Where does the parent stand in all this if he has bought the motorcycle? Does that act of purchase and consequent encouragement of his children to ride the motorbike, in an antisocial manner, constitute behaviour suitable for an antisocial behaviour order? I believe that I have said enough in that respect. The inclusion of over 12 year-olds in the clause would meet the needs of harassed people, especially neighbours. It is miserable to have one's home life disturbed regularly by others. I beg to move.
Lord Mackay of Drumadoon: In speaking to Amendment No. 43, to which I have attached my name, perhaps I may speak also to the other amendments in the group. The amendments raise two important issues. The first was mentioned by the noble Earl, Lord Mar and Kellie; namely, whether or not antisocial behaviour orders, and sex offender orders set out in Clause 19(6), can be sought against those under the age of 16. The proposal in the amendments is that the lower age limit should be reduced to 12 years of age. Those noble Lords who had been considering the Bill in detail will be aware that the similar English provisions admit the possibility of orders being made against children of 10 years of age, or older.
Moreover, if a sheriff makes an antisocial behaviour order against a child under the age of 16, there is the related issue of whether he should also have power to grant an order against the parent/guardian, or other adult caring for that child, requiring such an adult to take all reasonable steps to ensure that the child complies with the antisocial behaviour order which has been imposed.
As far as concerns the first argument, I am tempted to confine my remarks to what the noble and learned Lord the Lord Advocate said on the last occasion. When referring to the words of the noble Earl, the noble and learned Lord mentioned the noble Earl's considerable experience of social work in Scotland and suggested to me that I might do well to listen to him. I should like to return that invitation because, whether or not the noble Earl is speaking about Clackmannan or other areas in Scotland, he undoubtedly has experience in the matter.
There are a number of other arguments that I wish to lay before the Committee this afternoon. In doing so, it is important for Members of the Committee to bear in mind the fact that the Bill does not include any Scottish equivalent of the parenting order, which is one of the provisions to which our attention will be turned later today. It cannot be disputed that there is ample evidence available, both to those who work within the criminal justice system and members of the public, to show that a significant proportion of the conduct that constitutes antisocial behaviour in our society is committed by children.
Indeed, I know that the noble and learned Lord the Lord Advocate will be well aware of an action which took place in Kirkcaldy sheriff court in 1994. It was raised by Glenrothes Development Corporation, the new

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town authority, which sought to evict a family by the name of Graham. Among the witnesses in that case was the noble and learned Lord's honourable friend the Minister of State, Henry McLeish, who gave evidence as the local MP. The hearing lasted some three weeks, and the sheriff delivered herself of a 139-page judgment. It was obvious from a reading of that document that a very significant proportion of the behaviour which had, quite frankly, terrorised the neighbours of that family had been committed by two children under the age of 16. In the event, the action was successful and the family were evicted, but not until—and this may be of significance when we come to consider later amendments—very protracted court proceedings had run their course.
When we began our debate last week in Committee, the noble Lord, Lord Williams of Mostyn, stressed that youths whom he described as,
"constantly playing games such as baseball, football and [other] loud games".
can make life a misery for householders. I believe that those comments were used in the context of black householders, but I am quite sure that the noble Lord would willingly accept that they could apply to householders of all descriptions. On that occasion the noble Lord also said:
"This country will not stand for thar.—[Official Report, 3/2/98: col. 5381
I agree with that comment but, in my submission, it is equally applicable to children whether they live north or south of the Border.
As the noble Earl mentioned, in Scotland we have a well-established and much respected system of children's panels to which children who are in need of compulsory measures of care are entitled to be referred. Among the grounds for making such a reference is that the child has committed an offence. There are many others, but I need not go into them this afternoon. However, the existence of that panel system does not mean that there are never occasions when the public interest demands that children should be prosecuted. Frankly, those occasions do not happen very often, but they occur from time to time. This would involve the direct supervision of the noble and learned Lord the Lord Advocate and the procurators fiscal. After consulting with reporters to the children's hearing, they may decide that it is not appropriate that a child should be dealt with by a children's hearing but should be prosecuted in a court of law, with various restrictions to protect the anonymity of the child, the accused and any child witnesses who may give evidence.
The proposal that I put before the Committee in this series of amendments, in so far as it applies to sex offender orders, could arise only if that course of action had been taken and if a child who had committed a sexual offence such as rape, lewd or libidinous practices, indecent assault, or something of that nature, had been prosecuted in a court of law and had been convicted, because Clause 19 sex offender orders apply only to such persons who have been convicted in the courts.
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I believe that there are cases where it would be appropriate for the courts to grant such orders against children, for example children of a family such as the Graham family to whom I have already referred. There may be other children who are quite outwith the control of the adult or parent with whom they reside. In their cases the children's hearings powers offer no real protection to members of the public. This issue was addressed by the Government in the consultation paper. Paragraph 7 may give a somewhat misleading impression. It states in relation to a child,
"Breach of a supervision order would lead to the Hearing reviewing the original order and considering the case for stronger measures".
As I am sure the noble and learned Lord the Lord Advocate will accept, the powers available to a children's hearing are limited to imposing supervision requirements either of a non-residential nature, which allow the child to remain at home, or with a residential requirement which can specify where the child should stay, either with an adult, another relative or, in extreme cases, in secure accommodation. The latter is, of course, a drastic step. As is always the case as regards young people in custody, there are limited places available.
If this additional option were available to the state through a local authority, I believe that it would offer innocent members of the public additional protection from antisocial behaviour at the hands of children. I mentioned a moment ago that this matter was referred to in the consultation paper. When the Minister, Mr. McLeish, reported on the outcome of that consultation exercise he stated that 70 per cent. of those who responded to the consultation paper supported the idea of such orders applying to children under 16 years of age. That consultation involved a wide range of consultees including some police bodies, local authorities and others. Despite such a volume of support the Government unfortunately did not decide to implement in Scotland what they are committed to implementing in England.
I can deal with the second issue more briefly. If we are dealing with a child against whom an antisocial behaviour order is imposed, and the adults in that household have not attracted such an order themselves as a result of their behaviour, I believe it would help to protect the public and, equally importantly, help to ensure that the young child behaves himself, if the adults were subject to an order along the lines of that I propose; namely, one which requires them to take all reasonable steps to ensure that the child complies with the order that has been imposed on him.
Finally, Amendment No. 98 seeks to give power to a sheriff to refer a child to a children's panel if during the course of a hearing under Clauses 18 or 19 the child's behaviour came to his attention. I am happy to support the amendment moved by the noble Earl.
Lord Monson: Before the noble and learned Lord sits down, may a mere Sassenach inquire why he and his colleagues have opted for 12 as the minimum age rather than 10, as in the clauses covering similar

1005
offences in England and Wales? Sadly it appears that children younger than 12 are capable of committing sexual offences nowadays.
Lord Mackay of Drumadoon: The question raised by the noble Lord is a valid one. As I am sure he is aware, the age of criminal responsibility in Scotland is eight years of age. I took the view that the age of eight was somewhat on the low side with regard to the amendment. Clearly the noble Earl has reached the same view. I may be wrong, but I believe that we have tabled the identical amendment virtually simultaneously. It is not a question of my adding my name to the noble Earl's amendment. Considering the matter from my perspective as a lawyer and from the noble Earl's perspective as a social worker, we have both reached the conclusion that 12 would be an appropriate age. However, I fully take the point that there is a difference of two years between that which would apply in Scotland and that which would apply in England. As I understand it, the age provision in England is the new age of criminal responsibility which the Government propose.
Lord Selkirk of Douglas: I speak in support of what the noble and learned Lord, Lord Mackay of Drumadoon, has said. My understanding is that the peak age of offending is 15. In addition we have the compelling evidence of the Graham case, as the noble and learned Lord has outlined. My understanding is that the operation of the children's panel system recognises that there are cases when it is in the public's interest to remove children from the panel system and prosecute them. Such prosecutions are initiated against those who have demonstrated great violence and indeed have committed serious sexual offences. I believe that 70 per cent. of those who replied to the consultation supported the idea of antisocial behaviour orders for those under 16. I should be most grateful if the noble and learned Lord the Lord Advocate could take those points into account.
The Lord Advocate (Lord Hardie): I shall deal with the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, in relation to the experience of the noble Earl, Lord Mar and Kellie. I assure the noble and learned Lord, as I assure the entire Committee, that I always listen to the noble Earl and give his observations due attention, as I do in the case of all Members of the Committee.
As regards the point made by the noble Lord, Lord Selkirk of Douglas, the children's panel system does admit exceptions—as the noble and learned Lord, Lord Mackay of Drumadoon, also observed—but they are truly exceptions. Before a child under the age of 16 can be prosecuted in the court, one requires the specific authority of the Lord Advocate. These requests, fortunately, are few and far between because in Scotland we are justifiably proud of the panel system where children are referred to the children's panel and the panel deals with them in imposing, as required, supervision orders which are either non-residential or residential.
1006
As the noble Earl anticipated, the position of the Government is that in Scotland those under 16 are dealt with by the children's hearing system. We would not want to cut across that. As I have already observed, there may be exceptions to that in extreme cases which occur with the permission of the Lord Advocate. However, any child about whom there is concern—this does not simply involve the commission of an offence; it may apply if a child is unruly or even if a child is the subject of an offence, particularly one perpetrated by others of his or her family—may be reported to the children's reporter who will consider whether there is a need for a hearing. At that stage the hearing can decide what measures are required and whether compulsory measures of intervention are required, in which case a supervision requirement will be imposed. A whole range of conditions may be attached to such a requirement. A breach of a supervision requirement would lead to the child being brought back to the panel system and the hearing would review the original decision and consider whether further conditions or more stringent measures should be imposed. The Committee will appreciate that the whole regime is quite different from that which is in place in England. Where there is a concern that a child poses a risk to the community and may commit a sexual offence, the children's hearing system already again provides a mechanism for monitoring the child and regulating his or her behaviour.
Once the child is 16, the existing provisions for sex offender orders would allow the police to apply for an order provided the child had received a conviction for a sex offence at some point in the past. Clearly that would require the authority of the Lord Advocate to proceed. The children's hearing system tackles antisocial behaviour with vigour. In addressing the needs of the child, it is conscious that it is in the child's best interests to face up to his or her antisocial behaviour and the impact that that behaviour has on communities. It may also restrict a child from having contact with specific individuals or groups of individuals. The Committee will appreciate that such contact is often the cause of much antisocial behaviour.
Even if antisocial behaviour orders were to extend to under-16s, however, it would not be appropriate for them to be made against the relevant parents, as the noble and learned Lord, Lord Mackay of Drumadoon, suggested.
It is a fundamental principle of Scots law considered in detail by the Kilbrandon Commission, which was the basis for setting up the children's panel system, that the parent should not be held responsible for the actions of his or her child. To require parents to ensure that a child complies with an antisocial behaviour order with a penalty of up to two years' imprisonment if it could be proved that they had not taken all reasonable steps to do so would run contrary to the principle underlying our system in Scotland.
I repeat that in the Scottish context antisocial behaviour of children should be dealt with by the children's panel system. That does not of course let parents entirely off the hook. Hearings seek to establish what lies behind a child's actions and the parents are

1007
required to be present as part of that hearing system. They have to attend and to be involved. They are encouraged to participate in the decision-making process and are then expected to support the child in carrying out whatever is required by the hearing.
Amendment No. 93 would impose a restriction on divulging the name, address, school or any other information which could lead to identification of a person under 16 who is the subject of, or a witness to, any proceedings in the court in any press, television or radio report.
I assume that the amendment aims to protect the identity of children under 16 who may be the subject of an antisocial behaviour order or a sex offender order. But neither of those orders apply to children under 16; nor should they. So there is no need to include this type of protection. As for those under 16 who may be witnesses, Section 47 would already apply to reporting the details.
Amendment No. 94 would empower the sheriff to refer a child under 16, or any other children likely to live in the same house as that child and about whom there may be fears for their safety or wellbeing, to the principal reporter. That already happens. If there is concern about a child or anyone living with him or her in the family, it is possible for anyone having such concern to refer the matter to the principal reporter. Any child who commits an offence, or about whom the social work services or police have concerns, is automatically referred to the children's reporter. And any other children who are considered to be under threat from that child would also be similarly referred. Referrals can be made by anyone. There is therefore no need to make specific provision for referrals by the sheriff.
In the light of those comments, I ask that the noble Earl withdraws the amendment.
The Earl of Mar and Kellie: I am extremely grateful to the noble and learned Lord for his exceedingly generous remarks about my experience. I think that he exaggerates to a substantial degree.
Perhaps I may say first to the noble Lord, Lord Monson, that I picked the age of 12 because it seemed to be the start of secondary schooling. Perhaps one should draw some distinction between primary and secondary schooling.
Mention has been made of parenting orders which are not being imposed in Scotland. I know of people who have already been sent by their individual children's hearings to parenting classes. This is already part of the set-up in Scotland. Much of the debate has revolved around parental responsibility; and so it should. Indeed, the example I gave of off-road motor cyclists could not be clearer on that. The noble and learned Lord, Lord Mackay of Drumadoon, referred to the Graham family. There is a need for what might be called a whole family antisocial behaviour order. We should consider that somewhere down the line.
The more I listen to discussions of the children's panel system, the more I wonder why is of the Committee are going to great lengths to create a youth justice system when they need only look across the
1008
Border and adopt what we have in Scotland. However, I would rather not put down an amendment which deletes "youth justice system" and inserts the appropriate section of the Social Work (Scotland) Act 1968 in case one or two flaws in our precious children's panel system are identified.
I said that it was a probing amendment. I am grateful to the noble and learned Lord the Lord Advocate for his explanation. I beg leave to withdraw the amendment.
The Chairman of Committees (Lord Boston of Faversham): Is it your Lordships' pleasure that the amendment be withdrawn?
A noble Lord: Not-Content.
The Chairman of Committees: The Question is that this amendment be agreed to. As many as are of that opinion will say "Content".
Noble Lords: Content.
The Chairman of Committees: To the contrary "Not-Content".
Noble Lords: Not-Content.
The Chairman of Committees: I think the "Not-Contents" have it.
Noble Lords: Content.
The Chairman of Committees: Clear the Bar.
3.36 p.m.
On Question, Whether the said amendment (No. 43) shall be agreed to?
*Their Lordships divided: Contents, 45; Not-Contents, 107.

Division No. 1

CONTENTS

Anelay of St. Johns, B.

Marsh, L.

Bellwin, L.

Masham of Ilton, B.

Belstead, L.

Merrivate, L.

Braybrooke, L.

Monson, L.

Brentford, V.

Mountgarret, V.

Camegy of Lour, B.

Nelson, E.

Clanwilliam, E.

Newall, L.

Davidson, V.

O'Cathain, B.

Dixon-Smith, L.

Palmer, L.

Dundee, E.

Peel, E.

Fookes, B.

Peyton of Yeovil, L.

Gainford, L.

Rees, L.

Gardner of Parkes, B.

Renton, L.

Harlech, L.

Saltoun of Abernethy, Ly.

Henley, L. [Teller.]

Sandford, L.

Higgins, L.

Selkirk of Douglas, L.

Holderness, L.

Stodart of Leaston, L.

Inglewood, L.

Strathclyde,L.[Teller]

McConnell, L.

Suffield, L.

Mackay of Drumadoon, L.

Swinfen, L.

Macleod of Borve, B.

Thomas of Gwydir, L.

Manton, L.

Wharton, B.

1009

NOT CONTENTS

Acton, L.

Jay of Paddington, B.

Allen of Abbeydale, L.

Jenkins of Putney, L.

Allenby of Megiddo, V.

Kilbracken, L.

Bassam of Brighton, L.

Kilpatrick of Kincraig, L.

Berkeley, L.

Lockwood, B.

Birdwood, L.

Lofthouse of Pontefract, L.

Blyth, L.

McIntosh of Haringey, L. [Teller.]

Borrie, L.

Bradford, E.

Mason of Barnsley, L.

Brooke of Alverthorpe, L.

Merlyn-Rees, L.

Bruce of Donington, L.

Milner of Leeds, L.

Burlison, L.

Molloy, L.

Carmichael of Kelvingrove, L.

Monkswell, L.

Carter, L. [Teller.]

Montague of Oxford, L.

Charteris of Amisfield, L.

Montgomery of Alamein, V.

Cledwyn of Penrhos, L.

Morris of Manchester, L.

Clinton-Davis, L.

Moyne, L.

David. B.

Murray of Epping Forest, L.

Davies of Coity, L.

Nicol, B.

Davies of Oldham, L.

Orme, L.

Dean of Beswick, L.

Parry, L.

Dean of Thornton-le-Fylde, B.

Peston, L.

Dixon, L.

Pitkeathley, B.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Quinton, L.

Dubs, L.

Ramsay of Cartvale, B.

Evans of Parkside. L.

Rea, L.

Ewing of Kirkford L.

Rendell of Babergh, B.

Falconer of Thornton, L.

Richard, L. [Lord Privy Seal.]

Farrington of Ribbleton, B.

Sefton of Garston, L.

Fitt, L.

Serota, B.

Gallacher, L.

Sewel, L.

Gilbert, L.

Shepherd, L.

Gladwin of Clee, L.

Shore of Stepney, L.

Gould of Potternewton, B.

Shrewsbury, E.

Halsbury, E.

Simon, V.

Hardie, L.

Smith of Gilmorehill, B.

Hardy of Wath, L.

Stallard, L.

Haskel, L.

Stoddart of Swindon, L.

Hattersley, L.

Strabolgi, L.

Hayman, B.

Symons of Vernham Dean, B.

Healey, L.

Taylor of Blackburn, L.

Henderson of Brampton, L.

Taylor of Gryfe, L.

Hogg of Cumbemauld, L.

Tenby, V.

Howell, L.

Thomas of Macclesfield, L.

Hoyle, L.

Turner of Camden, B.

Hughes, L.

Walker of Doncaster, L.

Hughes of Woodside, L.

Wallace of Coslany, L.

Hunt of Kings Heath, L.

Walton of Detchant, L.

Huntingdon, E.

Watson of Invergowrie, L.

Irvine of Lairg, L. [Lord Chancellor]

Wedderbum of Charlton, L.

Islwyn, L.

Whitty. L.

Janncr of Braunstone, L.

Williams of Elvel, L.

Williams of Mostyn, L.

[*The Tellers for the Not-Contents reported 107 names. The Clerks recorded 106 names.]
Resolved in the negative, and amendment disagreed to accordingly.
3.45 p.m.
Lord Hoyle: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Iraq
Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I should like to repeat a Statement on Iraq which has been made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"At the end of last week I visited the Gulf and held meetings with leading figures in Saudi Arabia and Kuwait. With your permission, Madam Speaker, I would like to share with the House the three key points they made.
"First, they have real fears about the threat Saddam Hussein poses to their region. Secondly, like ourselves, they would prefer a diplomatic solution. But lastly, if Saddam does not accept the diplomatic initiatives that have been offered to him, then, as Prince Saud said, it is the Iraqi regime that will bear responsibility for the consequences. I agree with them on all three counts.
"On the first point, there is no room for doubt over the scale of Saddam's chemical or biological capability, nor over his repeated attempts to conceal it. Last week I published a paper setting out the statistics of Saddam's arsenal of weapons of mass destruction and documenting his persistent deception.
"Saddam claimed he had only 650 litres of anthrax. The figure turned out to be 8,400 litres. He continues to have the capability to manufacture enough extra anthrax to fill two more warheads every week. One such warhead could depopulate an entire city. Saddam has programmes to produce at least three other germ agents.
"Saddam claimed his VX nerve gas programme had ended in failure. The truth turned out to be that he has the capability to produce 200 tonnes of VX agent. One drop of it is enough to kill. Ten years ago next month, Saddam used chemical weapons to kill 5,000 Iraqi citizens at Halabja. He also used them against fellow Moslems in his war with Iran. He will not hesitate to use them again.
"As Richard Butler, the executive chairman of UNSCOM, has noted, Saddam, "avoids answering questions and prevents UNSCOM from finding the answers". In the past nine months he has delayed or denied access to four out of five sites where UNSCOM believed concealment was taking place.
"The UN inspectors are our only guarantee that Saddam will not fulfil his ambition to acquire the weapons that could wipe out whole cities. However, that guarantee is of little value if they are not allowed to carry out effective inspections into the sites where they suspect chemical or biological weapons, or vital information, are concealed.
"We also agree with our allies in the Gulf that it would be better if we could resolve this confrontation by diplomatic means. That is why Britain took the lead in proposing to its Security Council partners a new resolution condemning Saddam's repeated obstruction of UNSCOM's work. That approach has

1011
received widespread support among council members. Japan has offered to co-sponsor the resolution.
"We are also in close touch with the attempts at diplomatic mediation by Russia, France and the Arab League. Saddam has a history of backing down under pressure, and we welcome the recent signs that Iraq is ready to consider a diplomatic solution. However, I have to say to the House that, as yet, the proposals coming out of Baghdad fall well short of our requirement that any agreement should be convincing and should enable UNSCOM to resume its work without restrictions, without deadlines and without any no-go sites. While we want a peaceful solution, an outcome which left him able to develop chemical and biological weapons would make it only too likely that the peace of the region would be broken again by Saddam himself.
"Our quarrel is with Saddam Hussein, not with the Iraqi people. We support the territorial integrity of Iraq and would like to see it rejoin the international community. Meanwhile, we are at the forefront of the diplomatic efforts to bring relief to the Iraqi people. We have led the negotiations at the UN to more than double the oil-for-food programme. We are the second largest donor of humanitarian aid to Iraq. There are no sanctions against food or medicine. It is Saddam, not the UN, who has decided to use his resources to construct presidential palaces for himself and to create weapons of mass destruction for his regional ambitions, rather than to purchase food and medicine for his people.
"Finally we agree with our major Gulf allies that if diplomacy fails, the responsibility for the consequences will rest solely on Saddam. The best prospect for a diplomatic solution is to leave Saddam in no doubt of our resolve if he persists in his ambition to develop chemical and biological arsenals. He would be making a major miscalculation if he mistook our reluctance to use force for a lack of determination to use it if necessary. I hope both sides of the House will support that clear and firm message to Saddam".
My Lords, that concludes the Statement.
3.52 p.m.
Lord Moynihan: My Lords, on behalf of the Opposition I should like to thank the Minister for updating the House with the latest developments on the situation in Iraq. I should also like to take this opportunity to reiterate our ongoing support to the Government, while they, together with the United States, continue to take a firm stand on Iraq, to ensure that United Nations resolutions are enforced and the UNSCOM inspectors are able to remove and destroy horrific chemical, biological and nuclear weapons of mass destruction. We support the Government in their desire to pursue all diplomatic avenues to ensure that Saddam Hussein complies with the will of the international community. But if diplomacy fails, it is right to keep the military option open.
1012
However, there have been developments since the Government's last Statement. I wish to ask the Minister for an absolute assurance that the clearest possible diplomatic, strategic and military objectives will be set for any action that we take and that these will be reported to the House at the appropriate times.
I particularly wish to ask the Minister for that assurance today, since over the last week certain statements have been made on our objectives. I believe that clarification from the Minister would be most helpful. For example, last Monday the Foreign Secretary in another place said that our objective was to secure Saddam Hussein's compliance with Security Council resolutions and ultimately for the Security Council to be assured that all Iraq's weapons of mass destruction and related facilities have been destroyed. However, last Friday in Washington President Clinton said that the United States' objective was to prevent Saddam Hussein from threatening his neighbours and the world with weapons of mass destruction. Furthermore, on Sunday the Secretary of State for Defence spoke of the possible objective of reducing the ability of Saddam Hussein and his regime to survive.
I appreciate that the Minister has at all times been clear in what she said to your Lordships' House. However, I am sure she will agree that differing statements of the objective we hope to achieve are leading to uncertainty, confusion and a growing level of concern in your Lordships' House. Could the Minister therefore today clarify the Government's objective to resolve this crisis? Should all diplomatic means be exhausted and it prove necessary to take the military option, can the Minister assure the House on behalf of the British servicemen and women whose lives may be put at risk that clear, unequivocal objectives will be set?
Could the Minister also clarify the legality of the steps the Government might take in the event of an armed conflict? Is the Government's position that Resolution 687 provides sufficient authority for military action?
We currently hold the important position of President of the European Union. I wish to ask the Minister what discussions are ongoing with our other partners in the Security Council and in Europe, given that the French Foreign Minister, Hubert Védrine, has said:
"resorting to force is not desirable in the current situation and would not solve the problems we are confronted with".
He has described the British and American position as "propaganda" to intimidate Saddam Hussein and there is also President Yeltsin's warning that an attack could lead to a third world war. What assessment have the Government made of the draft UN motion being drawn up by France, Russia and the Arab League, which aims to secure access to 68 possible locations of material for Iraq's weapons of mass destruction? Given the incursion of some 7,000 Turkish troops into northern Iraq yesterday, can the Minister tell the House what implications this will have for any military action they may be preparing to take?
There is no doubt across your Lordships' House that we stand upon the precipice of a grave crisis. On behalf of the Opposition, I offer the Government our continued

1013
strong support in their efforts to ensure that Saddam Hussein respects the will of the United Nations and the world community. For that we need to set clear and unequivocal objectives for the actions taken by the Government with the consequences fully thought through.
3.56 p.m.
Baroness Williams of Crosby: My Lords, I also wish to add my congratulations to the Minister on repeating the Statement made in another place. I wish to underline the extraordinary significance and concern that all in the House will feel about the information she has given to the House on the biological and chemical weapons availability in Iraq at present. It underlines more clearly than anything else could the extreme importance of ensuring that inspectors have access to all the sites in which such weapons may be developed or produced.
May I also ask the Minister, following the remarks of the noble Lord, Lord Moynihan, whether she could make clearer the objectives that the Government and their major ally, the United States, have in mind? As the noble Lord said—and he was correct to say it—there has been a certain ambivalence about the ultimate goals of the operation. Clearly, for the sake of our forces and of others, it needs to be made as clear as possible precisely what those objectives are.
I wish to ask the noble Baroness three questions. First, have there been consultations between the foreign ministers of the European Union countries with regard to the resolution that is to be tabled by the Arab League, Russia and France? In that context, is the United Kingdom circulating its own draft resolution in the hope of getting greater support from the European Union for that resolution?
Secondly, can the Minister tell us whether, if access is given to the weapons sites, including the presidential palaces, by Saddam Hussein, there would be a willingness on the part of Her Majesty's Government to consider some phased easing of sanctions?
Thirdly, perhaps I may ask the Minister whether there is any opportunity for reconsideration to be given to the composition of inspection teams, if that access is granted, given the earlier initiative taken by Russia with regard to Security Council members being represented on the teams.
Lastly, perhaps I may comment that one of the difficulties we encounter in the whole operation is that there is a perception, not least among those Arab countries that took part in the original Gulf Co-operation Council, that the treatment of the breaches by the Netanyahu government of some of the UN resolutions currently standing with regard to the peace negotiations with Israel is a real difficulty in bringing them on board, as it is crucial to attempt to do.
4 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord, Lord Moynihan, and the noble Baroness, Lady Williams, for their support at this
1014
difficult time. The noble Lord asked for an assurance that all diplomatic avenues would be exhausted, first and foremost. I can reiterate what my right honourable friend said in another place; that is, that all such avenues are being pursued. My right honourable friend was in the Gulf last week. My honourable friend Mr. Fatchett will be going to the Gulf shortly, as will my noble friend Lord Gilbert; and my right honourable friend Dr. Reid has also been in the Gulf.
The United Kingdom Government are doing everything they can to seek a peaceful and diplomatic solution to this problem. The noble Lord asked for assurances that the clearest possible targets—diplomatically, strategically and militarily—are set and that the objectives are clear. Again, I can give him that assurance.
The noble Lord, Lord Moynihan, was concerned that perhaps there were slightly conflicting messages emerging as regards objectives. My right honourable friend the Foreign Secretary made it clear that our objective is the compliance with Security Council resolutions. I remind your Lordships that Security Council Resolution 687 sets out the ceasefire agreement. The ceasefire agreement compelled Saddam Hussein to destroy his weapons of mass destruction and to undertake not to create any more such weapons. The noble Lord said that that was somehow in conflict with the statement that Saddam had to be prevented from threatening the region and the world. In fact it is not. If Saddam Hussein complied with Resolution 687, he would be removing the threat that is perceived by the United Kingdom, the United States and many other countries which have made their position clear over the past week.
The noble Lord asked about discussions elsewhere. My right honourable friend's discussions with many countries over the past week or so indicate their agreement not only with the objectives set out by Her Majesty's Government, but also with the position of Her Majesty's Government that if those objectives cannot be secured through diplomatic channels, we should not rule out the use of military force. That has been agreed by Japan, Australia, Canada, Germany and New Zealand among others.
Others take the position at the moment that they wish to pursue diplomatic channels. However, in pursuing diplomatic channels they are also saying that it is essential that Saddam Hussein complies with Security Council Resolution 687 and that he must allow the unfettered access of UNSCOM to places where weapons may be stored or made. We must ask ourselves whether, if that is not achieved through diplomatic channels, Saddam Hussein will take any such measures if he does not believe that there is the threat of military action behind those diplomatic channels. Unfortunately, the history of dealing with Saddam Hussein tells us that he is more likely to discuss the issue if he believes that a military threat may be deployed.
The noble Lord also asked about the position of the Turks in northern Iraq. Her Majesty's Government have seen the reports about the Turks entering northern Iraq. At the moment those reports are denied by the Turks.

