HL Deb 10 September 2004 vol 664 cc856-67

1.54 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal) rose to move, That the draft order laid before the House on 14 July be approved [26th Report from the Joint Committee].

The noble Baroness said: My Lords, penalty notices for disorder were introduced by the Criminal Justice and Police Act 2001. They are on-the-spot penalties for disorderly behaviour that allow police officers to issue penalty notices in respect of offences listed in Section 1 of the Act—for example, wasting police time, causing harassment, alarm or distress, throwing fireworks and being drunk and disorderly or drunk in a highway. Those are low-level anti-social offences in themselves but we know that they cause communities much inconvenience, distress and aggravation.

Penalty notices are an important part of the Government's determined campaign, working with the police, local authorities and concerned citizens, to tackle both the causes of anti-social behaviour and its damaging effects. They sit alongside existing youth justice system powers to reprimand, warn and prosecute, and are one part of a range of anti-social behaviour measures—individual support orders, dispersal powers, and parenting contracts and orders. All those powers are designed to give the police and other agencies an appropriate range of tools to deal with disorder and anti-social behaviour. The offences that I have mentioned, as noble Lords know only too well, cause the public much annoyance and inconvenience. They also increase general concern about the level of crime and the safety of individuals and communities.

The recipient of a penalty notice has 21 days to decide what to do. If the penalty is paid within that time, they cannot be tried and they do not get a criminal record for the offence. If within 21 days they choose to go to court, they may be tried for that offence. If they do nothing—if they take neither of those courses—the penalty is increased and registered as a fine at one and a half times the penalty. Under the order, where a penalty notice is given to someone aged between 10 and 15, the police must notify his parent or guardian within 28 days. That parent or guardian then becomes liable to pay the penalty under the notice. The 21-day period in which to decide whether to go to court or pay the penalty runs from only the day on which the parent or guardian is notified of the penalty notice, rather than the date on which the child is given the notice. That is an important safeguard.

Young people are responsible for a substantial amount of anti-social behaviour but, as I said, the order provides that, where a notice is given to someone aged 10 to 15, the police must notify the parent or guardian. That includes the local authority if it has parental responsibility for that child. The police can cancel a notification which has been sent out, and then notify someone else if the person first notified turns out not to be the parent or guardian.

We propose under the order to introduce the scheme for the relevant age group in pilot areas. We intend to invite the same forces which originally piloted fixed penalty notices for adults to be involved—the West Midlands and the attached British Transport Police division, Essex and a division of the Metropolitan Police. The North Wales force was also involved in those pilots and we are discussing with the Welsh Assembly whether it wishes to be involved in the pilots as well. We may extend the range of areas slightly, as a few other forces have expressed an interest in being involved, but it is our firm intention to carry out pilots for the age group before we extend the scheme on a national basis.

A separate order, subject to negative resolution, is being prepared to deal with the penalty levels. For those aged 10 to 15, we plan to propose £30 for the lower-tier offences and £40 for the higher tier. Noble Lords will know that that compares with the proposed £50 and £80 scale for adults, so we have pitched the levels at a lower scale. The lower juvenile levels reflect the provisions regarding court fines for similar offences by this age group.

On 19 July, the Government also laid a separate affirmative order extending the range of offences covered by fixed penalty notices to include criminal damage under £500, retail theft under £200, littering, firework offences and four alcohol misuse offences targeting sale of alcohol to underage drinkers. Juveniles as well as adults would be covered by that extension. We are of course aware of concerns about the welfare of children aged between 10 and 15 who receive penalty notices. The question has always been asked whether the notice will be handed out and the child simply sent away. The answer is a very clear no.

Guidance for police forces is being prepared. It makes it clear that welfare issues must be addressed before a notice can be issued. If an officer has concerns about a child's welfare—and it will be only police officers for the duration of the pilots, as we do not propose to allow community support officers to issue notices to this age group for the time being—they must use existing procedures to address those concerns and ensure that the child's well-being is safeguarded; I emphasise "must". The guidance, on which there has been wide consultation with ACPO, the Department for Education and Skills, the Crown Prosecution Service, the Youth Justice Board and others, will be available to forces before the pilots commence.

