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Baroness Kennedy of The Shaws moved Amendment No. 29:

Page 12, line 23, at end insert--
("( ) The Secretary of State shall not confirm a local child curfew scheme unless he is satisfied that--
(a) the local authority and police authority have taken all reasonable steps to avoid the need for such a scheme;
(b) the behaviour of the children to whom the scheme would apply has been sufficiently serious to warrant the making of the scheme; and
(c) so far as is practicable, the views of all those who would be affected by the proposed curfew have been ascertained and given due consideration.").

The noble Baroness said: My Lords, the Minister knows that my position is that the local child curfew scheme is an entirely unnecessary provision. It is my view, and that of others, that the police already have powers under the Children Act to return home any child that is at risk. The local authorities investigate if there

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is suspected neglect or abuse. Local authorities have powers under the Children Act to obtain orders if they feel that a child is beyond parental control.

So I make it clear from the outset that our view is that a local child curfew scheme is unnecessary. However, I anticipate that the curfew provisions are not going to be abandoned and therefore we put forward these amendments. They seek to fetter the Secretary of State's powers within primary legislation.

On a previous occasion the noble Lord, Lord Williams, and the noble and learned Lord, Lord Falconer, made promises as to how the Home Secretary would conduct himself. Promises are not good enough. If that conduct is not specified on the face of the Bill, there is nothing to stop a future Home Secretary behaving in a less responsible manner than the current one. We believe that it is far more satisfactory to have on the face of the Bill a fetter on the powers of the Government in this regard.

The three conditions of this amendment are put before the House on the basis that it is our view that the curfew is likely to be in breach of a family's rights under the European Convention on Human Rights. I raise that now because it should be a matter of concern to this Government, particularly as they have championed a Human Rights Bill through this House and it is about to move to its next stage.

Under the provisions of the European Convention on Human Rights the state can interfere with family life only if it is necessary in a democratic society. In our view it is doubtful that those under 10 years of age could ever be so out of order and behave in such a way that a blanket curfew can be considered acceptable. In the absence of a public emergency it is our view that it is necessary for some degree of parental rights over a named child to be secured by a court order. I raise that point because I believe that the amendment we are putting forward in these three separate propositions would save the Government from falling foul of Article 8.

Paragraph (a) makes it clear that the curfew must be a measure of last resort. When we debated this in Committee, the noble and learned Lord, Lord Falconer, confirmed that the curfew would be used only if the local authority believed that there was no other way of dealing with the problem of unsupervised children. He rejected the wording of our amendment, so we have changed it and what we now propose, as the first "fetter" on the Home Secretary, is less stringent than were our previous provisions, but makes the point that less draconian steps should be considered before a curfew is sought.

Paragraph (b) makes it clear that the curfew must be in response to a "serious" situation. At present, the Bill provides that a curfew may be granted simply for the purpose of maintaining order. That could allow a curfew to be imposed without any evidence of children being out of control.

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Paragraph (c) requires that the views of all those who would be affected by the proposed curfew must be ascertained and given due consideration. In Committee the noble Lord, Lord Williams, said that before the order becomes effective there must be consultation with the area affected. He said that it was hoped that it would then be possible to consult those affected--that is, those having a bad time because of the conduct of the under-10 year-olds, as well as the children who may be affected by the order or, as is more likely, their parents. They can say whether it is a good or a bad idea. None of that appears in the Bill and it is our submission that the noble Lord should turn his hope into a requirement. That is why we have tabled this amendment. I beg to move.

7 p.m.

The Lord Bishop of Bath and Wells: My Lords, I recognise the need for action in this area, having received quite a lot of feedback from the sort of places where such difficulties occur. The communities affected sometimes recognise that this is a necessary step for exposed and vulnerable children in what is so often a brutalising situation. It is recognised that we need to increase a parental sense of responsibility. All of those points are important, but I support the amendment because I do not think that the right way to deal with this problem has yet been found.

There are profound difficulties in what the Bill proposes. I keep returning in my own mind to the question of how such provisions will work. We have talked about practicalities with regard to other parts of the Bill. The noble Baroness, Lady Kennedy, has said that legal opinion suggests that these provisions interfere with parents' rights under Article 8 of the European convention. We, too, have received this advice.

I also support those who question whether the threat posed by young children can be so great that it is necessary to have such provisions to deal with it. It is not that I underestimate what they can do in particular places, but I feel that there are other ways of dealing with this, such as taking a multi-disciplinary approach to the problem.

Looking back over long years of such problems, it has often been difficult for communities to take the initiative in this direction. Communities need encouragement to tackle such situations. However, I question whether this is too big a solution to the problem. Would we not do better to mobilise and support community groups and voluntary organisations which are already involved in tackling such problems?

The amendment is also important because it seeks to gain police approval for such a scheme. Community policing is tremendously important, but very often it is not given the support that it deserves. The work of community policemen, in liaison with other organisations, can often help to tackle this blight on some estates.

I wonder whether, unamended, these provisions would not undermine the purpose of the youth justice teams which the Bill is setting up. As we have heard, children are significantly at risk, but, again, as we have

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just heard in the debate about child prostitution, the Children Act 1989 can tackle the problem of such children. Are we not overdoing our reaction to a problem that can be tackled in the local community by those who are involved in caring for those communities?

Lord Dholakia: My Lords, I rise to support Amendment No. 29 which has been moved by the noble Baroness, Lady Kennedy. We must be careful that we do not get carried away by the idea of imposing a curfew without adequate safeguards. The purpose of this amendment is to introduce those safeguards. It is crucial that our starting point is that "all reasonable steps" have been taken to ensure that such a scheme is needed. Having dealt with that difficulty, we must then be careful to ensure that there is adequate consultation with those who live in the areas concerned.

