I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.
As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new
injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.
My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.
There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.
Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.
However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.
It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the
community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.
My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.
I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:
“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”