1015
The leadership of the Turkish Democratic Party told us that the reports are untrue and the Foreign Office is checking out the situation. I asked an official in the Foreign Office this morning to check out the reports and unfortunately he was unable to confirm the position in northern Iraq. Of course, Ministers have asked officials to keep the matter under constant review. It is an important factor.
The noble Baroness, Lady Williams, raised questions in relation to consultation. Of course we are in consultation. In fact, the diplomatic effort at the moment is second to none—and rightly so, as I am sure all your Lordships would expect. The noble Baroness raised in particular the efforts of the Arab League, the French and the Russians over coming to an agreement and a possible Security Council resolution. Those discussions are ongoing at the moment. But we will have to see whether a Security Council resolution will enable UNSCOM to have free and unfettered access to the places that need to be visited in Iraq. Last week the Russians came forward with some suggestions, but those suggestions involved only one-off visits to those sites, after which there was no latitude for further visits. That is not acceptable. We must have unfettered, free access at times of UNSCOM's choosing.
Also, the noble Baroness asked whether, if access was given, there would be a phased easing of sanctions. We are not in a position to be able to agree that. Once we see full compliance—I emphasise, full compliance—with Resolution 687, then we shall be able to revisit the question of the issuing of sanctions. But I stress that at no point has the United Nations introduced sanctions against food or medicine. The vital humanitarian aid needed by the people of Iraq could go to the people of Iraq tomorrow if Saddam Hussein would allow it. Moreover, we have supported unconditionally the suggestions put forward by the Secretary-General, Mr. Kofi Annan, to increase the oil for food provisions, as I was able to report to your Lordships' House last week.
The noble Baroness asked about the composition of inspection teams. There are 44 people on the inspection teams at the moment covering 17 nationalities. The inspectors are selected for their professionalism and expertise in a highly specialised field. It is not a United States selection; it is not a British selection; it is a selection made by Richard Butler, who happens to be an Australian. He makes his selection on behalf of the United Nations from the people who are most suitable and who have the best expertise to carry out their direction under Resolution 687.
Questions were also raised by the noble Baroness regarding the Gulf Co-operation Council and some of the difficulties in the region in relation to what is perceived to be a double standard concerning the Netanyahu government. We have discussed this matter in your Lordships' House before and I must reiterate to the noble Baroness what I said earlier this afternoon. The difference is that the Netanyahu Government—whether or not we agree with what they are doing—are a democratically elected government with whom we are discussing the Middle East peace process. Her Majesty's Government made clear that we do not accept their position over Jerusalem; that we do not accept their
1016
position over the settlements on the West Bank; and Her Majesty's Government have said that in our view those settlements are illegal. But that is a different position to the position of Saddam Hussein and his flouting of what is, in effect, a cease-fire agreement; his stockpiling of weapons of mass destruction and, I am afraid I must say to your Lordships, his entirely discredited record of the way he has treated his own people and his neighbours in the use of those weapons of mass destruction.
4.8 p.m.
The Lord Bishop of Oxford: My Lords, I can assure the noble Baroness from these Benches that the prayers of Christian people throughout the country are with those involved with this situation. especially those who bear heavy responsibility at this time and who will be making crucial decisions in the days ahead. In the diocese of Oxford, for example, Thursday is being kept as a special day of prayer. Churches will be open and people have been invited to come to church to pray and light a candle for peace.
As I say, those prayers are for those who bear heavy responsibility and who will be making crucial decisions in the days ahead. It will be a prayer especially that the terrible threat posed by the presence of the weapons of mass destruction can be averted by peaceful means even at this late stage.
Baroness Symons of Vernham Dean: My Lords, I thank the right reverend Prelate for those words and for his prayers. This is a matter which should be of concern not only to those who practise the Christian faith, but to British people of all faiths. I hope that there will not be any move to try to drive a wedge between different faiths in the inter-faith community in this country. I thank the right reverend Prelate for his comments.
The Earl of Halsbury: My Lords, am I right in thinking that the destruction by violent means—for example, by aerial bombardment—of biological weapons is without precedent? It could result in the dissemination of those self-generating poisons and lead to the most appalling infection of the entire world. I hope that Her Majesty's Government and the American Government will bear these thoughts in mind.
Baroness Symons of Vernham Dean: My Lords, of course Her Majesty's Government and all governments—indeed all people of good will—must bear in mind what the noble Earl has said. However, I would say this to him. It is not the case that this is without precedent. My right honourable friend published a document last week. I have brought 100 copies of the document to the House and I shall be happy to distribute them. The document makes clear that the Al Hakam BW factory, which was 3 kilometres by 6 kilometres in size, was destroyed. The factory was producing 50,000 litres of anthrax and botulinum. The Iraqis claimed that the factory was producing animal feed. That was not so, as UNSCOM discovered. It was destroyed and I am happy

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to say that none of the appalling and horrible consequences that the noble Earl suggested might happen was visited on the people of Iraq as a result.
Lord Beloff: My Lords, does the Minister agree that whatever the misdeeds of the Netanyahu government, for whom I am not a spokesman, it is still a fact that Israel is not a threat to the lives of the inhabitants of the cities of its neighbours? It is in Tel Aviv that gas masks are being fitted on children, not in any of the Arab capitals. Is not this threat to the lives of people in a city in the Middle East a greater concern than the details of any ultimate settlement in the Middle East, for which we must all hope?
Baroness Symons of Vernham Dean: My Lords, I hope I have already made it clear that the comparison between Israel and what is happening in Iraq is not an appropriate one, given the potential involving weapons of mass destruction which is under discussion here. However, I do believe—and Her Majesty's Government believe—that were Mr. Netanyahu able to be rather more constructive over the Middle East peace process, there might be less need to put gas masks on children in Tel Aviv.
Lord Ewing of Kirkford: My Lords, is my noble friend aware that, as I indicated last week, I warmly support the Government and congratulate them and my noble friend on the diplomatic efforts being made to solve this problem without resort to bombing? Will my noble friend accept that one of the obstacles in the way of diplomacy is that the people may not know? While it is true to say that the people of the United Kingdom, the people of the United States and the people of the free world know about the joint diplomatic efforts by the United States and the United Kingdom, it is almost certain that the people of Iraq do not know about the diplomatic efforts and the impact that those diplomatic efforts might have on the final outcome. May I enter a plea, simple though it may seem, that before we drop any bombs we might return to what is an old-fashioned idea and, as a final throw of the dice, drop a few leaflets on Iraq in the hope that someone will pick them up and the free world's message might well get through?
Baroness Symons of Vernham: My Lords, the noble Lord raises an important point. I expect he is right and that most of the people of Iraq are completely unaware of what is going on. He suggests that leaflets should be dropped on Iraq. Her Majesty's Government and the other governments who are contemplating this appalling situation at the moment are very aware of the dangers to the civilian population of Iraq. As we said in the Statement, our difficulty is with Saddam Hussein and not with the Iraqi people. I stress that point to your Lordships' House. We will do everything we can to minimise the threat to the civilian population.
Lord Avebury: My Lords, is the noble Baroness aware that, having visited Halabja and seen the site of the appalling massacre which she mentioned, I have
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every sympathy with the line that she takes on the destruction of all chemical and biological weapons? However, if the result of military action was only to destroy a fraction of these weapons while ensuring that the inspectors were permanently excluded from Iraq. would that count as a success? Will the noble Baroness kindly answer the question that was put to her by the noble Lord, Lord Moynihan, as to whether Resolution 687 gives legal authority for the military action we are contemplating? If not, does the draft resolution which is in the course of preparation give that authority; and if so, how will it ever get through the Security Council?
Baroness Symons of Vernham Dean: My Lords, the noble Lord asks whether destroying only a fraction of the weapons while securing the exclusion of UNSCOM inspectors would be seen as securing our objective. The answer is unequivocal—no, of course it would not. The objective is to ensure that the UNSCOM inspectors go back into Iraq and that they are able to secure compliance with the Security Council resolution which was the price of the ceasefire at the end of the Gulf War.
The noble Lord asked about Security Council Resolution 687. The Security Council resolution sets out the terms of the ceasefire—the terms for ending the Gulf War. They include unequivocally the destruction of the weapons of mass destruction and the undertaking not to create any more. The fact is that Saddam Hussein has already broken what in effect was the ceasefire agreement for the Gulf War. We therefore do not believe that other Security Council resolutions are, strictly speaking, necessary, but that does not mean that they are not desirable. Of course it is desirable to get maximum unity of purpose in the United Nations to secure agreement that Saddam Hussein should cease from his creation of these dreadful weapons of mass destruction.
Lord Campbell of Alloway: My Lords, I may be wrong, but is not the short answer to the noble Lord, Lord Avebury, that the ceasefire resolution stands? It has never been rescinded. Until it is rescinded—and there is no prospect, as far as one can see, that it will be rescinded—it is full authority for the action that may have to be taken by Her Majesty's Government.
Baroness Symons of Vernham Dean: My Lords, I believe I have made Her Majesty's Government's position clear. But I would say to the noble Lord that, while in effect what he says is true, that should in no way detract from the full commitment of Her Majesty's Government to seek a diplomatic solution to this question. I cannot stress that too much to your Lordships' House.
Lord Jenkins of Putney: My Lords, is my noble friend aware that, while many of us appreciate the nature of the dilemma which faces the Government and the American Government in the situation in which they find themselves, it is a matter of doubt whether dropping bombs on Iraq without the support of other Arab countries is a way out of that dilemma?
Baroness Symons of Vernham Dean: My Lords, I hope I have made it clear that no one is being trigger

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happy over this. We are in a desperately serious situation. But I am afraid that the history of Saddam Hussein in relation to his ambition to develop weapons of mass destruction has been that he mistakes reluctance to use force as weakness and as a lack of determination. He would be well advised not to make such a mistake.
Viscount Mountgarret: My Lords, does the noble Baroness agree that there is a possibility that this most unpredictable of men could perhaps get rather bored at protracted negotiations on the diplomatic front the longer they go on? If he has such an enormous stockpile of chemical weapons, what is to prevent him loosing off some of them in a pre-emptive strike and jeopardising the lives of the very people to whom the noble Lord, Lord Beloff, referred? Is there any danger of that?
Baroness Symons of Vernham Dean: My Lords, I am unable to second guess the way in which Saddam Hussein may operate. What we are clear about is that we must have unity of purpose on our side and act as much as we can with that unity of purpose with our allies in the United Nations.
Lord Islwyn: My Lords, can the Minister say whether any timescale has been set for the inspections and the destruction of these evil weapons? It is now seven years since the end of the Gulf War. Is it to be 10 years, 20 years or even longer? As regards military action, is that likely to bring about a solution on the creation of an effective opposition in Iraq? It seems up to the present that this situation is having the opposite effect by increasing the grip that Saddam Hussein has on the Iraqi people.
Baroness Symons of Vernham Dean: My Lords, the noble Lord asks about a timescale. The objective is to secure inspection at all the sites which UNSCOM believes should be inspected as soon as possible. There is no objective to do that within any particular timescale, but it must be done as soon as possible. The noble Lord also asked whether military action will not ensure that effective opposition in Iraq is further subverted. Her Majesty's Government believe that the objective is not whether there is an effective opposition in Iraq, but that Saddam Hussein complies with his obligation under the Security Council resolutions.
Lord Archer of Weston-Super-Mare: My Lords, the Minister will realise that under the UN Resolution the Kurds are not receiving the food and equipment needed and promised. She told us that with the diplomatic situation, which I thoroughly understand, that will be done as soon as possible. One will have to report back to the Kurds what that actually means. They feel that Saddam Hussein has absolutely no interest at all in resolutions from the United Nations and the Kurds will go on starving until some action is taken.
Baroness Symons of Vernham Dean: My Lords, if the Kurds are right in believing that Saddam Hussein has no interest in Security Council resolutions, that
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reinforces the view that Her Majesty's Government have taken that such resolutions need to be backed up by the threat of military action.
Lord Craig of Radley: My Lords, can the Minister enlighten us as to whether, in the event of the military option having to be used, that will be a joint decision by the American and British Governments or will it be for the British Government at the time to decide independently whether to take part in any operations which the Americans might wish to mount?
Baroness Symons of Vernham Dean: My Lords, I can tell your Lordships that any decisions taken will be reached in the light of the circumstances prevailing at the time.
Lord Moyne: My Lords, is the Minister aware that General Norman Schwartzkopf, who commanded the allied forces in the Gulf War, has strongly expressed his opposition to any such action and feels that it would be counter-productive?
Baroness Symons of Vernham Dean: My Lords, a number of individuals have expressed strong feelings on this question. Sometimes when people move away from the centre and are unaware of the threat posed, it may be that they do not have all the knowledge which they might have on important points or which is available to those who have determined that Saddam Hussein is a threat not only in the region but also to the rest of the world.
It may help if I illustrate the point in relation to UNSCOM. On 2nd February I was able to give your Lordships a detailed list of what UNSCOM had found. What I did not give your Lordships was the list of weapons that are unaccounted for. We believe that Iraq may have operational Scud-type missiles with chemical and biological warheads. We do not have any knowledge where 17 tonnes of growth media for BW agents has gone. UNSCOM strongly suspects that the admitted Iraqi figures for the production of BW agents are still far too low.
Iraq's CW programme was on an enormous scale. We know that 4,000 tonnes of CW precursors are simply not accounted for. These could have produced several hundred tonnes of CW agents, which would be enough to fill several thousand munitions. Over 31,000 CW munitions are not accounted for. Over 600 tonnes of VX precursors are also not accounted for. These are not just figures for us to throw about, but real weapons of mass destruction. We do not know where they are. They are in the hands of a man who may well be prepared to use them. So my answer to General Schwartzkopf and others who have doubts is to ask them what they would do in relation to this appalling litany of unfound weapons. I believe that the determination shown by Her Majesty's Government on this matter is entirely right.
The Lord Bishop of Leicester: My Lords. I have been reflecting on what the Minister said earlier about opposition to Saddam Hussein in Iraq. The noble Lord, Lord Steel, and I visited Iraq some three years ago on a

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humanitarian visit to investigate the effect of sanctions. We were both shocked by their effect, particularly on children in hospitals and clinics. But I was equally shocked by the hostility of ordinary people in Iraq to the British and American Governments whom they blamed for sanctions and also for the great suffering incurred during the Gulf War. Lest it be thought that we were being misled by that impression, the noble Lord and I were quite skilful at slipping away from our official engagements and using our charitable links to meet ordinary Church people. I have no doubt that the use of force would push the ordinary people of Iraq, who are hostages in their own country, further into the grip of Saddam Hussein. I view the use of force with deep foreboding. I plead for a more patient approach until we are absolutely clear that the use of force will have the desired outcome.
Baroness Symons of Vernham Dean: My Lords, the right reverend Prelate has spoken about the effect of sanctions on children and other defenceless people and the hostility of ordinary Iraqi people to the British and those of other nationalities whom they believe are responsible. I do not find that surprising. Of course there will be that kind of a hostility because the people do not know that there is a £2 billion oil-for-food programme; they do not know that Saddam Hussein has built palace after palace rather than feed hungry people and give medicine to children; they do not know that he has spent money from the programme on weapons of mass destruction. But we know that is what he is doing. I say to the right reverend Prelate that much as he fears what may happen to people in Iraq in the appalling eventuality of military action, and much as we all fear that, the alternative is that many more innocent people will suffer eventually and be in Saddam Hussein's appalling grasp if we do not take determined action.

Crime and Disorder Bill [H.L.]
4.30 p.m.
House again in Committee on Clause 18.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 44:
Page 14. line 33, after ("was") insert ("reasonahly").
The noble and learned Lord said: In moving Amendment No. 44, I should like to speak also to Amendment No. 45 which stands in my name and those of my noble friends and to refer also to Amendment No. 53 which stands in the name of the noble and learned Lord the Lord Advocate.
The issues raised in this group of amendments are similar to those debated in relation to Amendment No. 13 on our first Committee day when we considered Clause 1. As I read it, the difference between my amendments and that now tabled by the Lord Advocate boils down ultimately to where the onus should lie in dealing with the reasonableness of the behaviour complained about. As I am sure that the Lord Advocate
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will appreciate, when I tabled my amendments I had no knowledge of his amendment and no doubt he was in exactly the same position with regard to my amendment. Given that the issue has been raised by both sides, the question that arises is whether some further consideration should be given to the best way forward.
The structure of Clause 18(1) is clearly based on the definition of the common law offence of breach of the peace in Scotland. If such an offence was prosecuted, clearly no question of onus on the accused would arise. Therefore, the problem that troubles me is this: if the onus in this civil order is transferred to the person against whom the order is sought, with that person having to seek to prove the reasonableness of his action in all the circumstances, curiously it may end up with it being more difficult to avoid the order being pronounced than to avoid a conviction for breach of the peace. That seems a conundrum.
I should be interested to hear what the noble and learned Lord the Lord Advocate has to say on the matter and, indeed, to hear what any noble Lords may wish to contribute to this brief discussion. In the light of these competing amendments, it might be sensible for some further consideration to be given to the matter. We all seek a common purpose. The question is the best way to reach it, having regard to the fact that, once pronounced, an antisocial behaviour order could have serious consequences for the person against whom it is pronounced. I beg to move.
Lord Hardie: As the noble and learned Lord said, this amendment raises the same issue as was raised with regard to the English provision which was dealt with by my noble friend Lord Williams.
Amendment No. 44 would require the sheriff to be satisfied that actions were reasonably likely to cause alarm or distress. It would be unnecessary to require this expressly in the clause. The sheriff will, in determining whether an action was likely to cause alarm and distress, make a reasonable assessment of the facts.
Amendment No. 45 would introduce a test that antisocial conduct caused or was likely to cause alarm or distress to a reasonable person. The proposal is inconsistent with the intention that it is for the sheriff to determine whether conduct caused or was likely to cause alarm or distress to particular persons in the relevant area. It would seem appropriate to leave it to the sheriff to decide this on the particular facts, rather than having to consider the view of the hypothetical reasonable person.
The question of onus was dealt with in the first group of amendments which the noble and learned Lord tabled when we were last in Committee. As was said then, we are dealing here with a civil order, not a criminal order. The test is the same as that set out in the Protection from Harassment Act, which dealt with a civil order.
I turn now to Amendment No. 53, which stands in my name and which has been grouped with Amendments Nos. 44 and 45. This amendment mirrors an amendment to the equivalent English provisions, which we discussed earlier. It is intended to make it

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absolutely clear that an order should not be made if the behaviour complained of can be shown to have been reasonable in the circumstances.
As your Lordships know, this amendment has been laid in response to concerns expressed during the Second Reading of the Bill in this House. We would, of course, expect the local authority to consider carefully whether the behaviour in question could be thought of as reasonable before making an application for an order. I invite the noble and learned Lord to withdraw his amendments and I shall move Amendment No. 53.
The Earl of Mar and Kellie: Perhaps the noble and learned Lord the Lord Advocate will quickly be able to confirm that antisocial behaviour orders are designed for those people who may be verging on being described as "persistent" offenders rather than for a person who has committed just one antisocial act. What level of persistence does the noble and learned Lord see as being necessary for this scheme?
Lord Hardie: It will depend on the individual case. I agree that we are dealing with persistent cases, but one can appreciate that the nature of the conduct in one case may not require terribly much in the way of persistence whereas the nature of the conduct in another case may require it to have occurred on many occasions before it would be appropriate for the local authority to come forward.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for his response. This is a technical area, so I shall consider the matter further with the Law Society of Scotland which suggested Amendments Nos. 44 and 45 which stand in my name. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 45 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 46:
Page 14, line 37, leave out from ("to") to ("of") and insert ("one person who is not a member").
The noble Earl said: This amendment seeks to deal with the situation where only one person is harassed by another. The Committee heard examples of such cases and reasons why such a provision might be included in the legislation when we discussed the English and Welsh provisions. Perhaps I may give the Committee just one scenario—not from Clackmannan but from Alloa. An occupier of a lower flat may find that the occupier of the upper flat crashes around in the middle of the night. The neighbour below—a single occupier; and that is the key point—may be frequently woken by such obscure activity. No one else may be affected by that antisocial behaviour, yet it is totally unfair on the person living below. Why does the Bill not recognise that situation?
I believe that the solution—an antisocial behaviour order forbidding the unacceptable behaviour—could be effective in ending misery unfairly inflicted on an
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neighbour below. Clearly, the amendment seeks to reduce the number of people who are required to complain from two to one. I beg to move.
The Deputy Chairman of Committees (Lord Ampthill): I should remind the Committee that if this amendment is agreed to, I cannot call Amendment No. 47.
Lord Mackay of Drumadoon: Amendments Nos. 47, 48 and 59 are grouped with this amendment. so I propose to speak to them all now in addition to that moved by the noble Earl, Lord Mar and Kellie. When I was last in Alloa it was in Clackmannan, but I defer to the greater experience in these matters of the noble and learned Lord the Lord Advocate, although I should be interested to hear whether there has been any recent change of government policy in that regard.
As to Amendment No. 47, I look for an undertaking similar to that given by the noble Lord, Lord Williams of Mostyn, when Amendment No. 5 was debated last time. It was an undertaking of a very qualified nature but it was nevertheless an undertaking. I very much hope that the noble and learned Lord the Lord Advocate will agree that this issue should be looked at, if for no other reason than that if these orders are to be introduced it is essential that they are perceived by is of the public to be fair. If one individual who has been severely harassed by a group of teenagers is advised by a local authority that nothing can be done about it because it is he and he alone who has been harassed, whereas action can be taken in respect of a couple in another street who have been harassed by another group of teenagers, that will be perceived as unfair. I hope that the matter can be looked at again.
I should like to make brief reference to Amendment No. 48 which is also in this group. This amendment is quite straightforward. It has been my experience in practising criminal law over the years that quite often when individuals are the victims of anti-social behaviour that behaviour is directed at more than one member of the family. From time to time, because of the geographical accident of where the divisions between local authority boundaries lie, it is possible that some of the harassment takes place in one area and some in another. I believe that it would be perceived as unfair if action was taken about harassment against two people in one area but not if it took place in different areas.
Finally, I should like to refer to Amendment No. 59 which seeks to tighten up the provisions of Clause 18(1)(a)(ii) so that when there is such a course of conduct there is a limit to the period on which the application can be based.
Lord Renton: If a rusty old of the English Bar who is more Scottish than anything else may dare to intervene in this debate, I support what my noble and learned friend Lord Mackay of Drumadoon has said about Amendment No. 47. I am sure that the noble Earl, Lord Mar and Kellie, will agree that that amendment is simply an alternative to his. I believe that from a drafting point of view Amendment No. 47 is a better one.

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Amendment No. 48, which has been tabled by my noble friends, seeks to leave out from page 14, line 38, the words "the authority's area" and insert "Scotland". It must be borne in mind that some of the local authority areas are very small, especially those in the centre of Scotland and in the Borders. Realistically, I believe that it would be better to have a much larger area, and I do not think that Scotland is too large. If one bears in mind that in Carlisle and Berwick-Upon-Tweed people are so close to each other north and south of the Border one must consider whether one should even confine it to Scotland. I am not certain that the words "confined to an authority's area" are at all necessary in the Bill, especially in relation to Scotland. As to Berwick-Upon-Tweed, if one looks in the telephone book one will find about 20 Rentons—I believe that is more than one will find in any other telephone book in the United Kingdom. They live both north and south of the Border. I mention that only as a practical detail to illustrate the effect that this clause is likely to have.
4.45 p.m.
Lord Hardie: Amendments Nos. 46 and 47 would enable a local authority to apply for an order where the behaviour in question was directed against one individual. Where such behaviour is personally directed the individual victim can already seek a non-harassment order from the civil court; and where the behaviour is part of a crime an order can be granted as part of the criminal proceedings. Where only one individual is involved as a victim, and given that a mechanism for that individual to tackle the harassment is already available, it would not be appropriate for the local authority to apply for an antisocial behaviour order on behalf of the whole community.
There appears to be some difficulty about the wording of Amendment No. 47 which, taken at face value, would mean that the local authority could apply for an antisocial behaviour order only where one victim, and one victim alone, was involved. I am sure that that was not the intention of the noble Earl. As noble Lords will recall, and as the noble and learned Lord, Lord Mackay of Drumadoon, has reminded the Committee, my noble friend Lord Williams of Mostyn undertook to consider this matter again before the next stage of the Bill. We will do the same as far as concerns the Scottish provisions. As my noble friend Lord Williams indicated, it is unlikely that our views will change. I do not want to hold out false hope in your Lordships' hearts.
Amendment No. 48 would allow a local authority to apply for an antisocial behaviour order to protect persons living in its area from future harm even when the antisocial behaviour that had caused concern took place outside that area. This would not be appropriate. Antisocial behaviour orders are intended to address local situations and to impose prohibitions relevant to those situations. I have listened with care to what the noble Lord, Lord Renton, has said about the geographical areas of Scotland. In my view, it would be wrong to allow a local authority to apply for an order on a pre-emptive basis on the argument that the person was alleged to have behaved badly elsewhere. In a country
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like Scotland the consequence of that amendment would be that, if someone behaved in such a way that he was considered to be antisocial and then moved from one local authority to another and reformed, he would never get away from the fact that he had committed a misdemeanour in another part of Scotland. It is important that we give people the opportunity to mend their ways.
It should be noted that the terms of Clause 18 would allow a local authority to apply for an order against someone resident outwith its area if the antisocial behaviour causing concern affected people within that local authority's area. Amendment No. 59 would add to the definition of course of conduct that the two occasions on which the conduct took place must have occurred no more than six months apart. The definition in subsection (6) is identical to that used in the Protection from Harassment Act 1997 and is well precedented. To narrow the definition of course of conduct by introducing an arbitrary time frame would not be appropriate. I would certainly not want to fetter the discretion of the sheriff in this way.
To answer the question posed by the noble Earl, Lord Mar and Kellie, in response to the previous amendment, much will depend on the nature of the conduct. Even in the case of conduct of a severe nature which was separated by a period longer than six months, it would be appropriate for the local authority to apply for such an order. I ask the noble Earl to withdraw his amendment.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, I should like to deal further with a point that I raised earlier. I referred to a case where a family was split by a local authority boundary. To put it in context, perhaps part of a family lives in Musselburgh, which I believe to be in East Lothian district—certainly it used to be—and part lives in Edinburgh. If two is of that family in either area were the victim of this conduct, it would be competent for such an order to be pronounced, but if only one of each branch of the family was the victim it would not be competent. One could go around Scotland—as he said, it is a small place. Areas such as Paisley and Glasgow, and Dundee and some of its outskirts, spring to mind, and one might throw up other examples.
As I said earlier, if the order is to work it has to be perceived to be sensible and fair. I therefore ask the noble and learned Lord to follow the example, as he already has, of the noble Lord, Lord Williams, of giving a qualified undertaking to look at this issue again. It is a practical problem. If, on the other hand, a man reforms when he moves to another area, there is nothing to prevent him from returning to the court and seeking to have the order terminated. That is what the Bill provides. If he wishes to lead a blame-free life in the future, what I am raising need not stand in his way.
The Earl of Mar and Kellie: I listened with interest to what the noble Lord, Lord Renton, said. For a moment I wondered whether he was seeking to re-enact the Aliens Act 1705.

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This is an important amendment. It is a probing amendment, because I wished to understand the Government's thinking. So although I shall withdraw it, I may well return to it on Report. Particular circumstances should be allowed. I agree that generally there should be at least two other persons. But should not the Bill allow for the particular circumstances where only one person could be involved? I give notice that that is probably the way in which I shall return to the issue on Report. In the meantime, I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 47 and 48 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 49:
Page 14. line 40. at end insert—
("( ) that an attempt to resolve the situation by mediation has been tried and failed or that the persons involved are not willing to seek resolution through mediation or other voluntary means: and.").
The noble Earl said: The amendment is a substantive one which will add an important part to the process of controlling and reducing anti-social behaviour. The task being placed on local authorities will be considerable. It leads local authorities into the relatively uncharted waters of resolving neighbourhood disputes across the whole of their area.
The amendment was suggested to me by Sacro which, among others, runs two community mediation projects, and has built up useful experience in that work. I thought originally that there was £1 million to be spread across the 32 unitary authorities. O-level arithmetic suggested to me that that would amount to about £31,000 per annum across those 32 local authorities. That suggested one additional officer—the person I choose to call the anti-social behaviour officer—in each local authority. Clearly, the cake would not have been sliced in that way. Larger authorities would have had a bigger share of the small cake. I therefore wondered what prospect there was of Clackmannanshire receiving more than the crumbs. However, the noble and learned Lord then kindly wrote to me and suggested that he and I had read the financial memorandum incorrectly, and that unfortunately there is no provision. In consequence, local authorities in Scotland would have to absorb the new duty within their existing budgets. I leave that point.
There is new legislation in place which allows local authorities to take firmer action with troublesome tenants including eviction and resettlements, which may produce conflicts of interest between social work and housing departments. I have yet to work out which local authority department will have to deal with anti-social orders.
Local authorities already deal with neighbour problems among their tenants, and they can claim to have some experience of that work. Will that be true when all citizens can call on the local authority for help? Recent TV programmes have illustrated the intractable nature of some neighbourhood problems, especially in posh areas. Problems arise in all sectors of society. They are by no means confined to local authority tenants.
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The amendment, which calls for mediation, is relevant because local authorities will be promoting anti-social behaviour orders not as a first line but rather as a last line of action. They will have to investigate all complaints. I hope that part of that investigation will involve an attempt at mediation. The problem will not go away for local authorities just by promoting an anti-social behaviour order in the sheriff civil court.
The anti-social behaviour order is an unsupervised order. That means that, in effect, it has to be supervised by the neighbours. They will have to report any further anti-social behaviour to the local authority. The local authority will have to follow up that further complaint. The need for effective mediation will become obvious, even if only to reduce the anti-social behaviour officer's workload.
I anticipate that the noble and learned Lord will explain that the desirability and need for mediation will be included in guidance. That will be understating the case. Mediation will be a major activity in the procedure for an anti-social behaviour order. Promoting anti-social behaviour orders in the sheriff civil court will be a minor activity compared with investigating and mediating. Failure of mediation will be part of the proof. It is becoming popular for legislation to give a clear indication of Parliament's intentions when the Bill was enacted. The amendment will do precisely that. I beg to move.
Lord Hardie: I agree entirely with the principle which I understand to be behind this amendment that anti-social behaviour orders should be a last rather than a first resort. Perhaps I may say also that I am a firm supporter of mediation projects. The noble Earl referred to the Sacro projects. I know, for example, that Sacro (which is a voluntary organisation working in Scotland to reduce offending, make communities safer and in form change in justice policy) manages two community mediation projects which act to resolve disputes between neighbours in conflict. These projects, and others like them, are showing some success in dealing with anti-social behaviour at the lower end of the scale. I pay tribute to all involved in those projects.
In cases where the anti-social behaviour is directed against a small group of individuals, then mediation or some similar technique should certainly be attempted before court action is considered. The only circumstances where this might not be appropriate is where the anti-social behaviour is directed against a whole community, or where the victims are unwilling to be identified or to negotiate—through fear perhaps.
The importance of using mediation wherever possible, as the noble Earl anticipated, will be fully dealt with in the guidance to be issued to local authorities in due course on implementing these provisions. A first draft of the guidance will be available shortly, well before the Bill has completed its parliamentary passage. The draft will be issued to a wide range of bodies, including the local authorities, for full consultation.
The steps to be gone through before a local authority can make an application are administrative matters which should properly be dealt with in the guidance

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rather than the primary legislation. Important though mediation is, there is no reason to single it out above a range of other administrative matters connected with anti-social behaviour orders. On the understanding that the need for mediation will be fully dealt with in the guidance, I would ask the noble Earl to withdraw this amendment.
Lord Mackay of Drumadoon: Before the noble and learned Lord the Lord Advocate sits down, will he say whether the draft guidance will be available before the Bill leaves this place? If he does not know the answer, perhaps he will write to me on that topic.
Lord Hardie: I do not know the answer to that question, and I shall write to the noble and learned Lord.
5 p.m.
The Earl of Mar and Kellie: I said that this was a substantive amendment and it is one on which I am keen. It might be regarded as a Spice Girls amendment; that is, as the amendment that I really, really want. We shall return to it later on Report.
I was glad to hear the noble and learned Lord refer to the promotion of the orders as a last resort. I believe that that is correct; it is where they ought to be. I forgot to declare an interest with regard to Sacro; I am a former employee. I know that the noble and learned Lord will be visiting the Sacro project in Kirkcaldy and I look forward to meeting him there.
I understand that it will not be part of the promotion of the order to establish that investigation and mediation have been undertaken. That may be an optional or desirable aspect but not a mandatory part of the promotion of the order. Will the Minister confirm that?
Baroness Carnegy of Lour: Before the noble and learned Lord answers that question, perhaps I may intervene. Do I understand that Sacro will probably have a locus in the procedure, even though it is not set out in legislation? Will mediation in the general sense of the word involved Sacro? That is an interesting thought, but I had not realised that it was a possibility.
Lord Hardie: In reply to the noble Baroness, that is a possibility that will be considered. It will be for the local authority ultimately to decide the form of mediation to put in place. However, I hope that local authorities will call on the experience of organisations such as Sacro and involve them in mediation.
In answer to the noble Earl, we consider that mediation ought to be attempted in most cases. However, mediation may be inappropriate in some cases; for instance, as a result of fear of the victims or the scale of the problem. It would not be appropriate to make mediation mandatory in every case.
The Earl of Mar and Kellie: I am grateful to the noble and learned Lord for that explanation. I can begin to see that mediation, which is desirable in most cases, may not be possible in all. Local authorities will wish
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to build up experience in mediation. That could be done by buying in a service from an organisation such as Sacro, by seeking training from it or by developing experience from their own resources. I expect to return to the matter on Report, but in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 50 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 50A:
Page 15, line 1, leave out ("may") and insert ("must").
The noble Earl said: The amendment has been suggested to me by the Law Society of Scotland. It is designed to remove discretion from the sheriff when making an antisocial behaviour order. The effect of the amendment would be that if the conditions for making an order were met, the sheriff would be obliged to make an antisocial behaviour order. The amendment answers the question: why should the sheriff have discretion in this matter when it has been established that the conditions for an antisocial behaviour order have been met? There will be a filtering process at the point of complaint, which is at the offices of the local authority and in consultation with the police. But should there be a second process? Are we uncovering part of a scheme to limit artificially the number of antisocial behaviour orders? I beg to move.
Lord Hardie: Amendments Nos. 50A and 55 would remove the sheriff's discretion, first, over whether an order should be made if the criteria in subsection (1) are met and, secondly, over the order's duration. It is not normal practice to restrict the Scottish judiciary's discretion in this way.
On the duration point, no one who responded to the consultation paper on antisocial behaviour orders suggested that there was any need to change the policy that decisions on the duration of these orders should be at the court's discretion.
The person against whom the order is made can of course apply to the sheriff at any time to have the order varied or revoked. In addition, I understand that the intention is that the guidance on implementing these provisions should make it clear that the local authority applicant should periodically review the continuing need for all orders of indefinite duration and seek to have them revoked when this becomes appropriate.
Amendment No. 54 is intended to allow the sheriff to impose compulsory supervision requirements when making antisocial behaviour orders. This would not be appropriate. These are civil orders to be made when the case for them has been proved on the balance of probabilities rather than beyond reasonable doubt. They are neither a conviction nor a punishment. The orders can therefore prohibit but they cannot require. Any such requirement would run the risk of being in breach of our ECHR obligations.
Although it would not be possible to allow the orders to require compulsory supervision, those subject to the orders will be encouraged to undergo voluntary supervision where appropriate. This will be fully covered in the guidance to which I have referred.

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Amendment No. 86 would require the sheriff to impose a specific duration on every order at the outset, preventing orders being of indefinite duration. It is not normal practice to impose such a restriction on civil orders.
The person against whom an order is made can of course apply to the sheriff to have the order varied or revoked. In addition, the guidance will make it clear that the applicant should periodically review the continuing need for all orders. I invite the noble Earl to withdraw the amendment.
The Earl of Mar and Kellie: I am grateful to the noble and learned Lord. I forgot to speak to other amendments in the group, but I acknowledge the fact that the noble and learned Lord has supplied an answer to them. The Committee will not have to listen to an explanation of why I believe the amendment is necessary. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 and 52 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 53:
Page 15, line 6, at end insert?—
("( ) For the purpose of determining whether the condition mentioned in subsection (l)(a) is fulfilled. the sheriff shall disregard any act of the person in respect of whom the application is made which that person shows was reasonable in the circumstances.").
On Question, amendment agreed to.
[Amendments Nos. 54 to 56 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 57:
Page 15, line 6, at end insert—
("(3D) On an application under subsection (l) above the sheriff may make any interim order under subsections (3) and (3A) as he considers appropriate.").
The noble and learned Lord said: Amendment No. 57 raises what I believe to be an important practical issue; namely, the desirability of making available in Clause 18 provision for an interim order. Under Clause 19(5)(a), such interim orders will be appropriate when applications are being made for sex offender orders. However, there is no similar provision in Clause 18 and the question is, why?
From time to time, in presenting antisocial behaviour orders to the House, Ministers have drawn on the fact that they are civil orders and that some of the issues are similar to those which arise in relation to interdict or injunction proceedings. Indeed, in his previous answer the noble and learned Lord the Lord Advocate stated that in interdict proceedings it is not normal for an interdict to be limited in time. Therefore, it may be instructive to draw on experience in interdict and injunction proceedings in asking and seeking to answer the question whether a court could cope with adjudicating on an ex parte basis with an application for an interim order. I believe that sheriffs, who are to handle those matters in Scotland, are more than qualified to do so.
The reasons that such an order may be desirable are, I believe, self-evident. One reason is that it may take time for the proceedings, which have been initiated by the local authority, to reach a conclusion. Initially there may be a delay when the person against whom the application is granted seeks to sist the action, as we say in Scotland—to stay the proceedings—to enable a legal aid application to be made. That may take some weeks, if not longer. There is always pressure on courts' time to get diets for hearings of evidence, and from time to time, such hearings have to be postponed because of the non-availability of a witness or witnesses or any other more urgent pressure on the sheriff's time. Therefore, some delay before the action reaches a hearing and a final conclusion may be unavoidable.
I suggest that a further reason is that the very making of the application, albeit that it is brought by the local authority, may serve to inflame the situation. If the occupants of a particular street have complained about the activities of some young men and for this example, I am quite happy to deal with young men over the age of 16 years—and an application is initiated, the very service of the initiating writ on the persons against whom the order is sought may annoy and irritate them. The first thing they will do, after going to see their lawyer, is to go back to the street where they have been misbehaving, and misbehave again. Far from seeking to protect the innocent members of the public from that criminal behaviour, the situation may be exacerbated.
I accept fully that in such an event, the police may be able to intervene but that applies also in the first instance. The question arises as to why, if a local authority has good prima facie evidence that an order should be pronounced, can the clause not provide an option for the sheriff to consider whether an interim order can be pronounced?
I hope that I shall be forgiven for relying again on the words of the noble Lord, Lord Williams of Mostyn. On the last occasion on which we debated these matters, he referred to individuals who carry out such behaviour as being wicked. That is a sensible description of them and it is one which we should bear in mind when considering to what extent this provision can be improved.
Again, I diffidently mention the name of the noble Lord, Lord Williams, because we were favoured by another of his qualified undertakings and I hope that following the example which he set earlier this afternoon, the noble and learned Lord the Lord Advocate will be able to give a similar undertaking to that which was made at col. 571 of Hansard, if it assists the noble Lord, who I see is urgently searching through his papers. I beg to move.
5.15 p.m.
Lord Hardie: This amendment addresses a concern that the court process would not be sufficiently speedy to meet the expectations of local communities. I should point out that Clause 20 provides that applications for such orders should be made by way of normal summary application procedure for civil business; and as the noble and learned Lord will be aware, that is a particularly swift procedure, in so far as any court procedure is swift.

