Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Wednesday 8th January 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this is one of those debates that are quite special to your Lordships’ House. I spent 13 years in the other place and I have been in your Lordships’ House for three and a half years. I think other noble Lords who served there would agree this is not the kind of debate that we often heard in the other place. This House is made all the more relevant and important because of that. It is also one of those debates that Ministers from any party in Government would perhaps refer to as “interesting” and “helpful”. It certainly has been a very interesting debate. The noble Lord, Lord Dear, the noble Baroness, Lady Mallalieu, and the noble and learned Lords, Lord Mackay and Lord Morris, have done this House a great service by bringing forward this amendment.

I want to be clear at the outset that I think everybody who has spoken wants to see effective and swift action to tackle serious anti-social behaviour and to treat the issue with the seriousness it deserves. It is not overdramatic to recognise that, if left unchecked, anti-social behaviour can destroy lives. Ongoing anti-social behaviour can cause alarm and distress and, in some cases, leaves people feeling utterly devastated and unable to cope. It creates total misery.

In previous debates, I have spoken of my experience in supporting victims, both as a Member of Parliament and a county councillor. There is no doubt that when anti-social behaviour orders were brought in they created a significant change in the way such cases were dealt with. There were teething problems but experience has shown that they are an important tool in tackling such serious problems. That is why I just do not understand why the Government are embarking on such a dramatic change in this legislation. Obviously, improvements can always be made to any system and we would support improvements to anti-social behaviour orders. However, this really is a case of throwing the baby out with the bathwater and does not improve the position for those suffering from anti-social behaviour.

I am not a lawyer—I am perhaps in a minority among those who have spoken today—but all my experience and instincts from dealing with this issue tell me that these proposals from the Government are ill thought-out and unworkable. Noble and learned Lords with far greater experience and knowledge than I who have spoken have come to the same conclusion. As we have heard, the concern is that the Government’s new proposed threshold for granting an injunction for engaging or threatening to engage in causing nuisance or annoyance to any person on the balance of probabilities if the court considers it to be just and convenient is too vague and too broad. The noble and learned Lord, Lord Morris, described it as open-ended machinery that would catch people who should not be before the courts. The danger is that in the rush of those being brought before the courts for nuisance and annoyance we could lose focus on the serious cases of harassment, distress and alarm.

The very real concerns about how this power could be used and abused were raised at Second Reading and in Committee. In preparing for this debate, I started to draw up a list of activities that could be brought into the remit of Clause 1. I had to give up after several pages and hours. The noble Baroness, Lady Mallalieu, described it as an extraordinary power, and indeed it is. I appreciate and welcome the experienced and knowledgeable legal views but this is not just a legal issue. It is a moral issue of dealing with those people who are suffering the most. The Government are not targeting the behaviour causing the most serious problems but creating a catch-all clause that could affect almost everybody at some point. There is no doubt that some people and some activities inevitably cause some degree of nuisance and annoyance. However, is an injunction, which in most cases will be pretty weak and ineffective—although at the extreme end it could involve custody—the most appropriate way of dealing with these cases, or should we accept that in our everyday lives some level of nuisance or annoyance is a consequence of ensuring the liberty and freedom of the individual? Liberty and freedom are not open ended. There have to be constraints and the test of harassment, alarm and distress spoken about today is the appropriate point to place those constraints.

The ACPO lead for children and young people, Jacqui Cheer, emphasised this point in November when speaking to the APPG on children. She said:

“I think we are too ready as a society, as the police and particularly with some legislation coming up on the books, to label what looks like growing up to me as anti-social behaviour”.

There have also been concerns that one person’s annoyance may be another person’s boisterous behaviour. Indeed, as the noble and learned Lords, Lord Morris and Lord Mackay, and the noble Baroness, Lady Mallalieu, said, it need not be boisterous behaviour. Exercising fundamental democratic rights of protest or even just expressing views in a forceful manner can cause nuisance or annoyance.