I raise this matter because we are dealing with a new scheme and the consequences for community relations could be serious. Many of the areas about which we are talking are multi-racial and multi-ethnic. Can your Lordships imagine what would happen if the police, local authorities and others who are responsible for the order were to target such areas? I have given examples earlier of what has happened with the stop-and-search powers. Black communities have been targeted. That could lead to a serious situation. The noble Baroness is saying that we must ensure that safeguards are introduced. I hope that the Minister will take what we have said into account.

Baroness David: My Lords, before the noble Lord, Lord Williams, rises to reply, my name is to this amendment and I should like to add my support. The child curfew order is a cumbersome affair which probably will not work. There was a long discussion on it in Committee when many noble Lords said that it would be difficult to put the order into operation. There are other methods of dealing with young children under the Children Act and it seems a great pity not to use them.

I ask specifically that the Minister replies to the point about the provisions of the Bill breaching the European Convention on Human Rights. There seems to be a real likelihood of that happening and we do not want to be taken to court again for something like that. I very much hope that the Minister will look favourably on this amendment.

Lord Williams of Mostyn: My Lords, we do not believe that these provisions breach Article 8 of the European convention, but bearing in mind what the right reverend Prelate said about the legal advice that he has received and what my noble friend Lady Kennedy said, I undertake to reconsider that point. As I have said, we do not believe that the provisions breach Article 8 but, as the question has been raised, we shall look at this again.

We discussed the matter in detail in Committee and a number of questions have been raised again today.

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The right reverend Prelate asked about consultation. That is specifically provided for in Clause 14(3) which states:

    "Before making a local child curfew scheme, a local authority shall consult with--

    (a) every chief officer of police any part of whose police area lies within its area",

so the question of community police liaison is already covered. Furthermore, Clause 14(3)(b) gives the local authority very wide discretion because it must also consult,

    "such other persons or bodies as it considers appropriate".

Perhaps it should be remembered that the overarch of the entire scheme is Clause 14(1)(b). The authority can only propose a scheme,

    "if, after such consultation as is required by the scheme, the authority considers it necessary to do so for the purpose of maintaining order".

It must be done within a specified time, not exceeding 90 days, and a specified area.

I do not see how this amendment would work. Under the proposed paragraph (b) the order is to be made if

    "the behaviour of the children to whom the scheme would apply has been sufficiently serious to warrant the making of the scheme".

I do not see how that could possibly work in practice. One is dealing with children of specified ages whether or not their individual behaviour has been sufficiently serious to warrant the making of the scheme. That is my observation on paragraph (b).

I return to the general point. These powers are not mandatory but entirely permissive. If a local authority considers that there are alternatives, such as those indicated by the right reverend Prelate, it can proceed with them. The provision is entirely permissive; there is no obligation to make use of the scheme. It is for each local authority to decide whether something of this kind is an appropriate response to a particular problem for the purpose of maintaining order.

One is referring to elected representatives of a particular area. I take the point raised by the noble Lord, Lord Dholakia, but this is not a matter of stop and search. I recognise the criticisms made of that. That was police activity whereas this is the preliminary conclusion of a local authority. The local authority is elected by the people within the relevant area and its members, unlike Members of your Lordships' House, are subject to the discipline of re-election periodically. That is step number one.

I come to step number two. On the face of the Bill, having come to its preliminary conclusion, the authority must consult the police and the local community. Such persons or bodies whom it considers appropriate will vary infinitely because communities differ. We trust that local authorities, being democratically elected, are fit to decide what is appropriate by way of consultation within their local communities. It is perfectly plain that without the support of the local community these schemes are unlikely to work.

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When all that has been done the local authority needs to give the Home Secretary a clear indication of the reported problem or identified nuisance and an indication of what other measures have been taken to solve the problem. It will need to provide details of the consultation arrangements that have already been undertaken. It must indicate to the Secretary of State any views that may have been expressed. It will need to show how it intends further to consult those in the local area where the curfew notice is to be applied. We intend to set out fully all of those issues in the guidance that we shall issue to coincide with the implementation of the legislation.

I am grateful for the way in which my noble friend Lady Kennedy dealt with her concerns. I hope that I have been able to deal with them on the basis of, first, the limited parameters of Clause 14 and, secondly, my undertaking as to the nature of the guidance which the Secretary of State will issue to coincide with the implementation of the legislation.

7.15 p.m.

Baroness Kennedy of The Shaws: My Lords, I am very pleased to hear my noble friend say that he will, with others, give due consideration to Article 8. That is a matter of concern to those who have tabled these amendments. We would be very unhappy to see the Government fall foul of that article, particularly in light of the courageous steps that they have taken to place before Parliament the Human Rights Bill.

Having taken account of the matters raised by my noble friend, it may well be that the wording of these amendments can be drafted in a more felicitous way. If consideration is to be given to Article 8 it may well be that the safeguard here will allow the Government to proceed with a curfew scheme but in the limited circumstances that we seek to impose. I am content that the Government should look again at the particular article. It may well be that they will be able to draft better safeguards than those that we have proposed.

In tabling this amendment we are concerned that the threshold should be high before any local authority or any persons in authority take steps to introduce curfews. For all its faults, the antisocial behaviour order can be obtained only through the courts for children over 10 years of age who have been shown to have done something wrong. On the other hand, this curfew involves no due process and does not apply to named children. It may result in a parent who has done nothing wrong and whose child has done nothing wrong being punished by the criminal courts. That is our concern. Although the description of the steps to be taken by a local authority to obtain a curfew sounds almost Byzantine, there are concerns which it is right to raise and which we would like the Government to consider again in the context of the possibility of the Government falling foul of the European Convention on Human Rights. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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