The order delivers on our commitment to bring 10 to 15 year-olds within the scheme and helps to close an important gap in tackling disorder. I commend the order to the House.

Moved, That the draft order laid before the House on 14 July be approved [26th Report from the Joint Committee].—(Baroness Scotland of Asthal.)

Lord Luke

My Lords, I thank the Minister for giving us such a clear and detailed explanation of the order. We are prepared to accept this order but have some concerns and questions about the safeguards that should be in place before the provisions are implemented.

As the Minister explained, the order reduces the age at which a penalty notice for disorder can be given from 16 to 10 years of age. These are currently given by police officers, community support officers and police civilians. When the Government inserted the power into the Anti-social Behaviour Act 2003, which allows them by order to reduce this age, we did not object. We did, however, express our concern that this power would be exercised by order rather than being put into primary legislation. We now find the Government using this power in what we see as considerable haste. We understand that the Association of Chief Police Officers has pressed the Government to introduce this order as soon as possible. But other bodies, for example the Law Society, have expressed reservations and we thank the Law Society for its briefing on this matter. It feels that the Government are rushing into this and that it would be better to take time not only to pilot the scheme first, but then to take proper account of the evaluation of that pilot before implementing the provisions. We agree.

When the Government introduced penalty notices for 16 and 17 year-olds last year, the noble Baroness, Lady Scotland, gave an undertaking that that system would be piloted first. That was the right approach—see Official Report, 17/09/03; col. 1035. Many feel that the Government should wait until there has been the opportunity to examine the evaluation of that scheme before introducing the order.

I understand that the Minister's colleague in another place, Hazel Blears, stated that the evaluation would shortly be placed on the Home Office website. How shortly? And why not wait until we have all had the chance to consider that evaluation before pressing ahead with the order? Will the Minister now give a commitment that the appropriate safeguards will be in place before the penalty notices for 10 to 15 year-olds are introduced?

An example of safeguards which could be implemented are guidance for the issuing of notices to be in place before the implementation of the order, proper training of those who have the power to issue notices and provisions for appeal against errors in issuing of notices. For example, what happens if the police issue the notice to the wrong child? What method of appeal is there for the child once he or she has had a chance to speak to a parent or guardian? What proof of identity does the Minister expect a child to carry to ensure that the notice is correctly issued? What training does the Minister anticipate will be appropriate?

I referred to the fact that these notices may be issued by community support officers and I am glad to hear the Minister say that there will be a delay in implementing that part of the order. These Benches have repeatedly expressed our concerns about the fact that CSOs do not have the same level of training as regular police officers. It is therefore of great concern to us that a relatively untrained individual may be required to impose fixed penalty notices on a young child. This will surely, whatever happens, require very sensitive handling.

The Minister in the other place had to be pressed very hard to answer similar questions from my colleagues there. I hope that the Minister here will oblige me by answering all of my questions in full. If she cannot do so now, will she please write to me?

Baroness Walmsley

My Lords, I trust the Minister had a pleasant and refreshing Recess. It is nice to see her in her usual place and not reshuffled to some other department. If I am somewhat hard on her in my remarks, I trust that she will accept that it is nothing personal and will perhaps put it down to the fact that I, too, have had a refreshing Recess and am coming out of my corner fighting.

This is a sad day for Parliamentary democracy because here we have an order which directly contradicts assurances given to this House by the Government in the person of the noble Baroness, Lady Scotland, in the Third Reading debate on the Anti-Social Behaviour Bill. Then she said in answer to an amendment in the name of my noble friend Lady Linklater to delete this power from the Bill: It is not right to say, as the noble Baroness suggests that we are going to drop the age immediately to 10 year-olds. That is not our intent".—[Official Report, 12/11/03; col. 1447.] Those were her words. And yet here we are 10 months later with an affirmative resolution to do just that, which we are impotent, by the conventions of this House, to do anything about because it is most unusual to vote against one of these orders. The common expression is that they go through on the nod. I can assure noble Lords that I am not nodding.