The Minister’s amendment suggests that behaviour has to be reasonably expected to cause nuisance and annoyance. That is an admission that the Government now recognise the unreasonableness of the clause that they have previously defended to the hilt. As the noble and learned Lord, Lord Mackay, made clear, while that change on its own may be welcome, it does not address many of the points being raised here today. It still leaves the test as nuisance and annoyance to any person on the balance of probabilities. That is not good enough. I was interested in the points made by the noble and learned Lord on “just and convenient”. I accept his assessment of the value and usefulness of that. If the boisterous behaviour to which I referred is ongoing and causes harassment, alarm or distress, then action obviously has to be taken. But as it stands, even with the government amendment, a one-off event that causes nuisance or annoyance to any person on the balance of probabilities would still lead to injunction.

In Committee the noble Lord, Lord Taylor, relied largely on the definition in the Housing Act 1996. Noble Lords have concerns about paragraph (b) of the amendment. I do not share their concerns because it is appropriate in limited circumstances for the existing law aimed at people in social housing to remain to give housing providers the tools to deal with tenants in such circumstances. No change is being sought to that position and that is what part (b) of the amendment makes clear.

I will now address some of the points made by the noble Lord, Lord Faulks, in his defence of the Government, which I am sure we will hear in due course from the Front Bench as well. One great benefit of ASBOs is how seriously anti-social behaviour is taken. The issue of alarm, harassment and distress is crucial and there are appropriate sanctions for dealing with it. We could end up with more of these orders being imposed but in most cases they will be a weaker response to dealing with anti-social behaviour. The noble Lord referred to the guidance and he read it out very quickly. I have a copy of that guidance. It is somewhat confusing because it says, as he rightly quoted:

“It should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities”.

Where in the Bill is harm referred to? Guidance is not legislation. The legislation, as it stood, referred to alarm, distress and harassment. The Bill refers to nuisance or annoyance. Guidance suggesting there has to be harm as well does not override what is in the Bill. Noble Lords who were defending the Government’s position, when asked whether they could give examples of activities that would come under the Bill’s definition of nuisance and annoyance but not cause alarm, harassment and distress, were unable to do so. Every example they gave of where action should be taken caused harassment, alarm and distress. It is quite clear that the existing legislation is the best way to define the kind of behaviour that is disrupting lives.

The noble Lord, Lord Faulks, also raised the issue of hearsay evidence. It is currently the case with anti-social behaviour orders that professionals can give advice on behalf of those suffering so that they themselves do not have to go to court to present their case. The noble Lord, Lord Phillips, made a very important point about the courts being clogged up and about the pressures on police officers having to respond to every case of nuisance and annoyance. Has the Minister given any consideration to how the police should respond with their increasingly limited resources to cries for help from people suffering what they consider to be nuisance and annoyance and whether they will then be able to deal with very serious cases of anti-social behaviour?

The existing test of harassment, alarm and distress recognises the seriousness of anti-social behaviour and the need to take action against those who breach an order. The definition proposed by the Government is too broad and the remedies are too weak. Setting the threshold so low undermines fundamental freedoms and tolerance. It is a great shame that, having had warning at Second Reading and in Committee of the great concern in your Lordships’ House, the Government did not come back today with something a bit better than the amendment being put forward. There are serious concerns about this, not just because it would catch too many people but because those who are really causing distress in our communities will not be the focus in tackling problems. I urge the Minister to accept the amendment moved by the noble Lord, Lord Dear. The only compromise that would be acceptable today would be if the Minister were to say that he accepts that there has to be a change of definition and that he can assure us that that would be “harassment, alarm and distress” and not “nuisance and annoyance”.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

Well, my Lords, this has been an interesting debate. I am not particularly thick-skinned, so I am clearly sensitive to the views that have been expressed by this House. I am grateful to the noble Lord, Lord Dear, and other noble Lords who have spoken, because they have done justice to this debate by the contributions they have made. I owe it to the House to explain the Government’s position, and perhaps I can then take this issue on.

Clause 1 is clearly an important part of the Government’s reforms, and I begin by acknowledging that there has been some common ground on the need to include it in the Bill. We have indeed reached some common ground on the elements that we need to include in Clause 1 to make it effective. First, I am glad that the civil standard of proof for the new injunction has been accepted by so many noble Lords. Secondly, I welcome the tacit acceptance of the “just and convenient” limb of the test for an injunction. The noble and learned Lord, Lord Carswell, said that this is a proper consideration for courts in any case, but it is right that we should make it explicit as one of the limbs of the test.

