Crime and Disorder Bill [Lords]

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Sir Robert Smith (West Aberdeenshire and Kincardine): Would the order prevent only behaviour that was criminal, or could it prevent someone from doing something that was not criminal in itself and which someone without the order against him could carry out?

Mr. Michael: It is an interesting point. It could prevent behaviour that was not criminal if it was part of a pattern of behaviour that was defined in the order. It would be unusual, which is rather similar to the response I gave to the hon. Member for Hertsmere about the behaviour leading to the order, for it merely to be non-criminal behaviour that was prohibited but it would be theoretically possible.

The purpose of the order is not to punish behaviour but to prevent it. There has to be evidence that that behaviour has existed in the past. It is brought before the court not to gain a conviction and a punishment, but to provide evidence that there is a need for an order to prevent that behaviour in the future. That is the essence of the provision, and I hope that I have managed to make it as clear as possible.

Having dealth with discrimination, I should like to turn to the second of the two major concerns, which is human rights. Human rights issues go further than the issue of discrimination. The promotion of human rights is a key element of the Government's programme. It is a vital factor in the Bill. We have read with great interest the article referred to by several hon. Members which was published by the Howard League. As I mentioned on Tuesday, two changes have been incorporated in the Bill which help to meet the points that those legal experts made about the anti-social behaviour order.

First, legal aid will be available for anti-social behaviour orders and sex offender orders by an extension of the assistance by way of representation, or ABWOR, scheme. Secondly, in the other place we inserted a crucial new subsection to provide a defence to an anti-social behaviour order namely, that the behaviour was "reasonable in the circumstances". Taken together, those two elements provide the necessary protection of human rights.

I can assure hon. Members that we scrutinised the proposals with a fine-toothed comb. We are confident that they meet the standards required by the European convention on human rights, which is soon to be part of our domestic law. That is, in itself, important: the ECHR will be relevant to all decisions taken by the courts, which means that aggrieved citizens will no longer have to go to the European Court to resolve any conflict between domestic law and the convention. The courts will, in future, have to consider the ECHR in taking decisions.

Sir Robert Smith: Does that mean that people will not have a remedy under the process? Will the Minister please clarify the position.

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Mr. Michael: At present, ECHR requirements are not matters for our courts because they are not part of domestic legislation. In future, not only will remedies, as the hon. Gentleman put it, in respect of this and other orders under the ECHR be avialable in domestic courts, but our courts will have to bear in mind ECHR considerations in reaching their decisions. That will be true of the law generally.

Domestic law has not been affected by deliberations on conflict between ECHR and domestic legislation because the ECHR requirements are not part of domestic law. Incorporation is therefore crucial in providing protection for citizens in our courts, rather than remedies being available only to those who go outside our court system to take their grievance to the ECHR and to the European Court of Human Rights.

Mr. Malins: I was pleased to hear the Minister say a moment ago that legal aid would be available in respect of complaints made on behalf of a defendant. That is something that we must clear up, and set in concrete. The Minister will agree that it is important that those who are subject to an anti-social behaviour order should have legal representation; by definition, if they are involved in such matters, they will probably be poor.

I forget whether there is a limit to assistance by way of representation; the Minister may need to take advice on the amount that can be paid to a lawyer under the ABWOR provisions, and I am content to wait for his comments because it is an important matter. Has any account been taken of the overall annual bill for extra representation? Will there be further cuts in other aspects of the criminal legal aid system? I do not expect the Minister to respond to my first point now, but I should be grateful for his comments later, especially, for example, on how much will be available to a defence solicitor one of the fat cats, as my hon. Friend the Member for Hertsmere says from a sedentary position representing a defendant in a case involving ABWOR.

Mr. Michael: Despite the currency of media comments on the issue, I shall not treat the hon. Gentleman's remarks as a trade union point. I shall take advice on the matter; legal aid and the income of lawyers is not a subject on which I have detailed information. The hon. Gentleman made a serious point and I shall respond to it.

I can confirm, for the avoidance of doubt, that legal aid will be available in respect of anti-social behaviour orders and the sex offenders orders which we shall debate in due course, by an extension of the ABWOR scheme.

I shall deal now with the individual points raised by hon. Members. First, in respect of juveniles, I must make it clear that they are not the main targets of these orders. Their use against juveniles, especially those at the younger end of the age range, would be exceptional. They may be used because the juvenile is one of several members of a family involved in a pattern of behaviour, which, as I mentioned earlier, may be followed by young members of a family, perhaps even with the encouragement of the parents. The issuing of an order in respect of a juvenile would be entirely appropriate in those circumstances. An order would not be issued in isolation, but as part of an attempt to tackle the general problem.

Mr. Clappison: I am interested in what the Minister has just said; I think that this is the first time we have heard about juveniles in that context. For clarification, will he define juveniles? Do we take it that the term covers young people up to the age of 17?