The House may, however, be assured that while we on these Benches strongly support appropriate and humane measures to protect communities from the nuisance of anti-social behaviour by young children and to address the causes of that behaviour, we are strongly against measures like this which treat children the same as adults without any evidence that it is either effective or in their interests to do so. We will not support this measure and call upon the Government, because that is their job, after all, to come up with more appropriate and effective measures to tackle the scourge of anti-social behaviour. They have notably failed in some areas, as many of our communities know only too well.

The Minister said in the Third Reading debate that the Government could have brought forward primary legislation in relation to young children if they thought that was merited. Well, yes, of course they could, but they did not and they still have not. Given that all the children's organisations are howling down this order as being the wrong way to tackle the problem, perhaps that is what the Government should be doing today instead of asking us all to nod through something they said they would not do. As usual they are putting a sticking plaster on the symptom instead of curing the cause of the disease. The Prime Minister promised that this Government would be tough on crime and tough on the causes of crime. Instead, as I heard Sir David Ramsbotham say in a speech this week: They have landed up being tough on the causers of crime and this has had no beneficial effect on the appalling re-offending rate". We regard this order as sharp practice on the part of the Government. The Minister can be assured that it will colour the attitude of these Benches to any assurances given by the Government during the course of future Bills as they pass through this House. It will be quoted back to Ministers whenever they want us to believe that they have no intention of using a Henry VIII power imminently and without strong evidence that it should he used. Why should we believe a word that Ministers say in the face of such flagrant contradiction of their own words?

Turning to the particular power, it is worth stating the principles behind our approach to fixed penalties. We have always been sceptical about them but are prepared to support them in certain circumstances. In the case of a driver who is caught speeding or parking on a double yellow line, there is some objective evidence of the nature of the offence and who committed it. In the case of behaviour likely to cause alarm or distress, that judgment is far more subjective and should be subjected to the usual rigours of the processes of the law. And at least we can be reasonably certain that adults understand the nature of the process to which they are being subjected. We cannot be so sure in the case of a child.

For that reason, we have always insisted on seeing the evidence of the pilot schemes before we judge whether or not this is the right way to go. We offer our support when the Government can show that it works, saves police time, reduces the workload of the courts and is not against the human rights of the defendant. We believe that that is the right approach, balancing the concerns of communities with the rights of the individual under the law.

We are concerned that, in extending these powers to young children, who in most other civilised countries would be below the age of criminal responsibility, the Government are criminalising behaviour which should be a matter for the social services to deal with and not the criminal justice system. As my noble friend Lady Linklater said in the debate of 12 November last: children are not small adults and should not be treated as such however awful and unacceptable their behaviour. That is why we have a youth justice system. That is what our system of humane, just and practical ways of dealing with children is all about". And, as she protested at the time, the process of statutory instrument is not the way to go about [it]".—[Official Report, 12/11/03; col. 1445.] Liberal Democrats regret the incremental extension of the criminal law into the area of juvenile behavioural problems, although they do need to be dealt with effectively and we support effective measures. We agree that parents should take responsibility for their children's actions but we do not think that this order is the best way to achieve it. We continue to support the system of reprimands and final warnings instituted by the Government's Crime and Disorder Act 1998. The rates of reoffending for those subject to these sanctions are very low a considerable success story, for which we applaud the Government.

We also support the use of restorative justice for first-time juvenile offenders and, indeed, we warmly welcome the Government's commitment to extending the use of youth offender panels to second and third-time offenders. And of course we support the practice, which began in Liberal Democrat local authorities, of using parental control agreements to involve parents and young people in sticking to acceptable norms of behaviour.

The Minister heard us rehearse the objections of the children's organisations many times during the course of the Anti-social Behaviour Bill. But, in respect of today's order, the Law Society, to which I too am grateful for its helpful briefing, has put the arguments against very succinctly.