The terms of Amendment 1, as compared with the amendments put forward in Committee, are a welcome demonstration that this House listens carefully to the evidence put before it both by noble Lords and by front-line professionals, and that it adapts its approach accordingly. The Government have also listened to the concerns expressed by noble Lords in Committee and by the Constitution Committee and the Joint Committee on Human Rights, and that is why I have tabled Amendment 2, which we believe addresses the concerns about the breadth of the “nuisance or annoyance” test. Although Amendment 2 is not part of this group, it addresses exactly the same issue—the appropriate form of the test for the grant of an injunction—and, accordingly, it is important that your Lordships consider Amendments 1 and 2 together.

As I said in the debate in Committee when my noble friend Lord Faulks tabled his amendment, I believe it is inherent in the way that the court will look at any application for an injunction to consider whether it was reasonable to grant an injunction in the circumstances of the case. I am grateful for my noble friend’s contribution, and I look forward to him joining me on this Bill before we conclude our consideration of it.

I thank my noble friend Lady Hamwee for her contribution to this debate. I also thank other noble Lords who wanted to speak but were not able to or who have forgone their right to speak in order to expedite this debate. In that I include my noble friends Lady Newlove and Lady Berridge.

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[Lord Elton (Con)]

Will the Minister take on board the fact that our concern is not with the Government’s purpose but with the effects of the legislation?

[Lord Taylor of Holbeach]

I shall be coming on to that, but I felt I had to place what I was going to say in some context—and I am grateful for the discipline of the House in allowing me to do just that. Our aim is to allow decent law-abiding people to go about their daily lives, engage in normal behaviour and enjoy public and private spaces without having their own freedoms constrained by anti-social individuals.

The test for an injunction, when taken as a whole, coupled with the wider legal duty on public authorities, including the courts, to act compatibly with convention rights, would ensure that the injunction cannot be used inappropriately or disproportionately. As I have explained, government Amendment 2 is designed to strengthen the first limb of the test so that the conduct must be such that it could reasonably be expected to cause nuisance or annoyance. This limb on its own is likely to preclude an injunction being sought or granted under this Bill to deal with bell ringers, carol singers or children playing in the street. However, there is a second part to the test.

[Lord Forsyth of Drumlean]

I ask my noble friend the same question that the noble Lord, Lord Faulks, was unable to answer. Can he give one example of a problem that would not be resolved by the amendment proposed by the noble Lord, Lord Dear? What is the problem that the Government are seeking to deal with? Can he give one example?

[Lord Taylor of Holbeach]

If I might say, it solves the problem of over-complex legislation. Having two tests for the single problem of anti-social behaviour was not the Government’s intention in drawing up this legislation.

[Lord Forsyth of Drumlean]

I do not want to detain my noble friend, but I am asking for an example of the kind of behaviour that would not be caught by the amendment proposed by the noble Lord, Lord Dear. We understand the Government’s intentions, but it is not clear what the problem is that they seek to remedy. Can he give one example that would not be caught under the amendment?

[Lord Taylor of Holbeach]

I do not intend to give any examples to my noble friend. I have given the reason why we have a single test for anti-social behaviour leading to an IPNA. I have given my reasoning, and I hope that my noble friend will accept it; I am not going to go into listing individual activities that the IPNA is intended to address. That is why we have a single test and why noble Lords will understand that I am speaking in justification of that single test.

The second part of the test is not a throwaway test, as some have suggested. It is under this limb of the test that the court will consider whether it is reasonable and proportionate in all the circumstances to grant an injunction. In making such an assessment, the court will consider the impact on the respondent’s convention rights, including the rights to freedom of speech and assembly.

I agree with the noble Lord that we should not leave it to the courts to apply these important safeguards. All these factors will weigh on the minds of front-line professionals in judging whether to apply for an injunction. Our draft guidance makes this clear. This will be backed up by a framework of professional standards and practice operated by the police, local authorities and housing providers.

