§ 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.1001
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 18 [Anti-social behaviour orders]:
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.1002
§ 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 1003 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. 5381I 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.
1004 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?
§ The Chairman of Committees
The Question is that this amendment be agreed to. As many as are of that opinion will say "Content".
§ 3.36 p.m.
§ On Question, Whether the said amendment (No. 43) shall be agreed to?
§ *Their Lordships divided: Contents, 45; Not-Contents, 107.1009
|Division No. 1|
|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.|
|McConnell, L.||Suffield, L.|
|Mackay of Drumadoon, L.||Swinfen, L.|
|Macleod of Borve, B.||Thomas of Gwydir, L.|
|Manton, L.||Wharton, B.|
|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.]|
|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.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.