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The Earl of Mar and Kellie: I should like briefly to add the same type of start to this discussion on antisocial behaviour orders in Scotland. I have four brief points to make. The first is that I believe an antisocial behaviour
Secondly, as a former criminal justice social worker, I approve of these forward-looking orders because they attempt to control future behaviour or ask the person who is the subject of such an order to control his behaviour in the future. That is a dramatic improvement on the effect of, say, a charge of breach of the peace which looks back at past behaviour.
Thirdly, if I was unhappy about these orders being unsupervised in England and Wales, I am unhappy about them being unsupervised in Scotland. Normally speaking, when an order is made the person who is the subject of that order goes to the social work department where it is explained to him. The probation order, the community service order, or whatever it is, is discussed and the social workers ensure that the person fully understands what is required of him. After all, there are distinct consequences involved. I wonder how that will happen. The noble and learned Lord, Lord Mackay of Drumadoon, asked whether the provision would be the responsibility of social services, housing departments or environmental health departments. Those are valid questions.
My fourth and final point is that this is a new task for local authorities and they already have many tasks imposed on them. They will be required to re-organise their schedules because although some extra money has been provided it will not go very far, particularly if it is to be divided 32 ways, and no doubt Clackmannanshire will not get its pro rata share being one of the smaller authorities.
The Lord Advocate (Lord Hardie): I am grateful to the noble and learned Lord, Lord Mackay of Drumadoon, for setting out his stall, as it were, against a fairly simple group of amendments which did not need much said about them. However, it is useful to know what his position is. As regards the noble Earl's point about funding, as he has already noted, additional funding is being provided. As a fellow native of Clackmannanshire I doubt whether anyone there will be subject to an anti-social behaviour order of this kind because there is no such behaviour in Clackmannanshire.
I shall deal with one or two of the points raised by the noble and learned Lord, Lord Mackay of Drumadoon. First, as regards the arrangements of local authorities concerning which committee will deal with this matter, those are essentially matters for local authorities themselves, but guidance will be provided to them. There will be full consultation and no doubt different authorities may make different arrangements according to their funding allocations.
As regards whether an interdict would be appropriate, as the noble and learned Lord will appreciate, this order will be made at the instance of the local authority and not the victim who would normally be the pursuer in an interdict. There may be some question as to the title and
Lord Mackay of Drumadoon: I hope the noble and learned Lord will forgive my intervening. I am well aware of the fact that at the present time in Scotland a Scottish local authority would not have such a title. One other criticism of the consultation paper that has been suggested to me is that it omitted to draw attention to the fact that English local authorities have such a power. The view was expressed--in my submission it seems to have some force to it--that that is a relevant consideration which ought to have been placed before those who were consulted, if for no other reason than it touches on the point raised by the noble Lord, Lord Thomas of Gresford, as to whether that is a preferable way forward; that is, to do it by way of interdict, the Scottish injunction, or to have a new statutory procedure.
I am willing to be convinced but I invite--it may be unnecessary to do so--the noble and learned Lord the Lord Advocate to consider in detail the concerns that have been expressed today, which I share and which I now raise, because in my submission it is necessary fully to demonstrate that this new procedure is necessary before many can be convinced that it will work and before it will command respect. If it leads to false promises that it will somehow solve the problem of dealing with anti-social behaviour which has not been solved by existing procedures, at the end of the day it may do more harm than good.
Lord Hardie: I do not wish to rehearse what my noble friend Lord Williams of Mostyn said in his comments about the justification for the similar English provision. The reason underlying the policy is the same; it is to afford an added remedy to local authorities in situations where we are dealing with members of that community who are behaving in a certain way to ensure, as far as possible, that they cease to do so. It is an added protection for the public at large; it is an added weapon for the local authority to use.
I welcome the comments by the noble Earl, Lord Mar and Kellie, supporting the principle behind the orders. If the noble and learned Lord seeks some indication of the justification for such orders and the approach adopted by the Government, he might do well to listen to the noble Earl who has considerable experience in social work in Scotland and has dealt with such matters at first hand.
The amendments would increase the standard of proof for antisocial behaviour orders from the test in civil cases to that which prevails in criminal cases either by introducing the requirement for corroboration or by imposing the standard of proof beyond reasonable doubt. I do not wish to rehearse what my noble friend Lord Williams said in relation to Amendment No. 11, but, as he explained, antisocial behaviour orders are prohibitory. They are neither convictions nor punishments. In these circumstances, it is right that the laws of civil evidence should apply and corroboration
An order should be able to be granted if the need for it is proved on the balance of probabilities. This is what happens with interdicts, as the noble and learned Lord is well aware, and with applications to the civil court for non-harassment orders. Antisocial behaviour orders will be similar in effect. I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Advocate for dealing with many of the questions I raised. He posed the question as to why there should be a higher standard on local authorities and other litigants. If the Government were following the interdict route I would fully appreciate that. But this is a new procedure. It has been
My concern is that the order will be perceived by those upon whom it is imposed as a punishment. If the individual is prohibited from staying in the house that he has bought or tenanted and is separated from other members of his family as a result, that will be as much a punishment in the eyes of the recipient as other orders pronounced by the criminal courts of a non-custodial nature.
However, I do not intend to press the amendments to a vote. I might be tempted to do so to see whether it might be possible to count the Committee out. But as we are all going home early, I beg leave to withdraw the amendment.
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