Having said all that—and I apologise to my noble friend for not giving him an example—I have listened to the strength of feeling around the house on this issue. The Government’s purpose is plain: we wish to protect victims. ASB, or anti-social behaviour, ruins lives and wrecks communities. In our legislation, we need to ensure that authorities seeking to do so have coherent and effective powers to deal with anti-social behaviour. Recognising noble Lords’ concerns, I commit to take the issue away to give myself the opportunity in discussion with the noble Lord and others to provide a solution that clarifies the use of the legislation and safeguards the objective, which I think is shared around this House, of making anti-social behaviour more difficult and protecting those who are victims of it.

On those grounds, and on the understanding that the Government will return to the issue at Third Reading, I will not move for now government Amendment 2, and I hope that on the commitment to discuss the issue the noble Lord, Lord Dear, will not press his amendment.

[Lord Dear]

My Lords, we have been detained for something over two hours and I shall take no more than a couple of minutes of your Lordships’ time to say what I have to say. First, I sincerely thank all those who have spoken in this debate, particularly the three signatories to my amendment and the Minister, who has had to sit through a varied and interesting debate.

Secondly, I want to pick up on the chilling effect. The experience with the word “insulting” in the Public Order Act is sufficient in itself to indicate what front-line practitioners will do. Governed as they are by very well-oiled complaints machinery, they will undoubtedly be faced with many examples when a set of circumstances are produced for them, and they will be virtually pressurised into taking some sort of action, to pursue the case and push it through to the courts to decide. That is the easy option, and it is what happened all too often with “insulting”. To take an exercise in discretion and turn around to the complainant and say, “Frankly, I think we should let this one go by”, is not an option that they will take willingly. That is undoubtedly why the Association of Chief Police Officers as one group has said that it thinks that “nuisance and annoyance” is wrong and that we should stay with the well tried formula of “harassment, alarm or distress”.

The choice between those two wordings is the pivotal point of the legislation—the absolute foundation on which everything else hangs. We can talk for as long as we like about reasonable, just, convenient, necessary and all those adjectives, and try to make it work but, if the pivot does not work, all the rest falls away. The pivot suggested by the Government is “nuisance and annoyance”. We have no knowledge of what will happen if that comes into play, but we know what will happen with “harassment, alarm or distress”; it is well proven, well tried and respected, and has never been faulted. To move way from that is a step into the dark.

We have had no examples whatever of the sort of conduct that “nuisance and annoyance” seeks, rightly, to address. I pay great tribute to the Minister, for whom I have a huge liking and respect, but unless he can satisfy me—and I suspect that this is the case with others in the Chamber, from what I pick up from the atmosphere—that he is willing to move immediately to “harassment, alarm or distress”, I must seek to divide the House. I invite him to respond to that.

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[Lord Taylor of Holbeach]

As far as I am concerned, if I go into discussions between now and Third Reading, all the aspects that the noble Lord has related in his speech, and those expressed by other noble Lords around the House, will be on the table. I do not want to prejudge the outcome of those discussions. All that I can say is that I wish to make sure that when we come back to Third Reading we have a House that can unite behind legislation on this issue. I do not think that that is an unreasonable expectation, and I believe that it represents the sentiment in which this debate has taken place this afternoon.

[Baroness Butler-Sloss]

I have listened with great care to this debate, and I was undecided when I came into this Chamber as to what I would do. What I have not yet heard from the Minister, to my understanding, is what is wrong with the amendment and why it will not actually meet what needs to be done.

[Lord Taylor of Holbeach]

I was asked a parallel question by my noble friend Lord Forsyth. We are trying to simplify the legislation so that we make it easier for practitioners, no matter in what circumstances they are dealing with the application for an IPNA, to have a test that is capable of being applied in all areas.

I have listened to this debate. There may be ways in which the noble Lord’s amendment can be modified to advantage. It is important to recognise that he has made a very valid contribution to this debate, and I would like to have the opportunity to consider further what he is proposing in his amendment.

[Lord Mackay of Clashfern]

My Lords, if I understand the position that the Minister has taken up, he will have an open discussion, the precise outcome of which cannot, of course, be forecast. He will take account of all aspects of what has been put forward in the hope that we can, between us, reach an agreed solution to the problem which has the support of the whole House.

