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Lord Dholakia: It is always a delight to support the noble Baroness, Lady Stern. The noble Baroness is absolutely right: the proposal is contrary to our obligations under the United Nations Convention on the Rights of the Child. It will seriously impair the welfare of children and their opportunities for rehabilitation. That is the point I made in my speech at Second Reading. We are also concerned that it will not deter many children from anti-social acts as many will enjoy the notoriety, while for others their anti-social behaviour is a manifestation of mental health or other difficulties which cannot be solved in this way.
We are strongly opposed to the proposal in this clause to reverse the presumption withholding from the public the identity of a child accused of breaching an ASBO. The current legislative presumption that a child subject to criminal proceedings should not be identified enshrines the principle set out in Article 40 of the UN Convention on the Rights of the Child. It provides that:
"State parties recognize that the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society".
"State parties shall ensure that children alleged as or accused of having infringed the penal law shall have the guarantee that their privacy will be fully respected at all stages of the proceedings".
This provision therefore infringes the United Kingdom's obligations under international law. Publication of a conviction for breaching an ASBO can be seen as more prejudicial to a child than the publication of an ordinary conviction since it indicates that they are regarded as a menace to their society. Local media cover ASBO proceedings. We believe that this provision will seriously impair the welfare of children and their opportunities for rehabilitation.
We have looked seriously at the issues surrounding naming and shaming which we consider to be counterproductive. In some cases, public identification and publicity can glorify bad behaviour and act as a badge of honour. Anecdotal reports from projects show that young people who have had their ASBO publicised have been stigmatised within the community. This impedes community relations and the young person's future job prospects. It can also impact on the whole family, including younger siblings. Equally, for those who do want to make a fresh start, for whom being caught and reprimanded has had an effect, the impact of negative publicity about them can only prolong their problems in engaging with their community more positively. People who may never have even known or met them will know them only as troublemakers.
"I had to move out of one area to another because of the ASBO conditions. The leaflets stated where we had moved to. This didn't seem fair as the ASBO was given in a different area and we had moved for a fresh start".
Recent figures from the Youth Justice Board show that breaches of ASBOs are resulting in a rise in those young people being sent to custody. Ten young people who have breached an ASBO are sentenced to custody every week. Children and young people are effectively being set up to fail in meeting the ASBO conditions imposed on them. When they do fail, the system finds them guilty of a criminal offence. Clause 138 then suggests that everyone needs to know about the failurebut to what end?
Baroness Anelay of St Johns: Although I am not in a position at this late stage in the Bill to be able to offer support to the noble Baroness, Lady Stern, if she wishes to excise this clause from the Bill, I have a great regard for what she said. She has the disconcerting habit of speaking good sense all the time. It is quite off-putting.
I certainly agree that there are great concerns about the clause. The noble Earl, Lord Listowel, was right to point out that this matter was not debated in another place. More than 40 per cent of the clauses were not debated. Some were merely repetitive and so it was not a matter of concern, but this area would have benefited from proper scrutiny.
Like the noble Lord, Lord Dholakia, I have been a magistrate and I have chaired youth courts. I am aware of the need for sensitivity in sentencing young people and in dealing with any breaches of those sentences. I was brought up on the meat and drink of the fact that one did not publicise the young people involved in any proceedings in whatever capacity.
I looked cautiously at the provisions when they came before us. I am much intrigued by the quote of the noble Earl, Lord Listowel, from the report of the Select Committee in another place. I have not seen that report. Obviously I will now have to read it properly. It is true that it is too late, but I will read it.
The noble Earl indicated that when the Minister in another place, Hazel Blears, gave evidence, she said that there would have to be good reasons for having no publicity. That concerns me because the Explanatory Notes give an assurance that the court will retain discretion to apply reporting restrictions. Furthermore, on page 100, line 9, the drafting of proposed new subsection (10E) requires that the court,
So we seem to be leaping from complete anonymity to reversing the burden of whether or not there should be publication. There is the assurance, "Do not worry, the court has discretion and it does not have to publicise", but suddenly, according to the Minister in another place, that discretion can be exercised only for good reasons.
That then begs the question of what happens if a court determines that it is a good reason that young people shall not have their names published at all. Does that exercise of its discretion become an abuse of the discretion because one may not have a rule about how one exercises discretion? I remember many an old argument on that matter.
Difficulties could arise out of this because who will catch the courts at it? Who will report on how often each court exercises its discretion? Who will judge whether the reasons given by a court are good reasons? Will it be the role of the CPS? Will it then take actionand, if so, what actionas a result? These are genuine concerns and it is disappointing that we are in a situation where it is so late that it is unrealistic for those concerns properly to be addressed.
I also find it somewhat uncomfortable that we are penalising young persons by publishing their details, almost as a matter of right, when the Bill gives extensive protection and anonymityand rightly soto adults involved in very serious crime who are turning Queen's evidence and giving assistance. That is an inconsistency in our approach to dealing with criminals.
