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The Earl of Mar and Kellie: Perhaps the noble and learned Lord the Lord Advocate will quickly be able to confirm that antisocial behaviour orders are designed for those people who may be verging on being described as "persistent" offenders rather than for a person who has committed just one antisocial act. What level of persistence does the noble and learned Lord see as being necessary for this scheme?

Lord Hardie: It will depend on the individual case. I agree that we are dealing with persistent cases, but one can appreciate that the nature of the conduct in one case may not require terribly much in the way of persistence whereas the nature of the conduct in another case may require it to have occurred on many occasions before it would be appropriate for the local authority to come forward.

Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for his response. This is a technical area, so I shall consider the matter further with the Law Society of Scotland which suggested Amendments Nos. 44 and 45 which stand in my name. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 45 not moved.]

The Earl of Mar and Kellie moved Amendment No. 46:

Page 14, line 37, leave out from ("to") to ("of") and insert ("one person who is not a member").

The noble Earl said: This amendment seeks to deal with the situation where only one person is harassed by another. The Committee heard examples of such cases and reasons why such a provision might be included in the legislation when we discussed the English and Welsh provisions. Perhaps I may give the Committee just one scenario--not from Clackmannan but from Alloa. An occupier of a lower flat may find that the occupier of the upper flat crashes around in the middle of the night. The neighbour below--a single occupier; and that is the key point--may be frequently woken by such obscure activity. No one else may be affected by that antisocial behaviour, yet it is totally unfair on the person living below. Why does the Bill not recognise that situation?

I believe that the solution--an antisocial behaviour order forbidding the unacceptable behaviour--could be effective in ending misery unfairly inflicted on a

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neighbour below. Clearly, the amendment seeks to reduce the number of people who are required to complain from two to one. I beg to move.

The Deputy Chairman of Committees (Lord Ampthill): I should remind the Committee that if this amendment is agreed to, I cannot call Amendment No. 47.

Lord Mackay of Drumadoon: Amendments Nos. 47, 48 and 59 are grouped with this amendment, so I propose to speak to them all now in addition to that moved by the noble Earl, Lord Mar and Kellie. When I was last in Alloa it was in Clackmannan, but I defer to the greater experience in these matters of the noble and learned Lord the Lord Advocate, although I should be interested to hear whether there has been any recent change of government policy in that regard.

As to Amendment No. 47, I look for an undertaking similar to that given by the noble Lord, Lord Williams of Mostyn, when Amendment No. 5 was debated last time. It was an undertaking of a very qualified nature but it was nevertheless an undertaking. I very much hope that the noble and learned Lord the Lord Advocate will agree that this issue should be looked at, if for no other reason than that if these orders are to be introduced it is essential that they are perceived by members of the public to be fair. If one individual who has been severely harassed by a group of teenagers is advised by a local authority that nothing can be done about it because it is he and he alone who has been harassed, whereas action can be taken in respect of a couple in another street who have been harassed by another group of teenagers, that will be perceived as unfair. I hope that the matter can be looked at again.

I should like to make brief reference to Amendment No. 48 which is also in this group. This amendment is quite straightforward. It has been my experience in practising criminal law over the years that quite often when individuals are the victims of anti-social behaviour that behaviour is directed at more than one member of the family. From time to time, because of the geographical accident of where the divisions between local authority boundaries lie, it is possible that some of the harassment takes place in one area and some in another. I believe that it would be perceived as unfair if action was taken about harassment against two people in one area but not if it took place in different areas.

Finally, I should like to refer to Amendment No. 59 which seeks to tighten up the provisions of Clause 18(1)(a)(ii) so that when there is such a course of conduct there is a limit to the period on which the application can be based.

Lord Renton: If a rusty old member of the English Bar who is more Scottish than anything else may dare to intervene in this debate, I support what my noble and learned friend Lord Mackay of Drumadoon has said about Amendment No. 47. I am sure that the noble Earl, Lord Mar and Kellie, will agree that that amendment is simply an alternative to his. I believe that from a drafting point of view Amendment No. 47 is a better one.

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Amendment No. 48, which has been tabled by my noble friends, seeks to leave out from page 14, line 38, the words "the authority's area" and insert "Scotland". It must be borne in mind that some of the local authority areas are very small, especially those in the centre of Scotland and in the Borders. Realistically, I believe that it would be better to have a much larger area, and I do not think that Scotland is too large. If one bears in mind that in Carlisle and Berwick-Upon-Tweed people are so close to each other north and south of the Border one must consider whether one should even confine it to Scotland. I am not certain that the words "confined to an authority's area" are at all necessary in the Bill, especially in relation to Scotland. As to Berwick-Upon-Tweed, if one looks in the telephone book one will find about 20 Rentons--I believe that is more than one will find in any other telephone book in the United Kingdom. They live both north and south of the Border. I mention that only as a practical detail to illustrate the effect that this clause is likely to have.

4.45 p.m.

Lord Hardie: Amendments Nos. 46 and 47 would enable a local authority to apply for an order where the behaviour in question was directed against one individual. Where such behaviour is personally directed the individual victim can already seek a non-harassment order from the civil court; and where the behaviour is part of a crime an order can be granted as part of the criminal proceedings. Where only one individual is involved as a victim, and given that a mechanism for that individual to tackle the harassment is already available, it would not be appropriate for the local authority to apply for an antisocial behaviour order on behalf of the whole community.

There appears to be some difficulty about the wording of Amendment No. 47 which, taken at face value, would mean that the local authority could apply for an antisocial behaviour order only where one victim, and one victim alone, was involved. I am sure that that was not the intention of the noble Earl. As noble Lords will recall, and as the noble and learned Lord, Lord Mackay of Drumadoon, has reminded the Committee, my noble friend Lord Williams of Mostyn undertook to consider this matter again before the next stage of the Bill. We will do the same as far as concerns the Scottish provisions. As my noble friend Lord Williams indicated, it is unlikely that our views will change. I do not want to hold out false hope in your Lordships' hearts.

Amendment No. 48 would allow a local authority to apply for an antisocial behaviour order to protect persons living in its area from future harm even when the antisocial behaviour that had caused concern took place outside that area. This would not be appropriate. Antisocial behaviour orders are intended to address local situations and to impose prohibitions relevant to those situations. I have listened with care to what the noble Lord, Lord Renton, has said about the geographical areas of Scotland. In my view, it would be wrong to allow a local authority to apply for an order on a pre-emptive basis on the argument that the person was alleged to have behaved badly elsewhere. In a country

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like Scotland the consequence of that amendment would be that, if someone behaved in such a way that he was considered to be antisocial and then moved from one local authority to another and reformed, he would never get away from the fact that he had committed a misdemeanour in another part of Scotland. It is important that we give people the opportunity to mend their ways.

It should be noted that the terms of Clause 18 would allow a local authority to apply for an order against someone resident outwith its area if the antisocial behaviour causing concern affected people within that local authority's area. Amendment No. 59 would add to the definition of course of conduct that the two occasions on which the conduct took place must have occurred no more than six months apart. The definition in subsection (6) is identical to that used in the Protection from Harassment Act 1997 and is well precedented. To narrow the definition of course of conduct by introducing an arbitrary time frame would not be appropriate. I would certainly not want to fetter the discretion of the sheriff in this way.

To answer the question posed by the noble Earl, Lord Mar and Kellie, in response to the previous amendment, much will depend on the nature of the conduct. Even in the case of conduct of a severe nature which was separated by a period longer than six months, it would be appropriate for the local authority to apply for such an order. I ask the noble Earl to withdraw his amendment.

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