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[Baroness Hamwee]

My Lords, Amendments, 4, 5, 24 and 25 are all directed at a defence for an application for an IPNA or for a criminal behaviour order. My amendments are different from definitions of the first condition which is the requirement for an injunction or an order.

There must be cases where the conduct can be expected—or maybe we will end up with “reasonably be expected”—to cause the impacts that we have been debating. Nevertheless, there is good reason for that conduct. It is not clear to me if, as drafted, there is any defence other than “I didn’t do it” or that the conduct does not meet the test.

In the Crime and Disorder Act 1998, Section 1(5) includes a provision similar to the one which I have set out in two of these amendments—that:

“For the purpose of determining whether the condition”,

of the test,

“is fulfilled, the court shall disregard any act … which … was reasonable in the circumstances”.

In case that point is not clear enough, I have specifically used the term “defence” in my more homemade Amendments 5 and 25.

There must be an opportunity for the respondent or defendant to explain himself, and I would not be happy to leave whether or not to proceed to the discretion of the applicant or prosecuting authority, whichever we are talking about. At the previous stage, the Minister said that he would take away the first of each pair of these amendments to explore whether it was appropriate to introduce an explicit reference to reasonableness. I appreciate that he went three-quarters of the way to doing so this afternoon. I know that he gave no commitment at that stage, but in any event I do not believe that his amendment, had he pursued it, would have met the point of a defence. Conduct which could reasonably be expected to cause nuisance or annoyance might still be conduct for which, in particular circumstances, there is good reason. The court should actively have to consider this.

The point is made more important by the fact that it is likely in this area that there will be a lot of litigants in person, so the legislation itself needs to be extremely clear.

[Lord Taylor of Holbeach]

My Lords, I am grateful to my noble friend Lady Hamwee for her explanation of these amendments. She explained that they seek to provide the respondent or offender with a defence as to why an injunction or criminal behaviour order, which are also included in these amendments, should not be granted—namely, that the behaviour was reasonable in the circumstances. My noble friend has pointed out that this issue is distinct from the amendment that we have already debated, which is related to the first condition for the grant of an injunction.

If I may respond at this point to the noble Earl, Lord Lytton, about his queries in the previous debate, I can say that the provisions in Clause 1(5) are not defences; they are factors for the court to take into account when imposing restrictions or requirements. The two issues mentioned should not be confused with defence issues.

[The Earl of Lytton]

Do I understand from the Minister then that the normal range of civil defences would continue to apply in the normal way, in connection with matters under this Bill as everywhere else?

[Lord Taylor of Holbeach]

As I understand it, that is the case. I was going on to argue the question of defences because that was the issue that my noble friend wanted to sort out. However, I hope that we have saved the price of a stamp by clearing that up in the Chamber.

In effect, my noble friend is seeking to argue that it is not enough to be able to establish, in the case of the injunction, that the conduct in question could reasonably be expected to cause nuisance or annoyance but that it should also be necessary to show that the conduct was unreasonable in the circumstances. My noble friend has pointed to the reasonableness defence in Section 1 of the Crime and Disorder Act 1998, which applies to the ASBO on application, although it is worth noting that no such defence is contained in Section 1C of that Act, which relates to the ASBO on conviction. I am sympathetic to the point that she raised and I hope to persuade her that it is already effectively covered.

I will deal first with the injunction. As my noble friend will be aware, the second condition that must be satisfied is that the court considers that it is “just and convenient” to grant an injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. As I have already indicated, in applying this limb of the test, the court will look at whether it is reasonable and proportionate in the circumstances of the case to grant an injunction. It will be open to the respondent to argue that he or she had a good reason for his or her conduct. The court will weigh that up against the evidence submitted by the applicant and come to a view. If the court is satisfied that the reason put forward by the respondent is a sound one, I fully expect it to conclude that it will not be just and convenient to grant an injunction. Therefore, the defence is, in practice, inherent in the drafting of Clause 1 as it stands.