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Cases where there is a need for urgency should be rare. However, given that conduct which is clearly criminal will be addressed by other means, in my view it would be unnecessary to have any special provision.
In relation to legal aid, to which the noble and learned Lord referred, and the possibility of sisting for an application for legal aid, there is provision for emergency legal aid in such circumstances. If there is a particular urgency, the local authority applicant can seek that the period of notice to the person against whom the order is to be made could be as little as 48 hours and then make representations to the sheriff to justify an early diet being fixed for the hearing.
I am not satisfied that there is a requirement for an interim order in anti-social behaviour orders. As we shall discuss shortly, we consider that interim orders should be possible when sex offender orders are being considered because of the nature of the behaviour which such orders is intended to prevent. Having said that, and in a spirit of conciliation, I agree to consider this matter further on the same basis as that of my noble friend Lord Williams of Mostyn. Again, I should not hold out too much hope of change.
Lord Mackay of Drumadoon: Small though the mercy be, I am grateful for it, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 58:
Page 15, line 6, at end insert—
("(3E) On making an anti-social behaviour order, a sheriff shall attach a power of arrest, unless it appears to him that in all the circumstances of the case such a power is unnecessary.
(3F)A power of arrest attached to an anti-social behaviour order shall not have effect until a copy of such an order has been given or sent to the person named in the order in terms of section 20(8).
(3G)If by virtue of subsection (3E) above, a power of arrest is attached to an anti-social behaviour order, a constable may arrest without warrant the person named in the order if he has reasonable cause for suspecting that person of having done anything which he is prohibited from doing by the order.
(3H)Where a person has been arrested under subsection (3E) above, the officer in charge of a police station may liberate that person in accordance with the provisions of section 22 of the Criminal Procedure (Scotland) Act 1995 or refuse to liberate that person; and such refusal and the detention of that person until his appearance in court by virtue of any provision of the Criminal Procedure (Scotland) Act 1995 shall not subject the officer to any claim whatsoever.").
The noble and learned Lord said: Amendment No. 58, which is grouped with Amendments Nos. 70 and 73, raises the issue of whether, when orders are pronounced in Scotland under Clauses 18 and 19, there should be attached to them a power of arrest which would enable an officer of police who was advised of an alleged breach of the order to arrest the person who is the subject of the order if he deemed it appropriate to do so.
Amendments Nos. 58 and 70 are in my name and that of my noble friends. Amendment No. 73 is in the name of the noble and learned Lord the Lord Advocate. It may
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be for the convenience of the Committee if I deal first with Amendments Nos. 70 and 73 which relate to the question of a power of arrest in sex offender orders.
The government amendment seeks to achieve my objective in that it provides that a constable, without warrant, may arrest any person whom he reasonably suspects of doing or having done anything prohibited by a sex offender order. It does not attach such a power of arrest to the order itself but it gives the police officer the necessary power and to some extent therefore it meets my purpose.
However, I invite the noble and learned Lord the Lord Advocate to clarify whether such a power would exist when the court had exercised its powers under Clause 19(5)(a) and granted an interim order pending the granting of a sex offender order. If the answer is that it would not—and as I construe the amendment it would not—then I ask why that is the case.
I also pose a supplementary question relating to such interim orders. Let us suppose that the sheriff has exercised his power under Clause 19(5)(a) and pronounced an interim order and the person against whom the order is directed or pronounced breaches that order. What is the sanction? As I read the Bill, there are no provisions in it which would allow the court to deal with the matter. Therefore, we would have to fall back on the normal rules of contempt of court as regards the breaching of any order. Indeed, harking back to a debate which the noble Lord, Lord Thomas, initiated on the last occasion, that might lead to some considerable confusion in that certain orders pronounced under Clause 19 would be penalised as being contempts of court, whereas others would be penalised under the route set out in the Bill. I fully appreciate that we are discussing fairly technical issues. Nevertheless, they are of practical importance notwithstanding the fact that the Government and I are at one in suggesting that, in dealing with sex offender orders, there should be such powers of arrest.
I turn now to Amendment No. 58, which seeks to introduce into the procedure for antisocial behaviour orders a power on the part of the sheriff to attach a power of arrest when such an order is pronounced. If a person acts in breach of an antisocial behaviour order and his action constitutes a criminal offence which could be prosecuted at common law in Scotland as a common law offence, and there is evidence of such a breach, I fully understand that, as a matter of practice, there may be no need for such a power because the police officer could exercise his existing powers to arrest people or, if appropriate, detain them for having committed a breach of the peace, an assault, or whatever the offence may be.
However, from the way that the terms in Clause 18(3) are framed, especially the last few words, it is possible to foresee a situation where an order is breached without any criminal offence having been committed and, therefore, without any arrestable offence being available to allow the police officer to exercise his powers.I suspect it is also possible to foresee a situation where there is little doubt that a common law offence has been committed, but equally there is no doubt that there is only one witness to such a situation. Therefore, the

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police officer may feel that he could not rely on his common law powers because such a decision would undoubtedly be countermanded by a superior officer or the procurator fiscal on the basis that there was no legal basis—no sufficiency of evidence—for putting the person against whom the order is directed before a court.
It is in the interests of the order that such a power of arrest should be attached to it. The Scottish Affairs Committee of another place, whose report I referred to on the last occasion, recommended that interdicts involving violence not just in the domestic situation should have such powers of arrest attached to them. As I have mentioned, the Government acknowledge that that is appropriate in sex offender cases. However, I invite them to go that one step further and accept them in relation to antisocial behaviour orders.
I should stress that all I am seeking is that the power of arrest should be included in the order if the sheriff deems it appropriate. I am certainly not suggesting that it should be mandatory for any such power to be attached to the order. Indeed, even if it were included in the order, it would then be a matter for the discretion of the police officer, in the light of his training and experience and the factual situation with which he is confronted when it is alleged that an order had been breached, to decide whether or not he should exercise such a power. I beg to move.
The Earl of Mar and Kellie: I should like briefly to contribute to the debate. I certainly approve of the need for a swift procedure in such circumstances. However, I am wondering how the public, who will have to supervise such orders, will get to know about them. We have heard that the police will be supervising them unofficially, but will publicity about who has been placed on an antisocial order be allowed? I suppose that I am really asking a question about community notification, because the working of an antisocial behaviour order will depend on the community responding to it.
Lord Hardie: Amendments Nos. 58 and 70 relate to powers of arrest. It is our position that there is no need for a power of arrest for breach of an antisocial behaviour order. Where the behaviour which constitutes a breach is sufficiently serious to justify arrest, it will almost certainly constitute a criminal offence; for example, a breach of the peace. The powers of arrest relating to that offence would then apply. That is very different from a breach of a sex offender order.
I am grateful to the noble and learned Lord for raising the issue by way of his amendments. I certainly agree that it is important—given the nature of the criminal conduct that sex offender orders were intended to discourage—that anyone breaching such an order can be arrested. A breach may well indicate that an individual's behaviour is getting out of control, and that a serious sex offence is imminent. The behaviour prohibited by an order may, however, be relatively innocuous and certainly non-criminal. An individual may, for example, be prohibited from entering a children's playground between certain hours. That behaviour may be a reliable indicator, in relation to the particular offender, that a serious sex offence is about to be committed.
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The police's common law powers of arrest may not be sufficient to allow arrest in such circumstances. That is particularly so if the police know the home address—as they will do because of the registration requirements associated with orders—and it is not judged that the individual is likely to abscond. In England and Wales, breach of a sex offender order will automatically be an arrestable offence under the Police and Criminal Evidence Act 1984, because it carries with it a maximum penalty of at least five years' imprisonment.
I fully accept the need for a power of arrest and the principle behind the amendment. However, I hope that the noble and learned Lord will forgive me if I indicate that I am not persuaded that it should be couched in the terms set out in his amendment. For example. there is no need for the proposed subsection (5B) as sex offender orders will not have effect until served; and the provisions of Section 22 of the Criminal Procedure (Scotland) Act 1995 would apply automatically as breach of an order is an offence which can be tried summarily. Therefore, subsection (51) is also unnecessary.
Perhaps I may now turn to the point raised by the noble and learned Lord as to whether or not the powers of arrest in the government amendment would cover an interim sex offender order. I should like to take this particular aspect away with me to consider whether a further amendment is required in addition to the present government amendment to meet that point. I shall, therefore, return to the matter at a later stage. Members of the Committee will see from the Marshalled List that there is an equivalent amendment tabled in my name: namely, Amendment No. 73. I invite the noble and learned Lord to withdraw his amendment, and that grouped with it, and support my amendment.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Advocate for his response. When he reflects on Clause 19, I hope that he will treat himself to further reflection on Clause 18, although I am not optimistic that that will bear fruit. Nevertheless, I hope that I can tempt him to do so.
When the noble and learned Lord takes away Clause 19, perhaps I may invite him to look at two issues. First, the question of whether there is a power of arrest; and, secondly, the issue regarding a penalty for breach of such an order. I believe that it would be undesirable to have contempt of court proceedings mixed up with this procedure if the Government's determination is to have a separate route for dealing with breaches of such orders—an aspect of the policy with which, as presently advised, I agree. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
5.30 p.m.
Lord Hardie Lord Hardie moved Amendment No. 60:
Page 15, line ll. leave out ("sections 19 and 20") and insert ("section 20").
The noble and learned Lord said: This amendment is grouped with other government amendments: namely, Nos. 63, 66, 67 and 75. It is not usual for the police in

1037
Scotland to apply direct to the civil court, as we are proposing for sex offender orders. When we consulted on these orders at the end of last year we therefore sought views on whether the police or local authorities should have the power to make applications. That is why both appear in the Bill as at present.
Views from consultees were divided. The orders, however, can only be made against someone with a previous conviction for a sex offence, and their intention is to prevent future criminal behaviour. It therefore seems right that the police should apply for them, as in England and Wales. I understand that the Association of Chief Police Officers in Scotland supports that approach. The police will, however, be required to consult the relevant local authority before making an application. These amendments remove the provision relating to local authority applications in Clause 19(2) and references to it elsewhere. I beg to move.
The Earl of Mar and Kellie: I wish to speak to Amendments Nos. 62A and 81A which are curiously grouped with the Government's amendments. I hope naïvely that they will be accepted with the same ease as the amendments of the noble and learned Lord. However, I suspect that will not be the case.
These amendments have been suggested to me by the Law Society of Scotland. Amendment No. 62A seeks to transfer responsibility for the promotion of sex offender orders from the chief constable to the procurator fiscal. The case for doing this is a constitutional one. It is unprecedented in Scotland for the police to apply for a civil order in the sheriff civil court. It is also most unusual for the police to appear in Scottish courts in any other capacity than that of witnesses or of court duty officers.
The amendment sets down the following challenge. Although it is rare for a procurator fiscal to appear in a civil court, the hybrid or quasi-criminal nature of a sex offender order makes it appropriate. The breach of a sex offender order will be a criminal matter. The usual process of a report being sent to the procurator fiscal from any source would seem appropriate to be applied to sex offender orders. In the event of a breach, the procurator fiscal will need to know all the circumstances of the imposition of the sex offender order. Therefore he or she may as well have promoted it in the first place. This amendment would avoid muddying the waters in the relationship between the police and the public, including past offenders.
Amendment No. 81A is designed to ensure that consultation on sex offender orders takes place between the chief constable and the local authority. I cannot see how an order seeking to control the behaviour of a citizen could be promoted and informally supervised without the notification, consultation and co-operation of both the police and the local authority. How is the procedure of making these orders enhanced by allowing for a failure of consultation? I believe that we have moved on from the time when social workers found it difficult on ideological grounds to talk to policemen. The advent of the criminal justice specialist social work teams is strong evidence of this progress. Presumably
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officers from the police, social work and housing are likely to be involved already in some way with antisocial behaviour order holders and sex offender order holders. These orders may well be a significant step forward in dealing with grossly unsatisfactory behaviour. They must not be tarnished by inadequate procedures.
Lord Mackay of Drumadoon: I speak to the amendment moved by the noble and learned Lord and to the various other amendments in this grouping which stand in my name. As the noble and learned Lord the Lord Advocate has explained, the Bill, as initially drafted, sought to give both to the police in the form of the chief constable and to the local authority, power to seek orders under Clause 19. His amendment seeks to exclude the local authority and my Amendment No. 62 seeks to exclude the police. Therefore, in this instance, we cannot say that we seek to achieve a common purpose.
I believe that the crucial issue in this case is whether the police wish to have this jurisdiction, and the related question of whether it would be sensible to give it to them. I do not think there is any doubt that if local authorities are to be charged with the power to seek antisocial behaviour orders, it would be perfectly possible for them to seek sex offender orders too. It is my experience that police forces in Scotland use as their legal departments the legal departments of one or other of the local authorities whose areas they cover. As a matter of practice, the same lawyers will go to court to seek the order. The question therefore is whether they should do that on behalf of the local authority who employs the lawyers or on behalf of the chief constable who seeks to employ their services and no doubt would pay some compensating charge to the local authority budget for that purpose.
I, too, have considered the responses of the police organisations in Scotland to the consultation paper. As the noble and learned Lord the Lord Advocate fairly pointed out, it would be unprecedented in Scotland for the police to apply for a civil order. Therefore the Government sought views on whether that should be done by the police on the one hand or local authorities on the other. As I read the responses received from the Association of Chief Police Officers in Scotland, they do not express a view on that issue although I fully accept that privately they may have communicated what the noble and learned Lord the Lord Advocate has reported. However, their initial response at least did not appear to embrace this new power with enthusiasm. I could not find in the file that I consulted any response from the police superintendents, and the Police Federation, which represents the police constables, favoured the power lying with the local authority and not with the chief constable.
I believe that not only is there a constitutional issue here, of the nature mentioned by the noble Earl, but also a practical issue of good policing, and that of a good relationship between the procurator fiscal on the one hand and the police on the other. Time and time again disputes arise involving neighbours and some of them take on a nasty aspect and result in the commission of

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criminal offences. It is possible to imagine situations where rather than resorting to criminal proceedings it is decided that when dealing with an offender who has a sex offender's background and is liable to upset a neighbouring family, the Section 19 route should be followed. In such a situation the police are in a difficult position. On the one hand, they wish to prevent the sex offender from committing further sex offences, but on the other they wish to protect members of the public who are outraged—whether from their own feelings or because they are whipped up by others—at the presence in their community of a sex offender.
In such situations it is extremely important that the police forces exercise impartiality because they are the people who will have to enter a housing scheme to deal with any problems that may arise, whether they be a breach of the peace or problems of a violent nature. If they have taken the initiative—as the Government proposal would empower them to do—it may be difficult to preserve that impartiality.
I mentioned also the relationship with the procurator fiscal. If the police report the sex offender to the procurator fiscal and say that on the basis of the evidence available to them it appears that the sex offender has been guilty of a breach of a stalking nature, such as watching a school playground, a community centre or a public park, and the procurator fiscal for good reason decides that criminal proceedings are not appropriate, at present the police have to accept the decision of the Crown without question; and they do so, having explained what evidence they have been able to collect.
This provision affords the police an option of to some extent second guessing the procurator fiscal and instituting proceedings of their own. I venture to suggest that in an isolated incident it might lead to breakdown of the important relationship between the Crown and police. It is not essential that the police be given this power. By framing Clause 19 in its present form, the Government acknowledge that it would be possible to leave the matter with the local authority. That is the course I invite them to reconsider.
Amendment No. 77 is included in this group of amendments. As a result of a fault entirely on my part it is wrongly included because it raises a somewhat distinct issue; namely, the limitations on the disclosure of information by a chief constable to others of information which might be available to him. In the context of Clause 19, if the government amendment prevails the practical implications for Clause 19 will fly off. But the amendment has implications for Clause 18, and that is why I raise it.
As anyone interested in the criminal justice system will know, chief constables are privy to a great deal of information about people in the community. Some of that information is in the public domain; some of it has not yet entered the public domain but will do so; and some of it will never enter the public domain. As regards a neighbours' dispute it can include information about both sides—convictions, police warnings, warnings by the procurator fiscal and other matters. My concern is that that information, plus any information
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the police may have communicated to the procurator fiscal in relation to previous incidents, may seep out during the consultation process unless clear guidance is given as to what a chief constable can or cannot do.
Good policing depends on collecting evidence and information in confidence. It depends upon obtaining that information by surveillance. Good policing and sensible prosecuting depends upon the police forming views as to the rights and wrongs of certain situations and communicating that to the procurator fiscal who takes the ultimate decision as to whether or not to initiate prosecutions.
As I understand the law, at present the police have certain limits on them as to what they can disclose to outside agencies. I fully accept the value of case conferences when dealing with young offenders. I fully accept that information may have to be disseminated further than to the procurator fiscal. However, I put down the amendment to seek from the Government a clear indication of what they believe the correct policy to be and, it is to be hoped, some assurance that it is an issue which will be dealt with in the guidance to which the noble and learned Lord the Lord Advocate has helpfully referred.
Lord Harris of Greenwich: Perhaps I may ask the noble and learned Lord the Lord Advocate this question. Having heard the noble and learned Lord move his amendment, I was not absolutely clear as to its full significance. I am sure that he will put me right if I have got wrong what he said. As I understand it, the police will have a duty to consult the local authority in the circumstances which he envisaged. But as we also know, chief officers have an operational independence. What happens if there is a disagreement between the police and the local authority? I should be grateful if the noble and learned Lord could help me on that.
5.45 p.m.
Lord Hardie: Perhaps I may deal with the noble Lord's point. If the government amendments are accepted, the police would apply for the orders. Clearly they would consult with, and take into account the views of, the local authority. But at the end of the day, by opting for the police as the appropriate authority to make the order the ultimate decision would be for the police.
As I shall comment later, clearly one of the duties of the police is concern for the safety of the public. That is part of the reason that we opted for the police rather than the local authority.
The alternative set of amendments removes the power of the police to apply for sex offender orders and replaces it with the power for the local authority or procurator fiscal to do so. I think that everyone is agreed that only one authority should apply, to save the matter falling between two stools, and the appropriate order not being sought by anyone.
As I have already indicated, we consider it right that the police should apply for those orders. They can be made only against someone with a previous conviction, and their intention is to prevent future criminal

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behaviour. It is the proper function of the police to prevent criminal behaviour. Accordingly, such orders would fall fully within the role of the police.
We would therefore not wish local authorities to have any power to make such applications. As regards the procurator fiscal, the orders are civil and it would be inappropriate for the procurator fiscal to apply to the civil court for them.
Amendment No. 74A would remove the requirement for local authorities to consult the police before applying for antisocial behaviour orders. The whole thrust of our approach is one of consultation. Accordingly, we do not think that the amendment would be appropriate. It is clearly important that the police should have the opportunity to draw any relevant information to the attention of the local authority before an application is made. In particular it would be helpful for the police to be able to indicate whether a prosecution for the same behaviour was likely.
However, we would not wish the sheriff to be required by statute to reject an application for an order if consultation had not taken place, as Amendment No. 81A proposes. Rather, it should be for the sheriff to determine whether the application should proceed taking all the circumstances into account.
It would be open to the person against whom the order was made to lodge an appeal against the order on the grounds that the necessary steps had not been completed before the application was made.
Once the order is made, it should be considered valid. We would not wish the procurator fiscal to have to look behind the face of the order into the circumstances surrounding the application before deciding whether or not to prosecute for breach.
It is quite right that concerns about the disclosure of information should be raised by Amendment No. 77. As the noble and learned Lord, Lord Mackay of Drumadoon, said, this problem would not arise in relation to sex offender orders if the government amendment were allowed. But I appreciate that it may have some relevance in relation to antisocial behaviour orders.
Concern has been expressed that existing statutory and common law powers may not be sufficient to allow the sharing of information between local authorities and the police which will be necessary for the proper consideration of an application for an antisocial behaviour order. The common law duty of confidence and restrictions arising from the data protection legislation is also relevant.
There are limited exceptions from the data protection principles, for example where the disclosure is necessary for the prevention and detection of crime. And breaches of the common law duty of confidence can be defended if they are in the public interest. This is a very difficult area. We are considering as a matter of urgency whether the constraints on what the police—and indeed local authorities—may disclose will cause difficulties in relation to applications for orders and whether express provision to allow disclosure needs to be made. Should it be necessary, we will bring forward an amendment.
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Before inviting noble Lords to withdraw their amendment in favour of the government amendment, I should say that I do not have any concern about any breakdown in the relationship between the police and the procurator fiscal should this power be given to the police. The overall concern of both the Crown and the police in such matters is the protection of the public. These orders being applied for by the police will fit in with the overall aims of both the Crown and the police. I beg to move the government amendment, and invite noble Lords to withdraw their amendment.
On Question, amendment agreed to.
[Amendment No. 61 not moved.]
On Question, Whether Clause 18, as amended, shall stand part of the Bill?
Lord Mackay of Drumadoon: I gave notice of my intention to oppose the Question that Clause 18 stand part of the Bill, intending to raise at this juncture a number of matters which I raised when we last met to consider the Bill on Tuesday last week. I wish to thank publicly the noble and learned Lord the Lord Advocate for having written to me dealing with some of these issues, and in particular to thank his officials for having faxed a copy of the letter to me at the end of last week. It was of great assistance in preparing for today's debate. I understand from having talked to the noble and learned Lord earlier that copies will be available in the Library, if they are not already there.
Noble Lords will recall that I raised two issues. The first was whether an antisocial behaviour order could be justified by conduct which would not found a criminal prosecution. The answer given by the noble and learned Lord in his letter was yes. Secondly, I asked whether an order could be justified by conduct which would not justify the granting of an interdict. Again, I received an answer which was effectively "yes", but which was couched in these terms:
"It is not intended that it should generally do so",
but by implication such a possibility clearly exists.
While I am grateful for the very full and prompt letter in reply to the anxieties that I raised, I regret to say that to some extent it reinforced my concerns about this provision. What we are faced with is Parliament being invited to grant powers to the sheriff to grant a civil order against an individual who on the one hand has committed no crime, and on the other hand may not have committed any civil wrong. Such an order could be pronounced on the evidence of one witness against a civil standard of proof. Once the order is pronounced—which could be as draconian (I use the word advisedly) as preventing a person going to a certain street, to a house which he tenants or owns—the very fact of doing so lays him open to criminal prosecution.
I have some difficulty in imagining circumstances which would justify an application where no crime or civil wrong has been committed. But the noble and learned Lord's letter accepts that such could exist. It is somewhat difficult to reconcile—although I fully accept the noble and learned Lord's analysis of the clause—with the policy as explained by the noble Lord, Lord Williams, which was to deal with behaviour which

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would be considered criminal. I therefore invite the noble and learned Lord the Lord Advocate to suggest practical examples which may answer my concern. If he cannot, some serious anxiety remains.
I wish to make one other point at this stage which arises out of the noble and learned Lord's previous reply dealing with the question of confidentiality. The matter will now arise only in relation to Clause 18. If this matter is to be dealt with in guidance, I respectfully suggest that it would be extremely useful to noble Lords if that guidance could be available in this place before the Bill leaves it. Otherwise, a number of the issues that we are raising—issues which are not being discounted as frivolous—may pass unscrutinised before the Bill goes to another place.
Lord Hardie: Clause 18 provides an additional mechanism for local authorities in Scotland to control antisocial behaviour in their areas through applying to the sheriff for civil orders against individuals who have behaved in an antisocial way and are considered likely to do so again. It mirrors the provisions for England and Wales in Clause 1 which have already been discussed.
There are, however, two main differences for Scotland. The first is that only local authorities will be able to make applications for such orders. The justification for the police making such applications is not sufficiently overwhelming to override the normal arrangement that the police do not apply direct to the courts in Scotland. The police will be consulted by local authorities before an application for such an order is made.
The second difference is that orders will be available against only those aged 16 or over. Antisocial behaviour by those under 16 will continue to be dealt with by the distinctive children's hearing system. As in England and Wales, local authorities will be able to apply for orders against anyone in their area, not just their own tenants. It is envisaged that it will often be possible for evidence to be given by local authority staff to avoid at least some of the difficulties of intimidation. The sheriff will be able to impose whatever prohibitions he considers necessary to protect the community from future harm.
The noble and learned Lord gave the example of someone perhaps being prohibited from going to the home that he tenanted. I accept that that might well be an order which the sheriff would impose in an appropriate case. But it would be only in an extreme case that such an order would be granted. The sheriff will impose such order as he considers necessary to protect the community from future harm.
These provisions fulfil the spirit of the recommendations in the report of the Scottish Affairs Committee on housing and antisocial behaviour published at the end of 1996. They were widely welcomed by consultees last autumn. I also emphasise that orders are not punishments; nor are they convictions. The terms of the orders have to be only those which are necessary to protect the public. Furthermore, the defender has a right of appeal.
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In the course of debate on this clause reference has been made to guidance. It is hoped that guidance will be available, certainly before the Bill is enacted. I have undertaken to write to the noble and learned Lord in more detail about the matter.
Clause 18, as amended, agreed to.
Clause 19 [Sex offender orders]:
[Amendments Nos. 62 to 62B not moved.]
Lord Hardie Lord Hardie moved Amendment No. 63:
Page 15, line 20, leave out subsection (2).
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, Amendment agreed to. [Amendment No. 64 not moved.]
6 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 65:
Page 15, line 30, leave out ("serious harm from him") and insert ("the commission by him of a sexual offence within the meaning of section 210A(8) of the Criminal Procedure (Scotland) Act 1995.").
The noble and learned Lord said: This is a probing amendment to be taken with Amendment No. 72. Amendment No. 65 seeks to leave out the words "serious harm from him" in Clause 19, page 15 line 30, and insert the words "sexual offence", defined in greater detail in the amendment.
This amendment seeks to probe one issue: whether the activity which the order would seek to prohibit, if pronounced, would be the commission of further specific offences; or whether the activity which it seeks to prohibit is an activity which, so far as it concerns another member of the public, may be perceived on all sides to be an absolutely innocent activity.
When the clause comes to be construed by the courts, it would be helpful to have clarification from the Government as to what they have in mind. If my amendment, Amendment No. 65, were to be accepted, it would clearly be the first alternative. 1 seek to probe whether that is the Government's policy or the second of the two alternatives. I beg to move.
The Earl of Mar and Kellie: I fear that the amendment of the noble and learned Lord, Lord Mackay, may be too prescriptive. Particularly when considering paedophiles, I believe that most parents would not want such people to have a contact with children which comes before an offence is committed. We should bear in mind that these orders are to prevent the possibility of the commission of an offence as well as to prevent the offence.
Lord Hardie: I agree entirely with the noble Earl, Lord Mar and Kellie, that there is a danger in being too specific about the harm which sex offender orders are intended to prevent.
The term "serious harm" is not defined for this clause but has been used in previous legislation. It is, for example, used without definition in Section 209 of the

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Criminal Procedure (Scotland) Act 1995 which empowers the court to make a supervised release order if it considers it necessary to do so to protect the public,
"from serious harm from the offender on his release".
It is also to be used without definition in the new provisions for extended sentences for sex offenders in Clause 70. It will be for the courts to interpret the term and decide whether the likely consequences of further behaviour of the kind prompting the application for the order fall within the term or not.
A more specific definition—as in the amendments—runs the risk of excluding something which the police and perhaps more importantly the court would like to have been able to include. It would also cover matters that are not necessarily serious. I invite the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: I am grateful for that answer. As the noble and learned Lord the Lord Advocate correctly indicates, it touches on an issue which arises later in the Bill. I shall reflect carefully on what he said. I beg leave to withdraw Amendment No. 65.
Amendment, by leave, withdrawn.
Lord Hardie Lord Hardie moved Amendments Nos. 66 and 67:
Page 15, line 31, leave out ("or (2)").
Page 15, line 34, leave out ("or (2)").
The noble and learned Lord said: These amendments have already been spoken to. I beg to move them formally.
On Question, amendments agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 68:
Page 15, line 36, leave out ("appropriate") and insert ("necessary").
The noble and learned Lord said: This is a series of amendments which are grouped together and which deal with a number of discrete topics. The first is the use of the word "appropriate" in Clause 19(5)(a). That is the power that the sheriff will have to make an interim order, "as he considers appropriate". I contrast that with the use of the word "necessary" in Clause 18(1)(b) dealing with the granting of an antisocial behaviour order and, more important, the use of the word "necessary" in Clause 19(6) dealing with the granting of a sex offender order on a permanent basis or at least on a basis which is time-limited by the sheriff's order.
As I need not inform the Committee, normally when different words are used by Parliament in a statute, different meanings are intended. Amendment No. 68 seeks to probe the policy which lies behind the use of "appropriate" in Clause 19(5)(a) when it falls to be contrasted with "necessary" in Clause 19(6).
Amendment No. 71 is fairly self-explanatory in nature and the Law Society suggested to me that it might be desirable, while I agree that it is not necessary. Amendments Nos. 78 and 84 are consequential on other amendments with which we have already dealt, and I
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need not discuss them. Amendment No. 88 is fairly minor in nature, designed to ensure that chief constables are aware of all orders that have been granted. In the light of the Government's amendment to Clause 19, chief constables will automatically become aware of the granting of orders which they have sought. However, the same would not apply to antisocial behaviour orders. Therefore, I shall move the relevant amendment in due course. It is my understanding, from reading the consultation responses which I mentioned earlier, that the suggestion has the support of ACPOS (the Association of Chief Police Officers in Scotland).
Finally, perhaps I may deal with Amendment No. 90. It is in two parts and seeks to prevent a sheriff, or on appeal a sheriff principal or Court of Session, or, indeed, the Appellate Committee of your Lordships' House, pronouncing either an antisocial behaviour order or a sex offender order if the Crown has intervened in the proceedings by a minute of the procurator fiscal or the Lord Advocate indicating that it is believed that the granting of such an order would be in the public interest.
As some Members of the Committee may be aware, when breach of interdict proceedings are initiated in Scotland, that process, being brought by a member of the public as an individual and a private citizen, requires to be done with the concurrence of the Lord Advocate to protect the public interest. It is a practice which is well founded in reason because many of the disputes involve factual situations which may or may not have given rise in the past or may give rise to criminal proceedings. To avoid conflict between proceedings under Clauses 18 and 19, I suggest it would be sensible to put on the face of the Bill a provision which would entitle the Crown to intervene and say: "Go no further".
The amendment is not designed to bring the Crown in as a party to the proceedings: it is not designed to require the Crown to justify the decision which the Lord Advocate has taken in the public interest. It is designed to indicate that if, having regard to all the information he has, he determines that it would not be in the public interest for an order to be pronounced, he has the right to exercise such a veto.
I fully expect that the occasions when that may be necessary will be limited because of the consultations which will no doubt have taken place. But from time to time there may be a breakdown of communications, or a difference of view, or, particularly under Clause 18, a local authority may be under pressure to act but the Crown may not consider that appropriate. Therefore, I include Amendment No. 90 in the group and will seek to move it in due course. I beg to move.
The Earl of Mar and Kellie: Amendments Nos. 68A and 86A appear in this group and are in my name. Amendment No. 68A is designed to clarify Clause 19 which seems rather vague.
It is worth going back in this regard to the origins of the clause when it was originally to be called a "community protection order". The purpose of its being renamed a "sex offender order" is to prevent future misconduct which would lead to the possibility of a

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further offence being committed. The amendment is necessary for public safety and clearly maps out what the order is designed to do.
Not all sex offenders will meet the criteria for a sex offender order to be imposed upon them. A past conviction alone will not be sufficient. The sex offender order evolved to deal with those convicted sex offenders who have not given up their offending behaviour and who are not making the effort to control their interest in sexual offending. Those who reject or pay lip-service to treatment programmes and counselling will, deservedly, be in line for a sex offender order and the neighbourhood supervision that goes with it. Amendment No. 68A sharpens up the clause and gives it greater clarity.
Amendment No. 86A is a probing amendment aimed at clarifying how long should be the minimum period for such an order. The words on the face of the Bill, "at any time", would allow an order to be discharged after one day. That would be a breach of common sense. Can that be a sensible form of wording? I can see the merit of flexibility in being able to apply for the discharge of an order, but it must surely be after a minimum period which itself must be long enough to establish that a new pattern of non-offending behaviour is being pursued.
6.15 p.m.
Lord Hardie: These amendments are concerned with the way in which orders are made, served, appealed against, varied or revoked. The noble and learned Lord, Lord Mackay of Drumadoon, referred towards the end of his remarks to Amendment No. 90 and perhaps I can deal with that first.
Amendment No. 90 would have the effect of removing the possibility of an application being made for a civil order where a procurator fiscal or the Lord Advocate decided to raise criminal proceedings relating to the same circumstances that gave rise to the civil proceedings and where those criminal proceedings subsequently fail.
The behaviour which has given rise to an application being made in the first instance may not be sufficient to meet the standard of proof required in successful criminal proceedings, but may yet satisfy the lesser standard required in civil cases. We do not therefore consider that the option of proceeding with a civil measure should be removed.
The Lord Advocate already has the power to enter into any process in the public interest. We will certainly consider whether any amendment is necessary to the clause to include a provision for a minute to be lodged by the Lord Advocate or the procurator fiscal, as the case may be, to sist the civil proceedings pending the outcome of the criminal proceedings.
We consider that that would achieve the purpose which the proposed amendment seeks in preventing civil proceedings progressing until the outcome of any criminal proceedings is known. Neither a procurator fiscal nor the Lord Advocate can be required to specify their reasons for making particular decisions, so the second part of the amendment is not required.
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Amendment No. 71 seeks to make it clear that the prohibitions in an order are to be those the sheriff considers necessary. Since it is only the sheriff who can make such orders, the amendment would appear to be unnecessary.
Amendments Nos. 68 and 68A would reduce the sheriff's discretion over when he could make an interim order under Clause 19. Instead of being able to make such an order when he considered it appropriate, he would only be able to do so if he considered one necessary, or necessary in the interests of public safety. In the context of an interim order that would be an unnecessary fettering of the discretion of the sheriff. Given the nature of the behaviour which these orders are intended to prevent, I would not wish to restrict the sheriff in that way.
I have no difficulty with the principle behind Amendment No. 88, which is that the court should send a copy of an antisocial behaviour order or a sex offender order to the relevant chief constable at the same time as it is given or sent to the person to whom it applies. That is sensible as a breach of an order is an offence which the police would be required to follow up.
I do not consider that it is necessary to specify that in the legislation since it is a procedural matter. We would, however, cover this point in the guidance to which I have already referred. The same approach was taken over the copying of the court certificate and notice of requirement to register under the Sex Offenders Act 1997. The certificates and notices are copied to the police and—where appropriate—the local authority, prison or hospital which will be responsible for the offender. The arrangements were provided for in guidance which was discussed in detail with those involved.
In relation to Amendment No. 86A, I see no need to remove the words "at any time" from the provision. It could be argued that the provision would have the same effect without them, but I consider that they provide helpful clarification. To take the point made by the noble Earl, Lord Mar and Kellie, in theory it could mean that an application could be made the following day, but in reality that would not occur. If it did, I am sure that any sheriff would give it short shrift.
In relation to Amendment No. 84, I agree that certain of the procedural provisions in Clause 20 should apply to interim orders under Clause 19(5). I do not, however, agree that the provisions in subsection (7) on the duration, variation and revocation would be appropriate for interim orders.
Amendment No. 85A stands in my name and extends the procedural provisions on the service of orders in subsections (8) and (9) to interim orders under Clause 19. I intend to move Amendment No. 85A and therefore ask that Amendment No. 68 be withdrawn along with other amendments grouped with it.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Advocate for dealing in such a constructive manner—albeit taking different tacks—with the four amendments to which I spoke.

