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Lord Luke: My Lords, I thank the Minister for giving us such a clear and detailed explanation of the order. We are prepared to accept this order but have some concerns and questions about the safeguards that should be in place before the provisions are implemented.

As the Minister explained, the order reduces the age at which a penalty notice for disorder can be given from 16 to 10 years of age. These are currently given by police officers, community support officers and police civilians. When the Government inserted the power into the Anti-social Behaviour Act 2003, which allows them by order to reduce this age, we did not object. We
 
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did, however, express our concern that this power would be exercised by order rather than being put into primary legislation. We now find the Government using this power in what we see as considerable haste. We understand that the Association of Chief Police Officers has pressed the Government to introduce this order as soon as possible. But other bodies, for example the Law Society, have expressed reservations and we thank the Law Society for its briefing on this matter. It feels that the Government are rushing into this and that it would be better to take time not only to pilot the scheme first, but then to take proper account of the evaluation of that pilot before implementing the provisions. We agree.

When the Government introduced penalty notices for 16 and 17 year-olds last year, the noble Baroness, Lady Scotland, gave an undertaking that that system would be piloted first. That was the right approach—see Official Report, 17/09/03; col. 1035. Many feel that the Government should wait until there has been the opportunity to examine the evaluation of that scheme before introducing the order.

I understand that the Minister's colleague in another place, Hazel Blears, stated that the evaluation would shortly be placed on the Home Office website. How shortly? And why not wait until we have all had the chance to consider that evaluation before pressing ahead with the order? Will the Minister now give a commitment that the appropriate safeguards will be in place before the penalty notices for 10 to 15 year-olds are introduced?

An example of safeguards which could be implemented are guidance for the issuing of notices to be in place before the implementation of the order, proper training of those who have the power to issue notices and provisions for appeal against errors in issuing of notices. For example, what happens if the police issue the notice to the wrong child? What method of appeal is there for the child once he or she has had a chance to speak to a parent or guardian? What proof of identity does the Minister expect a child to carry to ensure that the notice is correctly issued? What training does the Minister anticipate will be appropriate?

I referred to the fact that these notices may be issued by community support officers and I am glad to hear the Minister say that there will be a delay in implementing that part of the order. These Benches have repeatedly expressed our concerns about the fact that CSOs do not have the same level of training as regular police officers. It is therefore of great concern to us that a relatively untrained individual may be required to impose fixed penalty notices on a young child. This will surely, whatever happens, require very sensitive handling.

The Minister in the other place had to be pressed very hard to answer similar questions from my colleagues there. I hope that the Minister here will oblige me by answering all of my questions in full. If she cannot do so now, will she please write to me?

Baroness Walmsley: My Lords, I trust the Minister had a pleasant and refreshing Recess. It is nice to see
 
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her in her usual place and not reshuffled to some other department. If I am somewhat hard on her in my remarks, I trust that she will accept that it is nothing personal and will perhaps put it down to the fact that I, too, have had a refreshing Recess and am coming out of my corner fighting.

This is a sad day for Parliamentary democracy because here we have an order which directly contradicts assurances given to this House by the Government in the person of the noble Baroness, Lady Scotland, in the Third Reading debate on the Anti-Social Behaviour Bill. Then she said in answer to an amendment in the name of my noble friend Lady Linklater to delete this power from the Bill:

Those were her words. And yet here we are 10 months later with an affirmative resolution to do just that, which we are impotent, by the conventions of this House, to do anything about because it is most unusual to vote against one of these orders. The common expression is that they go through on the nod. I can assure noble Lords that I am not nodding.

The House may, however, be assured that while we on these Benches strongly support appropriate and humane measures to protect communities from the nuisance of anti-social behaviour by young children and to address the causes of that behaviour, we are strongly against measures like this which treat children the same as adults without any evidence that it is either effective or in their interests to do so. We will not support this measure and call upon the Government, because that is their job, after all, to come up with more appropriate and effective measures to tackle the scourge of anti-social behaviour. They have notably failed in some areas, as many of our communities know only too well.

The Minister said in the Third Reading debate that the Government could have brought forward primary legislation in relation to young children if they thought that was merited. Well, yes, of course they could, but they did not and they still have not. Given that all the children's organisations are howling down this order as being the wrong way to tackle the problem, perhaps that is what the Government should be doing today instead of asking us all to nod through something they said they would not do. As usual they are putting a sticking plaster on the symptom instead of curing the cause of the disease. The Prime Minister promised that this Government would be tough on crime and tough on the causes of crime. Instead, as I heard Sir David Ramsbotham say in a speech this week:

We regard this order as sharp practice on the part of the Government. The Minister can be assured that it will colour the attitude of these Benches to any assurances given by the Government during the course of future Bills as they pass through this House. It will be quoted back to Ministers whenever they want us to
 
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believe that they have no intention of using a Henry VIII power imminently and without strong evidence that it should be used. Why should we believe a word that Ministers say in the face of such flagrant contradiction of their own words?

