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The Deputy Speaker (Lord Dean of Harptree): My Lords, if Amendment No. 36 is agreed to, I cannot call Amendment No. 37.

Lord Hardie moved Amendment No. 36:

Page 14, line 45, leave out ("two or more persons who are not members") and insert ("one or more persons not").

The noble and learned Lord said: My Lords, we have already discussed Amendment No. 2 to the English provisions which reduced from two to one the number of people who have to be affected by antisocial behaviour before an application for an order can be made. This amendment does the same for Scotland.

In Committee I agreed--like my noble friend Lord Williams of Mostyn--that I would reconsider the case in favour of such a change. I have now done so. I recognise the strength of the arguments put at that time by the noble Earl, Lord Mar and Kellie, and by the noble and learned Lord, Lord Mackay of Drumadoon, supported by the noble Lord, Lord Renton. I beg to move.

Lord Mackay of Drumadoon: My Lords, perhaps I may say at the outset how much I welcome the change of mind by the Government in bringing forward Amendment No. 36. The noble and learned Lord the Lord Advocate had a slight dilemma as to the choice of the way forward--either Amendment No. 36 or Amendment No. 37. The latter amendment is in identical terms to one which commended itself to the noble Lord, Lord Williams of Mostyn, earlier. Amendment No. 36 is a different way of achieving the same result.

I am anxious to discover whether the noble and learned Lord the Lord Advocate intends to insist on his amendment or perhaps prefers Amendment No. 37, which obviously had certain attractions for the noble Lord, Lord Williams. I was interested in what the noble Baroness, Lady Kennedy of The Shaws, said earlier about "reflective listening" which, I venture to suggest, is not only of benefit to parents, but also of benefit to those who sit on the Government Front Bench. Therefore, while I fully support what lies behind Amendment No. 36, I would prefer Amendment No. 37, if for no other reason than to have one opportunity to agree with the noble Lord, Lord Williams.

On Question, amendment agreed to.

[Amendment No. 37 not moved.]

[Amendment No. 38 not moved.]

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The Earl of Mar and Kellie moved Amendment No. 39:

Page 15, line 3, after ("accordingly);") insert--
("( ) that, whenever possible, an attempt to resolve the situation by mediation has been tried and has failed or that the persons involved are not willing to seek resolution through mediation or other voluntary means;").

The noble Earl said: My Lords, I believe that this amendment is an improvement on the amendment which I withdrew at Committee stage. Its purpose is to establish on the face of the Bill the steps which a local authority shall take in its approach to seeking an antisocial behaviour order. The amendment includes the ideas of the noble and learned Lord the Lord Advocate from our discussion in Committee.

I acknowledge that it was promised that the issue of mediation would be included in guidance. However, I do not think that it is reasonable to leave that important stage in the process of building a case for an antisocial behaviour order to administrative guidance notes, particularly when the requirement to consult the chief constable is on the face of the Bill in Clause 20. Furthermore, there is a government amendment, Amendment No. 47, to which we have yet to come, which confirms that a local authority may proceed with other measures simultaneously while seeking an antisocial behaviour order.

Consistency demands that the main elements of the process should be given equal weight. I believe that sheriffs will find it reassuring if they are able to read a report based on an assessment of a mediation intervention or a report on why mediation cannot be attempted. Ultimately, a sheriff should have the power to reject as incomplete an application for an antisocial behaviour order without evidence of a local authority's intervention considerations. The Bill is not distorted by the amendment; it is most definitely enhanced by the clarification which it brings. I beg to move.

Lord Hardie: My Lords, as I indicated at Committee stage, I entirely agree with the principle behind this amendment that antisocial behaviour orders should be a last rather than a first resort. I also indicated that I am a firm supporter of mediation projects, including those managed by SACRO.

I remain of the view, however, that such matters as the need to consider mediation before making an application for such an order are administrative and should properly be dealt with in the guidance rather than the primary legislation itself. As I said earlier, this will be issued in draft to a wide range of bodies, including the local authorities, for full consultation. I am sure that SACRO and other similar bodies will have meaningful input into that guidance, but I do not think that it would be appropriate to impose a requirement for mediation on the face of the Bill in every case. Obviously, there will be some cases in which it will not be appropriate. On the understanding that the importance of mediation will be fully dealt with in the guidance, I ask the noble Earl to withdraw his amendment.

The Earl of Mar and Kellie: My Lords, I take the noble and learned Lord's point that this can be dealt

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with in guidance. However, I am interested in knowing the minimum amount of effort to which a local authority must go before approaching the sheriff clerk to set a date to apply for the order. Irrespective of the amendment having come from SACRO, it is important that a local authority must have tried to do something to engage with the people who are causing the nuisance rather than simply receiving evidence from neighbours who are being driven to distraction. I wonder whether the guidance will insist on a report of the intervention which the local authority has made or whether it will be sufficient for a local authority simply to report that it has had such evidence laid before it and that on one occasion one of its officers has witnessed the nuisance. Can the noble and learned Lord say something about that?

Lord Hardie: My Lords, I hope that in any complaint the local authority will first approach the offending neighbour, individual or individuals and seek to persuade them of the error of their ways and to dissuade them from the activities in which they have been indulging. One would expect that to be the first stage.

I should have thought that the guidance would lay down the principles which the local authorities should follow. As I have said, interested bodies and individuals can have an input into that. However, guidance is precisely that: it is there to guide the local authorities. It does not impose a requirement to do anything. So, I do not think that the guidance could possibly require local authorities in every case to prepare a report of what they have done. Indeed, mediation would be neither possible nor appropriate in every case. For example, if the antisocial behaviour affected an entire community and it was apparent from the history that the individuals were unlikely to be dissuaded from pursuing those activities, it would be appropriate for the local authority in an extreme case to go straight to the court rather than enter into mediation. I hope that what I have said assists the noble Earl in seeking to withdraw his amendment.

The Earl of Mar and Kellie: My Lords, I am assisted by the response of the noble and learned Lord. I remain a little frightened by the idea that a local authority may make virtually no effort to become involved. I had come here intending to test the opinion of the House. I have decided not to do so because I may wish to return to this matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

[Amendments Nos. 40 and 41 not moved.]

The Earl of Mar and Kellie moved Amendment No. 42:

Page 15, line 10, leave out ("fulfilled,") and insert ("proved beyond a reasonable doubt,").

The noble Earl said: My Lords, I beg to move Amendment No. 42. The purpose of this amendment and Amendment No. 51, which is grouped with it, is to define the standard of proof required when an antisocial

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behaviour order or sex offender order is to be made by the sheriff. I fully understand the desirability of both orders being made under the civil law. However, in view of the criminal prosecution which follows a proven breach of an order I believe that it is sensible to maintain one standard of proof rather than switch between two standards. Even so, an unbreached order will remain within the civil law. As the previous amendments stressed the need to avoid one-off incidents being the sole evidence, particularly for the making of antisocial behaviour orders, and stressed the need to concentrate on persistent misbehaviour, I do not see why the standard of proof cannot be beyond reasonable doubt. A series of reports to establish persistence (for want of a better word) should be quite sufficient to meet that standard of proof. It is a pity that no opportunity is given to cross-examine the evidence and adduce counter-evidence. I believe that that denies the citizen of an automatic opportunity to explain why his behaviour may have been reasonable. I beg to move.

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