Mr. Michael: Yes, I believe that that is correct, but I shall take advice. My general point is that the younger the individuals, the less likely they are to be the number one target of an order or a group of orders. I have already made it clear that the order is not being introduced primarily to deal with juvenile offending or youth justice, or to prevent offending by young people. That might be its consequence in some cases, but it is not its main target.

Mr. Clappison: I appreciate that, but the Minister used the word "exceptional". Was he saying that he thought the order would be applied for in respect of someone aged 17 or under only in exceptional cases?

Mr. Michael: I think that the provision can apply to 17-year-olds, so we are talking about people under the age of 18.

Mr. Clappison: Seventeen or under?

Mr. Michael: Well, 17 or under is under 18. If we get the language right as well as the law, we will be doing well.

To answer the hon. Gentleman's question, I believe that it would be unusual; juveniles are not the main target of the order. I have already given examples of situations largely undertaken or led by adults that have led to the introduction of the order. There may be circumstances in which the order would be appropriate for a young person or a group of young people acting together, consistently, over a period. We do not rule out that possibility because it is sensible to leave the matter, together with the test of seriousness, for the common-sense decision making of the police, the local authority and the court. I merely repeat that the order has not been introduced primarily to target young people, and we will make that clear in the guidance.

Where juveniles are concerned, the welfare provisions in the Children and Young Persons Act 1933 will apply. The juvenile would need to be at least 10 when the order was applied for. We consider it almost inconceivable that an order would be sought and granted where the behaviour pre-dated an individual's 10th birthday and had not continued beyond it. Any subsequent proceedings for a breach of an order would be thrown into question if the order was based, prior to the breach itself, on behaviour that took place before the age of criminal responsibility had been reached.

Mr. Clappison: I shall try to help the Minister the age of 10 is specified in clause 2.

Mr. Michael: That is right, but there was a query about circumstances in which the behaviour complained of had started before the age of 10. I was trying to deal specifically with the hon. Gentleman's comments in our previous sitting. I regard the issue as fairly academic and unlikely ever to be a matter of discussion, but I hope that my remarks will further assist the hon. Gentleman by insulating against any such danger. [Mr. Michael]

We think it unlikely that an order would be sought against a child unless his behaviour was part of the behaviour of a wider or older group. It is important to bear in mind the fact that the Bill contains other measures that would be more appropriate, more useful and more effective when a juvenile alone is under consideration. We shall debate those provisions when we deal with the reforms of youth justice and the different orders that are available to the courts.

In respect of the definition of households, I was asked about a multiple dwelling such as a block of flats. We do not think that that is a problem. "Household" is a common term and commonly understood. Whatever the technical interpretations in other contexts, I cannot believe that it will be misunderstood in terms of these common-sense orders. A separate flat or bedsit is clearly a household in its own right. I hope that that answers the hon. Gentleman's point.

It is a basic tenet of these provsions that the behaviour need not be intentional. What is relevant is the effect on the victims. Much anti-social behaviour can be thoughtless or heedless but can nevertheless destroy its victims. In a way, that is also relevant to the question of whether the definition includes sub-criminal or non-criminal as well as criminal activity. For example, if an individual who is habitally drunk or on drugs or who simply does not care can plead that his behaviour was reasonable in the circumstances, an order cannot be made. If it is not reasonable in the circumstances, it is exactly the kind of behaviour that needs to be dealt with and prevented in the future. If a breach occurs, all the criminal law safeguards are in place. Although a breach does not need to be intentional, there is provision for reasonable excuse. I hope that that deals with the question about intention.

It must be remembered that a breach is not just a repetition of the anti-social behaviour; it is also a flouting of a court order. The order is made to prevent behaviour; therefore, a breach flouts a court's decision. That is reflected in the rigorous penalties, as is not just the real evil that such behaviour causes in the community, but our absolute commitment to dealing with it. The penalties make it clear that the Government are determined to prevent and reduce behaviour that ruins people's lives, not just to punish it.

It has been suggested that anti-social behaviour is a victimless crime. That is not the case. I make it clear yet again that we are not talking strictly about a crime but about behaviour that needs to be prohibited. There will always be victims of such behaviour. Although they may not be the intended victims, but merely casualties on the way, their level of pain and anxiety is what counts. We intend to prevent that pain and anxiety.

I was asked whether the terms "anti-social behaviour" added anything to the Bill. Legally, it does not, but it is an essential label that sets out clearly and succinctly what the provision is about: preventing anti-social behaviour. Hon. Members should not be afraid of that. The fact that it is so carefully designed as to be legally superfluous might well be a comfort to them, given their reservations about the phrase being too widely drawn.

Hon. Members asked whether the definition covered intimidation. I assure them that it does. Incivility on its own, however, as in the circumstances described by hon. Members in Tuesday's sitting, would be below the required threshold of behaviour. It might, however, be relevant as part of the overall picture painted for the court when applying for an order.

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