My Lords, I add my congratulations and welcome to my new friend on these Benches, my noble friend Lord Paddick. It is always a pleasure to follow my dear friend, the noble Baroness, Lady Kennedy of The Shaws. I am afraid that I will repeat some of what has already been said by others this evening.
This is a large and wide-ranging Bill that, like the curate’s egg, is good in parts but also raises considerable grounds for concern. I intend to confine my few remarks to the anti-social and criminal behaviour orders, in particular as they relate to young people and children. I had a quick look at the Anti-Social Behaviour Bill of 2003 and found that the same issues persisted and concerned us then as now. Indeed, I was momentarily tempted just to lift my speech from that occasion as it would have fitted now. If we really are going to make the right changes to improve the situation, we must look at what is relevant and proportionate to the needs of both victims and offenders.
There are elements in the Bill that are interesting and to be welcomed. The notion of the community remedy, where each local policing body will be required to draw up a document with a list of appropriate actions that might, in its opinion, assist in a person’s rehabilitation and make reparation as well as punish, is interesting. Its aim will be to promote public confidence and it will be carried out in consultation with appropriate community representatives and others, which is an excellent way of bringing communities together in addressing essentially local problems in a restorative and reparative way. This is a proposal to be applauded.
The plan to simplify the current range of orders also must be a good thing, particularly the use of positive requirements to make them more effective, which is always more likely to be the case than with negative ones. There are currently no less than 19 powers to deal with anti-social behaviour, of which the ASBO is but one. These are being rationalised to six, of which the injunction to prevent nuisance and annoyance, the IPNA, and the criminal behaviour order are the ones most prominently under consideration.
The roots of anti-social behaviour inevitably are established in early life. You just do not have happy, thriving, well adjusted, achieving young people from supportive families persistently out on the streets at night, causing havoc through anti-social behaviour. Instead, these are likely to be people with a complex range of significant needs. Theirs is behaviour which can be deeply unpleasant, often very unnerving, frightening and dangerous for those in whose communities it is prevalent. It is a real scourge. It also reflects social and emotional alienation, where they neither give nor get any respect, and they require an integrated response not only from the police but from a range of agencies, services and communities working together. This is in part, as I understand it, what the community remedy seems to be suggesting and it offers a very constructive way forward, particularly in its restorative implications, which I welcome.
However, the crux of the Bill revolves around the new definition of anti-social behaviour. Hitherto, it has been defined as that which is likely to cause “harassment, alarm or distress”. That is pretty clear and it has formed the basis of an order. It is now, as we have heard from several speakers, to be replaced by a new injunction, addressing instead,
“conduct capable of causing nuisance or annoyance to any person”— just “capable”. This IPNA, an injunction to prevent nuisance and annoyance, clearly has a far wider, open-ended definition, which, as the Home Affairs Select Committee has stated,
“is far too broad and could be applied even if there were no actual nuisance or annoyance whatsoever”.
The Joint committee on Human Rights states:
“We consider that ‘conduct capable of causing nuisance or annoyance to any person’ is not sufficiently precise to satisfy the requirement of legal certainty required by both human rights law and the common law. We recommend that the Bill be amended to make the test for anti-social behaviour more precise”.
That is pretty clear. The Association of Chief Police Officers and several PCCs are on record as saying that the new definition risks being “too subjective” and that it could “unnecessarily criminalise” children.
Those are observations and recommendations that the Government must take very seriously if their stated aim of taking a more constructive approach to anti-social behaviour with more positive outcomes for young people who get caught up in this way is indeed to be realised. These young people need all the guidance they can get, but the widening of the definition through an IPNA inevitably opens the door to still more children being scooped up and caught up in what could, potentially, become criminal activity created by these new designations. Difficult, vulnerable children and their families need help, but a route via injunctions and the subsequent criminalising of children is only damaging. However keen the authorities are to take positive remedial action through a range of possible positive or negative requirements, which are not clearly specified, inevitably more children will be drawn into the world of injunctions, courts and possible breach. Seven out of 10 children currently breach their injunctions, and the longer the order, the more likely breach becomes.
Imprisonment remains available as a sanction for breach by children from the age of 14 upwards, as well as adults, and indeed currently 38% of children who breach an ASBO are imprisoned. It is a given in the criminal justice world that the imprisonment of children should be reserved for the most dangerous, difficult young people committing the most serious offences. It is monstrous that they should be tagged on to these kinds of orders. The YJB is a model in this respect. It is disproportionate therefore that imprisonment should be considered at all for a child who breaches a CBO, possibly for up to two years, an IPNA, or a new dispersal order, perhaps for up to three months. The Joint Committee on Human Rights finds that this is not in accordance with the UNCRC requirements, and I sincerely hope that this is something on which the Minister can give me some assurance, as it gives cause for grave concern.
If we are to succeed in reducing and stopping this kind of problem, the measures must be relevant, appropriate and proportionate. We need safe streets and safe children. Once children have been criminalised, their future—and ours as a society—is damaged. The high breach rates and subsequent incarceration of children indicate that much needs to change if we really are to meet properly the needs of people in law-abiding communities on the one hand and this group of very difficult children on the other. I urge the Government to have a good look at this once again.