In the case of the criminal behaviour order, it is again important to look at the wider context in which the court will apply the test in Clause 21. The same public law principles of reasonableness and proportionality will apply. It would therefore be open to the offender to argue that there were reasonable grounds for the conduct in question, which the court would then consider alongside the evidence presented by the Crown Prosecution Service.

I might add that there is no reasonableness defence in Section 1C of the Crime and Disorder Act 1998, which provides for ASBOs on conviction—the forerunner to the criminal behaviour order. That section does, however, stipulate that the court may consider evidence presented by the prosecution or the defence, which will be the position in relation to the criminal behaviour order, albeit that is not expressly stated in the Bill.

In addition, it is worth pointing out that, in deciding whether to apply for a criminal behaviour order, the Crown Prosecution Service would need to be satisfied that there was sufficient evidence to provide a realistic prospect of obtaining an order and that it was in the public interest to apply for an order. The prosecution would therefore consider any evidence which showed that the conduct of the respondent was reasonable in the circumstances.

In short, the point made by my noble friend is well made. I assure her that a respondent or offender will be able to raise such a defence, which will then be properly considered by the court alongside evidence submitted by the applicant for the injunction or order. In the light of this reassurance, I do not believe that these amendments are necessary and, as a result, I hope that my noble friend will be prepared to withdraw Amendment 4.

[Baroness Hamwee]

My Lords, my noble friend is having a difficult enough day, so I reassure him immediately that I will seek to withdraw the amendment.

I notice the reference to the public interest test in the case of the criminal behaviour order. As regards the injunction—this is not a matter for this afternoon—I wonder whether my noble friend might consider a reference to the point in the statutory guidance. I reassure my noble and learned friend that I am seeking not guidance to the court—I would not dare—but guidance to potential applicants in order to prevent them going forward if it is not appropriate that they should go forward in the circumstances that I sought to outline. As I said, it is not a matter for this afternoon and I know that the Government are consulting on the guidance but I hope that my comment at this point can be taken as a contribution to that consultation. On that basis, I beg leave to withdraw the amendment.

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[Lord Taylor of Holbeach]

My Lords, I start by joining in the tributes being paid to Paul Goggins. I know that my colleagues in the Home Office share this view. We were together yesterday evening when his illness was mentioned. His loss this morning is a loss to British public life and I am happy to pay tribute.

I am very grateful to the noble Earl, Lord Listowel, for tabling these amendments. It is right and proper that we consider these matters. His amendments raise important issues about whether detention is appropriate for someone aged under 18, and we debated this at some length in Committee. I was pleased that we had the opportunity for a productive meeting yesterday and I hope that I will be able to answer some of the points made by the noble Earl and other noble Lords.

The Government strongly support the use of informal interventions and rehabilitative approaches, particularly when dealing with young people. That is at the heart of our overall approach to anti-social behaviour. However, detention must be available to the court if the new injunction is to act as an effective deterrent and to protect victims and communities in the most serious cases. When we consulted on the new anti-social behaviour powers, 57% of those who responded were in favour of the breach sanctions for the injunction for under-18s. Only 22% disagreed, with only a further 4% against any custody for under-18s.

The injunction is a court order and must be supported by tough sanctions to ensure compliance. However, in contrast to anti-social behaviour orders, under-18s will not be unnecessarily criminalised and saddled with a criminal record for breach. However, it is only in the most serious or persistent cases of breach that a court may detain someone aged under 18. Schedule 2 to the Bill makes clear that a court may not detain a young person for breach of an IPNA,

“unless it is satisfied that, in view of the severity or extent of the breach, no other power available to the court is appropriate”.

Where this is not the case, the court may impose a supervision order on a young person and Part 2 of Schedule 2 to the Bill sets out a number of non-custodial requirements that can be attached to such an order. The relevant requirements are a supervision requirement, an activity requirement or a curfew requirement. These are three of the requirements which may be attached to a youth rehabilitation order, the youth equivalent of a community sentence.