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perhaps I can make one further comment in relation to the amendments incorporated in the two parts of Amendment No. 90.
The amendment was designed not only to deal with the situation which the noble and learned Lord the Lord Advocate discussed, where criminal proceedings had been initiated and were running their course or where the view had been taken that they would have been initiated but because of some problem with sufficiency of evidence they could not be initiated; it was also designed to deal with a situation where the Crown was firmly of the view that, albeit there was a sufficiency of evidence, it would not be in the public interest to prosecute the accused man. The issue would therefore arise as to whether it was in the public interest for the local authority to seek an antisocial behaviour order against a man who is no longer the accused, but is the defender.
As the noble and learned Lord will be aware, in many disputes there are two sides to the story. Anybody involved in the criminal justice system, whether prosecuting or defending, will know that it is not uncommon for a dispute to erupt where it is impossible for either the police or the prosecutor to decide which side is in the right or in the wrong. I therefore invite that further consideration to be before the noble and learned Lord the Lord Advocate. On the basis that I received a most constructive response, I beg leave to withdraw Amendment No. 68.
Amendment, by leave, withdrawn.
[Amendments Nos. 68A to 72 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 73:
Page 16. line 14, at end insert—
("( ) A constable may arrest without warrant a person whom he reasonably suspects of doing, or having done, anything prohibited by a sex offender order.").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 74 not moved.]
Clause 19, as amended, agreed to.
Clause 20[Procedural provisions with respect to orders]:
[Amendment No. 74A not moved.]
Lord Hardie Lord Hardie moved Amendment No. 75:
Page 16, leave out line 17.
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 76:
Page 16. line 19. at end insert ("and the relevant procurator fiscal").
The noble and learned Lord said: I shall speak briefly to this amendment, which I fully accept might have been grouped with others. I accept that the need for a local
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authority to consult with the procurator fiscal prior to seeking an antisocial behaviour order under Clause 18 might be dealt with by way of guidance, although the position as far as concerns the chief constable is set out on the face of the Bill. I would welcome an assurance from the Lord Advocate that he will look at this point when considering the guidance which is currently being drafted. I beg to move.
Lord Hardie: I can give the assurance sought by the noble and learned Lord. I invite him to withdraw the amendment.
Lord Mackay of Drumadoon: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 77 to 85 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 85A:
Page 16. line 34. at end insert ("and subsections (8) and (9) below apply to an order made under section 19(5)(a) above").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 86 to 88 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No, 89:
Page 17. line 12. leave out ("shall continue to have effect") and insert ("may be suspended").
The noble and learned Lord said: This amendment seeks to inject into the appellate procedure for appeals against orders a power for the appeal court to suspend the order complained of.
I fully accept that once an antisocial behaviour order or sex offender order has been pronounced there is a very strong argument that it is in the public interest that that should remain in effect until either varied by the sheriff or successfully appealed against. However, there may be rare occasions when it is appropriate that the order should be suspended pending the outcome of the appeal. To take an extreme example, if the local authority had been hoodwinked by a group of alleged victims and it became apparent that the evidence upon which it had relied at the hearing before the sheriff was tainted by perjury but there was delay in getting the matter to a final appeal hearing, it must be appropriate for that order to be suspended ad interim. It is possible to envisage other such examples.
I may be wrong, but as I construe the provisions of Clause 4(2)(b), which deals with appeals against such orders in England, the English Crown Court would have power to make an incidental order as appears to be just. I stand to be corrected as to whether that would cover an interim order; but if it did, it would certainly seem to be sensible for the same discretion to be available to the appeal courts in Scotland as appears, on my layman's reading of the English provision, to be available in England.
The other issue arises in Amendment No. 92, which is grouped with Amendment No. 89. and is of a fairly technical nature. As the Lord Advocate said earlier,

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applications will be by way of summary application. Appeals are in certain instances competent from determinations in summary applications, but there is a great variety of jurisprudence as to in what circumstances they are competent and to where the appeal should lie—whether it requires to go first to the sheriff principal or whether it should go directly to the Court of Session. If I may pray in aid again the consultation responses, my recollection is that some consultees asked that this matter be clarified. What I suggest in Amendment No. 92, as this issue will arise locally and be concerned with activity in a specific local authority area, is that it is appropriate that any appeal should in the first instance lie to the sheriff principal. I hope that certainly the spirit lying behind the amendment will he acceptable. I beg to move.
Lord Hardie: Amendment No. 89 is intended to allow orders to be suspended while appeals are being considered. That would not be appropriate. Given the nature of the behaviour that these orders are intended to prevent and given the risk to the public that they are intended to reduce, it is important that they should be effective immediately and should remain effective until revoked. These orders are prohibitive only and do not impose any requirements on those against whom they are made. There is no need for them to be suspended while appeals are heard and there might be considerable risk to the public in doing so.
Amendment No. 92 seeks to provide that the first line of appeal should be to the sheriff principal. While I can understand and sympathise with the sentiment behind the amendment in encouraging people to seek a remedy at the local level, it is already open to anyone to have first recourse to the sheriff principal in summary proceedings in Scotland unless there is any statutory prohibition against that. Accordingly, it is not necessary to have any specific provision for this on the face of the Bill.
The English provisions to which the noble and learned Lord referred are intended to deal with what happens once the appeal has been determined. The power in Clause 4 would not enable the order to be suspended while the appeal is being heard. Accordingly, there does not appear to be any inconsistency between the Scottish and the English provisions. Therefore, I invite the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: On the first point, I remain concerned that in a few cases there may be a possible injustice. However, it would not be appropriate to divide the Committee on that issue at this juncture. With regard to the noble and learned Lord's response to Amendment No. 92, having raised the issue, I am fully content with the reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 90 not moved.]
6.30 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 91:
Page 17, line 13, at end insert—
("(10A) Every local authority shall maintain a register containing details of—
(a) the names, ages and addresses of persons resident in the authority's area against whom anti-social orders, sex offender orders and orders under section 18(3A) above have been made and remain in effect,
(b) the dates of any such orders, and
(c) the terms of any such orders.
(10B) A register maintained by a local authority under subsection (10A) above shall be open to public inspection, without charges at such places and at such times as seem appropriate to the local authority to ensure that members of the public have ready access to information that requires to be included in the register.").
The noble and learned Lord said: This again is a short matter which might be dealt with by guidance, but I believe that it would be better for it to be on the face of the Bill. There is one aspect of protecting the public—that every local authority should maintain a register containing details of those against whom orders are pronounced, the dates of the orders and their terms. I cannot see any objection to that proposal. If one of the policies which lies behind these provisions is to get the message across to certain members of society that its law-abiding members will not tolerate their behaviour, it is sensible that a register be maintained and open for public access. I beg to move.
The Earl of Mar and Kellie: I support this amendment. In view of the fact that we are introducing a new concept of neighbourhood supervision, the requirements in the amendment would go some way towards making certain that members of the public know exactly who is to be supervised by the neighbourhood.
Lord Hardie: We do not believe that a local authority-maintained register would serve any useful purpose. Indeed, it could be viewed as a contravention of the European Convention on Human Rights. In the case of antisocial behaviour orders, those who have been affected by the behaviour will already be aware of the details. The guidance on implementation, which will be available in draft, is likely to advise local authorities to inform such people that an order has been made and of its terms. There will also be arrangements to ensure that the police are aware of such orders. We do not consider that anything further is required.
Those subject to sex offender orders will be required to register their name and address with the police, who will record the details in their own computers. It will be a matter for the police to decide to whom this information should be further disclosed in the interests of public safety.
I understand that revised guidance on the sex offenders Act which will cover risk assessment and disclosure for all sex offenders about whom there are concerns will be issued for consultation shortly. We do

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not therefore consider that there is a need for a separate register. I invite the noble and learned Lord to withdraw the amendment.
The Earl of Mar and Kellie: Perhaps I may ask one further question. Will there be a prohibition on publication of the making of such an order in local newspapers?
Lord Hardie: I would not think so because the proceedings in the civil court would be in public.
Lord Mackay of Drumadoon: I fully accept that that answer is a valid response to the point raised by the noble Earl, but perhaps I may probe slightly further. What is the alleged breach of the ECHR that the existence of a register would give rise to? If the purpose of this power is to allow a local authority to take an adult individual to court in open forum and lead evidence there that he or she has behaved in an antisocial manner, and the sheriff then makes an order designed to protect the general public which the local reporter can publish in the Clackmannan Gazette or other local journal, which article of the convention which is part of the schedule to the Human Rights Bill would be infringed in any way? If a register is maintained in the local library, when people read the Clackmannan Gazette or whatever, they can also look at the register to see whether the Graham family, for example, are the subject of antisocial behaviour orders. I appreciate that the question is of a slightly technical nature. I shall be quite content if the noble and learned Lord writes to me about the issue. But as he has raised an ECHR objection to what I would have thought was quite reasonable publicity to orders obtained in the public interest, I believe that the Committee would benefit from having an explanation of what lies behind the comments he made.
Lord Hardie: I shall take up the noble and learned Lord's invitation and write to him in detail. I believe the concern is that having details entered in a register and having it available for inspection by the public is different in kind from having a chance report of proceedings in a newspaper. I accept that in a small community such as Alloa such a report would never be forgotten, but in other communities with larger populations it may go unnoticed or even unreported.
If the idea is to bring home to people that their behaviour is unacceptable, I am concerned that they should be given an opportunity to reform. However, if there is a register and people have ready access to it, we may run the risk of a reaction from the public against the individual or the family which may be counterproductive. That would certainly apply as regards sex offender orders. Sadly, we are all aware of instances where sex offenders have been hounded out of areas by members of the public. That would simply increase the risk.
As regards the ECHR, I shall write to the noble and learned Lord in more detail. I believe that one has the right to live unmolested. The important thing is that this
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order is not a conviction or a punishment. As I say, I do not believe that it would be appropriate to make a register which people could examine in the library or at the police station.
Lord Mackay of Drumadoon: I hear what the noble and learned Lord says in response to my further question and I am grateful to him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 92 to 94 not moved.] Clause 20, as amended, agreed to.
Clause 21 [Offences in connection with breach of orders]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 95:
Page 18, line 10, leave out ("Subject to subsection (7) below,").
The noble and learned Lord said: This amendment and Amendment No. 96 are probing amendments which invite the noble and learned Lord to explain Clause 21(7). There is the substitution of the words,
"at the time at which he committed",
for the words "which constitutes" in subsection (2). I have read the subsection on numerous occasions. The fault may be entirely mine, but I do not see its purpose, bearing in mind that a breach of both an antisocial behaviour order and a sex offender order could be carried out by conduct, on the one hand, which constitutes the commission of a separate offence or, on the other, which constitutes no such offence. In those circumstances why is it necessary to have subsection (7)? It will come as no surprise to the noble and learned Lord that I am entirely content with Amendment No. 97. I beg to move.
Lord Hardie: Amendments Nos. 95 and 96 would mean that the fact that a person has breached a sex offender order in the course of committing a criminal offence could not be taken into account as an aggravating factor in determining the sentence for that other offence.
For example, if a person has been prohibited by a sex offender order from entering a particular school playground and that person is subsequently found guilty of indecently assaulting a child in that school playground, had he abided by the terms of the sex offender order he could not have committed the assault on the child. So there is an aggravation of the offence by breaching the order. It is only right that the aggravation should be taken into account in sentencing the person for the indecent assault in that example. The provision as drafted would allow this to happen. The amendment would, however, mean that the breach could be taken into account only if the behaviour which constituted it was in itself criminal. Given the likely terms of sex offender orders, this would happen only rarely, if at all, whereas with the antisocial behaviour provisions, one has to establish that the breach is criminal before it becomes an aggravation. In a sex offender order, the breach of the order is itself an

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aggravation which is added to the penalty for the sex offence. With that explanation, I invite the noble and learned Lord to withdraw that amendment.
Amendment No. 97, which is grouped with Amendments Nos. 95 and 96, corrects a typographical error in a previous print of the Bill.
Lord Mackay of Drumadoon: 1 am grateful to the noble and learned Lord the Lord Advocate. Now that I know the purpose of the provisions, I apologise to the Committee for further delaying matters and I beg leave to withdraw Amendment No. 95.
Amendment, by leave, withdrawn.
[Amendment No. 96 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 97:
Page 18, line 13, leave out ("(7)") and insert ("(6)").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 98 not moved.]
Clause 21, as amended, agreed to.
Clause 5 [Authorities responsible for strategies]:
Lord Henley Lord Henley moved Amendment No. 99:
Page 5, line 10, leave out from beginning to ("and") in line 12 and insert —
("(a) the local authority according to the meaning given under section 33 below;").
The noble Lord said: We now move away from Scotland and return to England, so we can allow the noble and learned Lord the Lord Advocate and my noble and learned friend a brief rest until we reach Amendment No. 166 when we shall return again to Scotland.
We come now to the crime and disorder strategies which are set out in Clauses 5, 6 and 7. The noble Lord, Lord Williams, will note that relatively few amendments have been tabled to those clauses. In moving Amendment No. 99, I am speaking also to Amendment No. 101 (also to Clause 5) and to Amendments Nos. 104 and 105 to Clause 16, as well as, I understand, to the government amendment, Amendment No. 100, which the noble Lord will no doubt explain in due course when he responds to the one or two points that I wish to make about the crime and disorder strategies.
First, I hope that when the noble Lord responds he will be able to expand to some extent on exactly what the crime and disorder strategies are designed to achieve and how the Government propose that they should work. Perhaps the noble Lord could then go on to consider the question of exactly who should be responsible for the strategies. If I understand Clause 5(1)(a) correctly—as one who has tried to work out what it means, I must say that it is not the clearest piece of drafting—it applies in areas where there are not unitary authorities, with both the county and the district being involved. Paragraph (b) provides that the chief officer of police of any police authority lying within the area should also be responsible.
At Second Reading, I asked why sometimes the counties and sometimes the districts are to be involved in the strategies. If I have understood this provision correctly, it seems that both of those two authorities will be involved. That seems to create a number of bureaucratic problems with both authorities coming together to produce presumably separate—I may be wrong—strategies for any given area, with one strategy for the county and a number of different strategies for the districts that comprise that county. Obviously, where there is a unitary authority, the process is somewhat simpler. I should be grateful for some explanation from the noble Lord of why that should be the case.
The noble Lord will see that our amendment seeks to state that it should be for the county to pursue such matters on the basis that the county is often (although not always) the authority which is coterminous with the police authority, so the two will already have considerable links.
The noble Lord will have noted my two amendments to Clause 16 which, in the rather peculiar order that we are considering the Bill, we are now considering with Clauses 5, 6 and 7. Again, I should be grateful if the noble Lord could expand on the purpose and intention of Clause 16. Am I right in thinking that it implements the Morgan report? No doubt the noble Lord can assure me on that point. My amendments to Clause 16 were tabled as a means of getting the noble Lord to the Dispatch Box on this clause and, almost as a tease, to ask what on earth the national parks authorities or the Broads Authority would have to do in terms of the duty to consider crime and disorder implications. As I understand it, the parks authorities are purely planning authorities and have no other role. I see that as having relatively little impact on crime and disorder. No doubt if I am mistaken, the noble Lord will be able to reassure me that it is essential that the national park authorities and the Broads Authority are included. I beg to move.
6.45 p.m.
Lord Williams of Mostyn: As the noble Lord indicated, I shall be speaking to Amendments Nos. 99, 100, 101, 104, 105 and 156. The effect of Amendments Nos. 99 and 101 would be to exclude the district council from the process of developing and implementing crime and disorder strategies in all those parts of the country where county councils still exist. We think that would be wrong. It would severely compromise the effectiveness of the strategies for at least two reasons. First, it would give a much larger geographical focus. That means, almost by definition, more remoteness from the specific and particular needs of the particular communities they are intended to serve. Secondly, on a practical basis, district councils are responsible for providing a range of services which impact directly on crime and disorder levels. If carried, the amendment would mean that those services and the wider resources of the districts would be excluded from the fight against crime in two-tier areas.
I repeat what I said earlier. Very often, crime problems are particularly local to particular areas or parts of areas. We think that local communities have a very important part to play in the fight against crime.

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They also have particular interests. On the basis of that explanation, I hope that the noble Lord will agree to withdraw his amendment.
The noble Lord asked about strategies. They are specifically described in Clause 6, which contains the injunction for the responsible authorities to formulate a strategy, having (under Clause 6(2)) carried out a review of the levels and patterns of crime and disorder; prepared an analysis of the results; published a report, and had full consultation with, and obtained views from, appropriate people. Under subsection (4)(a) a strategy shall include:
"objectives to be pursued by the responsible authorities, by co-operating persons or bodies or, under agreements with the responsible authorities, by other persons or bodies; and"—
under paragraph (b)—
"long-tern and short-term performance targets for measuring the extent to which such objectives are achieved".
I strip that down to say that what is required is research in a particular area; consultation in that area; a finding of what the true problem is; setting what targets ought to be established for a particular area and, thereafter, ascertaining to what extent those long-term and short-term performance targets have been achieved. I cannot think of anything more sensible and more practical than having that as an obligation in particular areas—for the very first time in our criminal law system. I commend the scheme to your Lordships.
Amendments Nos. 100 and 156 will change the definition of police authorities in Clause 5 to ensure that it includes the Home Secretary since he is the police authority for the Metropolitan Police and the Common Council for the City of London. They were left out originally because we were troubled that in the case of the metropolitan area the Home Secretary would have to become personally involved in the development of about 40 separate strategies, which would be neither practicable nor desirable. That would have been, on second thoughts. an anomalous situation. We have now agreed arrangements under which the Home Secretary will ask the Metropolitan Police Committee to undertake any necessary liaison on his behalf.
Amendments Nos. 104 and 105, which have been described by the noble Lord as a tease, are viewed by the Government in the following way. National parks authorities and the Broads Authority do not have the same focused attachment and responsibility perhaps as district councils, for example. However, as the noble Lord rightly observed, they are responsible for planning decisions within their areas. Planning decisions can sometimes—I accept not always—have significant implications for crime and disorder. Since other local authorities when coming to various conclusions will be subject to the quite elementary requirement to have due regard to the crime and disorder implications of their policies, we say that it is right—although I agree in a lesser context—for the parks authorities and the Broads Authority to be subject to the same requirement. It will not be unduly burdensome but it may sometimes be of assistance.
Viscount Colville of Culross: Before the noble Lord sits down, does he agree that the Broads Authority is
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also a by-law making body? If that is right, does the noble Lord agree that the by-laws that it makes about the way in which boats are used on the broads and in the harbours at Lowestoft and Yarmouth can be extremely relevant to a strategy and may very well be a matter that should be considered, quite apart from the planning functions of that authority?
Lord Williams of Mostyn: I am obliged once again to the noble Viscount for that observation. When I spoke of planning obligations I put the umbrella rather too crudely. The noble Viscount is right that by-laws provide useful assistance. Any responsible authority in considering passing by-laws must pay attention to the question of crime in particular parts of its area, whether it be the Broads Authority or a planning authority in the case of the national parks. For that reason I repeat that in most cases this is not as central a matter as a district council's responsibilities but it is of use and importance. I hope that I have responded reasonably to the tease that has been offered.
Lord Northbourne: I welcome the inclusion of the Broads Authority and the parks authorities. It seems to me that the increase in crime and disorder in the countryside is particularly likely to take place in areas where there are lots of tourists. I would have thought that this was an entirely sensible provision.
Lord Henley: I am virtually satisfied by the explanation particularly that relating to the second pair of my amendments. However, I should like to refer to the first amendments and a policy which in effect excludes districts, although there is no reason why districts cannot be consulted by the counties.
I am still in a state of confusion as to exactly what happens. When dealing with Scotland earlier we heard a great deal about Clackmannan and Alloa. Perhaps on this occasion as an example I can refer to my own part of the world, Cumbria, which has six districts within the county. On top of that there is a national parks authority in the form of the Lake District Special Planning Board. In effect there are seven bodies. Am I right in thinking that Cumbria County Council must set up a crime and disorder committee to consider this matter and consult the chief constable of Cumbria, and that at the same time the six different district councils must set up an appropriate committee and consider crime and disorder strategies for Carlisle, Copeland. Allerdale, Eden, South Lakes and Barrow; or is it the case that all six should get together with the county and produce one single crime and disorder strategy which could be achieved merely by the county producing it in consultation with the others? That is what I fail to understand.
If there are to be seven different strategies, what happens if, for example, the Carlisle strategy differs from that produced by the county? Precisely who will the people of Carlisle consult? Do they consult just the local chief of police in the Carlisle area or must they consult the chief constable; in other words, will the chief constable be involved in seven different consultations

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before the seven different areas produce their strategies? I should be most grateful to receive further explanation from the noble Lord.
Lord Williams of Mostyn: I do not believe that there is any difficulty. If one looks at Clause 5(4), the local government areas are defined. In England they are districts; in Wales they are counties or county boroughs. That is the answer to the noble Lord's question. There is no requirement for separate county-based strategies. What one is looking for is consultation and informed in-depth co-operation in the relevant local government areas as defined in Clause 5(4).
Within the county of Cumbria there will be separate areas as defined and specified by the noble Lord. Equally, to take the Dyfed and Powys police area, there is more than one county authority. I take Carmarthen, Cardigan and Pembrokeshire at random. All of those county authorities are within the Dyfed and Powys authority. Certainly, in Wales the county authorities are not coterminous with the police authorities.
I take Dyfed and Powys as an example because I know it reasonably well. Parts of Dyfed and Powys police authority, for instance Llanelli, are industrialised built-up areas; parts of Pembrokeshire and Cardiganshire are rural. To take the example of the noble Lord, Lord Northbourne, they have particular problems but they are different problems from those to be found in a built-up area like Llanelli. Sometimes one has problems of tourism, travelling communities, drugs and motorised crime. All of that depends on a particular area and authority. All we are saying is that we want maximum co-operation and consultation and optimum flexibility. That is the way to deal with these matters rather than have something that is too prescriptive, which perhaps is what the noble Lord is looking for.
No authority in the past has had the statutory duty to do what is necessary in the interests of its inhabitants in this area of crime and disorder. We are placing this duty on the local authorities because we believe that the production of a strategic plan is in itself a useful discipline. It concentrates the mind and avoids the duplication and waste that are presently found and, just as important if not more important, it requires targets to be set so that those who are intimately affected, the people who live there, can say at the end of a year or two years, "These are your targets. Have you met them? By the way, the local elections are coming up".
Lord Henley: I remain confused. The noble Lord referred me to Clause 5(4) which defines "local government area" in paragraphs (a) and (b). That seems to imply "district". I return to Clause 5(1)(a) which contains the words,
"the council for the county which includes the district'.
That appears to imply that the county council is also involved. I accept that there may be validity in taking the district approach as opposed to the county approach, but what Clause 5(1)(a) appears to say is that both are involved. I believe that that is unnecessarily bureaucratic. If the district is to do it, it is all very well for it to consult the county, but one should not have both
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of them producing it. It may be that I have completely and utterly misunderstood Clause 5(1)(a), which I suspect is the case.
7 p.m.
Lord Williams of Mostyn: I think that the noble Lord has. There is no requirement for separate county-based strategies, merely district-based strategies. It may be that the noble Lord is wrong. It is possible that I am wrong. We can both reflect on the matter, and send each other a postcard, I dare say. It is normally a big postcard these days. If there is still any ambiguity. obviously I shall attend to it on the next occasion.
Lord Henley: I am most grateful to the Minister. I should be pleased if his officials could look at the wording of Clause 5(1)(a) because I do not understand it, and it would help if it were made clear. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment 100:
Pagc 5, lint 17, leave out ("established under section 3 of the Police Act 1996").
The noble Lord said: I have already spoken to the amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 101 not moved.]
On Question, Whether Clause 5, as amended, shall be agreed to?
Lord Hylton: Perhaps I could invite the Minister to throw whatever light he can on subsections (2) and (3) of this clause. They mention persons and bodies to be prescribed by the Secretary of State. Will he say whether "persons" includes magistrates? As regards "bodies", I may be wrong, but I take it that the Bill has in mind voluntary organisations.
As the Minister will be aware, there is an immense number of voluntary organisations and associations, ranging from housing associations, through organisations concerned with young people and children, parent/teacher associations attached to particular schools, and, at the other end of the spectrum there are organisations concerned with victims of crime. Will the Minister assure the Committee that none of the relevant voluntary organisations will be ruled out when the Secretary of State comes to prescribing? Can he give us any idea of how the views of the different kinds of relevant organisations may be co-ordinated in the future as regards the making of strategies?
Lord Williams of Mostyn: I am most grateful to the noble Lord. He is, of course, right, but again I revert to my original point. Particular areas throughout England and Wales differ. In some areas, for obvious reasons—perhaps need, perhaps historical—some voluntary organisations are much more prominent than in other areas, because there is not universal coverage. Victim Support, for instance, would not necessarily claim to be equally active and effective in every area of England

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and Wales. That is true of the charitable organisations and the other organisations mentioned by the noble Lord.
"Persons" would include magistrates. The Home Secretary has the highest regard for the co-operative responses he always receives from the Magistrates' Association. The Secretary of State wants the widest consultation to make the Bill not just as effective as possible but its practical effects as useful as possible undertake to transmit the noble Lord's views to the Secretary of State, because he has a wide power, as the noble Lord said:
"every person or body of a description which is for the time being prescribed".
The Home Secretary might well wish to give a wide description, which would include a large number of different voluntary organisations, specifying them by category rather than by name, because of course voluntary organisations sometimes come up to meet particular needs. I am most grateful to the noble Lord for bringing that point to our attention.
Lord Henley: Before the Minister leaves that point, will he give some guidance as to when the Secretary of State might be making that prescription and what consultation he will have before he makes that prescription? In other words, will we be able to have some input into the type of persons and bodies that should be included?
Lord Williams of Mostyn: I should have thought it extremely unlikely that the Secretary of State would wish to conclude that process before the Bill has gone through another place. That would be constitutionally inappropriate. Anyone who wishes to make representations to the Home Secretary is more than welcome to do so. We do not intend—if I may give some assistance—to rule out any voluntary organisation. Anyone locally, within the general umbrella to which I referred when answering the question of the noble Lord, Lord Hylton, could be invited to participate by the local partners if they have anything to contribute.
There are two questions of consultation here. One is the process of consultation with the Home Secretary, and I repeat that we are more than happy to have representation from anyone who has an interest in this field. There is the secondary consultation which will be at the local level between the partners, as it were, and those who are active and able within their particular areas.
Clause 5, as amended, agreed to.
Clause 6 [Formulation and implementation of strategiesl]:
Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws moved Amendment No. 102:
Page 5. line 37, after ("disorder") insert (", and fear of crime and disorder,").
The noble Baroness said: The amendment seeks to ensure that the crime and disorder strategy takes account also of the fear of crime and disorder in an area. Fear of crime has long been considered a vital component of
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community safety. Local authorities have strategies which are founded on community-based action to inhibit and remedy the causes and consequences of crime, intimidation, and other related anti-social behaviour.
The purpose of those strategies is to secure real reductions in crime and fear of crime in local communities. The absence in the Bill of the concept of the fear of crime has been commented upon by practitioners. If the Government's definition of "crime and disorder" is too narrowly defined, they will miss an important dimension of how crime impacts on communities.
The Government might well feel that having that formulation on the face of the Bill might not be helpful. It is hoped that my noble friend the Minister will take the opportunity to state that the fear of crime needs to be taken into account in the development of new local strategies. It would also be helpful if my noble friend could state whether the guidance currently being developed for local authorities and the police by the Home Office will deal with that issue. I beg to move.
The Earl of Mar and Kellie: I support the amendment. The fear of crime has a disproportionate effect on people. I shall give an example, once again, from Scotland. My brother is a parish minister in Argyll, in the picture postcard country of Kilmelford. He finds it impossible to persuade elderly folk to attend any events because of fear of crime. In practice that is ludicrous in that area. They have seen so much of it on "Crimewatch" and similar programmes, that they believe it is happening. They may accept the social work diktat that feelings are facts: if you think it is out there, it is out there, and so you stay at home. The crime and disorder strategies should perhaps reach as far as television.
The Solicitor-General (Lord Falconer of Thoroton): As my noble friend Lady Kennedy of The Shaws said, the effect of the amendment would be to require that on the face of the Bill one of the matters that the strategy would have to address would be the fear of crime and disorder. I should make it clear that we in government are aware of the enervating, destructive and corrosive effect of the fear of crime. We hope that the strategies will address that important aspect of fear in our society. However, we do not believe that stating it on the face of the Bill as one of the aims of the strategy would be sensible, because the strategies would be based upon an audit of local crime and disorder problems. That would have to be done in conjunction with other agencies, business, the local community, and all the persons on the relevant teams. It is unlikely that any partnership would be able to tackle all the problems identified by the audit. So they will inevitably have to prioritise those problems with which they can deal.
An obligation to reduce the fear of crime may well lead to any area experiencing a high fear of crime being given an artificially high priority simply so that the partnership could demonstrate that it was taking steps to combat the fear of crime. This could lead to an inappropriate diversion of resources, away from poor,

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high crime areas to affluent, low crime areas which can demonstrate a high fear of crime. I fear that if the provision is put on the face of the Bill there will be an inappropriate diversion of resources simply in order that the strategies appear to be achieving something.
My noble friend Lady Kennedy asked whether the guidance will deal with the fear of crime. The answer is, yes, it will, which is a recognition of the importance we attach to the issue. I hope that in the light of that explanation my noble friend will withdraw her amendment.
The Earl of Mar and Kellie: Will the publication of the results of the audit lead to a further and greater fear of crime?
Lord Falconer of Thoroton: That would depend on the results of the strategy, but, no, I do not believe that it will. The purpose of the strategy is to identify the aims of the local community in dealing with crime. The example given by the noble Earl indicates that one does not need a strategy to create a fear of crime; it already exists. I do not believe that the audit will have a material effect on the anxieties he has raised.
Baroness Kennedy of the Shaws: I am reassured by the Minister's words and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 6 shall stand part of the Bill?
Lord Northbourne: Is it intended that the strategy should cover not only the control of punishment of crime but also crime prevention measures, diversion from crime and strategies attacking the causes of crime? That is not clear from the Bill.
Lord Williams of Mostyn: Absolutely, yes.
Clause 6 agreed to.
Clause 7 [Supplemental]:
Lord Henley Lord Henley moved Amendment No. 103:
Page 6, line 40, at end insert—
("( ) The Secretary of State shall within two years of this section coming into effect make a report to Parliament on the working of crime and disorder strategies.").
The noble Lord said: I spoke to a similar amendment at the end of our debate on Clause 1. I implied that I would not return to the other amendments, but I return to this amendment in order to obtain the same helpful reassurance. Can the Minister assure the Committee that all the new provisions of the Bill will be kept under review by the Government and that they will make the review public and allow Parliament to consider the matters? I beg to move.
Lord Renton: I hope that the Minister will give a sympathetic answer. The provision should be made not only from the point of view of Parliament, but the Home
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Office should know that it must prepare a summary of its actions which will become public. There is great advantage in that.
Lord Hylton: I support the amendment and express the hope that any report from the Secretary of State will take into account the large amount of unreported crime. That aspect gives rise to the fears mentioned in our debate on Amendment No. 102. We know that crime goes unreported because people believe that nothing will be done about it if it is reported.
7.15 p.m.
Lord Falconer of Thoroton: I understand the thinking behind the amendment. It was clearly put by the noble Lord, Lord Renton. Your Lordships heard the response which was given to a similar amendment tabled earlier in Committee. There are differences between this provision and the provisions in Clause 1. Local strategies involve the appropriate area preparing a strategy, which will mean 400 strategies throughout the country. It will be virtually impossible for my right honourable friend effectively to discharge any obligation to report to Parliament. Even if he were to require those responsible for developing and implementing the strategies locally to report to him at the end of the two-year period—which the Bill does not at present oblige them to do—he would be poorly placed. on the evidence of such reports alone, to make worthwhile judgments about the effectiveness of local action in more than 400 areas. Furthermore, he would be poorly placed indeed to assess the real relevance of the strategies to local needs and circumstances, which must be their primary focus.
I must emphasise that the Government do not intend to wash their hands of these strategies once they are in place. We would certainly wish to be actively involved in the process of helping to identify and disseminate good practice and, resources permitting, would expect to be involved in research-based analysis of the activity of the local partnerships and evaluation of the outcomes achieved. As regards parliamentary debate, one would hope that at some stage it would be appropriate, but that must be arranged through the usual channels.
I hope that in the light of that explanation the noble Lord will withdraw his amendment.
Lord Henley: I hope that I shall be satisfied with that explanation. I wish to make the point that the provision is new and imposes new and bureaucratic duties on local authorities. Although we do not ask for detailed analysis of every scheme proposed by every local authority throughout the country—the noble and learned Lord said that there could be 400 of them—we want to know whether the provision has an effect. We wish to know whether the work which the Bill has imposed on the local authorities is worth while. That research is simpler than the noble and learned Lord implied.
I hope that he will put to his right honourable friend and to officials that it is important to have research in due course on the effect of the crime and disorder strategies and the burden they are imposing on local authorities. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 16 [Duty to consider crime and disorder implications]:
Lord Renton: Amendments Nos. 104 and 105 were discussed with Amendment No. 99 to Clause 5. I must protest about the way in which the clauses have been taken out of order and, to an extent, out of context. I raised the issue the day before the Committee began, but now we are debating the Bill one can see how absurd it is. I hope that the Government will not repeat the exercise, whether or not it has been agreed by the usual channels.
[Amendments Nos. 104 and 105 not moved.]
Clause 16 agreed to.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 106:
After Clause 16, insert the following new clause—
REASONABLE DUTY OF MINISTERS OF CROWN TO PREVENT CRIME AND
DISORDER
(" . Without prejudice to any other obligation imposed on him, it shall be the duty of each Minister of the Crown to exercise his various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that he reasonably can to prevent, crime and disorder.").
The noble Lord said: Clause 16, at which the Committee looked a moment ago, lays upon the local authority, the police authority and other authorities a duty to consider crime and disorder implications for the various functions which they must carry out.
Precisely what that adds to the 400 or so strategies of which the noble and learned Lord, Lord Falconer, spoke a moment ago, which are to be put together under Clauses 5 and 6, I really do not know. If it is intended that in the performance of all its functions, a local authority should have regard to good practice in exercising functions in relation to education, youth, housing, planning, social services and so on, so be it. But if that is what is behind these proposals, why should they not extend to central government agencies and bureaux which also carry out functions over a wide range of areas in local districts?
Therefore, the purpose of this amendment is to insert a new clause which will extend a similar obligation from the local authorities and other authorities to which Clause 16 pertains to the agencies and bodies which are governed by central government. This is by way of a probing amendment in order to find out why such a distinction should be made. I beg to move.
Lord Williams of Mostyn: I see a certain superficial attraction to the amendment because, as the noble Lord, Lord Thomas of Gresford, indicated, it would impose on central government the same general obligation to consider crime and disorder obligations as Clause 16 will impose on local authorities.
We believe that there is a distinction between the nature of central and local government. The whole point of the local crime and disorder strategy is to empower
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the local community to deal with it. The local police service, the local chief constable and the district services are dealing with services which are intimately concerned with the prevention of crime, the incidence of crime and how one deals with criminals across the whole age spectrum and seriousness spectrum.
If one looks at this amendment proposed by the noble Lord, Lord Thomas, it would impose a duty on each Minister of the Crown,
"to exercise his various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that he reasonably can to prevent, crime and disorder".
I do not believe that that would be workable in practice. There is so much that Ministers do which is wholly unrelated to crime that that would impose an unconscionable burden. It really would not be workable. I take the criticism voiced earlier by the noble Lord, Lord Henley. Such a blanket provision would be impossible to work and would generate a great many unnecessary tasks. There are many aspects of central government work which have no obvious crime and disorder ramifications at all.
I concede that the attraction of the amendment would be, possibly, that it may be of some help in breaking down the tendency of Whitehall to compartmentalise in departments, and I accept that as a point. But it is simply not practicably workable for every Minister to exercise all his functions bearing in mind what he can or cannot do to prevent crime and disorder. I am obliged for the proposition put forward and I hope that I have responded to it in a reasonable way. But it really is not workable.
Lord Henley: I do not support the amendment. However, surely the arguments which the noble Lord has put forward against the amendment apply equally to the arguments which I put forward in relation to the Lake District special planning board, other planning boards and the Broads Authority.
Lord Williams of Mostyn: I think not, for the reasons already specified, given by the noble Viscount and the noble Lord, Lord Northbourne, which I respectfully adopt. They are different; they are local. Their functions affect local people. The manifold duties of each Minister of the Crown very often do not affect anyone at all, I regret to say, and certainly many of them have nothing at all to do with the prevention, consideration of or dealing with crime and disorder.
Lord Renton: The subsection states:
"This section applies to a local authority, a joint authority, a police authority".
I hope that I shall be corrected if my recollection is wrong but the Home Secretary used to be, and I believe still is, the police authority for the Metropolitan Police. Within the terms of this amendment, the Home Secretary is a Minister of the Crown. Therefore, to that extent, the amendment merely reflects the present state of the law in relation to the Metropolitan Police.
Within Greater London, there was the exception of the City of London and, if I rerightly, the Mayor and Corporation of the City of London were the