Baroness Scotland of Asthal: Members of the Committee will know that how we deal with young people is an area of law in which I take an acute personal interest. It is important to see these provisions in the context of all the others that inure to the benefit of children in terms of their protection. I refer to Sure Start projects, diversion projects and the work done by DCMS, the Department for Education and Skills and the Home Office. I refer also to the holistic approach
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encouraged by all parties and partners that work with and for children when it comes to drug intervention, substance misuse, parenting orders, local criminal justice boards, national criminal justice boards, crime and disorder reduction partnerships and the Youth Justice Board. All those concentrate on the support, diversion, rehabilitation and reorientation of children who are disadvantaged by living in dysfunctional homes or failing to meet developmental, educational and other milestones. That work is of the utmost importance.
So, too, is dealing with anti-social and disruptive behaviour which is outwith the norm that the ordinary citizen, the ordinary community, should reasonably be expected to tolerate. I know that the noble Baroness, Lady Stern, feels the force of that, as do others, including the charities which have to deal with children in this framework. We are very much in the same place in this respect.
I want to reassure the noble Baroness, Lady Anelay, about discretion. The important thing is that we have all put a huge amount of effort into trying to make sure that those professionals, including the lay and professional judiciary, who are entrusted with the care and determination of these issues in relation to children have the appropriate level of training, expertise and commitment to this area so that they well understand the balance that has to be struck. We commend the amount of work that has been put in by the Judicial Studies Board in the training that it is to undertake with not only the professional judiciary but the lay magistracy.
The exercise of the discretion by the court remains. If the court feels that there are proper reasons that publicity should not be given, then such a course of action is at the court's instigation. That duty, which is also a burden, is not being taken away from the judge. The noble Baroness, Lady Anelay, asks how we would monitor that. Each case turns on its facts; the noble Baroness will know from having sat as a magistrate that no two cases are identical. Where the court is entrusted with the exercise of discretion, it will have to say why it came to that view. We would expect all members of the judiciary, whether lay or professional, not to behave precipitously, irrationally or irregularly but to behave properly and give good reasons for the determinations they make. That is a safeguard in relation to how these matters will be dealt with.
Currently a juvenile can breach an ASBO and that breach cannot be made known to the local community. That is because Sections 39 and 49 of the Children and Young Persons Act 1933 provide that a juvenile identity cannot be revealed in criminal proceedings. That would apply to the breach of an ASBO because it is a criminal offence. To allow such a position to continue would undermine the effectiveness of ASBOs and communities are entitled to know that if an ASBO is breached action will be taken. That can only be achieved if reporting of the offence is allowed. It is interesting that under these provisions the making of an ASBO could be publicised but the breach could not be. That would be a curious situation.
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I understand what the noble Baroness, Lady Stern, says about wearing these issues like a badge of honour. However, a great deal of concentrated timewhich is not often talked abouthas been put into behavioural contracts. On many occasions, behavioural contracts are much more effective for the sort of child who is at the very low end of offending behaviour. Also, although those contracts do not get publicity, I can assure noble LordsI do not have the specific figures, but I am happy to write to the noble Baronessthat there are very many more behavioural contracts than anti-social behaviour orders.
We must acceptand this is an uncomfortable thing to acceptthat there is a small cadre of children to whom these provisions will apply, but the court will have the ability to differentiate between those children who will continue to need the sort of protection that does not allow them to have a badge of honour and those to whom these provisions should properly be applied.
The noble Earl, Lord Listowel, rightly raised the issue of what further work should be done in relation to ensuring that these provisions are working well. The noble Earl will be aware that the joint Home Office, ACPO and Youth Justice Board guidance on anti-social behaviour orders and youth justice, which was published on 31 March, contains a reference to the need for all publicity of an anti-social behaviour order issued against a young person to be considered carefullyit should be both necessary and proportionate. Having said that, the Government are convinced that publicity of an ASBO breach is a highly effective tool that should be available to the courts for all ASBO cases, including breaches by under 18 year-olds.
Regrettably, on many occasions, these children are very well known to residents where they live because the nature of the behaviour that they undertake has made them well known. It is important for there not to be rumour about these children about where they are supposed to be and what they are not supposed to be doing. The rumour and tittle-tattle that can go on in relation to these matters can be just as damagingif not more sothan knowing precisely what parameters the court has set, to give people certainty. Of course, these issues must be dealt with in a proportionate and balanced way.
I understand that there is a limited amount of time to respond to noble Lords on this issue tonight. I had the advantage of speaking to the noble Earl, Lord Listowel, today at the open meeting that we held in relation to this Bill. I am sorry that many more people did not attend, but I would be very happy to write a more detailed response about what we are doing to support children, how we anticipate the partnership working and what sort of support there will bethere are intensive supervision programmes that can go hand in glove with an anti-social behaviour order. Orders can target not only behaviour but identify the help that children need to overcome some of these difficulties. I would be very happy to write in a more co-ordinated way to noble Lords in relation to this matter. I hope that I will be able to do so before we
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meet tomorrow, but that noble Lords will forgive me if I cannot quite manage it. I will do my very best. I invite noble Lords not to press this amendment.
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