We would expect the youth courts to do all they can to ensure that a young person’s rehabilitation is effective. In making any decision to make a detention order, the court must consult with the youth offending team and inform any other body or individual the applicant thinks appropriate. If the court does decide to make a detention order, it must give its reasons in open court. The availability of custody as a sanction in exceptional cases reflects the current position as regards the anti-social behaviour order on application. Indeed, breach of an ASBO on application attracts a maximum penalty of five years’ imprisonment as well as a criminal record.

The previous Administration took the view that there needed to be effective sanctions for breach up to and including imprisonment, including in cases involving young people. While it was generous of the noble Earl to congratulate the previous Government on this aspect of their policy, we do not believe that they got the balance quite right between punishment and rehabilitation. That is why we are treating breach of the IPNA as a contempt of court rather than as a criminal offence: we believe that they were right to include the option of custody for both adults and juveniles. To remove that option for juveniles would significantly weaken the effectiveness of the injunction and thereby weaken the protection we are seeking to afford to the victims of anti-social behaviour.

I shall address some of the concerns expressed by the noble Earl and other noble Lords. Of course, a vital part of preparing for the introduction of these new powers will be appropriate training and support for the judiciary, police and other front-line professionals in how these powers are applied to young people, and the Home Office is already discussing these requirements with the Ministry of Justice, the Judicial College and the College of Policing.

I can inform the noble Earl that young offenders under 18 years of age may be placed in a young offender institution run by the National Offender Management Service, NOMS, a privately operated secure training centre or a local authority secure children’s home. Placement is made by the placements team of the youth justice board, which is notified by the court when custody is given. They will use their expertise and will be informed by the relevant youth offending team to place them in an appropriate establishment suitable for their needs. The youngest and most vulnerable young people will be placed in secure children’s homes. There are no longer any places for girls in young offender institutions, so they will be placed in a secure training centre or secure children’s home.

Under the Bill, the court must consider any representations made by the relevant youth offending team in considering whether to make a detention order against an under-18. Moreover, the applicant for a detention order or a supervision order must consult any youth offending team and inform any other body or individual the applicant thinks appropriate. I hope that helps to reassure the noble Earl.

I shall go on to the dispersal order.

[Baroness Smith of Basildon]

The noble Lord made the point about it being a contempt of court. Can he tell me in how many other cases young people can face detention for a contempt of court?

[Lord Taylor of Holbeach]

Off the top of my head, I cannot, but I hope that the noble Baroness will allow me to write to her on that. I will copy in all noble Lords who have spoken in this debate and put a copy in the Library.

As for breach of a dispersal direction, I can offer the noble Earl some comfort and, in doing so, I should like to correct the impression I gave in Committee on 20 November that custody was an option for breach of a dispersal direction by a person aged under 18. I can, in fact, reassure the noble Earl, the noble Lord and the noble Baroness that this is not the case. Detention and training orders—the juvenile equivalent of imprisonment —must be made for a minimum of four months. That means that where the maximum term of imprisonment that could be imposed is less than four months, as is the case here, a detention and training order is not an option in relation to a juvenile offender. The court will be left with the options of a youth rehabilitation order, a fine, a conditional discharge or an absolute discharge. I hope that is of some reassurance and apologise if my previous comments misled noble Lords. I hope I have been able to reassure the noble Earl as regards the dispersal powers.

In the case of the IPNA, I fear that we have to agree to differ on the appropriateness of having custody as a long-stop option for breach of an injunction by a person under 18. For the sake of victims of anti-social behaviour, we remain strongly of the view that, in exceptional cases, a detention order should be available to the courts. We should not weaken these provisions by removing that option.

Amendment 86, the final amendment in this group, seeks to place a new responsibility on local authorities to provide youth services to prevent young people becoming involved in anti-social behaviour. This obligation is already effectively provided for by the Crime and Disorder Act 1998, which places a responsibility on local authorities to formulate and implement a strategy for the reduction of crime and disorder in their area, where crime and disorder includes anti-social behaviour and youth anti-social behaviour. That Act includes a responsibility for local authorities to keep the strategy under review, monitor its effectiveness and alter it accordingly. Local authorities must ensure that their strategy focuses on the types of problem in their area, based on an analysis of local levels and patterns of crime and disorder, and the misuse of drugs and alcohol. Therefore, if an area has a particular problem with youth anti-social behaviour, the local authority has a responsibility to put measures in place to reduce the problem. I would expect this to include preventive measures. In addition, the Children Act 1989 places an obligation on local authorities to safeguard and promote the welfare of children in their area who are in need and to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs. This includes services to prevent young people becoming involved in anti-social behaviour, crime and disorder, as well as services to support those young people and their families who become involved in anti-social behaviour or crime.

