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Lord Harris of Greenwich: Perhaps I may ask the noble and learned Lord the Lord Advocate this question. Having heard the noble and learned Lord move his amendment, I was not absolutely clear as to its full significance. I am sure that he will put me right if I have got wrong what he said. As I understand it, the police will have a duty to consult the local authority in the circumstances which he envisaged. But as we also know, chief officers have an operational independence. What happens if there is a disagreement between the police and the local authority? I should be grateful if the noble and learned Lord could help me on that.
Lord Hardie: Perhaps I may deal with the noble Lord's point. If the government amendments are accepted, the police would apply for the orders. Clearly they would consult with, and take into account the views of, the local authority. But at the end of the day, by opting for the police as the appropriate authority to make the order the ultimate decision would be for the police.
The alternative set of amendments removes the power of the police to apply for sex offender orders and replaces it with the power for the local authority or procurator fiscal to do so. I think that everyone is agreed that only one authority should apply, to save the matter falling between two stools, and the appropriate order not being sought by anyone.
As I have already indicated, we consider it right that the police should apply for those orders. They can be made only against someone with a previous conviction, and their intention is to prevent future criminal
We would therefore not wish local authorities to have any power to make such applications. As regards the procurator fiscal, the orders are civil and it would be inappropriate for the procurator fiscal to apply to the civil court for them.
Amendment No. 74A would remove the requirement for local authorities to consult the police before applying for antisocial behaviour orders. The whole thrust of our approach is one of consultation. Accordingly, we do not think that the amendment would be appropriate. It is clearly important that the police should have the opportunity to draw any relevant information to the attention of the local authority before an application is made. In particular it would be helpful for the police to be able to indicate whether a prosecution for the same behaviour was likely.
However, we would not wish the sheriff to be required by statute to reject an application for an order if consultation had not taken place, as Amendment No. 81A proposes. Rather, it should be for the sheriff to determine whether the application should proceed taking all the circumstances into account.
Once the order is made, it should be considered valid. We would not wish the procurator fiscal to have to look behind the face of the order into the circumstances surrounding the application before deciding whether or not to prosecute for breach.
It is quite right that concerns about the disclosure of information should be raised by Amendment No. 77. As the noble and learned Lord, Lord Mackay of Drumadoon, said, this problem would not arise in relation to sex offender orders if the government amendment were allowed. But I appreciate that it may have some relevance in relation to antisocial behaviour orders.
Concern has been expressed that existing statutory and common law powers may not be sufficient to allow the sharing of information between local authorities and the police which will be necessary for the proper consideration of an application for an antisocial behaviour order. The common law duty of confidence and restrictions arising from the data protection legislation is also relevant.
There are limited exceptions from the data protection principles, for example where the disclosure is necessary for the prevention and detection of crime. And breaches of the common law duty of confidence can be defended if they are in the public interest. This is a very difficult area. We are considering as a matter of urgency whether the constraints on what the police--and indeed local authorities--may disclose will cause difficulties in relation to applications for orders and whether express provision to allow disclosure needs to be made. Should it be necessary, we will bring forward an amendment.
Before inviting noble Lords to withdraw their amendment in favour of the government amendment, I should say that I do not have any concern about any breakdown in the relationship between the police and the procurator fiscal should this power be given to the police. The overall concern of both the Crown and the police in such matters is the protection of the public. These orders being applied for by the police will fit in with the overall aims of both the Crown and the police. I beg to move the government amendment, and invite noble Lords to withdraw their amendment.
Lord Mackay of Drumadoon: I gave notice of my intention to oppose the Question that Clause 18 stand part of the Bill, intending to raise at this juncture a number of matters which I raised when we last met to consider the Bill on Tuesday last week. I wish to thank publicly the noble and learned Lord the Lord Advocate for having written to me dealing with some of these issues, and in particular to thank his officials for having faxed a copy of the letter to me at the end of last week. It was of great assistance in preparing for today's debate. I understand from having talked to the noble and learned Lord earlier that copies will be available in the Library, if they are not already there.
Noble Lords will recall that I raised two issues. The first was whether an antisocial behaviour order could be justified by conduct which would not found a criminal prosecution. The answer given by the noble and learned Lord in his letter was yes. Secondly, I asked whether an order could be justified by conduct which would not justify the granting of an interdict. Again, I received an answer which was effectively "yes", but which was couched in these terms:
While I am grateful for the very full and prompt letter in reply to the anxieties that I raised, I regret to say that to some extent it reinforced my concerns about this provision. What we are faced with is Parliament being invited to grant powers to the sheriff to grant a civil order against an individual who on the one hand has committed no crime, and on the other hand may not have committed any civil wrong. Such an order could be pronounced on the evidence of one witness against a civil standard of proof. Once the order is pronounced--which could be as draconian (I use the word advisedly) as preventing a person going to a certain street, to a house which he tenants or owns--the very fact of doing so lays him open to criminal prosecution.
I have some difficulty in imagining circumstances which would justify an application where no crime or civil wrong has been committed. But the noble and learned Lord's letter accepts that such could exist. It is somewhat difficult to reconcile--although I fully accept the noble and learned Lord's analysis of the clause--with the policy as explained by the noble Lord, Lord Williams, which was to deal with behaviour which
I wish to make one other point at this stage which arises out of the noble and learned Lord's previous reply dealing with the question of confidentiality. The matter will now arise only in relation to Clause 18. If this matter is to be dealt with in guidance, I respectfully suggest that it would be extremely useful to noble Lords if that guidance could be available in this place before the Bill leaves it. Otherwise, a number of the issues that we are raising--issues which are not being discounted as frivolous--may pass unscrutinised before the Bill goes to another place.
Lord Hardie: Clause 18 provides an additional mechanism for local authorities in Scotland to control antisocial behaviour in their areas through applying to the sheriff for civil orders against individuals who have behaved in an antisocial way and are considered likely to do so again. It mirrors the provisions for England and Wales in Clause 1 which have already been discussed.
There are, however, two main differences for Scotland. The first is that only local authorities will be able to make applications for such orders. The justification for the police making such applications is not sufficiently overwhelming to override the normal arrangement that the police do not apply direct to the courts in Scotland. The police will be consulted by local authorities before an application for such an order is made.
The second difference is that orders will be available against only those aged 16 or over. Antisocial behaviour by those under 16 will continue to be dealt with by the distinctive children's hearing system. As in England and Wales, local authorities will be able to apply for orders against anyone in their area, not just their own tenants. It is envisaged that it will often be possible for evidence to be given by local authority staff to avoid at least some of the difficulties of intimidation. The sheriff will be able to impose whatever prohibitions he considers necessary to protect the community from future harm.
The noble and learned Lord gave the example of someone perhaps being prohibited from going to the home that he tenanted. I accept that that might well be an order which the sheriff would impose in an appropriate case. But it would be only in an extreme case that such an order would be granted. The sheriff will impose such order as he considers necessary to protect the community from future harm.
These provisions fulfil the spirit of the recommendations in the report of the Scottish Affairs Committee on housing and antisocial behaviour published at the end of 1996. They were widely welcomed by consultees last autumn. I also emphasise that orders are not punishments; nor are they convictions. The terms of the orders have to be only those which are necessary to protect the public. Furthermore, the defender has a right of appeal.
In the course of debate on this clause reference has been made to guidance. It is hoped that guidance will be available, certainly before the Bill is enacted. I have undertaken to write to the noble and learned Lord in more detail about the matter.