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police authority for that and the Home Secretary had no jurisdiction over that. However, I see that there are difficulties about making the Home Secretary responsible for crime prevention and disorder all over the country.
To that extent, I believe that the amendment is somewhat unrealistic because all that the Home Secretary could do from the national point of view is to anticipate further trouble or prevent existing trouble by getting Parliament, in some way or another, to increase his powers and responsibilities. But it is at any rate an extremely interesting suggestion which the noble Lord, Lord Thomas of Gresford, has made with this amendment. Strangely enough, it raises some constitutional problems.
The Lord Bishop of Winchester: I should have thought that the Minister was in great danger of torpedoing not just this amendment but a great deal of the thrust of the Bill by what he has just said. In those parts where a Minister's actions will not refer to anything or anybody, then this will not refer to him. But in those parts where it will—and they are surely substantial—it is very much in the spirit of the Bill that the Minister of the Crown, as in the case of so many other people, should have the prevention of crime and disorder carefully in mind. My mind is running in a number of directions where it would be highly salutary for government Ministers to have to bear that proposition in mind. I suggest that the Minister is endangering a lot more than this amendment by his objection to it and that it should stand.
Lord Williams of Mostyn: As regards the noble Lord, Lord Renton, when I spoke to Amendments Nos. 100 and 156, I dealt with the Home Secretary's position as the police authority for the Metropolitan Police and also the Common Council for the City of London. On that occasion I said that arrangements have been agreed under which the Home Secretary will ask the Metropolitan Police Committee to undertake any liaison necessary on his behalf.
I should say in response to the right reverend Prelate that it is such a broad-based duty, a blanket provision, that it will have no practical effect beyond general injunction. We are looking for practical utility. The chief constable of police has responsibilities to his police authority and his particular area. All his work is focused on the prevention of and dealing with crime. Similarly, the districts are delivering local services. They can have a precise strategy and some way in which to measure what they have put forward by way of strategy and what they have delivered.
I simply cannot believe that it is possible to have such a blanket injunction; namely, that,
"it shall be the duty of each Minister of the Crown to exercise his various functions"—
and that applies to all Ministers and all functions—
"with due regard to the likely effect of the exercise of those functions on, and the need to do all that he reasonably can to prevent, crime and disorder".
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It is simply a general injunction which would not be capable of being checked. It does not require a Minister of the Crown to set down a strategy for his own department or his sub-department. I shall not say that it is pie in the sky, but it is very close to it.
Lord Thomas of Gresford: I am most grateful to the Minister for his reply. I am thrilled to hear that he is against blanket provisions in the Bill. That is a matter to which I shall return at a later stage of our deliberations on the Bill. The Minister said that the amendment would have no practical effect or utility. In the light of that explanation, I wonder what practical effect or utility Clause 16 is supposed to have.
As far as concerns local authorities, they are under a duty under Clauses 5 and 6 of the Bill to provide a crime and disorder strategy, but I did not hear the distinction being drawn between that and the provisions of Clause 16. Therefore, to put upon the police authority a duty to,
"exercise its various functions with due regard to the … need to do all that it reasonably can to prevent, crime and disorder in its area",
seems to me to be a little otiose. If the police are not involved in preventing crime and disorder in their areas, what on earth are they doing?
If Clause 16 is regarded by the Government as an appropriate clause to introduce in respect of local authorities, I should respectfully have thought that the amendment I have proposed would also have been acceptable and would have had some meaning, blanket provision though it may be. However, this is not a matter that I wish to pursue to a Division. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hoyle: I believe that this is an appropriate moment to break. I suggest that the Committee stage on this Bill begin again not before 8.30 p.m.
[The Sitting was suspended from 7.31 to 8.30 p.m.]
Clause 8 [Parenting orders]:
Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws moved Amendment No. 107:
Page 7, line 4, leave out from ("offence") to end of line 7.
The noble Baroness said: This amendment seeks to remove Clause 8(1)(d) from the Bill. The intention of this amendment is to prevent the criminal court from being able to give directions to parents because of matters relating to non-school attendance.
The civil family proceedings court already has powers to give directions to parents who are failing to secure that their child is being properly educated, under an education supervision order at Section 36 and Schedule 3 of the Children Act 1989. A parent who unreasonably and persistently fails to comply with such a direction is guilty of an offence and can be fined to the same degree as is proposed in the Crime and Disorder Bill. Thus, in terms of general court powers, this provision is redundant.
Many of those involved in youth justice and penal affairs believe that matters relating to education and home/school liaison are essentially civil, and should

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remain under the auspices of the family proceedings court rather than the criminal courts. That is the basis of this amendment. I beg to move.
Lord Falconer of Thoroton: As the Committee knows, Clause 8 makes provision for courts to impose a new court order called a parenting order. This is designed to help and support parents to control the behaviour of their children by requiring the parents to attend counselling and guidance sessions, and if necessary to comply with specific requirements which the courts may place on the parents.
As my noble friend Lady Kennedy has said, the order can be made in a number of situations, for example when a child safety order, is made; when an antisocial behaviour order or a sex offender order is made in respect of a child or young person; or when a child or young person has been convicted of a criminal offence; or when a person has been convicted of failing to send his children to school. It is the last of the four hurdles to which this amendment relates. The purpose of the amendment is to remove the last of the four triggers from the Bill.
I do not think there is any doubt that the links between the slide into criminality and poor educational achievement are well known. A child who does not attend school regularly is unlikely to do well in most circumstances. That is why there are two sections in the Education Act 1996 which try to compel parents to ensure that their children attend school and why the Prime Minister's new Social Exclusion Unit is paying particular attention to truancy.
When a parent is convicted of either of the offences under the Education Act which I have mentioned, the availability of the proposed parenting order will give the courts another option to help deal with the parent's inability to ensure attendance of his child at school. As we have the parenting order under Section 8, I believe it would be wrong not to offer it to the courts as an option in those circumstances where a parent has been convicted under Section 444 of the Education Act in failing to secure the regular attendance of his child at school. Once a breach of Section 444 has been proved, there is not a compulsory sentence, as it were, but it must be of value to the courts to have this measure in their range of options in dealing with a parent.
I do not think that anyone would disagree with the proposition that good education is vital for the development of children in this country. I have set out the important reasons why the Government believe that the parenting order will be beneficial in dealing with parents who do not ensure that their children attend school. I hope that I have put the noble Baroness's mind at rest, in particular in emphasising that this measure is an option and is not compulsory. There is no reason why it should not be provided. I hope that the noble Baroness will not press her amendment.
Lord Hylton: Before the noble Baroness decides what to do, it is important that preventive action should be taken as soon as, or even before, a child is suspended and then expelled de facto from school. That is when
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the trouble begins to manifest itself and that may be quite a long time before there can be any conviction under the sections mentioned on the face of the Bill.
Baroness Kennedy of The Shaws: I have concerns about the way in which this measure is being included with behaviour which is of a criminal kind. Often children truant from school because of their unhappiness at their schooling experience. We should try to draw them back into the learning community. However, I am concerned about the use of criminal sanctions for that purpose, and that this should be seen as a way of dealing with non-attendance rather than through the civil courts. I shall not press the amendment at this stage. I hear what the noble and learned Lord says. I shall withdraw the amendment but I ask him to think long and hard on this matter before the next stage of this Bill.
Lord Falconer of Thoroton: Before the noble Baroness sits down, I should emphasise that the criminal sanction relates to Section 444 of the Education Act. We are not creating any new criminal sanction. We are simply adding an additional sentence, as it were, for a breach of Section 444. Therefore her concern that we are imposing a criminal sanction for failure to secure regular attendance of a registered pupil at school is wrongly directed through this amendment; it should be directed at Section 444 of the Education Act 1996.
Baroness Kennedy of The Shaws: As the noble and learned Lord knows, there are two options available as regards action to be taken in connection with non-attendance at school. One of the options involves the section that the noble and learned Lord has just mentioned. The other concerns Section 36 of the Children Act which local authorities are currently applying. We still feel concerned that the criminal courts should be used at all in relation to non-attendance at school. We feel that the proper court to deal with this matter is the family proceedings court. I know that the Government have taken a different view; but we ask them to bear the amendment in mind in considering what is in the best interests of children for their future and their education. We do not think that the way that is proposed in the Bill is the best way forward.
Lord Falconer of Thoroton: I do not wish to repeat myself. The remarks the noble Baroness made relate more to the existence of Section 444 than to treating the matter as a trigger for making it a parenting order. The noble Baroness kindly indicates that she will withdraw the amendment. Perhaps that will be the end of the matter.
The Deputy Chairman of Committees: Does the noble Baroness wish to withdraw the amendment?
Baroness Kennedy of The Shaws: Yes, but I wish the noble and learned Lord to think twice about whether the provision is necessary. It consolidates a provision that we think was wrong originally—the inclusion of the provision in the Education Act. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 108:
Page 7, line 10. leave out ("is a parent or guardian of") and insert ("has parental responsibility for").
The noble Lord said: I beg leave to move the amendment in the name of my noble friend Lord McNally, and to speak to Amendment No. 109.
It is a pleasure to follow the noble Baroness, Lady Kennedy of The Shaws, in her criticism of the concept of parenting orders. The orders seem to be wonderfully idealistic. We have before us the template of the new Labour family where no doubt the mother smilingly greets her children as they come from school with her arms covered in flour from baking the scones for their tea, and father is ready to help with the homework, and so on—and if they are not, we shall jolly well make them so because we shall train them in the proper duties of how to be a father and a mother.
People are not like that. The puritanical, almost Cromwellian, zeal with which the order is introduced is typical of other measures which may be found within the Bill. By definition, the child concerned will be difficult. The aim is not so much to seek to make parents take responsibility for their children as to help parents find effective ways of managing them. When faced with the criminal sanctions contained in Clause 9(7) of the Bill, parents may seek to give up their responsibilities altogether rather than face being dragged through the courts and punished for what their children have done.
It is all very well for parents to enter into voluntary courses to try to help them control and deal with their children. But it is very different when they are forced to do so under pain of conviction and fines. There is a great deal about the parenting order which is highly suspect. I say that by way of an introduction to the two amendments.
It may be preferable at page 7 line 10 to leave out,
"is a parent or guardian of",
and insert,
"have parental responsibility for",
because the parent or guardian may have given up that responsibility and given up the struggle in the face of the difficulties they have with their children.
Similarly as regards Amendment No. 109, we are concerned that many persistent young offenders are no longer under the control of their parents. They are already in care or in local authority accommodation. In such circumstances, there is no point in imposing a liability on their parent or guardian, sending them off on courses and threatening them with legal sanctions and criminal convictions if the responsibility and care of those children has already been taken away from them under one order or another.
The purpose of the amendments is to face the reality of the situation and ensure that no court is tempted to make an order which will have no effect. I beg to move.
Lord Meston: I support the amendments. They seem entirely consistent with both the language and concepts
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of the Children Act which focuses on the idea of parental responsibility rather than on the specific identity of the parent or guardian.
Parental responsibility is a wider concept than the old ideas of parental rights which existed before the 1989 Act. My noble friend referred to parents giving up parental responsibility. In law, parents never give up parental responsibility short of adoption. But even if their children are taken into care they find themselves sharing parental responsibility with local authorities. The amendments seem entirely suitable to the idea underlying the clauses within the Bill. For that reason I hope that the Government will accept them.
8.45 p.m.
The Lord Bishop of Bath and Wells: I speak as Chairman of the Children's Society and wish to share for a moment the experience of the society, and those who work with it. Reinforcing parental responsibility is an important part of tackling youth crime. Experience shows that there can be considerable work done in parenting skill courses. They can help to improve the parenting and help to reduce family break ups, the taking of children into care, and the likelihood of offending, truancy and antisocial behaviour by young people. There needs to be more funding for such courses on a voluntary basis as part of family centres and other projects in disadvantaged areas. It could make an important contribution to preventing delinquency. Group work with the parents of young offenders alongside treatment programmes for young offenders has also been shown to be beneficial in bringing about more effective parental control and leading to improved behaviour and reduced offending by their children.
However, we have strong reservations about the provisions of more compulsory parental orders. Co-operative parents who are keen to accept help could be involved in those groups, whether or not it was compulsory. However, the order is least likely to work with unco-operative parents; and if they are returned to court and fined for not co-operating that is unlikely to help reduce the child's offending. Fines simply increase the degree of pressure and hardship on families for many of whom life is already a struggle to survive. To punish a parent for a child's action could also result in injustice and increased resentment on the parent's part, thereby putting children even more at risk.
I support the amendments because the expression "parental responsibility" is consistent with the Children Act 1989. We also feel that the provision will not work with the psychology of most parents who would be asked to take that responsibility.
Lady Saltoun of Abernethy: It is perhaps rather late in the day, but I wonder whether it might save time if I were to speak to my Amendment No. 114 which has not, alas, been included in this group, but which is aiming at the same kind of thing. I am entirely in the Committee's hands about this.
Amendment No. 114 is entirely a probing amendment. As I understand it, parents of children who have committed offences may be required to attend

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parenting classes. If they fail to do so, they may be fined at a level not exceeding level 3 on the standard scale. I can see excellent reasons why parents may not attend parenting classes after work. They may have no one with whom to leave their children and be unable to afford a baby sitter. Are they to be fined for that? If they are fined, for whatever reason, it is very likely that they will be unable to pay the fine. Some will be single parents; some will be on income support. If they cannot, or will not, pay the fine, what are the sanctions? I believe the fine applies equally to offences under Clauses 8 and 9. Are they to be imprisoned? If so, what is to happen to the children? Will they be taken into care? Will the noble Lord, Lord Williams of Mostyn, tell us what is the Government's thinking on this matter?
Lord Northbourne: I had intended to hold my fire until Amendment No. 110 was called. However, as the noble Lady, Lady Saltoun, and other noble Lords have decided to raise general issues, it may be appropriate for me also to raise general issues and the concerns that I have now.
The principle of reinforcing parental responsibility must be good. It must be desirable. I am chairman of an organisation called the Parenting Support and Education Forum. We have over 450 is, many of whom are deeply concerned as to whether this provision will actually work. We must listen to the voice of those who work with parents.
Counselling and guidance sessions could conceivably, and may sometimes, help. But there are very severe limitations. As the right reverend Prelate said, parents will go into those sessions in a spirit of rebellion and resentment. That will mean that they are not normally receptive. The severity of the sanction in many cases will seem unreasonable, because the problem arises not from but from a lack of parenting skills.
The Minister will answer that the whole idea of the provision is to teach parenting skills. But wait a minute—we are talking about children who have already committed an indictable offence; that is to say, they will probably be 11, 12, 13 or 14 years old. Those children are deeply entrenched in the emotional and social problems that have caused them to offend. It is unlikely that half a dozen, or a dozen, lessons to parents will give those not necessarily very able parents the necessary skills to cope with children with emotional problems.
I wish to raise a further matter. If you are a frustrated parent whose child has been causing serious problems and the law then comes and leans on you, starts fining you and threatening to put you in prison because your child is misbehaving, what are you going to do? You are going to hit it; you are going to hit it hard and often. I suspect that there is a danger that these provisions could lead to quite a lot of domestic violence. It is a real danger.
There is one final point which I could raise under the debate on clause stand part but which I will raise now in order to save trouble. Why is only one parent referred to in the text of the Bill? Bearing in mind that on the whole the Government believe that two-parent families
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have some advantages, it should read, "parent or parents". I suggest that Amendment No. 110 contributes to ensuring that the terms of a parenting order are not unreasonably onerous.
Lord Hylton: Perhaps I may say to my noble friend Lord Northbourne that, as I read the Bill, this clause could come into effect not only when an indictable offence has been committed but when it is a question of antisocial behaviour—which is probably a good deal sooner.
I support the general thrust of these two amendments. I should like also to quote a piece of work presently being conducted in Northern Ireland. It has the slightly trendy name of Kidstart. I have the honour of being president of NIACRO, and the programme to which I refer is under the auspices of NIACRO. It aims to support parents who are bringing up young children in difficult situations. We believe that a key factor in its success so far is that participation is voluntary. Kidstart is for parents who want to make changes for themselves and their children. It is effective because the parents and the workers concerned operate in partnership. Forcing parents who already face difficult situations to take part in parenting programmes will be at best useless and at worst counter-productive, creating resentment and additional stress, as was mentioned by my noble friend. I hope the Government will take this matter into consideration.
Lord Henley: As the debate is moving slightly wide of the amendments, perhaps I may put one brief question to the noble Lord replying for the Government. As the noble Lord will be aware, we generally support these clauses dealing with parenting orders. They very much follow on from what was suggested and promoted by my right honourable friend Mr. Michael Howard, the former Home Secretary, in his White Paper of February 1997, Preventing Children Offending.
I should be grateful if the noble Lord would address a question relating to resources for the Probation Service. Obviously, the mechanisms proposed here will increase the burdens on the Probation Service. I should be grateful if the noble Lord, in replying, will say just a little about how extra resources will be made available for the Probation Service, where that money will come from and whether it will have to be taken from other bodies for other aspects of local government and other work before it comes to the Probation Service.
The Earl of Mar and Kellie: Perhaps I may come to the aid of the noble Lord on the Treasury Bench—surprisingly perhaps. The crisis theory of social work suggests that, for many people, nothing changes until there is a crisis. I therefore suggest that for as many people as are put off by the compulsory measures proposed by the Government, there will be an equal number who start to face up to their responsibilities and who might otherwise not have done so.
Lord Williams of Mostyn: Perhaps it is as well to stick to the groupings; in that way we shall at last have

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a structure that has been agreed. Therefore, I shall speak to Amendments Nos. 108, 109, 110, 111 and 112, which were the grouped amendments.
To deal briefly with a specific question put by the noble Lord, Lord Northbourne, the use of the term "parent" simply means that if there is one parent effectively, that parent can be subject to a parenting order. Of course, if there are two, there is no difficulty on our construction of the Bill.
At the centre of the parenting order is the need to try to restore, perhaps even to construct for the first time, a proper relationship between a child and its parents. That is a fundamental step to help prevent offending or antisocial behaviour. That is why we have framed the legislation as we have. There is no doubt at all, as we see it, that there is a significant gap at present. Not all parents have the inner resources to bring up their children well. The noble Earl, Lord Mar and Kellie, rightly pointed out that a large number of parents would welcome support and assistance. It may well be that a degree of sanction will assist them.
To deal with the grouped amendments as I have indicated them to be, the first would have the effect of widening the focus of the order by including the words, "has parental responsibility for". This could mean the local authority if the child is in care. It would also exclude the father of a child who was born at the time when he was not married to the child's mother, if he had not acquired parental responsibility under Section 4 of the Children Act 1989. I do not believe that that is an intended consequence of the amendment.
The second amendment is intended to ensure that a parenting order is not made on a local authority where children in its care offend, but it also unfortunately excludes from the parenting order the parents of those children who are in the care of the local authority or—and this is not infrequent—in local authority accommodation when they commit the offence in question. I do not believe that that is a helpful adjustment of the Bill.
We do not believe it right to have a general exclusion in such cases. We believe that these decisions should be left to the court's discretion. If children have committed an offence and are in care of the local authority, there are various factors which the court needs to take into account. For those children who are subject to a care order, the local authority has day-to-day parental responsibility for the child, but the child's parents—rightly, I believe—do not lose their parental rights for the child. In some cases the child, even if subject to a care order, may well be living at home. Alternatively—and this again is quite a commonplace occurrence—the child may well be living with local authority foster parents.
It is hard to think, if a child is living in local authority accommodation or with foster parents, that the court would impose a requirement on the local authority or the foster parents to attend counselling and guidance sessions; that would hardly be sensible, some might say absurd. But it may well be that in some circumstances there would be a proper need on sensible consideration to impose specific requirements under Clause 8(4)(a)
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which would help to address the child's offending behaviour. It may well be that the court would think that counselling and guidance sessions for the actual parents would help lead to the eventual return of the child in care to its parents. That is very often the best outcome.
These are difficult areas. There is undoubtedly a gap at the moment. Too many children fall into that gap.
There are amendments to Clauses 8 and 9 in the name of my noble friend Lady Amos. The first amendment goes to the very heart of the parenting order and is not acceptable to us. We must have available for the courts the option of placing requirements on the parents to ensure that their child behaves in an acceptable way. It must be right in certain circumstances—and some parents would welcome this—for the court to be able say to a parent: "Your young child must be in at night", if there is a general pattern of antisocial offending behaviour because the child is running loose. It is important to bear in mind that it is sometimes an offence to leave a child unattended at home, if the child is of a certain age. But the child can be out and about, possibly being drawn into crime, when it is susceptible to the influences of older children, and there is no sanction to deal with that.
I have to stress that these are not intended to be draconian or Dickensian remedies. They are intended to slot in with the philosophy of the Bill, which is: to try to think what causes children to fall into harm. That is what it is. They are often very young, they have little benefit from what most of us had: namely, a loving home. What we are trying to provide is a regime which will assist parents, not dragoon them unmercifully, but offer assistance to parents where at the moment they have little help at all.
The second amendment in the name of my noble friend Lady Amos would include the duty to avoid any interference with the parent's responsibilities to care for other children in the family. I sympathise with its aim, but I simply do not believe it is a necessary addition.
We then consider the final amendment in the group, that of my noble friend Lady David. It relates to parental involvement in the criminal justice system. We have tried to draw a distinction between the parents of young and older juveniles. I take the point made by the noble Lord, Lord Thomas, that juveniles aged 16 and 17 are quite different in their development from younger children. They are at a transitional stage between childhood and adulthood and should have different considerations given to them. The emotional, intellectual and physical development of 16 and 17 year-olds will vary greatly. Some will have left school, they may be at work, they may be living independently. They may even in these days have family responsibilities of their own. Others may be living fully dependent upon their parents at home in full-time education.
We believe that when children under 16 go to court in criminal proceedings, the parents must be involved. Subsection (1), therefore, puts a duty on the court to make a parenting order where a child or young person under the age of 16 is convicted of a criminal offence and—and this is the important matter—when the

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condition in Clause 8(6)(b) is met—that is, it is desirable in the interests of preventing a further commission of an offence by that child or young person.
For older juveniles, we believe the situation is somewhat different. It will often be right for parents of 16 and 17 year-olds to be involved, but in some circumstances it may not be. We therefore put the duty on the courts to involve the parents of children and young people under 16. For 16 to 17 year-olds we say that should be a power. We believe that that reflects what occurs in real life because 16 and 17 year-olds are at a different stage of development.
In a nutshell, the real basis of the whole strategy behind parenting orders is this: no one wants to see a child fall into crime. Many children fall into crime because they do not have adequate parents. Some inadequate parents can be assisted. They can sometimes—as the right reverend Prelate said—be assisted on a voluntary basis. Sometimes a sanction may be effective, which may be gentle, tempered to the appropriate circumstances. We would prefer voluntary counselling and parenting guidance, but for those who do not wish it, who are perhaps afraid of it, in some cases a sanction may be of assistance. We believe that we have got the scheme about right. It is not perfect, but about right. Therefore, I have taken a little longer than I wished to deal with matters in this grouping in that way.
Perhaps I am deviating outside the groupings, but the noble Lord, Lord Henley, raised the issue of resources in particular and I do not want to overlook his question; it is obviously important. It will be part of our consideration. With the new regime we are intending to introduce pilot exercises and I can assure him that the question of resource, wherever it needs to be directed and from wherever it comes, will be an important part of the pilot exercises and our review of them.
Lord Meston: Before my noble friend responds, will the Minister at least consider the point that, though he is right that there are fathers who do not have parental responsibility within the meaning of the Children Act, there are also people who have parental responsibility in law and who are in fact not parents? It may well be appropriate therefore, at a later stage, to consider an amendment to the Bill framed differently from Amendment No. 108, but which enables the orders to cover people who are parents or guardians, or who have parental responsibility. That is perhaps something which may be considered at a later stage of the Bill.
Lord Williams of Mostyn: I know that the noble Lord, Lord Meston, put that point forward in an endeavour to be helpful and his suggestion is consistent with what we wish. If a differently worded amendment is brought forward, then I undertake, without prejudice as it were, to give it careful consideration.
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We want to cover every child who is at risk or has fallen into risk, rather than being simply legalistic. At the moment these amendments are not rightly couched but I shall give any further amendments proper consideration.
Lord Thomas of Gresford: I am sure that the Committee will agree that this has been a thoughtful discussion in which a number of people participated who have considerable experience of children's organisations, including my noble friend, who has experience in child matters and in the law.
I hope the Minister will read the discussion carefully and take on board the thrust of it; namely, that the provision of voluntary counselling to parents is accepted on all sides as a good thing. If resources were provided to enable such courses to take place, be fully advertised and be made readily available to people who are in need of such help, there is not a person in your Lordships' Chamber who would disagree with that approach.
What those with experience of these problems have demonstrated is that the compulsory element in a parenting order can have two effects. It can cause resentment on the part of a parent who is forced under criminal sanction to do something that he or she does not want to do. But the second effect may be that difficult children can blackmail their parents with threats that they will do something which will allow the parents to be brought before the court and to face the sort of sanctions that exist under a parenting order.
I agree with the Minister that this is a difficult and sensitive area. All we ask from these Benches is that this clause and the whole concept of the parenting order be looked at thoroughly before the Bill comes back before the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 109 and 110 not moved.]
Clause 8 agreed to.
Clause 9 [Parenting orders: supplemental]:
Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws moved Amendment No. 111:
Page 8, line 3, leave out subsection (1)
The noble Baroness said: Amendment No. 111 removes the statutory presumption in favour of the court making a parenting order where the offender is under 16. The Bill as it stands requires the court to make a parenting order if it is satisfied that such an order will help to prevent further offences being committed and to give reasons if it does not make such an order. That goes to the heart of the debate we have just had as to whether this will be dealt with with the lightness of touch described by the Minister when he said that courts would approach this with great sensitivity because there is a recognition that voluntariness is probably preferable to coercion if we are to encourage parents to take on their responsibilities.
My concern is that I suspect that reinforcing parental responsibility, while clearly crucial as a way of tackling youth crime, will not always be dealt with with the lightness of touch which the Minister hopes for. I am

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concerned that if the Government were to do a piece of research they would find that the parent who attends at court most often with young offenders or children in trouble, tends to be the child's mother, even with all the difficulties that she faces in bringing up the children if they become involved in offending or antisocial behaviour. Bringing to bear an order of this kind will be particularly hard on women already in extremis. I am concerned that by creating a presumption in favour of the courts making such orders they will be made much more often than would be the case if involvement in voluntary schemes were the course taken.
I urge the Minister to consider the amendment, which removes the statutory presumption in favour of the court making the parenting order and presents it as one of the many possibilities afforded to the court and one to be taken up only in the appropriate circumstances. I beg to move.
Viscount Colville of Culross: This amendment enables me to ask a question of the Government Front Bench which follows from it. The amendment seeks to leave out subsection (1). That is where there is presumption in favour of a parenting order if the person is convicted of an offence and is under 16. If the court is to look at this properly, it is right that it should do what subsection (2) says. To "obtain and consider information" would no doubt take in the noble Baroness's point. But why only in those circumstances is the court to obtain the information?
I imagine that parenting orders will frequently be made by magistrates or by a youth court. A child safety order comes under Clause 11 and is made by the magistrates' court and antisocial behaviour orders and sex offender orders are made by complaint to the magistrates. Only under Clause 8 (1)(c) does one have,
"a child or young person…convicted of an offence".
Surely in all cases where a court intends to make a parenting order it needs to have the information in Clause 9(2). Why is it only in the case of being convicted of an offence that the Bill makes this compulsory? I am sure that all courts would obtain this information. They would get the relevant probation officer to prepare what would be the equivalent of a pre-sentence report. In fact, it would probably be rather wider than a pre-sentence report because it would have to go into the whole question of the family.
What I do not understand—and what I am sure the Minister will be able to explain to me—is why subsection (2) relates only to a conviction and not to the other circumstances in which a parenting order can be made. I should have thought that the court would require this information in every circumstance, particularly when it is treading the unknown territory of antisocial behaviour orders or sex offender orders. Perhaps the noble Lord can explain.
9.15 p.m.
Lord Northbourne: I was impressed by what the Minister said about the parenting orders being applied with sensitivity and full consideration of the circumstances of both the parent and the child. But here
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in this clause we have an effective compulsion on the court either to make an order or to explain in open court why not. In line with what the Minister was saying, there must be reasons for not making an order which it would not be appropriate to cry out in open court. Is the magistrate to say, "I am not making an order because the parents are too thick to understand what they are going to be taught anyway" or "The child is such a tearaway that it will not have any effect"? I cannot think immediately of examples but there must be examples of when it would be inappropriate to make an order and inappropriate to express in open court the reason why it was not being made.
Lord Thomas of Gresford: Can the Minister explain what the "relevant condition" is in Clause 9(1)(a)? It seems to me that, on a proper reading of the clause as drafted, the only condition that has to be fulfilled is that the person should be under the age of 16. It is a premise that a person has been convicted of an offence. That is a ground in Clause 8(1)(c) which gives rise to the parenting order. The only way that the relevant condition cannot be fulfilled is if it should prove that the person is over 16. Am I entirely misunderstanding the subsection?
Lord Williams of Mostyn: I am not sure that we should not try to discipline ourselves by dealing with the amendments as they are grouped. I have dealt with the groupings in the usual way. However, the noble Lord, Lord Northbourne, asked about reasons. Magistrates are trained. In dealing with this class of jurisdiction magistrates are very careful and scrupulous. I have no doubt at all that in appropriate cases they will be able to give reasons which conform with their oath but which, nevertheless, are not as harshly put as the examples given by the noble Lord, which I agree were deliberately extreme.
The noble Baroness asked about research into the effects of parenting orders. I reassure her by saying that we shall be piloting them first before implementing them nationally. The noble Lord, Lord Thomas, asked about relevant conditions. They are defined in Clause 8(6). It seems to me that, in response to the noble Viscount's question, if one looks at that one is going to have a degree of reporting material before the order can be made.
Perhaps I may put this point generally. The alternatives that we have are these. We can rely on voluntary counselling and guidance. For years I was a trustee of the NSPCC, which I had to give up after the election. It provided parenting services and agitated for them over the years. That is one situation. For various and subtle reasons to which the noble Earl, Lord Mar and Kellie, referred, for those who are not able to take advantage of voluntary counselling the alternatives are quite stark: introduce a degree of sanction to assist the child, not to punish or stigmatise the parent, or do nothing at all.
Baroness Kennedy of The Shaws: I have not heard a response to the suggestion that subsection (1) is deleted instead of making it part of the panoply of possibilities