I hope I have reassured my noble friend Lady Hamwee, the noble Lord, Lord Harris of Haringey, the noble Baroness, Lady Smith of Basildon, and the noble Earl that the duty he seeks to create through this amendment already exists and that local authorities have these crime and disorder reduction strategies in place. In these circumstances, I hope the noble Earl will be prepared to withdraw his amendment.

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Moved by

[Lord Taylor of Holbeach]

14: Schedule 2, page 139, line 31, leave out paragraph (a)

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[Lord Rosser]

My Lords, I will be brief. The Minister has been asked a number of relevant questions and I am sure that noble Lords will be waiting to hear the responses. In particular, do the Government anticipate that their proposal, with provision for suspending Section 49 of the 1933 Act, is likely to lead to a significant increase in the number of children being named as a result of that suspension of Section 49? Or do they take the view that it will lead to very little increase at all because they think that courts will regularly make decisions—an active choice—not to name the child in question? The question has already been asked about the Government’s intentions, not in respect of numbers or an exact figure, but whether they are looking for a significant increase in the number of children named. Is that the purpose of this? Or is their view that even though they are making the change, it may not make a great deal of difference because the courts are more likely to look at this matter and make the active choice not to name the child in question?

The answer may be that it is already covered in the draft guidance. I have not looked at the guidance to see if it is. However, if it is not already in the guidance, is it the intention that the guidance which will be issued to professionals will say anything about making applications to courts for children not to be named where professionals are directly involved? If it is not in the guidance is it the intention that it should be put in that guidance, and what in fact would it say?

I will leave it at that; the concerns have been expressed about this. Obviously there are already circumstances where children can be named as far as legislation is concerned, and I do not want to pretend that that is not the case. Clearly the Government were expecting that numbers of IPNAs would be issued and, therefore, that that might have an effect on the numbers of children being named. Whether that would still be the case in light of the amendment that has now been carried will remain to be seen. Nevertheless IPNAs will still be around, and that may lead to an increase in the numbers of children being named. It would be helpful to know the Government’s stance. Is that what they are looking for—or do they not see it making a great deal of difference? Will they be giving advice to anybody? I know that they cannot give advice to the courts, but will they give advice to professionals who might be appearing in court in order to make sure that courts are reminded at the very least that they do have this power to make the decision that children should not be named?

[Lord Taylor of Holbeach]

My Lords, this again has been a good debate on an important issue. Though it is a small part, it is an important part of these provisions. I thank the right reverend Prelate the Bishop of Ripon and Leeds for presenting these amendments for our discussion.

As the House will know, the Government do indeed believe that there is a need for reporting restrictions in respect of under-18s in certain cases, where it is both necessary and proportionate to allow for effective enforcement of an injunction or criminal behaviour order. This will enable communities to play their part in ensuring that the injunction and criminal behaviour order are effective in tackling anti-social behaviour by alerting the police if the respondent or offender breaches their conditions. Publicising the injunction and the order in certain cases will provide reassurance and increase public confidence in agencies’ willingness and in their ability to take action against perpetrators of anti-social behaviour. Potential perpetrators will be deterred from committing anti-social behaviour due to reporting. So while I understand the sentiment behind these amendments, I believe that there is a strong case for maintaining the default position under Clauses 17, 22 and 29. This mirrors the current position for anti-social behaviour orders.

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Moved by

[Lord Taylor of Holbeach]

19: Clause 18, page 9, line 36, at end insert—
“(1A) Rules of court may provide for a youth court to give permission for an application for an injunction under section 1 against a person aged 18 or over to be made to the youth court if—
(a) an application to the youth court has been made, or is to be made, for an injunction under that section against a person aged under 18, and(b) the youth court thinks that it would be in the interests of justice for the applications to be heard together.”