Turning to the particular power, it is worth stating the principles behind our approach to fixed penalties. We have always been sceptical about them but are prepared to support them in certain circumstances. In the case of a driver who is caught speeding or parking on a double yellow line, there is some objective evidence of the nature of the offence and who committed it. In the case of behaviour likely to cause alarm or distress, that judgment is far more subjective and should be subjected to the usual rigours of the processes of the law. And at least we can be reasonably certain that adults understand the nature of the process to which they are being subjected. We cannot be so sure in the case of a child.

For that reason, we have always insisted on seeing the evidence of the pilot schemes before we judge whether or not this is the right way to go. We offer our support when the Government can show that it works, saves police time, reduces the workload of the courts and is not against the human rights of the defendant. We believe that that is the right approach, balancing the concerns of communities with the rights of the individual under the law.

We are concerned that, in extending these powers to young children, who in most other civilised countries would be below the age of criminal responsibility, the Government are criminalising behaviour which should be a matter for the social services to deal with and not the criminal justice system. As my noble friend Lady Linklater said in the debate of 12 November last:

And, as she protested at the time,

Liberal Democrats regret the incremental extension of the criminal law into the area of juvenile behavioural problems, although they do need to be dealt with effectively and we support effective measures. We agree that parents should take responsibility for their children's actions but we do not think that this order is the best way to achieve it. We continue to support the system of reprimands and final warnings instituted by the Government's Crime and Disorder Act 1998. The rates of reoffending for those subject to these sanctions are very low—a considerable success story, for which we applaud the Government.

We also support the use of restorative justice for first-time juvenile offenders and, indeed, we warmly welcome the Government's commitment to extending the use of youth offender panels to second and third-time offenders. And of course we support the practice, which began in Liberal Democrat local authorities, of
 
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using parental control agreements to involve parents and young people in sticking to acceptable norms of behaviour.

The Minister heard us rehearse the objections of the children's organisations many times during the course of the Anti-social Behaviour Bill. But, in respect of today's order, the Law Society, to which I too am grateful for its helpful briefing, has put the arguments against very succinctly.

First, it is unclear whether children have the understanding necessary for an officer to be able to issue a penalty notice for disorder. How will a police officer or a community support officer be able to make such an assessment? Will there be special training to prevent PNDs being issued inappropriately?

Secondly, where penalty notices apply to offences where an element of mens rea is required, such as knowingly giving a false alarm to a fire brigade, the officer effectively determines whether the mental element is present. That is a difficult task, even where adults are concerned. It is doubly difficult where children are concerned and it would be left to the youth court to determine if the child were prosecuted for the offence.

Thirdly, children as young as 10 years old may not be able to recognise a community support officer or understand his role if, following the pilot scheme, the order is to be extended to community support officers. That could, in any event, lead to children refusing to provide the necessary details to the CSO to issue a fixed penalty notice and thereby committing an offence.

Fourthly, under current procedures, if detained, the child has the right to a legal representative and an appropriate adult is required to ensure that the welfare and interests of the child are respected. However, in issuing a PND outside custody, there is no independent monitoring of the due process and therefore there is more scope for abuse or the inappropriate use of this power.

Fifthly, the vast majority of children under 16 rely on their parents for financial support. The parents will have to pay the penalty, and therefore that can hardly be regarded as much of a deterrent for the child. Even the revised lower financial penalties could have a significantly adverse impact on families in terms of benefits, disproportionate to the harm caused. As I said earlier, a PND may not give a criminal record, but breaking one will.

That brings me to the sixth point. I do not know how Parliament is supposed to make an informed decision on whether to approve the extension of this scheme when the evidence is nowhere to be seen. Penalty notices for disorder have not been fully evaluated, even for adults. I would like to remind your Lordships that the only evaluation of the fixed penalty notices scheme, introduced under the Criminal Justice and Police Act 2001, which has been published, is a four-page summary of interim findings published on 15 March this year, entitled Penalty notices for disorder: early results from the pilot. It was hardly reassuring. A key finding was that in 47 per cent of cases the
 
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individual issued with a penalty notice failed to pay it within the statutory period of 21 days. Given that the pilots concluded in September last year—12 months ago—when are we going to see the results of the full evaluation? When will it be published?

The full lessons of their introduction are not yet clear and in relation to 16 and 17 year-olds the noble Baroness, Lady Scotland, gave an undertaking that the scheme would be piloted first. It is premature to extend PNDs to children aged 10 to 15 years without evaluation of their impact on older children first.

Ultimately, the Law Society, children's organisations and we on these Benches question whether PNDs are an acceptable means by which to target and to police children when the majority of offences covered by them are likely to involve juveniles. Surely the Government should be looking at more appropriate methods of addressing the problem. It strikes me as both lazy and short-sighted simply to take an adult measure introduced only eight months ago and to transfer it straight across to children in gross contravention of assurances given to the House.


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