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before the court. It is saying that the court has to consider this matter and give reasons for rejection. That seems to be more of a demand on the court than is necessary for these kinds of cases and circumstances. The noble Lord has not responded to that.
Lord Williams of Mostyn: I did deal with the matter earlier, but I shall repeat what I said. We believe that this is the proper scheme to bring forward in the circumstances. There is a plain gap in the legislative opportunities offered to courts at the moment. Children are suffering because they do not have proper parenting. If parents will not voluntarily consent there must be a degree of sanction available in appropriate cases. That is my response.
Baroness Kennedy of The Shaws: I am happy that piloting is involved. I would have thought it important that the courts sort out whether voluntariness was an option that the parents were happy to accept before compulsion was involved. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 112 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 113:
Page 8, line 39, at end insert?—
("( ) The Crown Prosecution Service may bring proceedings in a magistrates' court for failure to comply with a parenting order.").
The noble Baroness said: I am moving this amendment because I believe that the responsibility for bringing breach proceedings with regard to parenting orders should be clearly spelt out. The defect in Clause 9 was brought to my attention by both the Magistrates' Association and the Justices' Clerks' Society. I am grateful to both of them for the clarity of their briefing on this point.
They point out that there is a lack of clarity about procedure in the clause as it stands at present. The clause runs through a series of powers, including the making of an order and the discharge of an order but then it seems to leap over the process about what happens next if there is a breach. It goes straight to the ultimate stage in subsection (7), which simply says that if a parent breaches the order he or she is liable to a level 3 fine on conviction.
But the clause does not say who is responsible for instituting proceedings, nor does it specify in which court those proceedings shall be brought. One can make assumptions about that by the implications of the clause, but it is not made clear. If we do not make that clear, I believe that no action would be taken against a parent who breached the order, so we would never reach the penalty point.
This amendment makes it clear that where there is a breach of a parenting order it is the Crown Prosecution Service which institutes proceedings and that it should do so in the magistrates' court. I beg to move.
Lord Renton: I know that other noble Lords wish to express an opinion, but before they do so, I feel obliged
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to point out that this amendment involves a question of principle. It has been a tradition since early times that the ordinary citizen may prosecute when a crime has been committed. Admittedly, the failure to comply with a parenting order is somewhat different from the commission of a crime. Nevertheless the proceedings that have to be brought are essentially criminal proceedings and they will be brought in a magistrates' court in the normal way. To say,
"The Crown Prosecution Service may bring proceedings",
is to give rise to a problem. I use the Latin tag because lawyers understand it, but I shall try to translate it into our own language—expressio unius est exclusio alterius. If we say that the Crown Prosecution Service may bring proceedings, that implies that nobody else may do so. That is the difficulty that I find with the amendment.
It is arguable, of course, that if such a burden were placed upon the Crown Prosecution Service, the word "may" should be replaced by the word "shall" and that might not invoke the rule of interpretation about the expression of one being the exclusion of the other. Surely we want the local authorities to have the power to bring proceedings—or the police, or, as I said, any citizen. Although I have the deepest respect for the Magistrates' Association, the Justices' Clerks' Society and, above all, for my noble friend, I have doubts about the amendment.
Viscount Tenby: I should like to speak in support of Amendment No. 113. At Second Reading I mentioned the problems inherent in parenting orders arising from the difficult position in which some inadequate parents, often single-parent mothers, might be placed. In his very full answer to the debate, the noble and learned Lord the Solicitor-General dealt with the matter fully and pointed out, reasonably enough, that the imposition of fines for non-compliance would hardly be ordered by any reasonable court. From my experience over the years, I understand and accept that assessment, so I was satisfied from that point of view. However, whether it is wise to have fines as the only sanction is another matter, especially in view of the possibility of a custodial sentence for those who wilfully refuse to pay such fines.
I am concerned about the lack of any detail in the Bill in spelling out how a breach will be dealt with other than, as the amendment suggests, by the CPS bringing proceedings in a magistrates' court. The Minister may say that it is not necessary to spell it out, and that it is obvious. If that is his position, I must say, in all extreme humility, that I do not quite understand it. We should be told what is intended.
Viscount Colville of Culross: I hope that the Minister will resist the amendment. I should have thought that the right person to bring proceedings for a breach, whether in a magistrates' court or occasionally in the Crown Court (because it is not inconceivable that the Crown Court might make a parenting order) ought to be the Probation Service or whoever is supervising the order. That is the system that works at the moment. If a probation or community service order is breached, the Probation Service instructs counsel. It has had

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hands-on experience of the person concerned and can give the court the benefit of all its knowledge about that person and about what has gone wrong with the order. If one brings in the Crown Prosecution Service, all one does is to add another rather expensive wheel to the coach. One would in any event have to call the Probation Service to tell the court what had gone wrong. The Probation Service can do that by itself. I hope that the Crown Prosecution Service will not be brought in for this purpose.
9.30 p.m.
The Earl of Mar and Kellie: The Committee may be getting this matter slightly out of proportion. No social worker or probation officer would recommend to the Bench that someone should be made the subject of a parenting order in a deliberate attempt to set him up to fail. Reflecting on the two years that I spent as the member of an intensive probation project, which a parenting order would be—I hope that I am not atypical of those who work on such projects—great efforts are made to help the person to comply. This is not a hostile environment. Most clients of such projects are remarkably relieved when they find that it is not a hostile place in which they will be criticised for everything; it is a place that entirely looks forward. I hope that the Committee will take a slightly less jaundiced view of what has been proposed.
Lord Falconer of Thoroton: I am genuinely grateful to the noble Baroness for raising this matter. It gives the Government an opportunity to explain how the enforcement process will work. To go through the matter in stages, if a parenting order is made, "a responsible person" is appointed to give directions under the order. If the parent disobeys the directions of the responsible person, that is a criminal offence under Clause 9(7). The responsible officer will report it to the police, who will investigate it. The police give the results of their investigation to the Crown Prosecution Service. It will then be for the CPS to determine whether or not a prosecution should be brought.
In determining whether or not a prosecution should be brought, the CPS will first have to satisfy itself as to the evidential burden. It will then consider, having regard to all the circumstances, whether or not it is in the public interest to bring a prosecution. It may well not be appropriate depending on the circumstances of the breach.
To answer the point raised by the noble Lord, Lord Renton, there being nothing special about this crime, in theory it would be open to a private citizen to bring a private prosecution. I anticipate that that would be exceptionally rare, if not unprecedented. However, for the purposes of defining the legal position, it appears to me to be lawful, and such a prosecution can be brought. That has not been spelt out in the Bill because it arises from the fact that the criminal offence has been identified or created in the Bill. Therefore, there is no need to spell it out. The effect of the amendment moved by the noble Baroness is to make explicit that which is already the case, including the discretion in the CPS
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whether or not to prosecute. Obviously, even if the evidential burden is satisfied, the CPS may decide not to prosecute for public interest reasons.
I hope that I have explained the position. I am jolly glad to have had the opportunity to explain the matter. If I am right in what I have said, as I believe I am, the amendment is completely redundant. Therefore, I ask that the noble Baroness withdraws her amendment.
Baroness Anelay of St. Johns: I thank the Minister for spelling it out with such clarity—a clarity that was not evident in the clause as I read it. I am also grateful for the comments of my noble friend Lord Renton, as ever courteous in making translations for those of us who are not lawyers. My Latin is somewhat rusty. I am grateful to him.
I noted also the comments of the noble Earl, Lord Mar and Kellie. He said that people would not be set up to fail with regard to parenting orders. I am sure that that will be the case, but I am sure that it is also the case when a community service order is imposed. We know that with the best will in the world when the probation service has put forward recommendations, the magistrates have considered them, and a community service order has been imposed, there are still those who fail. We can foresee that with parenting orders there will be those who will fail, and proceedings for a breach may well be brought in. There may be recourse ultimately to a fine upon conviction.
It was important to tease out the issues in this clause so that we could have the benefit of the Minister's clear explanation of the procedure. Having heard his words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I have to tell the Committee that if Amendment No. 114 is agreed to, I cannot call Amendment No. 115.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 114:
Page 8, line 40, leave out subsection (7).
The noble Lady said: I have already spoken to Amendment No. 114. All I want to say now is that it is fairly clear that if the parents fail they may, at the end of the day, be fined. If they then cannot or do not pay the fine, what is the next step? Are they to be imprisoned? What is to happen to the children then? I am less concerned, I am afraid, about the public interest than I am about the fate of the children. I beg to move.
Viscount Tenby: Perhaps I may go back to the previous amendment. I made a point which was perhaps not addressed by the Minister. It has now been resurrected by the noble Lady, Lady Saltoun. If the only sanction is a fine, the only way that one can deal with a culpable refusal to pay the fine is by imposing a prison sentence. In the absence of any other punitive measure attached to non-compliance with a parenting order, that will happen. So the point that the noble Lady makes is a valid one.
Lord Thomas of Gresford: There is a problem with the fact that Amendment No. 115 cannot be called if

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this amendment is agreed to, because it is grouped with Amendment No. 115 which stands in the name of my noble friend Lord McNally and the noble Lord, Lord Monson. Perhaps I may be permitted to address that amendment. If Amendment No. 114 should fail, this is the least relief that could possibly be given to those who are the subject of parenting orders, because, at least, it makes it possible for them to go to court to seek to establish, on a balance of probabilities, by way of a defence, that they had some reasonable excuse for their failure. For example, that the children had become completely out of control; that they were ill or that some other factor had entered the equation which made it impossible for them to stand by the order which had been made against them, notwithstanding their utmost effort.
Surely we will permit people to escape conviction for the breach of a parenting order when there is a reasonable excuse for their failure. That is the least that can be done.
The Lord Bishop of Winchester: If the words "without reasonable excuse" were on the face of the Bill, a reasonable excuse might be that which is found about 10 lines earlier in subsection (4)(a). Although I recognise that there is no amendment standing to it, I wonder whether on some future occasion the Minister and his colleagues would examine the fact that whereas it may be reasonable to have, "as far as practicable" in relation to subsection (4)(b) or in relation to Amendment No. 112, which was not dealt with earlier, I am puzzled to see how the phrase "as far as practicable" can relate to the phrase in subsection (4)(a),
"any conflict with the parent's religious beliefs".
Were a parenting order to be introduced which conflicted with the parent's religious beliefs it is unlikely in the extreme that it would be viable either for the parent or for the child. Unless an amendment is introduced at a later stage in relation to the wording in subsections (4) and (4)(a), that would be another reason why the phrase "without reasonable excuse" needs to stand as part of the Bill.
Lord Monson: I do not believe that I can improve on the powerful argument put by the noble Lord, Lord Thomas, in favour of Amendment No. 115. Unless one or other of the amendments is accepted, we are in danger of creating an absolute offence. Surely, we want to avoid that.
Baroness Kennedy of The Shaws: I support the noble Lord, Lord Thomas of Gresford, and other noble Lords in pressing for one or other of the amendments. Until recently, we saw the horrific spectre of many women going to prison for non-payment of a fine imposed for failure to buy a television licence. We should be concerned about similar circumstances; about women going to prison because they cannot pay a fine imposed for being unable to bring their adolescent sons to book for their behaviour. It would be a scandal if we were to implement such a change in the course of this Bill, which is supposed to support parenting. Many
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women who go to prison will have other children at home. Those children will not have their mothers with them as a result of this legislation being passed.
Lady Saltoun of Abernethy: I thank the noble Baroness for putting the case in a nutshell.
Lord Falconer of Thoroton: The two amendments raise important issues in relation to the working of the parenting order. Perhaps I may again seek to explain their intention, because I believe that many of the concerns expressed during the short debate on these amendments may be allayed.
An order can be made only if one of the relevant conditions referred to in Clause 8(6) is complied with. That means that an order can be made only if the magistrates' court believes that it will prevent the child concerned either committing further breaches of a child safety order or an antisocial behaviour order or will prevent the commission of a further offence; or that it will help the parents not to fail in sending the child to school.
It was said that the effect of the order, far from helping in that respect, will hinder. The noble Lord, Lord Northbourne, said that it could lead to domestic violence. The noble Lady, Lady Saltoun, said that it would put greater pressure on families rather than assisting them. The magistrates' court must make a judgment pursuant to the terms of the Bill. If it judged that an order would prevent such events recurring, then and only then would it be allowed to make the order. I believe that an experienced magistrates' court would be able to make such judgments and that it would be able to take into account issues such as resentment, the effect on the family and putting more pressure on the family. Magistrates' courts have experience of such situations.
Unquestionably, from time to time, they will get it wrong. The Bill seeks to deal with that by providing that the responsible officer who is appointed in respect of a particular parenting order can go back to court and ask that the provisions of the order be varied or discharged. Therefore, there are two safeguards, the first of which is that the magistrates' court considers whether it will help. Secondly, if it does not help, there is the opportunity for the responsible officer to take the matter back to court.
Let us assume that both those safeguards fail to correct a bad situation. If there is a failure to comply with the terms of the parenting order, it is a matter for the responsible officer first to decide to report it to the police and then, after the police have investigated, for the CPS to consider whether or not there should be a prosecution. As I indicated in answer to the noble Baroness, Lady Anelay, there is still a public interest element.
Therefore, there are three discretions available before the matter leaves court. I regard that as quite a substantial safeguard against the situations which Members of the Committee have indicated are causing them concern in relation to the parenting orders. Although the risk is definitely there, with those three safeguards, the benefits from the parenting orders are

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worth having. I am sure that we all believe that there are unquestionably parents who would be assisted by, first, having guidance and, secondly, being under pressure to make some effort in relation to being good parents. It helps them and places them under pressure. I do not believe that it is bad or wrong that that measure is in the armoury of the magistrates' courts. While the risks are known and recognised, the Bill is so drafted to provide the least risk possible of those things occurring.
Let us go to the last stage for a moment; namely, that the court has made the order. It has not been asked to discharge it or has refused to discharge it. There has been a breach of the condition and the matter has been referred to the responsible officer and to the police. The police have referred the matter to the CPS and the matter has been brought to court. There has been a conviction of a breach of Clause 9(7). At that point, the magistrates' court must decide what to do and there is a further discretion.
9.45 p.m.
Lord Thomas of Gresford: What is the function of the magistrates' court at the end? All the discretions have been exercised for a prosecution and on the analysis of the noble and learned Lord, that is it. The magistrates' court simply rubber stamps the decision to prosecute. That is an absolute offence once the decision to prosecute has been made. We are merely seeking to leave a discretion with the court to decide whether there was a reasonable excuse for a breach of the order. If the matter just ends with the prosecutor, the magistrates have no function.
Lord Falconer of Thoroton: I was going to come to the amendment moved so skilfully by the noble Lord, Lord Thomas of Gresford. I was simply seeking to describe the situation under the present Bill.
When the prosecution is brought, it is for the magistrates' court to decide what to do. It can impose a fine of £1 or £1,000, which is the maximum. Let us assume that the court has before it all the family circumstances. The court will make a decision as to what is the appropriate fine. Let us assume that that is done and there is a failure then to pay the fine. It is within the discretion—not the obligation—of the magistrates' court in those circumstances to consider what to do next. It does not have to send the defaulter to prison. It can impose a community service order in relation to a failure to pay a fine or, in certain circumstances, remit the fine altogether if a proper excuse for non-payment of the fine was pointed out.
In relation to the points made from the Cross-Benches, it would be open to the court to say, "Here is somebody who is not paying a fine. We are not happy with the excuses advanced but there are four children at home who will suffer if the mother or father or both are sent to prison. Therefore, we shall not do that". I believe that the magistrates' courts are capable of dealing with those problems. Although the points were very effectively and forcefully put, if one understands all the protections that are built in, I believe that, while mistakes will be made, there are enough safety nets in place to reduce the chances of that
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happening as much as possible. If the situation works as it is supposed to under the Bill, parenting orders will help; indeed, they will not hinder.
I turn, finally, to the point made by the noble Lord, Lord Thomas of Gresford, regarding "without reasonable excuse". If, for example, a parent failed to turn up for the guidance session or the classes in parenting that had been provided because, say, his or her children or parents were ill, I would hope that the responsible officer would not report that to the police. Indeed, if he were to do so, the Crown Prosecution Service would regard it as absurd to prosecute in such circumstances.
Nevertheless, in a situation where the process had gone through all those filters, the noble Lord has a point regarding whether or not there should be an opportunity on the part of the parent to say, "The excuse for me failing to comply was because I was run over on the way to the parenting classes", or something of that nature. I see the force of that argument and it seems to be a point well worth considering. I can give the noble Lord the undertaking that we will consider the matter. However, I can give him no further assurance in that respect. I cannot promise to return to the matter with any sort of reasonable excuse. Nevertheless, I can give the noble Lord that assurance. I hope that my response has answered the point in relation to the two amendments and that, on the basis of what I have said, the noble Lord will feel able to withdraw the amendment.
The Earl of Mar and Kellie: Before the noble and learned Lord sits down, perhaps I can come to his aid once again, while making the aside that, perhaps, I ought to go into private practice. I should point out to Members of the Committee that the decision on any social work project to recommend breach proceedings is taken as a last resort. In other words, the person must have demonstrated a determined failure before one does so. It is recognised that people may he somewhat reluctant to get started in the process. It is important for us to keep that fact in mind.
Lord Thomas of Gresford: I know that the noble and learned Lord the Solicitor-General is not used to the kick and rush of the magistrates' court. However, he left out one particular point of my argument. In his analysis of the situation, the noble and learned Lord did not leave it open for the magistrate to find the person who is alleged to have breached the order not guilty. Indeed, in his analysis, all the magistrate had to do was to consider the penalty—that is, whether it should be a fine, imprisonment, or whatever. Surely the magistrate should decide whether the person concerned is to be convicted.
Lord Falconer of Thoroton: I should, perhaps, have made it clearer. I am sure that I have been to a magistrates' court more recently than the noble Lord, Lord Thomas. I apologise for not saying so. I assumed that most, if not all, is of the Committee knew that, before one reached the sentencing stage, there is a point in the magistrates' court where consideration is given to the question of guilt or innocence. However, for those noble Lords who did not know, that is the position.

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I went straight to the question of a fine because the point that had been made with sincerity and force was: what happens when a fine is imposed? Plainly, if there was a finding of not guilty—and that is a possibility because, for example, it could be established that there had been no failure to comply with the direction—then the problems that have been raised to my right would not have arisen because there would not have been a fine. I apologise for not spelling out that point.
Lady Saltoun of Abernethy: I am most grateful to the noble and learned Lord for his very lengthy and thorough answer to what I said. I think that I am satisfied in that respect. Having met and talked to children who had been in care, I am now of the opinion that few worse fates can befall a child than being taken into care. That is why I have been very concerned lest the ultimate sanction against the parents should be imprisonment. I shall read carefully everything that has been said this evening, particularly by the noble and learned Lord, Lord Falconer. However, I am always a little worried about legislation which relies upon good intentions because we all know what the road to Hell is paved with. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 115 and 116 not moved.]
On Question, Whether Clause 9 shall stand part of the Bill?
Viscount Colville of Culross: I am sorry to go back to this. We have had a most enlightening discussion about what happens at the end, but I have not had an answer about what happens at the beginning. As I understand Clause 9, subsections (3), (4), (5), (6) and (7) apply to all parenting orders from whatever source they arise, whether they arise under Clause 8(1)(a), (b), (c) or (d). All of them are covered by subsections (3) to (7) inclusive. Subsection (2) requires a court to obtain the necessary information only where a person has been convicted of an offence and that person is under the age of 16. I entirely understand why the age of 16 is chosen but I cannot understand why it is only in those circumstances that there is a statutory requirement to obtain the necessary information. I should have thought that it was a prerequisite of making any parenting order. The limitation in that subsection—in other words,
"where the person convicted of the offence is under the age of 16"—
ought to be taken out, and the measure ought to be of general application.
Lord Falconer of Thoroton: The point that has been made by the noble Viscount concerns why Clause 9(2) provides an obligation only in relation to people under 16. I apologise if I have not understood that.
Viscount Colville of Culross: I have not explained it. The parenting order can arise from a complaint to the magistrates' court, for instance, in the proposition that an antisocial behaviour order or a sex offender order has been made, and then the parenting order follows—that
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is one of the circumstances—subject to the fulfilment of one of the conditions in Clause 8(6). In order to fulfil Clause 8(6) and to make sure that the court understands that that has been fulfilled, the court will have to obtain information. Why does that apply only in the case of a person under 16 having been convicted and not in the case of an antisocial behaviour order, a sex offender order or a child safety order? Why is it only in the case specified in subsection (2) that the court has to obtain and consider the information?
Lord Falconer of Thoroton: That seems to me to be a fair point and one which we should take away and think about. I shall give the noble Viscount what seems to me to be the answer to this. One can make an order only if one is satisfied that one or other of the relevant conditions is fulfilled. Any court acting in accordance with the law would therefore need to have before it such information as would be necessary for it to form a view as regards the satisfaction of the relevant condition. I see that leads to a strange anomaly when there is the obligation under Clause 9(2) in respect of the under-16s but not in relation to those who are over 16. However, I should have thought that is a drafting point rather than a point of substance. One still needs to be satisfied that the relevant condition is fulfilled. Therefore, one needs to know something about the circumstances of the family. As I say, I see the force of the point. We shall take it away, think about it and write to the noble Viscount.
The Lord Bishop of Winchester: I do not think I heard the Minister show any sign of having taken note of my point about Clause 9(4)(a).
Lord Falconer of Thoroton: I am afraid the right reverend Prelate is right: that got lost so far as I am concerned.
The Lord Bishop of Winchester: Will the Minister be prepared to think about it?
Lord Falconer of Thoroton: I am prepared to think about it. Perhaps I may consider the point when I have read Hansard. I am sorry that I did not mention it in the course of my speech.
Clause 9 agreed to.
Clause 10 agreed to.
Clause 11 [Child safety orders]:
10 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 117:
Page 9, line 34, leave out ("a magistrates' court") and insert ("the High Court").
The noble Lord said: We come to the under 10s. The issue is whether they should be looked after by the magistrates' court or by family proceedings in the High Court.
There has long been a conflict between those who would wish to see the juvenile courts replaced by a more welfare orientated council in which youth offending is

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decriminalised with the goal being the care and protection of children, and those who deem it important to preserve the safeguards of due process, the finding of guilt and the awarding of punishment.
To make my point, it may assist if I take the Committee through a lightning survey of the way in which the legislation has developed and how the conflict has been seen over this century. The Liberal Government's Children Act 1908 provided for the separation of juveniles from adults in the summary courts and united in the new children's court which was then created the twin jurisdictional strands, one relating to young offenders, and the other to children in need of protection. The children's court took the welfare of children and the punishment of children together.
In 1927 the Molony Report advanced the concept that reformation and rehabilitation of the family was the keynote of the administration of justice. That report saw the juvenile courts as an instrument of reform. As a result, the Children and Young Persons Acts of 1932 and 1933 required the appointment of a juvenile court panel of magistrates for each petty sessional division and laid down the test that their decisions in criminal and care proceedings must have regard to the welfare of the child. That is a concept with which we have all been familiar—certainly as lawyers in our practising lives.
In the early 1960s the noble Earl, Lord Longford, chaired a Labour Party policy committee which perceived, rightly, that juvenile delinquency was caused primarily by a breakdown in the family for which the juvenile was not primarily responsible. The committee concluded that in the first place the child, the family and a social worker should try to agree what had gone wrong with the child and what measures were necessary to put it right. Only if the facts were in dispute, or there was no agreement, would the case come to court,. So Lord Longford's committee said that juvenile courts should be replaced by a "family court". That philosophy was borne out in the White Paper, The Child, the family and the Young Offender, published by the Home Office in 1965. It suggested that there should be a family council consisting of social workers, the children's service and other persons selected for their understanding and experience of children.
In England and Wales that was opposed by the vested interest of magistrates and magistrates' clerks and the Magistrates' Association overwhelmingly voted against those proposals at their annual conference. So far as concerned England and Wales, they were shelved. But in Scotland, a more enlightened jurisdiction, the children's panels were formed in 1968 and since that date have operated very much along the lines envisaged by the Labour Government of that day and Lord Longford's committee.
In that jurisdiction, the Children and Young Persons Act 1969 retained the juvenile courts. The Magistrates' Association won. The traditional approach of due process, proving guilt beyond reasonable doubt even of a 12 or 13 year-old child, was preferred along with the punishment that went with it. In the 1970s there was a dramatic increase in custody for juveniles, followed by a more enlightened regime in the 1980s to avoid the use
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of custody for juvenile offenders. Sentences of custody for males between the ages of 14 and 16, for example, dropped from 7,700 in 1971 to 1,400 in 1991. Within that period of 20 years, the emphasis on imprisonment for juveniles completely changed.
Then, of course, we entered a period when the cry was, "Prison works", and the enlightened trend was reversed. We entered the dark ages of the past six years. when competing Home Secretaries or spokesmen on home affairs have tried to talk tougher than each other. Helping the reversal of the trend that had reduced juvenile imprisonment was the transfer of the care jurisdiction from the magistrates' court to the High Court in October 1991—so the care of children went to the High Court—under the Children Act 1989. The juvenile court became the youth court, and 17 year-old defendants were transferred from adult courts to the youth court. The rhetoric of the past six years has increased public concern about youth crime and persistent young offenders. Policies that were well-established in the late 1980s were reversed. The policies that we, as recorders, part-time judges and so on were trained to follow, all went.
To give some examples, the guidance in Home Office Circular 18/94 limits the use of cautions to one for each offender. The Criminal Justice and Public Order Act 1994 offered the youth court an increased range of sentences for 10 to 17 year-olds. The Code for Crown Prosecutors was changed in 1994 so as to increase prosecutions for juveniles of 10 to 13 years of age, who, previously, were prosecuted only exceptionally. The ethos of the youth court has entirely changed. So the care side of the magistrates' court went to the High Court for family proceedings and the juvenile court became the youth court, with a completely different ethos and philosophy from that which the enlightened Liberal Government of 1908 had started.
So what is the child safety order aimed at the under-lOs to be? Where are they to be dealt with? Will it be by way of the equivalent of a criminal prosecution, requiring due process, proof of guilt beyond reasonable doubt, leading to a form of restriction equivalent to a punishment? Or is it to be seen as a care matter, a family proceeding, a civil proceeding under the inherent jurisdiction of the High Court, which will lead to an order cast in general terms with maximum flexibility for adjustment as the circumstances change?
The Law Commission's purposes, as set out in its report No. 172, upon which the Children Act 1989 was based, sought to create a scheme of family proceedings which directed the court's attention to the issues that needed determining. There are four types of order provided for under Section 8 of the 1989 Act. A residence order settles the arrangements as to where the child is to live, including the imposition of conditions and directions upon the person concerned and the provision of medical care. There is considerable experience in the High Court in family proceedings; 24,900 such orders were made in 1994, and one cannot assume that there have been fewer in succeeding years. Another type of order is the contact order, allowing access to a named person or persons. There is a prohibited steps order, which guards the child; and a

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specific issue order, whereby the family proceedings court can determine any specific question that arises with regard to any aspect of parental responsibility for the child. There is even power under a different section for the court to grant a family assistance order in exceptional circumstances to enable a probation officer to be available for advice and assistance.
We therefore have the regime of the youth court—the due process, conviction beyond reasonable doubt, punishment, restriction. That is how this Bill is framed. Or we have now, and have had over the past eight years, the family proceedings in the High Court—a flexible order which enables various considerations to be taken into account, enables flexibility and adjustment to happen in the best interests of the child.
Surely, if we are to have these orders for the under-10s, the last thing we want to do is to put them into the existing criminal system. It is essential that the orders that are now proposed should be seen within the framework of those proceedings. It is vital that children under the age of 10 should not be labelled as potential criminals, nor should they come within the aegis of the criminal courts.
As the Committee will see in the Marshalled List, there is a whole series of amendments and those that we put forward do not quarrel with the circumstances in which the order should be made. However, they emphasise that, with the changed role of the youth court and the High Court, with its growing experience of how to look after children, it is the family proceedings court that should be used. The services needed by children under 10 for whom an order is deemed necessary are surely to be welfare-based services rather than those relating to the criminal justice system. I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I must inform the Committee that, if Amendment No. 117 is agreed to, I cannot call Amendment No. 118.
Baroness Kennedy of The Shaws: I support the noble Lord, Lord Thomas, who has so powerfully described the incredible journey we have made in our understanding of young people in the course of this century.
If the purpose of the child safety order included in the Bill is preventive, it is important that we do not label young children as potential criminals. Therefore, I consider that such orders should be made by the family proceedings court, not the criminal court. They should be supervised by local authority social workers and not is of youth offending teams. So I should like Amendment No. 125A included in the parcel of amendments, and when the Minister replies, perhaps he could deal with it.
The purpose of these clauses is to gain the support of parents in providing control and care for their children. The setting of the court is important in achieving that. The family proceedings court will allow a more informal setting for discussion and inclusion of the parents than a youth court would be capable of doing.
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I know that the Minister is anxious that such matters should be dealt with sensitively. That sensitivity and experience are most likely to be found in the High Court. Moreover, the services needed by such children are likely to be welfare-based services with which the family proceedings court is familiar, rather than those relating to the criminal justice system. I therefore support my noble friend.
Lord Meston Lord Meston: Clause 11(6) states:
"Proceedings under this section or section 12 below shall be family proceedings for the purposes of the 1989 Act".
Of course, for the purposes of the 1989 Act, public law care proceedings have a single point of entry, which is the family proceedings court. It is at the magistrates' court level, with the ability to transfer up, first, to the county court and then to the High Court in cases of particular complexity.
In the context of my noble friend's amendment, I wonder whether there is any significance in the use of the phrase "a magistrates' court" in Clause 11 and the reference in Clause 11(6) to "family proceedings". Alternatively, is what is envisaged that there will be, as in ordinary care proceedings, an initial application to the family proceedings court, as it is now understood, with at least the potential for it to move up through the county court to the High Court in cases where there is difficulty?
10.15 p.m.
Lord Henley: We have a number of amendments down which have been grouped with the amendments proposed by the noble Lord, Lord Thomas of Gresford. Perhaps I may first speak briefly to Amendments Nos. 118, 127, 129, 132, 137, 139, and 141. All those amendments suggest deleting "magistrates' court" and inserting "family proceedings court".
Following what the noble Lord, Lord Meston, said, it now seems that our amendments were completely and utterly unnecessary. I receive a nod of approval from the noble and learned Lord and the noble Lord, therefore we need not pursue those amendments any further. However, I should be grateful for an oral assurance on the matter when the Ministers come to respond.
We would support the Government's line that the magistrates' court is in fact the appropriate arena for these matters and it is not something that needs to start off at the High Court. When the noble Lord comes to respond, I would be grateful if he could say a little about Clause 11(2) which states that:
"A court shall not make a child safety order unless it has been notified by the Secretary of State that arrangements for implementing such orders are available in the area in which it appears that the child resides or will reside and the notice has not been withdrawn".
I shall be grateful for a degree of explanation on that subsection.
We have tabled two other amendments which are included in this group and it may be helpful if I remark upon them now. I refer to Amendments Nos. 119 and 127A. I hope that to some extent they are self-explanatory. As it is currently drafted, the Bill does

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not provide any power to require the attendance of the child, parent or guardian on the making of an order, yet subsequently a breach can give rise to a care order under Section 31 of the 1989 Act without the need to comply with the normal statutory requirements of being satisfied that the child is suffering or is likely to suffer harm and that it is attributable to the care being given to him or that he is beyond parental control.
Granting of a care order should be a matter of last resort. I am certain that the Government will agree with that. It should be issued only after great care has been taken to ensure that all parties have been fully and fairly heard. Those who have trained for iship of the family proceedings court within the magistrates' court will rethe statistic that if a child is taken into the care of a local authority and is not returned to its family but spends six months in care, it is highly likely that the child will never return home. The making of a care order therefore seems to be a Draconian step.
As the Magistrates' Association pointed out—we are grateful to it for the advice it offered on the amendments—it would appear that a child safety order can be made without the child or parent being required to attend the court. The making of the order could in itself be seen as the first event which triggers the possibility of a care order being made later for breach of that order. The association also points out that an anomaly arises as a result of the provisions of Clause 12(2) which requires the court to explain the effect of the order to the parent or guardian. Since there is no power to compel the parent or guardian to attend, the question arises as to how that would be done.
We hope that those amendments rectify the omissions and the confusion caused by the provisions of Clauses 11 and 12. However, I shall be grateful if the Minister, when he responds, can give an explanation.
Amendment No. 125, in the name of the noble Baroness, Lady Kennedy of The Shaws, comes within this group. I do not know whether she intends to speak to it now or at some later stage. Should she wish to—to some extent she was deprived of speaking to some amendments earlier—it may be useful for me to remind the Committee of the note at the top of the groupings list that says the groupings are informal and that it is open to any of the Committee to speak to any amendment when we come to the natural place for that amendment on the Marshalled List. I have a sneaking feeling that the Deputy Chairman, who was formerly in his place, to some extent prevented the noble Baroness from speaking to her amendment at the appropriate time. It is open to her to speak to it at this stage or later.
Baroness Kennedy of The Shaws: My inexperience in this Chamber meant that I had not spoken to a grouping and I understand that that is what is expected of one. I had not appreciated the form that these things take; I learn by listening. On this occasion I have spoken to Amendment No. 125A, but I am grateful for the consideration of the noble Lord, Lord Henley, and I know that Members on this side will learn from it.
Lord Henley: I merely take the opportunity to remind the Committee that the groupings are informal and that
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we are not bound to stick to them, useful though they may be on many occasions for expediting the progress of business through the long nights.
Viscount Tenby: On the basis that good tunes can be hummed more than once, I should like to speak for just a moment on two of the amendments to which the noble Lord, Lord Henley, referred, particularly as one of them, Amendment No. I27A, carries my name. Both are concerned with the attendance of a parent or guardian at the appropriate court and charges that court with the duty of satisfying itself that all reasonable steps have been taken to ensure that that is so.
With such an important and sensitive order, those must surely be basic considerations. It is essential that a parent or guardian be present for such proceedings. I should accordingly be most grateful if the noble Lord the Minister would be kind enough to assure some of us on this point.
The Lord Bishop of Bath and Wells: I wish to speak in support of the amendment of the noble Lord, Lord Thomas. It is of the greatest importance in ensuring that the orders prescribed do not carry the connotation of criminal responsibility. If that were to be the case, far from diverting young children from crime, a child safety order would be more likely to label them as criminals. In addition, the provisions of Clause 12 ensure that failure to comply with a child safety order will lead to proceedings under the Children Act, which will be dealt with in the family proceedings court.
It therefore seems reasonable that the same court with the same ethos should carry responsibility throughout the process. The change of court setting seems in itself unnecessarily disruptive and is also likely to be confusing and convey unclear messages to those involved. The essential point seems to be that where the priority is the care and upbringing of the child the courts charged with that prime responsibility should always be those which deal with their individual cases.
Lord Falconer of Thoroton: Like my noble friend Lady Kennedy of The Shaws, I am inexperienced in the procedures of the House. Perhaps I may indicate the amendments I intend to reply to because if we know where we stand it might assist us later on. I am replying to Amendments Nos. 117, 118, 119, 124, 126, 127, 127A, 128, 129, 131, 132, 136, 137, 138, 139, 140, 141, 189, 299, 303 and 125A, to which my noble friend Lady Kennedy of The Shaws spoke. If there is any amendment to which I am to reply to which someone would like to speak before I reply, I should think that the appropriate thing for me would be to subside at this point. However, I shall assume, unless any noble Lord interrupts, that noble Lords have made their points on those amendments.
The amendments go primarily to the procedural aspects of the child safety order. Perhaps I may briefly explain the basic structure of the child safety order. It relates only to under 10 year-olds. The application is made to the magistrates' court by the local authority. The application is made when one of the conditions under subsection (3) exists, which in effect involve a

