Police and Justice Bill

My Lords, it is my turn to respond to the noble Viscount, Lord Bridgeman, on this matter. I know that my noble friend Lord Bassam took up this burden on the previous occasion, but now I have the pleasure. Perhaps I can briefly state where we are. The noble Viscount will know that my right honourable friend the then Home Secretary wrote to the Joint Committee on Human Rights on 23 May, explaining that, in the Government’s view, such a person is a public authority for such purposes. I do not believe that that response was included in the Joint Committee’s 12th report, which was published on22 May, but we have always made it plain that that was our understanding. That was our understanding in relation to the previous legislation and all of us thought that it was plain. If one looks at the expression of intent by the Government, one sees that it is there in the debates. We know that a different view, which has to be considered, has been taken; it was considered in the Johnson v Havering case, and we have to await the outcome. The importance of waiting concerns clarity. If we were to have yet another definition, which we all believe is absolutely clear—we all say that such a person should be a public authority—that would then have to be determined by a further challenge, and I respectfully suggest that we may find that we would be back to where we are now. Clause 25 provides for the making of an order by the Secretary of State to enable local authorities to operate with flexibility in making local decisions to ensure that their functions are carried out as effectively as possible. The ability to contract out all or some of their parenting contract and order-seeking functions to other bodies may assist authorities in their management of strategic and operational functions. The new section is modelled closely on similar provisions in Section 1F of the Crime and Disorder Act 1998, which was inserted by the Serious Organised Crime and Police Act 2005, under which the Secretary of State may make an order that enables a local authority to contract out its functions of applying for anti-social behaviour orders and similar matters. As noble Lords know, the Government are seeking to clarify the general meaning of ““public authority””. I have made that plain, as did my noble friend Lord Bassam. A problem has arisen when care services are contracted out by a local authority, as a particularly narrow interpretation of the scope of the Act has been adopted by the courts. As the Joint Committee on Human Rights recommended in its 2004 report on the subject and as the Government agree—I say that a second time so that everyone knows that there is no dispute about where we are—a successful intervention presents the best possibility of our resolving this issue. I expect that the functions to which this amendment relates are clearly, "““functions of a public nature””," under the Human Rights Act 1998. Therefore, the person to whom such functions have been delegated would be treated as a public authority for the purposes of the Act in discharging those functions. That is the Government’s clear intention. I say that just in case there is any future misunderstanding of how we intend it to be used. I absolutely understand why the noble Lord may consider that confirming that intention in the Bill would be wise. However, to do so could considerably confuse the legislative scheme, given the broad reach of the Human Rights Act, which does not list the functions to which it applies, specifying only that a public authority has, "““functions of a public nature””." That gives it the broadest possible reach. The effect of the amendment would be to start a list, albeit not in the Act. That would create two problems. First, it would cast doubt over other functions for which legislation does not similarly provide that they are public functions. To try to insert such references retrospectively, as the noble Viscount’s other amendment would do for anti-social behaviour orders, is not the answer. I respectfully tell the noble Lord that there would simply be too many references. Secondly, for any future function created in legislation, such a reference would need to be included, "““For the avoidance of doubt””." Thus we would create a distributed list, with all the attendant difficulties that lists in legislation create—not least that it would defeat the way in which the Human Rights Act has been drafted, to be of general application. If the meaning of ““public authority”” in Section 6 of the Human Rights Act ultimately needs legislative clarification—for instance, if the Government’s interventions in cases do not succeed—this must be done in a considered and co-ordinated manner. Therefore, although I understand the intention behind this amendment, I hope that I have made the Government’s interpretation very clear. The noble Lord, Lord Hylton, has quite rightly jumped on the passing bus to make some good points. The ABCs—anti-social behaviour contracts—are a good tool. In accordance with good practice, many practitioners will seek to engage individuals in a contract before going to anti-social behaviour orders. The risk is in the nature of the anti-social behaviour when the matter first comes up. On many occasions, if the behaviour is serious, there may be a question of going to prosecution, which might lead to a conviction, or trying an anti-social behaviour order instead. It is difficult to be prescriptive and to say that this should happen in all cases. I certainly agree with the noble Lord, Lord Hylton, however, that ABCs are extremely valuable and have played a powerful role. They are often not spoken of, but they are effective. I also agree with the noble Lord about the benefits that often accrue from restorative justice models, which are being used to some good effect. For instance, they are illustrative of the good work in the Community Justice Centre in Liverpool, which is adopting restorative measures on occasion. I agree with the noble Lord on all those points and I am glad that he has given me another opportunity to say how much there is in what he says. I hope that I have said enough to the noble Viscount, Lord Bridgeman, to invite him to withdraw his amendment with good conscience. He has ably established, as on so many other occasions, that we are in total agreement about the outcome, if not, perhaps, the method.