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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
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:
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.
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,
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
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.
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