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child committing what would have been a criminal offence if he had been over 10, and the purpose is to prevent that happening again, or he has contravened a ban imposed by a curfew notice, or has behaved in a way that causes alarm or distress to two or more persons. It is in effect parallel to an antisocial behaviour order.
To deal with the point raised by the right reverend Prelate—the point was picked up by the noble Lord, Lord Meston—these are not criminal proceedings. The Bill makes that clear. The Bill says:
"Proceedings under this section…shall be family proceedings for the purposes of the 1989 Act"—
that is a reference to the Children Act—
"and the standard of proof applicable to such proceedings shall be that applicable to civil proceedings".
These are not criminal proceedings, but family proceedings. The purpose of making an order is not to characterise a child as a criminal, but in order that the child receives appropriate care, protection and support and is subject to proper control. Alternatively, it is to prevent the repetition of the kind of behaviour which led to the child safety order being made.
This order is parallel in a sense to the parenting order. It is trying to provide assistance, not to characterise people as criminals. It is trying to lead to intervention at the earliest possible stage to try to prevent the child becoming involved in criminal activity. It is important to emphasise that point. Where there is a failure by the child to comply with the terms of the child safety order, the sanction is not criminal. That is set out in Clause 12(6). The order may be discharged at the end of it or a care order may be made in respect of that child. That is the basic structure of a child safety order.
A point has been made as to how it works in practice. The noble Lord, Lord Henley, raised a question about the point of Clause 11(2). It is there simply to indicate that the scheme will be piloted first. So one has to check whether one is in one of the pilot areas before one can use it. The noble Lord, Lord Thomas of Gresford, made a point about permitting applications to be made either to the High Court or any other court. We believe that the appropriate court is the magistrates' court. As the noble Lord, Lord Meston, pointed out, that is where all public law applications under the Children Act begin. A child safety order, just like a public law application under the Children Act 1989, can be transferred upwards, so it is in precisely the same position as the great majority of public law Children Act cases in any event.
As regards the history of how it worked given by the noble Lord, Lord Thomas of Gresford, he left out the end, which is the most important part.
Lord Thomas of Gresford: I was most grateful to my noble friend Lord Meston for putting me right.
Lord Falconer of Thoroton: I assumed that it was a team effort and that the noble Lord would bring us to the end. The noble Lord, Lord Thomas of Gresford, has an amendment, but he did not refer to the fact that he
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wants to remove the proviso in Clause 12(6) which permits a different magistrates' court to deal with an order from that which heard the original application. We want to leave it in because if it is taken out we then have to assemble the same Bench. That would cause confusion and difficulty in individual magistrates' courts. Therefore we oppose that provision being taken out. The noble Lord, Lord Henley, was given free advice by the noble Lord, Lord Meston, with which I entirely agree.
Lord Meston: It was very cheap!
Lord Falconer of Thoroton: It was free indeed. Every time one refers to the magistrates' court it is not necessary to put in the words "family proceedings". That is made clear in subsection (6), to which the noble Lord, Lord Meston, referred. The Government have a number of technical amendments all making the same point. Perhaps I may indicate what they are for the sake of completeness. They are Amendments Nos. 124, 189, 299 and 303. Those amendments seek to add in family proceedings for the purposes of the 1989 Act. We too want them to be family proceedings for the purposes of the Magistrates' Courts Act 1980, which refers to family proceedings. The amendments to which Ihave referred also pick that up, and I do not think that there will be any real dispute about that.
I turn to the point about a parent or guardian attending. Amendments Nos. 119 and 127A seek to strengthen the ability of the court in ensuring that a parent or guardian attends proceedings involving their child in relation to a child safety order application. Amendment No. 119 gives the court the power to compel the attendance of a parent or guardian at court. Amendment No. 127A provides that, in the absence of a parent or guardian, the court shall satisfy itself that all reasonable efforts have been made to secure his or her attendance. I agree entirely, as would everybody, I am sure, that it should be right for parents to attend court proceedings involving their children, but I believe the amendments to be unnecessary because there are already adequate powers in the law to achieve that end.
Section 34A of the Children and Young Persons Act 1933 provides that where a child or young person is charged with an offence or is for any other reason brought before a court, the court may in any case, and shall in the case of a child or young person who is under the age of 16, require a person who is a parent or guardian to attend at the court during all stages of the proceedings, unless the court is satisfied that it would be unreasonable to do so.
We are of the view that Section 34A of the 1933 Act applies equally to magistrates' courts dealing with civil and family proceedings as it does to magistrates' courts dealing with criminal proceedings. Because the provision relates not only to offences but to cases where the child is for any other reason brought before the court, we believe that Section 34A would apply in the case of proceedings in relation to the child safety order. I believe that this is what the noble Lord, Lord Henley, seeks to achieve by his first amendment. His second

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amendment is therefore, in my view, unnecessary. In view of what I have said, I hope that the noble Lord will feel it unnecessary to press his amendments.
The noble Baroness, Lady Kennedy, said that under Clause 11(8) the responsible officer in relation to a child safety order can be either a local authority social worker or a of a youth offending team. I believe that the noble Baroness wants to ensure that the responsible officer should be only a social worker because we are dealing with the under-lOs and it would be inappropriate for somebody from a youth offending team to be involved. I believe that under normal circumstances it would be a social worker.
The requirements in each individual case will be different and will be tailored to the individual child. The aim will always be to secure that the child receives appropriate care, protection and support and is subject to proper control. To achieve that purpose, the role performed by the supervising or responsible officer will be crucial. The officer's main responsibility will clearly be to the child and paramount to that will be the need to supervise him or her to ensure full compliance with the terms or requirements of the order. However, the officer will have an important role to play in relation to the child's family circumstances.
In deciding who should perform that important role, the court will be guided by a number of circumstances. There will be various factors to consider, not least the child's age, and previous involvement with the child and his or her family. In the majority of cases, were a child safety order to be made, the most appropriate responsible officer is likely to be a of the social services department, but there may be occasions where the youth offending team would have a role. I hope that, having indicated that it would normally be a person from the social services department but that there may be cases where it would be appropriate to have someone else, the noble Baroness will reconsider her amendment. I hope that my remarks have persuaded her that it is not necessary to press her amendment.
I think that I have covered all the points made on this group and, with the exceptions of the government amendments which seek to add in the reference to the Magistrates' Courts Act 1980, that all noble Lords will feel—
Viscount Tenby: I apologise to the Committee for intervening. I do not want to be more owlish or obtuse than is the norm. Can the noble and learned Lord reinforce the important point about attendance at court by the parent or guardian? The noble and learned Lord said that one should not worry about it because the law had taken care of it. Without asking the Solicitor-General to go into great detail, can the noble and learned Lord give reasons for his confident answer?
Lord Falconer of Thoroton: I am sorry that I have not made the position sufficiently clear. Section 34A of the Children and Young Persons Act 1933 provides that where a child or young person is charged with an offence or is for any other reason brought before the court, which includes a child safety order, the court has
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power to compel. I hope that in the light of the remarks that I have made the noble Lord will feel able to withdraw his amendment.
The Earl of Mar and Kellie: I should like to return to one point made by the noble and learned Lord. Am I correct in my impression that the noble and learned Lord in speaking to my noble friend's amendment implied that a different set of magistrates would deal with an individual child each time he or she appeared in court? If it is right that there is an inconsistent or casual approach to who is on the Bench, I suggest that the children's panel system in Scotland requires the same members for each regrettable appearance of the child.
Lord Falconer of Thoroton: I reject the suggestion that it is casual. The reason why there is power in the Bill for a different panel of magistrates to hear an allegation, for example that the child safety order has been broken, is simply a matter of practicality. Given that these orders can last for a considerable period—in some cases 12 months—it would not be possible or practical to gather together precisely the same people who made the original order. Far from that assisting the child, it would be a great hindrance because inevitably it would lead to delay. Where the breach very quickly followed the making of the order and to get the same panel together would cause no inconvenience, it might be sensible to do that. It is a matter for individual magistrates' courts to sort out among themselves. I believe it is imperative that the courts have the flexibility to have different panels dealing with the same child, if it proves to be necessary.
The Earl of Mar and Kellie: It appears to be possible to do that in Scotland. One wonders whether magistrates offer an adequate service in England and Wales.
Lord Falconer of Thoroton: As a Scot, I agree that we should all aspire to be as Scottish as possible. I do not know how many magistrates' courts there are in Britain but it must be a very substantial number. I believe that it would be impractical and very damaging to require the same three individuals to hear every single application in respect of a child. It would lead to delay and confusion which would not be in the interests of the child.
Baroness Kennedy of The Shaws: I have listened to what my noble and learned friend has said in reply. I remind those who are involved in the drafting of the Bill that there is a cultural difference in the method of operation between the criminal courts, even when they wear a civil hat, and family courts. It is for that reason that these concerns have been raised. These matters should be supervised by social workers rather than members of the youth offending team because of the cultural differences. That is the matter on which we seek to place emphasis in the debate. In the circumstances, I beg leave to withdraw the amendment.
Lord Thomas of Gresford: I am grateful to the noble Baroness for withdrawing the amendment that I

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moved. I cannot add anything to the excellent way in which she put the matter. I repeat my thanks to my noble friend for putting me right on the procedural aspects, but the points that the noble Baroness made as to the importance of keeping the civil side of these orders distinct from the criminal side relate to matters which concern us and upon which we shall reflect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 and 119 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 120:
Page 10, line 7, leave out from beginning to ("and").
The noble Lord said: In Amendment No. 120, we return to subsection (3)(c). The purpose of the amendment is to omit, as one of the conditions for the making of a child safety order, the following condition:
"that the child has contravened a ban imposed by a curfew notice".
We shall no doubt have an interesting and acerbic debate on the curfew order in due course. Even assuming that a curfew order were to be made, the mere contravention of the ban—namely, that the child was out after nine o'clock in the evening—surely cannot be sufficient for the making of a child safety order. That is rounding up children, putting them away, and punishing them if they do not go indoors. That is far too severe a penalty for the contravention of such a ban.
I speak also to Amendment No. 121. That imports into Clause 11(3)(d):
"that the child has acted in a manner that caused or was likely to cause serious harassment".
Amendment No. 122 imports:
"or reasonable and serious alarm or distress to two or more persons not of the same household as himself—.
That appears to be the under-10 version of the antisocial behaviour order. To categorise the conduct of an under-10 child:
"harassment, alarm or distress to two or more persons",
as being a sufficient ground for imposing a child safety order, with all the surrounding machinery that is involved, again, is going far too far. We suggest that the harassment, alarm or distress should be serious and not merely as is stated in the Bill.
Amendment No. 123 is designed to exclude from subsection (4) the words from "three months" to "exceptional", so that the subsection would read:
"The maximum period permitted for the purposes of subsection (1)(a) above is 12 months".
That is merely a practical matter. If one goes to all the trouble to make such an order, and to bring in responsible officers to oversee the way in which the child is behaving, and to ensure that the requirements of the order are being fulfilled for a period of three months is an excessive waste of resources. The maximum period should be extended from three months to 12 months accordingly. I beg to move.
Lord Monson: I added my name to one of the amendments. They cover the same ground as similar
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amendments to Clause 1. The same arguments apply, but for the reasons advanced by the noble Lord, Lord Thomas, with even greater force. I hope that the Government will look upon them favourably.
Lord Hylton: I supported the insertion of "serious" when we earlier discussed antisocial behaviour and I support Amendment No. 121.
10.45 p.m.
Lord Williams of Mostyn: I speak to Amendments Nos. 120 to 123. We know from research that the quality of relationships within families and the degree of parental supervision is crucial in predicting which children are likely to get into trouble and, generally, at what age. The first amendment in the name of the noble Lord, Lord Goodhart, seeks to remove the condition that the order can be applied following the breach of a curfew notice. It is a discretionary power; the Bill providing that the court "may" impose the order.
If there is a breach of a local child curfew notice it will be the responsibility of the police, possibly—maybe probably—in conjunction with the local authority social services, to take the child back home. Under Clause 15(4), social services will have a duty to visit the family in order to inquire into the circumstances of why the child was in breach of a curfew notice.
One must bear in mind that for a breach to occur a child under the age of 10 will have been found in a public place, unsupervised, after nine o'clock at night. There may be a good reason for that and the follow-up visit by the social services under Clause 15(4) can establish that. However, there may well be other reasons which are not good; for instance, lack of control or possibly a child suffering neglect. That is often the case when small children under 10 are wandering the streets at night. The child may be in need of care or protection, or have slipped through the net and never come to the attention of the welfare services.
It is for such situations that social services need to have available a number of options. It is most important to bear in mind the contents of the child safety order. It emphasises that a child at a very young, tender age under 10 receives appropriate care, appropriate protection, appropriate support and appropriate proper control. We believe that that is a real benefit to a child who may be on the downward spiral. These are discretionary remedies. As was rightly observed by the noble Lord, Lord Hylton, we had a similar discussion on Amendments Nos. 121 and 122 when we discussed Clause 1 on antisocial behaviour orders. We remain adamant in our view.
The triggering of a child safety order simply brings about intervention to assist the child. It is designed specifically to address problems as early as practicable. We know from all the criminal statistics—it is dismal, almost Orwellian—that one can look at the predictors and know which child will be in what kind of trouble. The predictors are not infallible, but they point strongly to what will happen. At the moment, we do not

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intervene sufficiently. This provision is not intended to be harsh or a criminal sanction. It is intended to ensure that a child—in many ways, hardly more than a baby in terms of his needs—receives care, protection, support and decent control.
The order is designed to help a child at an age when he needs it. It is designed to sustain the child and give him a decent opportunity of having a fruitful and happy life. It cannot be over stressed that we are looking to provide care, protection, support and help, which is why the hearings will take place in the family proceedings court, as the Solicitor-General indicated earlier.
We do not want that downward spiral. It is misery and heartache for the child. It is very often distressing for the community, because an enormous amount of crime is committed by quite young children. We believe that child safety orders are a key proposal in our approach to dealing with the problems of youth crime by early intervention and help.
This is an order aimed at children below the age of criminal responsibility. We believe that it gives us a unique opportunity to reconstruct a system which often is triggered too late, inappropriately and not constructively in the interests of the child. That is why we have spoken of the parameters, which I have mentioned often enough now. That is why it comes under family proceedings. That is why we have offered a short, intensive period of supervision.
The fourth amendment to which the noble Lord spoke refers to a maximum period of 12 months in all cases. We have turned our faces away from that. After all, we are talking about three months in the life of a nine year-old. That is very different from three months in the life of a fourteen or fifteen year-old. We want intensive care, support and assistance limited to three months in virtually all cases.
There may be some extraordinary cases where three months is insufficient. Therefore we have said to the courts that in exceptional cases—I underline those words—if three months is not sufficient, then an order of up to 12 months' duration may be made. We do not believe that that is necessary in many cases because we believe that a correctly-focused, short duration order will be most effective in the majority of cases.
Although I am grateful for the care with which these amendments have been moved, that is why we are not able to accept them. I repeat that these orders are aimed at helping children who, in all probability, if there is no intervention on a structured, focused, three-month basis to help them, care for them, assist them and support them, will be the criminals of the future and we shall have done nothing useful to prevent that.
Lord Northbourne: I rise briefly to support the noble Lord, Lord Williams. I believe that early intervention is right. Only time will tell whether this legislation gets it exactly right but it is a try and we should give it a go.
Lord Thomas of Gresford: I heard what the noble Lord said and I do not propose to press the amendment at this stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 121 to 123 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 124:
Page 10, line 21, after ("Act") insert ("or section 65 of the Magistrates' Courts Act 1980 ("the 1980 Act")").
On Question, amendment agreed to.
[Amendment No. 125 had been withdrawn from the Marshalled List.]
[Amendment No. 125A not moved.]
Clause 11, as amended, agreed to.
Clause 12 [Child safety orders: supplemental]:
[Amendments Nos. 126 to 129 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 130:
Page 10, line 38, after ("fails") insert (", without reasonable excuse,").
The noble Lord said: Here again we are trying to introduce into the Bill the concept of "reasonable excuse". The amendment goes to Clause 12(2)(b), where the magistrates' court is to explain to the parent or guardian of the child in ordinary language,
"the consequences which may follow … if the child fails"—
and we seek to insert the words "without reasonable excuse"—
"to comply with any of those requirements".
I beg to move.
The Earl of Mar and Kellie: I should like to speak to Amendment No. 133, which is grouped with Amendments Nos. 130 and 134. Clearly, this is a probing amendment. What I want to understand is why, in the event of a breach of a child safety order, the only disposal will be reception into care. I recognise that there is also the power to reorganise the terms of a child safety order in order to increase or lower the scale. However, I wonder why the use of a domiciliary supervision order is not included in the responses to a breach of a child safety order.
Lord Monson: I should like to express my support for Amendment No. 130. The principle is the same as that in Amendment No. 115, except that no criminal penalty is involved. Nevertheless, I believe that it is still desirable and worth supporting.
Lord Williams of Mostyn: I am speaking to Amendments Nos. 130, 133 and 134. Amendment No. 130 requires that one must take into account a "reasonable excuse" for failure. As the noble Lord, Lord Monson, indicated, we discussed this earlier. Perhaps, therefore, I can be reasonably economic in my reply. We believe that this amendment is unnecessary. If one looks at Clause 12(6), it will be seen that there is ample opportunity for the court to consider the reasonableness of any failure to comply with the terms of an order when it considers an application by the responsible officer. I echo what my noble and learned friend the Solicitor-General said earlier; namely, that if there is a reasonable excuse,

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the responsible officer has the opportunity to decide whether to take the matter before the court. We believe that Clause 6 gives ample opportunity for the court to consider reasonableness, or otherwise, of failure.
I turn now to Amendment No. 133 tabled in the name of the noble Earl, Lord Mar and Kellie, and Amendment No. 134 tabled in the name of the noble Lord, Lord Thomas of Gresford. Amendment No. 133 would allow the courts the option of making a supervision order in addition to a care order. Amendment No. 134 would replace the option of making a care order with the option of a supervision order. We do not believe that either amendment is particularly appropriate. If a child fails to comply with the terms of a child safety order, the court needs the option of a higher sanction, so to speak, although it does have the discretions which are allowed in Clause 12(4) and (6).
We do not believe that it is appropriate simply to impose a supervision order as a response to comply with the requirements under a child safety order because those requirements are likely to more burdensome—or at least more demanding—than those under a supervision order. There is nothing to stop local authorities using their existing powers under the Children Act if they so wish. If these are probing amendments, we believe that they are centred on fears which are not properly based. In our view, the regime of Clause 12 gives sufficient discretion to the courts in these general circumstances.
Lord Thomas of Gresford: For my part, I do not propose to pursue Amendment No. 130. In the circumstances, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 131 to 135 not moved.]
Clause 12 agreed to.
Clause 13 [Appeals against child safety orders]:
[Amendments Nos. 136 to 141 not moved.]
11 p.m.
Lord Henley: I ask one brief point on Clauses 11, 12 and 13 relating to child safety orders. As I understand it, this is one part of the Bill that affects only England and Wales and there do not seem to be mirror clauses for Scotland. The same is true of other aspects of the Bill which we shall certainly consider when we discuss racially aggravated offences. I should be interested to know either from the noble and learned Lord or the noble Lord, Lord Williams of Mostyn, why it is that in Scotland child safety orders are not necessary whereas in England they seem to be.
Lord Williams of Mostyn: The collective muttering leading to the collective wisdom which I individually present is that there are sufficiently appropriate arrangements in Scotland already under
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the children's panel and therefore we do not need this remedy for Scotland. The noble Earl, Lord Mar and Kellie, nodded twice: therefore I am sure I am right.
Clause 13 agreed to.
Clause 14 [Local child curfew schemes]:
Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws moved Amendment No. 142:
Page 12, line 5, after ("considers") insert ("that there are exceptional circumstances which make").
The noble Baroness said: This amendment requires a local authority to be satisfied that there are exceptional circumstances justifying a local child curfew before imposing such a curfew. I think every one of us would agree that children under 10 should not be roaming the streets at night without adult supervision, and clarifying police powers to take them home would not be unreasonable. However, the proposed curfew power is sweeping. It would apparently apply not just to children in moral danger but to nine year-olds playing football near their homes at five past nine on a summer evening. It is difficult to see that it is a good use of police time to have them sort out who is nine and who is 10 in such a group, and then to decide to take them home if they fall into the former category. Our concern is about the sweeping nature of blanket local curfews. It is our view that they should be used only in exceptional circumstances. I beg to move.
Lord Falconer of Thoroton: I think it has been a theme in relation to a number of the provisions of this Bill that we believe that more needs to be done to help prevent children under the age of 10 from turning to crime. I think we would all agree that what happens to children when they are very young can influence their chances of becoming offenders. Research shows that the younger the age at which children begin to offend, the more likely they are to continue offending.
Everyone knows that some neighbourhoods are troubled by the criminal and antisocial activities of unsupervised young children. Gathered in public places at night they can cause real alarm and misery to the local community. They can also encourage each other into antisocial and criminal habits. To address such concerns we believe that local councils, following consultation with local communities, should have the option of using local child curfews as a response to a particular identified problem. Local child curfews will form one part of a wider community safety strategy and will be applied at the instigation of the local authority concerned because it believes that there is no other way of dealing with the particular issue of unsupervised young children.
The aim of local child curfews is twofold. Not only will they aim to protect communities from the activities of young children, but they will also aim to protect the young children themselves. The amendment proposed by my noble friend Lady Kennedy of The Shaws will have the effect of ensuring that a local child curfew notice is applied only if the local authority considers that there are

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exceptional circumstances which make it necessary to use the power to apply such a notice. This is clearly designed to ensure that such proposals are used sparingly and as a measure of last resort.
I suggest to my noble friend that such an amendment is unnecessary. As is apparent on the face of the Bill the powers for local child curfews are not mandatory; they are entirely permissive. Once a local authority concludes that such a proposal will be helpful as a response to the problem of unsupervised children, it must consult the police and the local community. This must be done not only prior to submitting the proposals for a scheme to my honourable friend in another place but also after my right honourable friend has given his confirmation of the scheme and before a local child curfew notice is applied.
So the local authority has to decide in its discretion that it wants a local child curfew. Once it is minded to have one it has to consult both the police and the local community. Once it has done that, it has to submit the proposals to the Home Secretary. He then has to approve or confirm them. Then when it comes back from the Home Secretary the local authorities have to consult again. With those provisions built in, this will not be an order that is made at the drop of a hat or in other than unusual circumstances.
I am glad that my noble friend has given me the opportunity to set out the thinking underlying the Government's approach to these provisions. I very much hope that as I have gone through the procedure it has become obvious that this occurs only after pretty thorough consultation and debate.
Baroness David: How much time will it take? A small child will have to wait while all this is going on.
Lord Falconer of Thoroton: Perhaps I may explain. By the nature of the order, it is not directed at one small child but to a problem in an area where a group of children under 10 are causing a disturbance or are on the streets regularly unsupervised. There will be no child waiting to know whether the Home Secretary will confirm the order. That is the wrong way to look at the issue.
I do not know how long it will take to go through these steps. I believe that it is appropriate that there should be these steps before such an order is made. If I may say so, the anxieties of my noble friend Lady David are misplaced.
Lord Northbourne: I am no more happy with this amendment than is the noble and learned Lord the Solicitor-General. On the other hand, is there not some scope for amending the text on the face of the Bill for two reasons? The noble and learned Lord said that the order would be introduced only if there were no other way. That seems to be a better expression than to use the words "exceptional circumstances". Perhaps at Report stage we could insert into the Bill some clarification which will indicate that it is a measure to be used only in extreme circumstances.
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In Clause 14(l)(b) the purpose of the order is described as being,
"for the purpose of maintaining order.
The noble and learned Lord said—I suspect it is the most important reason for the order—that it is to help the children, to avoid them getting into harm. That objective should be on the face of the Bill.
The Earl of Mar and Kellie: Perhaps I may virtually propose a verbal probing amendment. At line 5, would it not be better to replace "maintain" by "restoring"? Most local authorities would not wish to have a local child curfew scheme in place. In fact it would mark the fact that they had lost control and it resulted from riots and disturbances. The local authority would use these child curfews only in extreme circumstances.
Lord Falconer of Thoroton: Perhaps I may deal with those three points. First, the noble Lord, Lord Northbourne, correctly pointed out that I said that these orders would be used only when the local authority concerned believed that there was no other way of dealing with the particular issue of unsupervised young children. One would hope that it would be that sort of issue that would be involved, both in the consultation process and in relation to what the Home Secretary was applying his mind to when considering whether to confirm the order. As a matter of drafting and as a matter of law, if you put in the words, "there is no other way of dealing with it", you simply create too great a difficulty for yourself. Is it not much more sensible, as a matter of drafting, to impose considerable consultation and also the need to acquire the approval of the Home Secretary? Putting those practical steps in place, with people who are concerned about the practical effect, may well be a much better way of dealing with the matter than writing artificial hurdles into the Bill. With respect, I ask the noble to reflect on that point in considering whether the drafting is sensible—to provide protection against such orders being made, save in circumstances when there is no other way of dealing with a particular problem.
Secondly, the noble Lord made the point that the purpose given was the protection of order—whereas I had said in the course of debate that it was both the maintenance of order and the protection of children. I reiterate that protection of the children concerned is just as important an issue. We do not believe it necessary to set that on the face of the Bill, because, for example, child safety orders can be made on the basis that a local curfew order has been breached. In other words, the Bill provides the means whereby the child safety order can be made if there is a breach. Of itself, a local curfew order will not provide protection to an individual child. All it says is that the child cannot be out on the streets between particular times. By providing for that order, if there is a breach intervention can then take place. So it is in relation to the consequences of an order being breached that the child's interests may then be protected. That is the way the provision works.

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The noble Earl, Lord Mar and Kellie, asked whether we should use the phrase, "restore order", rather than "maintain order". I had not thought about that point before he suggested it. I am not sure that it makes that much difference—though "maintain" strikes me at first blush as a better phrase. "Restore order" suggests that a much more comprehensive riot is going on than is envisaged in the order. I am minded to stick with the provision as drafted. On that basis, I ask all noble Lords who have tabled amendments to withdraw them.
Baroness Kennedy of The Shaws: I beg leave to withdraw Amendment No. 142.
Amendment, by leave, withdrawn.
Lord Henley: Before the next amendment is called, perhaps I might ask the government what their intentions are as to how late the debate will go. We have started debating the number of amendments—some 10 or more—dealing with child curfew schemes. I should be more than happy to continue debate on child curfew schemes now that we have started. But beyond that, as noble Lords will be aware, there are a number of very important amendments relating to racially aggravated offences both in England and Wales and in Scotland which I believe a number of noble Lords think deserve fairly thorough discussion at a brighter time of day. Beyond that, there is an amendment proposing a new clause providing an offence of publishing telephone conversations. If it is to be almost beyond midnight before we reach the end of our debate on child curfew schemes, noble Lords should consider very carefully whether we want to go beyond, for example, amendment No. 155A. I am interested to hear what the noble Lord has to say.
Lord Williams of Mostyn: I do not think that the noble Lord's request is unreasonable. Sometimes we seem to spend an awful lot of time on certain amendments which might more happily have been spent on other matters. But that is a matter for your Lordships. I suggest that perhaps the noble Lord, Lord Hoyle, might take soundings from the Deputy Chief Whip, who was present a moment or two ago seeing how his chickens were getting on, and then left quite promptly. There will come a time—possibly about three o'clock—when we are rather tired and will need to go home. Perhaps the best thing is to press on at least with the issue of child curfew and see what message the noble Lord, Lord Hoyle, brings back.
11.15 p.m.
Lord Henley: I am grateful to the noble Lord for saying that. I do not know whether the Government even have a House at this stage. Of course, it is open to us in effect to ask the opinion of the House on the matter and if there is not a House, we shall not
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continue. I should be grateful if the noble Lord, Lord Hoyle, could take soundings before we feel we have to take such measures.
Lord Monson: As regards what the noble Lord, Lord Henley, asked for, it is now quarter past 11 and no one has been filibustering or wasting time in any way. The problem is that we had a Statement which took up nearly 40 minutes and that brought us to the point we have reached. I should be grateful if the Government could consider the request.
Lord Bridges: Before the matter goes any further, perhaps I may say a word. The last amendment on the list is in my name, Amendment No. 171. I suggest to the Government Front Bench that certain things have happened in the course of organising the debate which leave something to be desired. For example, the groupings list was not available at 2 o'clock on either the first or the second day of the Committee stage. I do not know the reason for it, but it meant that we came into prayers before we knew how the groupings had been arranged. It may simply have been inefficiency, but it was discourteous to all Members of your Lordships' Committee.
I find it odd that the amendment in my name, which I believe is of considerable significance and which has attracted quite a lot of attention from noble Lords in all parts of the House, is the last. I would have welcomed debating it at a time when we could have a fairer view of the opinion of the Committee. I do not have access to the usual channels and we all know that they move in mysterious ways, but it strained my credulity somewhat that this amendment, which I believe to be of great importance, should have been assigned to being the last to be moved.
Lord Williams of Mostyn: I sympathise with what the noble Lord said. The amendment is certainly of great importance and I have taken the trouble to research it in order to deal with it. However I take the point that we may be quite late reaching it. As the noble Lord rightly said, access to the usual channels is somewhat mysterious. Perhaps one might even contemplate a non-taped telephone call to the usual channels. But I will bring what message and comfort I can as soon as I have it.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 143:
Page 12, line 6, leave out ("(not exceeding 90 days)").
The noble Baroness said: As the Minister explained, Clause 14 gives the local authority the power to establish a local child curfew scheme. Subsection (1) allows a local authority to make such a curfew scheme under which it may issue a notice imposing a ban for a specified period not exceeding 90 days, for the purpose of maintaining order.
This is a probing amendment, as will be obvious, to ask the Government to explain their justification for imposing this period of 90 days as a maximum. Why not allow the local authority the discretion to

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determine the maximum period, using local knowledge of local conditions to have a scheme that meets local needs?
It has been put to me by several local authorities that the effort of putting up a scheme and obtaining approval, when it would last for a maximum of only 90 days, would make it questionable as to whether the authority would even apply for such a scheme, even if it were needed by the local area. Also, the implication, they felt, was that if we have a maximum of 90 days, there would be shorter periods under which a scheme would operate. That would make it even more difficult for anyone to apply for, set up and administer a scheme. They felt that 90 days was not a practical period and that it would not be possible to publicise the scheme effectively and feel that it was fair that it should be enforced.
This is a probing amendment, I look forward to hearing the Minister's response. I beg to move.
The Earl of Mar and Kellie: This amendment brings us back to my original point of trying to find out whether this is an emergency measure to be used as a result of something approaching a riot, in which case there is a need for an almost immediate response and hence a procedure which takes virtually no time at all to implement.
Lord Williams of Mostyn: I am grateful for the tone and the nature of the inquiry made by the noble Baroness. The provision is not intended to deal with rioting. The Solicitor-General went laboriously through all the safeguards built into this curfew scheme—and I shall not cover the ground again.
In the past the noble Lords, Lord Thomas of Gresford and Lord Goodhart, have stressed—I accept their concerns as being properly based—that one has to have a proper balance about the human rights aspects and the public protection and child safety aspects. The scheme described fully by the Solicitor-General in respect of the last amendment is there, and it is deliberately there to be circumscribed—I want to make that quite plain. At the end of the road, it has to have the authority of the Secretary of State, and I believe that to be right. A further safeguard ought to be that one cannot have indefinite periods, but if one needs to implement the scheme in a specific area for the maintenance of order and for the protection of children, it should not extend beyond 90 days.
I take the point made by the noble Baroness that local authorities may feel that it is hardly worth it. But the true way of looking at the situation is that one ought not to look for these curfews until they are demonstrated to be needed. If they are demonstrated to be needed there is consultation, co-operative inquiry and application to the Secretary of State. After that, 90 days will be the limit. Of course, subsequently a further application may or may not be made in a specific area, but we have tried to balance carefully what I can call the "Thomas-Goodhart" questions
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about human rights and we believe that 90 days is enough in the circumstances of what we are trying to prevent.
Baroness Anelay of St Johns: I thank the Minister for his explanation. I will reflect upon what he said. I still have anxieties about the practicability of 90 days being the maximum, given that it implies that there will be shorter periods which will be the norm for such a scheme, and the difficulty of setting those up. However, I will reflect on his words and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 144:
Page 12, line 8, leave out ("(under 10)").
The noble Baroness said: Again, this is a probing amendment as to why the Government have chosen the age of 10 to be the barrier. Amendment No. 144 deletes the requirement that the curfew scheme should apply only to children under that age. Subsection (2) states that it,
"applies to a ban on children of specified ages (under 10) being in a public place within a specified area … between 9 pm and 6 am",
unless they are with a responsible adult aged 18 or over.
I am concerned to find out why that is the age range at which the Government are looking—the nought to the 10 minus one day; or indeed, 10 minus one hour. It is difficult to know how they define the age of 10 for this; I am not too sure. It seems to me to be a narrow age range. I have the most extraordinary visions—perhaps it is the late hour and a low blood sugar level, I am not sure—in which a local authority imposes a child curfew scheme on children perhaps between the ages of eight and 10, four and six, but not between nought and four and six and eight, unless there are such things as delinquent toddlers—there may be. There certainly seem to be some peculiarities associated with the provision and we could end up with huge difficulties for the police in trying to implement any kind of curfew scheme.
This is a probing amendment to ask the Minister to explain why the Government chose 10 as the make or break age. I beg to move.
Lord Falconer of Thoroton: Amendment No. 144 removes the upper age limit so that a local child curfew would apply to any child of a specified age.
One of the main thrusts of the youth justice programme is to seek earlier, more effective intervention to prevent young children turning to crime in the first place. In the past too little has been done to prevent children and young people from taking the first steps into criminal behaviour. The local child curfew is one of the early intervention methods and seeks to support that objective. That is why it is geared towards those under the age of 10. We believe that no suitable powers are available to deal with this