First, it is unclear whether children have the understanding necessary for an officer to be able to issue a penalty notice for disorder. How will a police officer or a community support officer be able to make such an assessment? Will there be special training to prevent PNDs being issued inappropriately?

Secondly, where penalty notices apply to offences where an element of mens rea is required, such as knowingly giving a false alarm to a fire brigade, the officer effectively determines whether the mental element is present. That is a difficult task, even where adults are concerned. It is doubly difficult where children are concerned and it would be left to the youth court to determine if the child were prosecuted for the offence.

Thirdly, children as young as 10 years old may not be able to recognise a community support officer or understand his role if, following the pilot scheme, the order is to be extended to community support officers. That could, in any event, lead to children refusing to provide the necessary details to the CSO to issue a fixed penalty notice and thereby committing an offence.

Fourthly, under current procedures, if detained, the child has the right to a legal representative and an appropriate adult is required to ensure that the welfare and interests of the child are respected. However, in issuing a PN D outside custody, there is no independent monitoring of the due process and therefore there is more scope for abuse or the inappropriate use of this power.

Fifthly, the vast majority of children under 16 rely on their parents for financial support. The parents will have to pay the penalty, and therefore that can hardly be regarded as much of a deterrent for the child. Even the revised lower financial penalties could have a significantly adverse impact on families in terms of benefits, disproportionate to the harm caused. As I said earlier, a PND may not give a criminal record. but breaking one will.

That brings me to the sixth point. I do not know how Parliament is supposed to make an informed decision on whether to approve the extension of this scheme when the evidence is nowhere to be seen. Penalty notices for disorder have not been fully evaluated, even for adults. I would like to remind your Lordships that the only evaluation of the fixed penalty notices scheme, introduced under the Criminal Justice and Police Act 2001, which has been published, is a four-page summary of interim findings published on 15 March this year, entitled Penalty notices for disorder: early results from the pilot. It was hardly reassuring. A key finding was that in 47 per cent of cases the individual issued with a penalty notice failed to pay it within the statutory period of 21 days. Given that the pilots concluded in September last year—12 months ago—when are we going to see the results of the full evaluation? When will it be published?

The full lessons of their introduction are not yet clear and in relation to 16 and 17 year-olds the noble Baroness, Lady Scotland, gave an undertaking that the scheme would be piloted first. It is premature to extend PNDs to children aged 10 to 15 years without evaluation of their impact on older children first.

Ultimately, the Law Society, children's organisations and we on these Benches question whether PNDs are an acceptable means by which to target and to police children when the majority of offences covered by them are likely to involve juveniles. Surely the Government should be looking at more appropriate methods of addressing the problem. It strikes me as both lazy and short-sighted simply to take an adult measure introduced only eight months ago and to transfer it straight across to children in gross contravention of assurances given to the House.

2.15 p.m.

Lord Mackay of Clashfern

My Lords, I wonder whether the noble Baroness could help me on one aspect. Apparently, for a child covered by this order, the notice is to be served on a parent or guardian and 21 days are allowed. I have no doubt that it is my fault, but I am not clear about the position if that period expires without payment. There may be various reasons for non-payment. Will the child have a criminal conviction recorded against him or her in respect of the failure to pay?

The Earl of Listowel

My Lords, I express my concerns about this order and join the unanimous voices around the House, particularly on the evaluation of previous work in this area. I was grateful to the Minister for the meeting that she held for civil servants dealing with this order during the Criminal Justice Bill proceedings. I found that helpful and, to some extent, reassuring.

However, I am surprised that the evaluation of the areas that have already experienced this restraint has not yet been published. I am very surprised that that has not been taken forward so far. My understanding is that it is largely to do with policy, so I do not see why that should not happen. Working in such a controversial area, it is important to have all the necessary information available before moving forward.

Yes, some children can blight the areas in which they live. I have two principal concerns. First, a significant number of such children are likely to have mothers who are trying to rear their children on their own. Many of them are boys who are growing up without a father interested in their well-being. My second concern, in introducing this measure, is that we do not penalise the most vulnerable families, putting further pressures on them. I would like to be reassured by the Minister that if parents and mothers default in paying the fines, there is no way that they will end up in custody as a result.

