My Lords, this again has been a good debate on an important issue. Though it is a small part, it is an important part of these provisions. I thank the right reverend Prelate the Bishop of Ripon and Leeds for presenting these amendments for our discussion.
As the House will know, the Government do indeed believe that there is a need for reporting restrictions in respect of under-18s in certain cases, where it is both necessary and proportionate to allow for effective enforcement of an injunction or criminal behaviour order. This will enable communities to play their part in ensuring that the injunction and criminal behaviour order are effective in tackling anti-social behaviour by alerting the police if the respondent or offender breaches their conditions. Publicising the injunction and the order in certain cases will provide reassurance and increase public confidence in agencies’ willingness and in their ability to take action against perpetrators of anti-social behaviour. Potential perpetrators will be
deterred from committing anti-social behaviour due to reporting. So while I understand the sentiment behind these amendments, I believe that there is a strong case for maintaining the default position under Clauses 17, 22 and 29. This mirrors the current position for anti-social behaviour orders.
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However, all 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. That is why, as we clarified in Committee, Section 39 of the Children and Young Persons Act 1933 gives the court the discretion to prohibit publication of the injunction or order. The courts are very well used to making such 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 consultation with the local youth offending team will play an important role here. In this and other respects, the Bill has made changes that enhance safeguards in respect of the rights of young people, ensuring that they are always properly considered. The Bill provides that the youth offending team must be consulted before an application may be made for an injunction or a criminal behaviour order. The team will give valuable insight into the effect reporting would have on a young person, and allow more carefully informed decision-making by the applicants and courts on this issue.
I thank the noble and learned Lord, Lord Hope of Craighead, for his contribution to this debate. We are retaining the position as it applies to ASBOs as introduced by the previous Government. We would not expect any change of practice or frequency, as the relevant legislation was passed in 2005. We are not looking for any increase or decrease in the incidence of reporting. This is a matter for practitioners on the one hand and for the courts on the other. Perhaps I can reinforce the role of the youth courts. It is worth pointing out that once these powers are in place all applications for injunctions will be heard in the youth courts, which is not currently the situation for ASBOs. The youth courts are best placed for making such decisions and so this will ensure that the right outcomes on reporting, for the offender and the community, are achieved.
On this last point, during its pre-legislative scrutiny the Home Affairs Select Committee said,
“we are happy to leave the decision not to name a young person to the discretion of the judge”.
We agree that this is appropriately a matter of judicial discretion. I hope my noble friend Lady Hamwee also accepts that point. There is a wealth of case law on this issue which has upheld the legislation that allows for the publicising of ASBOs made against under-18s. The case law makes it clear that the reporting is sometimes necessary and gives guidance on the factors that should be considered. It demonstrates that the discretion given to courts can be exercised reasonably, proportionately and in a way which respects a young person’s human rights. I can help the noble Lord, Lord Rosser, on this. Our draft guidance makes clear that local agencies must consider that it is necessary
and proportionate to interfere with the young person’s right to privacy, and take account of whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts. There is a paragraph in the draft guidance on page 26. I do not propose to read it out but I hope that noble Lords will study it and find it satisfactory.
The right reverend Prelate the Bishop of Ripon and Leeds asked whether we would give guidance to the courts. The noble Lord, Lord Rosser, said that of course the Government will not give guidance to the courts. I am sure that the noble and learned Lord, Lord Hope of Craighead, would be happy that the Government are not seeking to give guidance to the courts. However we can and will give guidance to the police, to councils and to other practitioners on this issue. It is for the senior judiciary to give guidance to magistrates in the youth courts. However, I undertake to draw the attention of the Lord Chief Justice to this debate and to the concerns that have been raised in it by noble Lords. I will also work with the Judicial College on training for magistrates.
I will not go through the relationship of this debate with debates on ASBOs but I remind noble Lords that we must take into account the impact of lifting reporting restrictions on the young person. The youth court is well qualified to do that but we need to balance it against the needs of victims and the communities in which they live. For this reason, I am confident that the reporting of under-18s will be carefully considered, with all relevant factors weighed in deciding whether it is necessary to publicise an order against a young person. I therefore hope that the right reverend Prelate will feel reassured by the comments that I have been able to make and withdraw his amendment.