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Baroness Scotland of Asthal: My Lords, I understand the anxiety about which the noble Lord, Lord Chan, speaks. I also understand the passion that causes the noble Earl, Lord Listowel, the noble Baroness, Lady Stern, and others to bring the issue to the fore. The plight of these very vulnerable and often damaged children is of the utmost importance. I want to make it absolutely clear that we understand that. However, we also recognise that, because of the nature and extent of their damage, many of those children are
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also damaging in the way in which they behave and in the threat that they may, from time to time, present. We have to recognise that there is a small cadre of childrenit is not all of themwho fall into that group.
As I said last night, the question is how we should respond to those children. Yesterday, I outlined the broad spectrum of interventions that noble Lords graciously agreed were helpful in ameliorating the level of dysfunction and addressing the needs of such children, which, I respectfully suggest, are perhaps greater than they have been for a very long time. The Government have invested considerable energy in ensuring that those better provisions are available.
With regard to these measures, it is important that the courts and professionals who deal with such children understand the nature of the difficulties that they face and the broad spectrum of provisions that now apply to them. So the juvenile Bench, which has the proper training, will determine which cases should or should not have disclosure of identity. Professional judges, who have the skill, training and aptitude to deal with the cases, will judge the proportionate response to make.
I understand the concern expressed, but the provisions are proportionate. They are entirely compatible with the convention to which the United Kingdom is a signatory. The noble Lord, Lord Dholakia mentioned it. Two important safeguards ensure compliance with the terms and the spirit of the convention. The court will retain discretion to make reporting restrictions where it considers that such restrictions are necessary; for example, in the best interests of the child or in the interests of justice. As the order is generally subject to publication, there is no anonymity to protect in this context. I remind the House that the issue of publicity in such cases will have been dealt with at the making of the ASBO.
The reason why we introduced the anti-social behaviour orders in the Crime and Disorder Act 1998 is well known. I remind your Lordships of a case. We believe that it is right for the community to know that an anti-social behaviour order has been granted, and in the case of Stanley v London Borough of Brent/Metropolitan Police Service in October 2004 it was accepted that ASBOs needed publicity to operate and that appropriate and proportionate publicity was compliant with the Human Rights Act 1998. Equally, we feel that it is right that it is known what happens if one is breached, so that everyone is clear about the consequences of a breach. Otherwise the community will lose confidence in the system designed to protect it. However, we are mindful of the distinct issues that surround offenders who are under 18, as I have already made clear. That is why we have issued specific guidance on publicity and highlighted the fact that specific consideration should be given to the age of the individual perpetrators and whether they are vulnerable.
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We listened carefully to the concerns raised in the House during yesterday's debate. We intend to retain the clause, but we propose to address some of those concerns as follows. I make it plain that we believe that some of those concerns are proper concerns. We shall issue guidance via our Together website and a step-by-step guide on the operation of the new clause prior to its commencement. The noble Baroness, Lady Stern, requested that yesterday in the Chamber. That guidance will make it clear that, in a breach case involving an under 18 year-old, although the presumption will initially be in favour of allowing publicity, the court must consider whether publicity was allowed when the anti-social behaviour order was initially granted. If it was not, then unless there has been a significant change in the intervening period, publicity should normally be refused. If publicity was originally allowed, it should again be allowed, unless the court directs otherwise. I hope that noble Lords will consider that a robust and proper response to a concern properly and judiciously expressed.
We shall also ensure that the guidance clearly refers to welfare and safeguarding issues, so that they are in the mind of the court when it makes its decision. We believe that that provides a way forward that addresses the needs of the community and of the young offender in a reasonable, balanced and proportionate way. I urge your Lordships to retain Clause 141.
Lord Dholakia: My Lords, I am grateful to all noble Lords who have supported the amendment. I accept and appreciate much of the Government's work on youth justice, but like the noble Baroness, Lady Stern, I still find it difficult to accept that a Bill that deals with serious crime should incorporate provisions for naming and shaming our children. That does not fit in the Bill. As the noble Earl, Lord Listowel, said, more research is vital. For that reason, it is right that we should put on record our concern. I wish to test the opinion of the House.
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