I am sure that in response, the Minister will say something about the positive work that the Government are doing in this area to engage with young people. We have a choice in this matter. We can concentrate on the positive work with children. Working with children this summer, the only child with whom I had difficulty and to whom I had to raise my voice was a child, who came into my group, whom I did not know. If one knows the children with whom one is working and in whom one takes an interest, it is so much easier to get them to do what one wishes. Investing in the good work being undertaken by the Government is a better approach than what is now before the House.

We also need to bear in mind the impact on some of those families. A charity in north London, operating near King's Cross—Alone in London—provides a family mediation service for children who run away from home. Regrettably, after they have been working with them for a while, they find that often the families are not prepared to take the children back.

It has certainly been my experience that a child who runs away from home sometimes can have a step-parent in the family who is not that keen to have him around any more. So I am a little worried that here we might be adding that little extra, that straw that breaks the camel's back, in terms of saying, "This child is not just worth the effort any more. It is time for him to move out of the home".

Therefore, I hope that in the Minister's monitoring of this proposal she will look very carefully at the impact on families and what sort of families are being struck by this legislation. I look forward to her response.

The Minister of State, Home Office (Baroness Scotland of Asthal)

My Lords, perhaps I may clarify some of the points raised by the noble Baroness, Lady Walmsley, and answer the issue raised by the noble and learned Lord, Lord Mackay. I shall try to deal also with the comments of the noble Earl, Lord Listowel.

The noble Baroness will remember that we discussed this issue in February of this year when she raised the question of why we were moving from the position of piloting the 16 to 17 year-olds. The debate at that stage was whether there was a significant difference between the sort of behaviour that would be the subject of antisocial behaviour and the behaviour that one would see from a younger child. I said at that time that, we plan to introduce penalty notices for disorder as soon as possible for 16 and 17 year-olds in the same areas as for adults. Later this year we expect to pilot in some areas for 10 to 15 year-olds, taking account of early experience with 16 to 17 year-olds".—[Official Report, 5/2/04; col. 795.] The noble Baroness will know that we said that at that stage and we had the discussion about why that move was taken. I made it quite clear that we would pilot for the younger age group.

Indeed, the noble Baroness made the point that there is a significant difference between the 16 and 17 year-olds and the younger children. She said that even if the evaluation, were to show great benefit for that age group, —she was referring to the 16 and 17 year-olds—

all the children's organisations are convinced that it will be entirely irrelevant to the under-16s who have completely different issues in relation to them".—[Official Report, 5/2/04; col. 797.] I can tell the House that the latest figures for August show that about 700 penalty notices for disorder have been issued in relation to 16 and 17 year-olds. Of those 700, 660 have been for drunk and disorderly behaviour and harassment. So, that is very similar, your Lordships will remember, to the sorts of reasons for which adults receive fixed penalty notices. I know the noble Baroness and the noble Earl, Lord Listowel, will share my view that it is likely that that will not be the primary source for those under the age of 16.

We said that we were going to pilot the 10 to 15 year-olds, and we intend to do that. As I say, we have taken into account the early experience in terms of use.

The noble Baroness also said that her party will take into account the saving of police and court time. I would ask her to consider that because in our experience since these were introduced we have found that there is a considerable saving of both police time and courts' activity. The most important thing about that is that if a fixed penalty notice is paid it means that there is no criminal conviction.

Members of this House have expressed concern from all Benches that we should do all we can not to unnecessarily criminalise children, or indeed anyone unless necessary, but particularly children. We have introduced a scheme whereby that is possible for adults but would not be possible for children of more tender years.

The other matters which cause concern are things like the throwing of stones, the fireworks, wasting time and harassment. All of those are now criminal offices. Children over the age of 10, if found to have committed those offences, can now be arrested and dealt with for those offences. So it is not right to say, as the noble Baroness, Lady Walmsley, did, that we are unnecessarily criminalising children, or that we seek to take inappropriate action. Where a child has been engaged in criminal activity, we seek to take a step that may prevent him or her from having a criminal record. I know that the noble Baroness and I have always agreed on that, so I am concerned that she expressed herself in that way.

