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Lord Hardie: Amendment No. 89 is intended to allow orders to be suspended while appeals are being considered. That would not be appropriate. Given the nature of the behaviour that these orders are intended to prevent and given the risk to the public that they are intended to reduce, it is important that they should be effective immediately and should remain effective until revoked. These orders are prohibitive only and do not impose any requirements on those against whom they are made. There is no need for them to be suspended while appeals are heard and there might be considerable risk to the public in doing so.
Amendment No. 92 seeks to provide that the first line of appeal should be to the sheriff principal. While I can understand and sympathise with the sentiment behind the amendment in encouraging people to seek a remedy at the local level, it is already open to anyone to have first recourse to the sheriff principal in summary proceedings in Scotland unless there is any statutory prohibition against that. Accordingly, it is not necessary to have any specific provision for this on the face of the Bill.
The English provisions to which the noble and learned Lord referred are intended to deal with what happens once the appeal has been determined. The power in Clause 4 would not enable the order to be suspended while the appeal is being heard. Accordingly, there does not appear to be any inconsistency between the Scottish and the English provisions. Therefore, I invite the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: On the first point, I remain concerned that in a few cases there may be a possible injustice. However, it would not be appropriate to divide the Committee on that issue at this juncture. With regard to the noble and learned Lord's response to Amendment No. 92, having raised the issue, I am fully content with the reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Mackay of Drumadoon moved Amendment No. 91:
The noble and learned Lord said: This again is a short matter which might be dealt with by guidance, but I believe that it would be better for it to be on the face of the Bill. There is one aspect of protecting the public--that every local authority should maintain a register containing details of those against whom orders are pronounced, the dates of the orders and their terms. I cannot see any objection to that proposal. If one of the policies which lies behind these provisions is to get the message across to certain members of society that its law-abiding members will not tolerate their behaviour, it is sensible that a register be maintained and open for public access. I beg to move.
The Earl of Mar and Kellie: I support this amendment. In view of the fact that we are introducing a new concept of neighbourhood supervision, the requirements in the amendment would go some way towards making certain that members of the public know exactly who is to be supervised by the neighbourhood.
Lord Hardie: We do not believe that a local authority-maintained register would serve any useful purpose. Indeed, it could be viewed as a contravention of the European Convention on Human Rights. In the case of antisocial behaviour orders, those who have been affected by the behaviour will already be aware of the details. The guidance on implementation, which will be available in draft, is likely to advise local authorities to inform such people that an order has been made and of its terms. There will also be arrangements to ensure that the police are aware of such orders. We do not consider that anything further is required.
Those subject to sex offender orders will be required to register their name and address with the police, who will record the details in their own computers. It will be a matter for the police to decide to whom this information should be further disclosed in the interests of public safety.
I understand that revised guidance on the sex offenders Act which will cover risk assessment and disclosure for all sex offenders about whom there are concerns will be issued for consultation shortly. We do
The Earl of Mar and Kellie: Perhaps I may ask one further question. Will there be a prohibition on publication of the making of such an order in local newspapers?
Lord Hardie: I would not think so because the proceedings in the civil court would be in public.
Lord Mackay of Drumadoon: I fully accept that that answer is a valid response to the point raised by the noble Earl, but perhaps I may probe slightly further. What is the alleged breach of the ECHR that the existence of a register would give rise to? If the purpose of this power is to allow a local authority to take an adult individual to court in open forum and lead evidence there that he or she has behaved in an antisocial manner, and the sheriff then makes an order designed to protect the general public which the local reporter can publish in the Clackmannan Gazette or other local journal, which article of the convention which is part of the schedule to the Human Rights Bill would be infringed in any way? If a register is maintained in the local library, when people read the Clackmannan Gazette or whatever, they can also look at the register to see whether the Graham family, for example, are the subject of antisocial behaviour orders. I appreciate that the question is of a slightly technical nature. I shall be quite content if the noble and learned Lord writes to me about the issue. But as he has raised an ECHR objection to what I would have thought was quite reasonable publicity to orders obtained in the public interest, I believe that the Committee would benefit from having an explanation of what lies behind the comments he made.
Lord Hardie: I shall take up the noble and learned Lord's invitation and write to him in detail. I believe the concern is that having details entered in a register and having it available for inspection by the public is different in kind from having a chance report of proceedings in a newspaper. I accept that in a small community such as Alloa such a report would never be forgotten, but in other communities with larger populations it may go unnoticed or even unreported.
If the idea is to bring home to people that their behaviour is unacceptable, I am concerned that they should be given an opportunity to reform. However, if there is a register and people have ready access to it, we may run the risk of a reaction from the public against the individual or the family which may be counterproductive. That would certainly apply as regards sex offender orders. Sadly, we are all aware of instances where sex offenders have been hounded out of areas by members of the public. That would simply increase the risk.
As regards the ECHR, I shall write to the noble and learned Lord in more detail. I believe that one has the right to live unmolested. The important thing is that this
Lord Mackay of Drumadoon: I hear what the noble and learned Lord says in response to my further question and I am grateful to him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 92 to 94 not moved.]
Clause 20, as amended, agreed to.
Clause 21 [Offences in connection with breach of orders]:
Lord Mackay of Drumadoon moved Amendment No. 95:
The noble and learned Lord said: This amendment and Amendment No. 96 are probing amendments which invite the noble and learned Lord to explain Clause 21(7). There is the substitution of the words,
for the words "which constitutes" in subsection (2). I have read the subsection on numerous occasions. The fault may be entirely mine, but I do not see its purpose, bearing in mind that a breach of both an antisocial behaviour order and a sex offender order could be carried out by conduct, on the one hand, which constitutes the commission of a separate offence or, on the other, which constitutes no such offence. In those circumstances why is it necessary to have subsection (7)? It will come as no surprise to the noble and learned Lord that I am entirely content with Amendment No. 97. I beg to move.
Page 17, line 13, at end insert--
("(10A) Every local authority shall maintain a register containing details of--
(a) the names, ages and addresses of persons resident in the authority's area against whom anti-social orders, sex offender orders and orders under section 18(3A) above have been made and remain in effect,
(b) the dates of any such orders, and
(c) the terms of any such orders.
(10B) A register maintained by a local authority under subsection (10A) above shall be open to public inspection, without charges at such places and at such times as seem appropriate to the local authority to ensure that members of the public have ready access to information that requires to be included in the register.").
Page 18, line 10, leave out ("Subject to subsection (7) below,").
"at the time at which he committed",
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