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age group. Whereas if you are over 10 sanctions are available, there are no such sanctions if you are under 10.
In addition, we are introducing in the Bill antisocial behaviour orders which will apply to those who are 10 and over. In certain cases these orders can be applied for by local authorities and the police and they can prohibit certain activities. They can also include in certain cases the imposition of a curfew on the person named in the order. But these are all for those over 10. This one, for the under-10s, in a sense complements that. If you had an antisocial behaviour order and a local curfew order, you could deal with the horrendous age problem of trying to identify who is under 10 and who is over 10.
In drawing up the proposals for local child curfews, one of the issues to which the Government gave serious thought was the age limits that should apply. I have therefore attempted to set out the thinking behind the Government's approach and how that fits in with the other proposals in the youth justice reforms to give the Committee some understanding of why the Government concluded that the proposals should apply to those young children who are below the age of criminal responsibility; namely, 10. With that explanation, I hope that the noble Baroness will feel able not to press her amendment.
Baroness Anelay of St Johns: I thank the noble and learned Lord for his explanation. I shall reflect carefully on what he has said and read it in Hansard. I recall his words that the Government are concerned to prevent the first steps into criminal behaviour. It almost sounds as though my delinquent toddlers are becoming a reality. I hope that is not so. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 145:
Page 12, line 14, leave out ("with").
The noble Lord said: This is not a probing amendment. It is a quite simple drafting amendment which I trust the Government will be prepared to accept. I am seeking to leave out the word "with" on the grounds that it is otiose and inelegant English and that the Bill would read better without it. I do this very much in the spirit of the noble and learned Lord, Lord Simon of Glaisdale, who is always a great believer in brevity in Bills. If we can remove at least one word from the Bill, that will be progress.
I should also point out that though the word "with" is used here, I notice that it is not used in a similar provision, Clause 1(2), where there is also mention of consultation. If it is not used there, I do not see why it need be used here. I do not think I need quote at length from Fowler's Modern English Usage, either the second or third editions, both of which are quite clear on their use of what they describe as phrasal verbs in these circumstances, and I trust that the noble and learned Lord will be prepared to accept my amendment. But before he does accept my
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amendment, which I am sure he is about to do, I wonder whether he could just address one point in relation to Clause 14(3)(b), which refers to,
"such other persons or bodies as it considers appropriate",
being consulted. Can the noble and learned Lord elaborate on who those might be and whether guidance will be issued by the Home Secretary. I beg to move.
Viscount Tenby: I rise to support the noble Lord's amendment. Will the noble and learned Lord the Solicitor-General accept that this is the sort of English up with which we will not put?
Lord Monson: Like my noble friend, I find it very pleasing to support this amendment, which is simple, non political, non controversial, I trust, and concerned with the purity of the English language. How horrified the late Lord Airedale, who, as the Committee may remember, used to sit on the Liberal Democrat Benches and was zealous in his concern for the preservation of the language, would have been to see an Americanism like "consulting with" in a government Bill. I trust that the amendment will be accepted.
The Earl of Mar and Kellie: I disagree with the amendment. I see a difference between consulting someone, which means asking for his opinion, and consulting with someone, which suggests a flow of opinions in both directions. The latter would be preferable and would support the retention of the word "with" in the Bill.
Lord Meston: If the Minister will not accept this amendment, will he at least "meet with" the Front Bench opposite to discuss it?
11.30 p.m.
Lord Falconer of Thoroton: That cannot be passed without mention of the fact that five is of the Committee have risen to discuss whether the word "with" should be removed, it being agreed by me that it makes absolutely no difference to the substance. The previous amendment moved by the noble Baroness, Lady Anelay, queried the age of 10, but not one of the Committee was included in that debate. That is a slightly churlish remark to make, but it is perhaps an indication.
I can see that it is more elegant to remove the word "with". May I consider what to do about it, although it makes no difference to the substance? I will consider and perhaps take up the position of the noble Lord, Lord Meston, and "meet with" others to discuss it. On that basis, I hope that the noble Lord will be minded to withdraw his amendment.
A more significant point was raised as regards who are the,
"such other persons or bodies as it considers appropriate,"
in Clause 14(3)(b). We hope to deal with that in more detail and perhaps I may write to the noble Lord about it. Such organisations that would be typically

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involved would be the social services departments, voluntary agencies and another—but unfortunately I cannot read the wording. It is something "groups and other similar groups". I shall come back on that. I apologise.
Lord Henley: I look forward to receiving a copy of the noble and learned Lord's letter outlining the words which he has a little difficulty in deciphering. I am grateful for the fact that I have had some movement from the noble and learned Lord on this slightly important amendment and that he might agree to accept it at a later stage.
I did quote from the third edition of Fowler in my opening remarks. I prefer the comments in the second edition edited by Sir Ernest Gowers on the subject of the fused participle. He refers to the fact that during the passage of the Homicide Act in 1957 a noble Lord had objected to the use of the fused participle. The government then, as now, had resisted the suggestion, despite the fact that he had the weight of Fowler behind him. Gowers goes on to say that Fowler would have been unlikely to accept even the House of Lords as the final court of appeal on such a point. I shall certainly come back to this matter at a later stage and I look forward to receiving the noble and learned Lord's letter on the point.
There is one last matter before the noble Lord intervenes. I see that we are in the presence of the Deputy Chief Whip. There is now some sort of agreement that we shall not go beyond the end of Clause 14. If that is the case I certainly have no intention of seeking to press the amendment at this stage.
Lord McIntosh of Haringey: I am sorry to disillusion the noble Lord. We had an agreement as to where we would get to, which was not based on any particular time of night. I have indicated that we shall be willing to talk about the matter again in half an hour. But for the moment our intention is to proceed to the end of the groupings as printed.
Lord Henley: I treat that with the utmost seriousness. It is a matter which the noble Lord will have to consider, particularly when he considers whether he has a House present to maintain a Committee. We have major amendments and we might wish to press them in half an hour or so. It would be unwise for the House to go on to discuss amendments such as those relating to racially aggravated offences at the hour we are now approaching.
Lord McIntosh of Haringey: I do not believe that these discussions should be conducted in public. I hear what the noble Lord says. There is a difference between the racially motivated offences and the conclusion of the curfew clauses.
Lord Henley: Again, if the noble Lord will accept my apologies for intervening, I am more than happy to get to the end of the amendments to Clauses 14
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and 15, but not to move on to those dealing with racially aggravated offences, which is a whole new ball game, if I may put it in those terms. Having said that, I beg leave to withdraw my amendment with the promise that I shall return to it depending on the response I receive in writing from the noble and learned Lord.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 146:
Page 12, line 16, after ("area;") insert—
("( ) every social services authority, local education authority and health authority any part of whose area lies within the area of the local authority, and the probation service;").
The noble Lord said: Our discussion on Amendment No. 145 is rather like sucking on an orange at half-time, having regard to what we heard a moment ago. I am grateful to the noble Lord, Lord Williams, for pointing out the balance that Clause 14 seeks to strike between its purposes and the rights about which the noble Lord, Lord Goodhart, and myself are concerned. It strikes me as sad that it is beyond the powers or the wit of a modern policeman to take a child of under 10 back to its home if it is making a nuisance of itself in the streets. Perhaps I am being a little nostalgic for the past as a son of a policeman, but what greatly concerns me about the proposal for local child curfew schemes is that they are likely to alienate children from policemen. A policeman will no longer be seen as a child's friend. Clause 14(1)(b) states that the scheme is to apply where,
"the authority considers it necessary to do so for the purpose of maintaining order"—
the purpose of maintaining order in the under-10 age group? All the machinery of Clause 14 seems over the top for what is required.
I shall return to that at a later stage, but I should like to deal now with Amendment No. 146. We wish to expand Clause 14(3)(b) which refers to,
"such other persons or bodies as it considers appropriate".
I was interested that the Solicitor-General was unable to read his own notes. It struck me that he might have read out Amendment No. 146 and that those bodies and persons are to be defined as the social services authority, the local education authority, the health authority and the Probation Service. If that was not sufficient, under Amendment No. 147 the Solicitor-General might have added the words,
"members of the community within the specified area to which subsection (2) applies".
A child curfew scheme should be regarded as entirely exceptional. It must be an exceptional thing if its purpose is to maintain order in the streets among the under-lOs between the hours of 9 p.m. and 6 a.m! If things have got to such a pass that all that machinery has to be brought into play, more than the local authority and the police authority should be involved. The people who are affected by that breakdown in the maintainance of order on the streets should also be involved.
The purpose behind Amendments Nos. 146 and 147 is to ensure that there is wide consultation before all this clumsy machinery is brought into being. I call it "clumsy" because it brings into effect a blanket ban to tidy up the streets and to remove children from the sight of those who might be offended. It brings into effect a ban on children who can be stopped by police officers and have to prove their age. Then, if the order is made and they are proved to have breached it in some way, they can be made subject to the child safety order that we have already discussed. The next step is that if the child safety order is broken by them being out at five minutes past nine once the order has been made, we can then obtain a parenting order. All of the various proposals that we have looked at will begin to apply in reverse order. The child curfew scheme triggers the child safety order which triggers the parenting order. The net result of this is to turn the policeman into the enemy of the under-lOs when the reverse should be the case.
I believe that before this machinery is brought into being it should have the consent and support of the authorities and the members of the community referred to in the two amendments. I beg to move.
The Lord Bishop of Bath and Wells: As the Committee has debated the curfew proposals I have been trying to imagine what it would have been like to have such powers in East London during the 20 years that I worked on estates both north and south of the river. Although the Government appear from their explanations to be kind, caring and sensitive, as one reads the Bill that does not always appear so. It is important that we get it right. It is said that this is not about riots. Thank God for that. Imagine what it would have been like trying to apply such an order during the Wapping riots. It is said that it relates to very specific areas and communities, but such communities are very complex organisms. If we are to consult the community itself, what happens if sections of it believe that particular numbers of children from particular groups are the nuisance, but other sections of the community believe that that is an attempt to identify groups as the troublemakers?
As to consulting the community, there are various qualifications as to what makes up a community. But it would have to be quite clear that the workers within the community—for example, the police—would be those who knew it intimately rather than those from further afield. If the police were consulted it would not just be those from regional or other departments but the community policeman. The task of consulting a community is a very complex matter. It would be very dangerous if it exacerbated tensions and splits between different sections of the community. It could jeopardise the principle of policing by consent and unnecessarily damage relationships between young people and other members of the community.
I have suffered quite considerably from under-10s. In particular, I have met elderly people whose lives have been made a total misery by under-10s. But I have always believed that this is best dealt with by
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the workers on the estates, the community policemen and others, who are there with that specific purpose in mind. I find it difficult to imagine this process. Maybe it will be a successful, helpful measure, but from my experience inherently it has immense difficulties, some of which have perhaps not yet been discerned.
Lord Falconer of Thoroton: This grouping consists of Amendments Nos. 146 to 149. All of those amendments relate to the consultation process before a local curfew order becomes effective. Amendments Nos. 146, 147 and 148 relate to who should be consulted before the matter is submitted to the Home Secretary for his approval. Amendment No. 149 is intended to extend the period of consultation, after the Home Secretary has approved the making of the local curfew order, from one month to three months. That amendment has not been spoken to.
Baroness Kennedy of The Shaws: I know that we are all as anxious as my noble and learned friend to get through the amendments, but I have not yet had the opportunity of speaking to Amendment No. 148 which relates to those with whom one consults. It is suggested that, as far as is practicable, the parents and the children who will be the subject of the proposed curfew should be spoken to and involved in consultation.
My concerns are different from those which have already been raised. Consultation with the community is likely to elicit the views of the residents who are complaining about destructive children. It is less likely to be with the parents of those children or the children themselves. Such parents may be the least likely to attend a public meeting, especially if they feel that they might face hostility. The children themselves may be on the streets because home is not a conducive environment. The children who are on the streets may well be the children who may be subjected to domestic violence, who may witness domestic violence, or suffer sexual abuse. Not to seek the views of those children and to understand their circumstances, may result in sending them back into the arms of parents who are abusing them.
It is insensitive to proceed with such a curfew if we do not know enough about the children involved. We know that there will be difficulties, but, as far as is practicable, the parents and the children who will be the subject of the proposed curfew should be spoken to, and their views should be sought during the consultation process.
Lord Falconer of Thoroton: That was well put, but it still leaves the amendment relating to extending the period of consultation not spoken to. I understand that my noble friend Lady David will not be moving it, so I shall not deal with it.
I shall again explain how the provision works to try to set my noble friend Lady Kennedy's mind at rest. The local authority has to consult the police and any other appropriate organisation before it submits a scheme to the Home Secretary. The Home Secretary

1119
then approves or rejects the scheme. The scheme will have to contain provision for consultation with the area to which it will apply, before the local curfew notice becomes effective. There is a two-stage process. One is the compulsory consultation with the police and any other body, such as social services, residents' groups, or voluntary agencies with which it appears at the time it should consult. There is then the approval by the Home Secretary.
Before the order becomes effective there must be consultation with the area which will be affected. It is hoped that at that second stage it will be possible to consult the people whom it will affect—the people who are having a bad time, because of the conduct of under-10 year-olds, and also the people (the children or more likely the parents) who may be affected. They can say, "This is a good idea; this is a bad idea", or whatever.
Baroness Kennedy of The Shaws: I am afraid that my concerns are not appeased. The experience of social workers, community workers and those involved is that some children on the streets at late hours are avoiding their homes for the very reason that they are not safe and conducive environments. Often, such children are in families where abuse of one form or another is prevalent. Therefore, speaking to their parents will not get to the real problem. Such children need sensitive handling because home is not a place to which they wish to return. They are too young to be runaways, but often a few years later they are on the roads making their way to London.
We should he concerned about the safety of such children. It is all very well to be dismissive of that, but many people involved with those communities are concerned that children are on the streets because home is not a place to which they want to return.
Lord Falconer of Thoroton: I am not sure where that leads. The purpose of the order is that if a child is out at the relevant time he can be taken into the custody of a responsible person. Intervention can occur. To say simply that they might not like to be in their homes, but to provide no means by which anything can be done, appears to lead nowhere.
Baroness Kennedy of The Shaws: The purpose of the amendment is to consult as far as is practicable with the parents and the children. That is something which the Minister imagines might happen. It may well be that he can consider the matter in the fullness of time, but he has already conceded that he would like to see that happening. However, that is not stated in the Bill. Earlier, the Minister's reply suggested that that would happen in any event.
Lord Falconer of Thoroton: With respect, my noble friend Lady Kennedy is taking two entirely separate points. As regards consultation, the answers I have given about the two-tier process meet her point that there is inadequate consultation. I believe that there is adequate consultation and that the second tier meets precisely the point about not consulting with
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those in the locality and the people concerned. That will be one of the aspects of the scheme before the Home Secretary approves it.
When I gave that answer, my noble friend remarked that some children will be on the streets because they do not want to be at home. That is right and the local curfew notice will have the effect of allowing responsible adults to intervene and help. However, the issues are entirely separate.
Perhaps I may deal with the specific points about consultation. Amendment No. 146 suggests that certain specified bodies should be consulted. That will be at stage l of the consultation; that is, before the scheme is put to the Home Secretary. It is suggested that we include in the Bill social services authorities, local education authorities and health authorities. One would imagine that they would be precisely the bodies to be consulted. There is a problem if one identifies who must be consulted because the focus will be only upon those people when it might be appropriate to consult others, too. We do not believe that that provision is appropriate. However, that is not to denigrate or downplay consultation with such people; they are the kind of people one would wish to consult.
In Amendment No. 147, the noble Lord, Lord Thomas of Gresford, proposes that there be consultation with:
"members of the community within the specified area to which subsection (2) applies".
Again, I hope in the laborious description I have given the area to which the local curfew scheme applies will have its opportunity for consultation at the second stage of the process. I hope that meets the point which the noble Lord, Lord Thomas of Gresford, raised.
Amendment No. 148 refers to the point made by my noble friend Lady Kennedy of The Shaws about,
"so far as practicable, the parents and children who would he the subject of the proposed curfew".
Again, that would be met at the second stage of the consultation. In fact, both the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Kennedy propose that that consultation should take place before the matter goes to the Home Secretary, whereas it seems to us much more appropriate to consult the community which may be affected after there is a scheme approved by the Home Secretary which is not yet effective. They must be consulted on that scheme before it becomes effective.
I hope it is clear that we have already considered the issues raised in relation to consultation and have put them into effect in terms of the scheme that we have put together. I hope that we have done enough to indicate that we too, as far as is practical, would like to consult with the people with whom Members of the Committee would wish us to consult. Therefore, I hope that the amendment will be withdrawn.
The Earl of Mar and Kellie: Before that is done, I am rather concerned that the noble Baroness, Lady Kennedy of The Shaws, seemed to imply in what she said on Amendment No. 148 that the whole raft of

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child protection measures which we have in place is inadequate. I wonder whether that is quite what she meant.
Lord Falconer of Thoroton: I do not know whether she did or did not mean that. I cannot answer for her in that respect. She does not choose to answer and I do not blame her at this time of the night.
Lord Thomas of Gresford: I seek leave to withdraw the amendment, although I shall return to the whole scheme in a few moments.
Amendment, by leave, withdrawn.
[Amendments Nos. 147 to 149 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 150:
Page 12, line 27, leave out subsection (6).
The noble Baroness said: Clause 14(6) provides the local authority with the power to vary the hours of the curfew according to the ages of the children. This amendment removes that power. It is a probing amendment to ask the Minister to explain how the Government expect that the police can operate the clause effectively as it stands.
So far today is of the Committee have been taken to Clackmannan. At this stage of the day I do not propose to take them on quite such a long journey but just down the railway line to Brookwood in Surrey. to the forecourt of J. Sainsbury, a large supermarket. But just to make it a bit easier, I shall transport them to a warm June Friday evening. It is a supermarket which has 24-hour shopping on a Friday evening. It runs a crèche until fairly late into the afternoon but after that responsible parents take their children shopping with them. Unfortunately. there are irresponsible parents as well, and the noble Baroness, Lady Kennedy, referred earlier to such parents. Therefore, one could have a situation where there is a curfew in place in the area to cope with some of the difficulties which have been known to occur on summer evenings when children under the ages of 10 have gathered together and have caused mayhem, particularly in the area of the bottle bank.
What happens then when there is a mix of children? Some of them are there because they were originally shopping with their parents but have slipped away. Others are there bent on having a good time. However, that is not a good time for the neighbours in the area because, although it is a large forecourt for a large supermarket, it is bounded by some very pleasant areas in which to live; that is, they are pleasant until children become rather noisy. That sounds a rather cynical description, but it is a situation that occurs and one with which the police have to deal.
It would appear that the Government have set in train a process where the police are expected to sort out various categories of children as to why they are there, and also various ages of children, in order to deal with curfew requirements which would apply to
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children in different ways according to their ages. It seems to be a minefield—a minefield in which the police are expected to weigh in and sort out matters. I hope that they would not do so in a mob-handed way; indeed, I can just imagine some of the newspaper headlines if a sufficient number of police officers turned up to try to sort out the children, especially the under 10 year-olds. It is a most difficult situation and one that I hope the Minister will be able to explain. Perhaps he can tell the Committee how the police can operate effectively with the clause as it currently stands. I beg to move.
Lord Williams of Mostyn: The provision in the clause is intended to give a local authority a certain flexibility in the operation of the scheme. I take note of the noble Baroness's observations about the difficulty of police enforcement, but that is dealt with because no scheme will be put into effect without the mandatory consultation under Clause 14(3)(a). Therefore, the senior police officer in the relevant area must be consulted before one has a differential scheme. The point behind that requirement is that, for example, with the older age group of eight or nine year-olds, one might have to have specified hours which would be less or more extensive than for a younger age group. I believe that children aged five or six are quite different in their behaviour and, indeed, in their needs from those of eight or nine. That is especially so these days when children seem to grow up very quickly.
Therefore, in a particular area one might want a differential scheme but it could not even be considered before one had the full views of the chief officer of police. I take the point made by the noble Baroness. We have built in flexibility but we have also built in the mandatory consultation of the police. I hope that that is a satisfactory answer to what I accept was a reasonable question.
Baroness Anelay of St Johns: I thank the Minister for his explanation. I still have some concerns that consultation in itself may not solve the problem of what happens on the night when a group of rowdy children gather together and cause a severe difficulty for police who are seriously trying to solve public order problems with young people whom they wish to see return home safely. Indeed, they want to see the problem resolved without having to use any heavy-handed methods. I shall read carefully what the Minister said but, in the meantime. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 151 not moved.]
Midnight
On Question, Whether Clause 14 shall stand part of the Bill?
Lord Thomas of Gresford: I oppose the Question that Clause 14 stand part of the Bill because I do not feel that the investigation we have carried out into its

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provisions this evening has satisfied me that this is a viable scheme. The clause starts off by saying that the child curfew scheme is to be made where it is,
"necessary to do so for the purpose of maintaining order".
But there is nothing there about the purpose of protecting children, although it has been sold to us on the basis that the purpose behind the legislation is to protect children. It is not; it is to maintain order and clear the streets.
Moreover, the machinery involved seems to me to be overwhelmingly cumbersome. The local authority has to consult with various people before submitting a scheme to the Secretary of State. The Secretary of State then has to consider it. There then has to be further consultation and, when all that process has been gone through, it appears that the scheme applies to under 10 year-olds and for a maximum of 90 days.
I appreciate what the Minister said; namely, that he is seeking to strike a balance between the rights of children to play and to be in the streets and maintaining order. Indeed, I appreciate that fact. However, at the end of the day, it seems to me to be very cumbersome machinery which needs to be further examined.
There could well be some purpose in having child curfew schemes, but if there is I respectfully suggest that there should be a much simpler machinery; that it should be far less draconian in its results, leading, as I have said, to child safety orders which then lead to parenting orders; and it should be for children not necessarily under 10 but of an age group who may be above that. If riots are envisaged, the provision should perhaps extend for a period of longer than 90 days and not be subject to the limitations that are placed upon it here. The whole of this scheme, as set out, seems to me to be cumbersome and ineffective. I hope that the Government will look at it.
Lord Hylton: I should like to support what the noble Lord. Lord Thomas of Gresford, has said. I do so for four reasons. I am not convinced that the Government have really thought this matter through. The first reason is the administrative one to which both the noble Lord, Lord Thomas, and the noble Baroness, Lady Anelay of St Johns, have referred. Time will be required to get a scheme into place with, first, consultation, then the approach to the Secretary of State and, finally, the implementation period. I cannot see how that process can be gone through in under three months and it might easily be as much as six months if the summer holidays happen to intervene. Then, as has been pointed out, the scheme is effective only for up to 90 days.
My second reason is the burden that will be put on the police once such schemes are in place. They will have to establish the exact age of any given child they come across. Here I suggest to the Government that 11 would be a better age than 10 if we must have this kind of measure. I say 11 because that is the age at which most children transfer from primary to secondary school. Therefore, one simple question should be capable in most cases of establishing the
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position. The police will have to make up their minds, somehow or other, whether the child's home is a safe place to take the child to, or whether he has to be taken somewhere else. That will not he at all easy.
My third reason is that the imposition of such curfews will affect all the children in the given area and not just those who are causing problems. However, 1 was encouraged by what the noble and learned Lord the Solicitor-General said about these schemes being used only if there was no other way of dealing with the situation. Fourthly, with that in mind, I suggest to the Government that it may be far more productive to put new resources into particular local areas where the social provision for children is deficient, and where there are little or no after school facilities, rather than adopt such clumsy, laborious and time-consuming machinery.
Viscount Colville of Culross: Like the noble Lord, Lord Thomas, in listening to this discussion I have been concerned about the machinery. I hope that the Government might think again, and perhaps they could answer two questions which arise out of subsection (5). I understand the process. There is to be prior consultation, then the measure is put before the Secretary of State who either confirms it or refuses to confirm it, and then there is subsequent consultation. I have two questions. First, what is the objective of the subsequent consultation? The scheme is in the form in which it has been approved. There is no power to vary it. What is the point of consulting after the Secretary of State has already approved it?
Secondly, if there is to be subsequent consultation, and it is to have any effect, why have not the Government given the Secretary of State power to vary the order? I have never seen a power of a confirming Minister which does not give the Minister the powers to confirm, to refuse to confirm, or to confirm with variations. The power is invariable. If the Secretary of State is providing himself with a method of informing his own mind about the rightness of the scheme, perhaps in view of some possible infringement of the European Convention on Human Rights, or because there is a pattern he wishes to establish, he should have the power to vary what is being put forward by the local authority.
I merely reinforce that if there is to be subsequent consultation, he must have power to vary it, otherwise there is no point in having that subsequent consultation.
Lord Williams of Mostyn: I am grateful for the observations which have been made. Some have been replied to by the Solicitor-General or by me on earlier aspects of Clause 14.
On the one hand, it is complained that we are being draconian and taking civil rights away from small children and possibly their parents. On the other hand, it is said that we are not sufficiently consultative. I believe that we have the balance about right. To take this unique step it is necessary to proceed with caution. It is not right to say that the curfew period

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must last for 90 days. The Bill says that there may be a curfew order for a specified period not exceeding 90 days.
My noble friend Lady Kennedy said that we must consult properly. I take her point. But this is a scheme which requires consultation. It requires notification to the chief officer of police and to other appropriate persons; and then one has the sanction of the Secretary of State. The Secretary of State may confirm or refuse to confirm. Any subsequent consultation he has, if he wishes may lead to a varied scheme being put forward. But we believe that this is essentially a local remedy, that local people are likely to know best here, subject to the overall control of the Secretary of State to confirm or refuse to confirm. We do not think that it is appropriate for him to have the power to vary unilaterally. It may be that consultation with the local authority or appropriate persons in the locality might produce a varied scheme which, after the appropriate consultation had been gone through, he could then decide to confirm or refuse to confirm.
We think that we have sufficient consultation here. It is said that it is a draconian scheme simply for the purpose of maintaining order. It is not. Mischief is caused by young people who often commit quite a lot of crime, not least, surprisingly to me, taking and driving away motor cars at very young ages. There may be dissent on the Opposition Front Bench; the noble Lord, Lord Henley, raises a question. But the noble Baroness, Lady Anelay, who has more knowledge than many of us in this House, knows well from sitting in the magistrates' courts that children are amazingly adept at driving motor cars. When we think how difficult it was for us to pass our test at the age of 17-plus, we realise how readily the facility of taking other people's motor cars seems to be acquired.
When young children are in this state there is something seriously wrong with the parenting arrangements for those children. It is true, as my noble friend Lady Kennedy said, that their homes may be disagreeable. They may have been the subject of domestic abuse, or witnessed it, or the subject of sexual abuse. But my answer echoes that of the Solicitor-General. If that is so, they have slipped through the net. Despite all the arrangements that we pride ourselves on. sometimes wrongly, to protect children sufficiently, plainly in the circumstances which we anticipate those children will not have been protected.
I recognise the concerns of the noble Lord. Lord Thomas, on the civil liberties' front. The noble Lord said that the measure is draconian and may lead to a child safety order. It will lead to a child safety order only if certain important hurdles are crossed: that it is necessary in the interests of securing that the child receives appropriate care, protection, support and proper control. Those should be the birthright of all children of this age. If a curfew order of up to 90 days led in significant cases to children receiving appropriate care, protection and support, I would not
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regard that as draconian. I would regard it as civilised, and many people would regard it as Christian behaviour.
We have to consult people, because it is their areas, their lives, their communities and their children that are to be affected. We believe, of course, that we are breaking new ground. But as I said earlier—and I do not apologise for repeating it—the alternative is to do nothing. We repudiate the idea that we do nothing. I beg to move that Clause 14 stand part of the Bill.
Clause 14 agreed to.
Clause 15 [Contravention of curfew notices]:
12.15 a.m.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 152:
Page 13. line 1. leave out ("The constable") and insert ("If the constable believes that the contravention is sufficiently serious to justify bringing it to the attention of the local authority, he").
The noble Lord said: I rise to move the amendment standing in the name of my noble friend Lord Goodhart. I shall also speak to Amendment No. 154.
The purpose of the amendments is to leave discretion with the constable who, under Clause 15(1),
"has reasonable cause to believe that a child is in contravention of a ban imposed by a curfew notice".
As the clause is drafted, the constable,
"shall … inform the local authority … that the child has contravened the ban".
The purpose of Amendment No. 152 is that he shall do so only if he believes,
"that the contravention is sufficiently serious to justify bringing it to the attention of the local authority".
Some discretion is specifically left to the police officer. I am quite sure that he would exercise discretion in any event, but it is perhaps a protection for him that that discretion be spelt out on the face of the Bill.
Amendment No. 154 merely repeats, not that the child has contravened the ban, but the words of subsection (1); namely,
"that he has reasonable cause to believe",
that the child is in contravention of the ban. It seems a reasonable drafting amendment. I beg to move.
Lord Falconer of Thoroton: This amendment deals with the enforcement of a local curfew notice. For local child curfews to be effective, they must have within them the right levers so as to ensure that proper action can be taken to react to situations where children are found in breach of a curfew. One of those levers will be a visit by the local authority to the family of a child found in breach. The purpose of such a visit would be to ascertain why the child was out late at night unsupervised and then to decide whether further action was necessary to prevent any repetition.
However, for that important step to take place, the police constable who found the child must inform the local authority of the incident. That is why subsection (2) of Clause 15 places a duty on the police constable to do that "as soon as practicable".

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Amendment No. 152 would undermine that important step. It would make the decision discretionary and place the police constable in the difficult position of having to make a judgment which he or she might not be qualified to make and in circumstances where the full facts might not be known.
As to the second amendment proposed by the noble and learned Lord, Amendment No. 154, we believe it is unnecessary because the issue with which it is concerned is already dealt with in Clause 15(1). On the basis of my remarks, I hope that the noble Lord is happy not to press his amendment.
Lord Thomas of Gresford: I do not propose to press the amendment. However, my concern that the policeman should not be seen as the bogyman remains. If a child knows that being stopped by a policeman will result inevitably in the local authority being informed and all the subsequent machinery coming into action, that will give him a certain view of policemen which I believe is unhealthy. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 153:
Page 13, line 1, leave out ("shall, as soon as practicable,") and insert ("may. if he thinks fit,").
The noble Lord said: I trust that this will be the last amendment I shall speak to this evening. I intend to speak to it briefly and I suspect it is something which I may wish to come back to on Report, depending on what I hear from the Government in response. It is a simple amendment, merely to change the wording. At the moment the wording suggests:
"The constable shall, as soon as practicable, inform the local authority".
We suspect that that is over-prescriptive as to what the constable ought to do. We suggest that more appropriate words might be:
"may, if he thinks fit, inform the local authority".
I beg to move.
Lord Williams of Mostyn: I shall reply as briefly, if I may. I have already identified the social evils that curfews are intended to deal with: child protection and public disorder. If a child is found in breach of a curfew, one needs to bear in mind that all the steps are gone through before the local authority curfew order has been given. So it will not be done lightly. We have already identified and recited the consultative process, which is quite deliberately made intensive. If a child is then found in breach of a curfew, one consequence will be simply a visit by the local authority to the family home to see why the child was out late at night unsupervised and to see whether or not the kind of dangers and home conditions which my noble friend Lady Kennedy rightly identified as existing do exist and, if so, to decide whether any further action is necessary.
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For that step to take place, in other words for the local authority to be able to visit the home, it has to be notified. It is as simple as that. The police officer in those circumstances will be obliged to inform the local authority. That triggers a local authority visit. If all is well at home, or all can be made well at home, that should be an end of it. If there are dangers identified by my noble friend, the child's interests demand that further investigation and steps follow.
Lord Henley: I am grateful to the noble Lord for that answer. I shall look at it carefully and consider whether I wish to come back to it at Report stage. It is late and it becomes harder to concentrate on precisely what is being said at this stage. For that reason, I prefer to read what the noble Lord said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 154 not moved.]
Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws moved Amendment No. 155:
Page 13, line 5, at end insert (", in which case he shall remove the child to the care of a responsible adult").
The noble Baroness said: I shall not rehearse the arguments again for this. We seek to add the words in the amendment, for the sake of completion. I hope that noble Lords, including the Minister, will consider it. I beg to move.
Lord Falconer of Thoroton: Under the Bill, where a child is found in breach of a curfew, the position is this. In the first instance, children in breach of the curfew will come to the attention of the police. Clause 15(3) states that:
"The constable may remove the child to the child's place of residence".
I am sure we all agree that that is the appropriate first step.
If, however, the constable believes that such a step would place the child—and let us rethat we are dealing here with children less than 10 years old—at risk of significant harm, we would expect him or her to make use of existing powers under Section 46 of the Children Act 1989 to remove the child to suitable accommodation. The nature of that suitable accommodation should in my view be a matter of good liaison between the relevant local agencies. There should be no need to detain such children in inappropriate accommodation such as a police cell, which would obviously be undesirable. This is a matter which we will cover in guidance. In any event, Section 46(3)(f) of the Children Act 1989 requires the constable to remove the child to local authority accommodation or an approved refuge as soon as practicable if he is not initially taken to such accommodation.
The amendment of my noble friend Lady Kennedy of The Shaws requires that the child in those cases be removed to the care of a responsible adult. That qualification is unnecessary for the reasons I have already given. I hope that I have reassured her and

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that she will not press her amendment. In effect, what is being said is that the child is taken home, and if that does not lead to a suitable result, then he is dealt with in ways which will protect him from significant harm.
Baroness Kennedy of The Shaws: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. [Amendment No. 155A not moved.] Clause 15 agreed to.
Clause 16 agreed to.
Clause 17 [Interpretation etc. of Chapter 1]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 156:
Page 14, line 2, at end insert—
(""police authority" has the meaning given by section 101(1) of that Act;").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
House adjourned at twenty-six minutes past midnight