We must be clear about what affirmative resolutions are. If this House believes that the order is not merited, it can strike it down, if it wishes. It is not like other orders, which are a bit of a curate's egg, with a bit of this and that. The order says that it will apply to 10 to 16 year-olds—that is to say, those under 16. If this House believes that the Government have not got it right, it can strike it down.

It does not lie in the noble Baroness's mouth to say that we are doing anything that either is improper or does not give this House the opportunity to express its view. When the matter was brought forward, I said that we would not proceed immediately, and we have not. The pilots are unlikely to come into being before November this year. We have taken very seriously the comments of the noble Baroness, Lady Walmsley, the noble Earl, Lord Listowel, and other noble Lords opposite in crafting the guidance. We have consulted very widely. The Youth Parliament has been consulted, and we have taken its comments into account. I can promise, in accordance with the suggestion of the noble Lord, Lord Luke, that we will not undertake the pilots unless and until guidance is available to officers to help them to implement the provisions. We hope that the guidance will be available by October. I can assure the House that it will be available before the pilots commence. The pilots will not commence until the guidance is available.

In response to the noble and learned Lord, Lord Mackay, if an offender pays the penalty, there is no criminal conviction. Payment discharges the offender's liability and involves no admission of guilt. If, during the 21-day period, the parent or guardian does not pay the amount of the penalty or has not indicated a request to be tried, the sum equal to one and a half times the amount of the penalty may be registered as a fine. According to Section 9(5) of the Criminal Justice and Police Act 2001, if the fine is registered in the magistrates' court, it is a fine as if imposed by the court on the conviction of the defaulter. But it is a fine as a result of non-payment of a penalty notice rather than the original offence. The offender will have been fined for failing to pay the penalty notice, which would have to be paid by the parent.

I hope that noble Lords will agree that we have pitched the scale relatively low so that these are the sorts of fines imposed on juveniles of that age in the juvenile court. As noble Lords will see when the negative resolution order comes forward, it is a sensible precaution.

Noble Lords will know that training is the responsibility of the forces. Certainly, when the adult notices were taken out, the forces involved carried out training. Apparently it was done speedily and easily and they did not have any difficulty. I have no reason to believe that that will not take place. I can assure the House that we will make inquiry of those areas in relation to the implementation as to what their proposals are for the training on the guidance.

We will also include in the guidance certain examples of the sort of things to which we would not expect to apply fixed penalty notices in order to give officers some clear guidance as to the circumstances. We have also said—this will be in the guidance—that only one penalty notice for disorder can be issued against any child. That is a "one" opportunity. We will monitor that very closely.

We have tried to strike a balance. The evaluation that we asked to be completed has not been completed in full. We have published all the evidence that we can. There is an element of frustration felt by those of us in government that those undertaking the evaluation, although they have been able to give us some of the facts, have not produced the document that we can publish. But I can assure the House that as soon as we have that full evaluation on the adult scheme, we will place it in both Libraries. It will appear on the website.

I hope therefore that I have dealt with the matters raised. In my opening, I dealt with the issue of discharge of notices wrongly given. They can be discharged by the police. I hear what the noble Lord says about the possibility that the wrong person may be identified; for example, a child giving the wrong name. It is possible to discharge those notices and have another appropriate notice set out.

I thank the noble Earl, Lord Listowel, for his compliments. Indeed, I thank the noble Baroness for her compliments on those things that she thinks we have got right. Of course, we think that we have got rather a lot right. We will continue to have the same approach to young people that we have now in terms of early intervention, help and support in the hope that they will not further engage themselves in criminal behaviour.

On that basis, I commend the order to the House.

The Earl of Listowel

My Lords, if it is in order I should like briefly to comment on what the Minister said.

Noble Lords

No.

The Earl of Listowel

My Lords, I am sorry.

On Question, Motion agreed to.