Criminal Justice and Police Bill

HL Deb 30 April 2001 vol 625 cc513-50

House again in Committee on Clause 2.

Baroness Buscombe moved Amendment No. 9: Page 3, line 7, at end insert "or produce his warrant card for inspection by the person to whom the notice is given

The noble Baroness said: In moving Amendment No. 9, with the leave of the Committee I shall speak also to Amendments Nos. 13 and 15. This group relates to the giving of false information and particulars in relation to penalty notices and related procedures.

Amendment No. 9 is a straightforward, simple amendment which is designed to bring some flexibility into the system. It is a probing amendment which seeks the opinion of the Minister on whether or not a police officer, out of uniform and witnessing an offence, must stand by and ignore the offence because of the clothes he happens to be wearing.

We on these Benches believe that it makes sense to allow an officer who may, for example, be active in the line of duty but for surveillance reasons be in plain clothes, to apprehend an offender as long as he or she is able to produce their warrant card for inspection by the person to whom the notice is given.

At the risk of repeating myself, we support the principle behind the fixed penalty notice system for some minor offences. However, it is the practical implications of invoking the on-the-spot fine that concern us. Indeed, many of our amendments in Part I focus on the hows and wherefores on behalf of our over-worked, under-resourced but nevertheless superb police force which, frankly, deserves unreserved praise for its work. We appreciate that Part I is supposed to help them in their fight, on our behalf, against crime.

We need to bear in mind the many situations in which officers find themselves where it might be possible to give a penalty notice. In many of those situations, the offender or, more likely, offenders, will be drunk, disorderly, possibly abusive and uncontrolled in their overall behaviour. What chance then that they will co-operate with the police, give their correct details and go quietly on their way? I would say, "Slim chance". Indeed, having read the draft guidance to the police on penalty notices for disorder sent to my honourable friend in another place, Oliver Heald MP, on 26th February 2001, I wonder whether we are almost wasting our time debating these points. The proposed exceptions to the use of on-the-spot fines are so extensive and, in many cases, rightly so, that they may prove to be a big non-event, which is often the case when Prime Ministers come up with off-the-cuff big ideas that bear no relation to reality. Part 1 seems to come from the quote by the Prime Minister of 5th July 2000, There should be on-the-spot fines for those people who engage in disorderly conduct. Summary justice, on the spot, is the essence of the proposal".

Of course, there is the alternative of taking the offender to the police station. But in using that argument, as I suspect the Minister will, is the on-the-spot fine going to be a viable proposition in practice? Our belief is that, without the threat of a further offence committed if the person fails to give the correct details, the answer is no. That is why Amendment No. 13 is important. It provides an express deterrent against the provision of false information in relation to the name, address and date of birth of the person to whom the penalty notice is given.

As I have already said, the police officer concerned will be dealing with a tough situation. No matter what any code of practice or guidance notes issued under Clause 6 may say with regard to the steps the police officer must take to ensure that the information given by the offender at the time is correct, in practice it is going to be extremely difficult to achieve results without the threat of a further offence hanging over the offender, drunk or otherwise. I beg to move.

Lord Brennan

Earlier I commented to the House that it is extremely important that the fixed penalty system should be capable of effective enforcement. I speak to Amendment No. 13, for which I have some sympathy. If there is no effective way of ensuring that people do not undermine the system by giving false information, the fixed penalty system will be gravely damaged. I invite the Government to give sympathetic consideration, not just to another fixed penalty offence but to a criminal offence of not properly complying with the fixed penalty system.

Lord Phillips of Sudbury

I rise to speak to Amendment No. 15 in this group. The amendment seeks to require the formalities in connection with the giving of fixed penalty notices to indicate clearly to the person accused, if that is the right expression, how the elements of the specific offence are satisfied in a way which is compatible with Section 9 of the Criminal Justice Act 1967. That provision deals with proof by written statement.

The object of this exercise is simple. It seeks to ensure that notices when given are compatible with one of the linchpins of the criminal justice system. It will be obvious to the House that many of those who will be involved in these offences will not necessarily understand how their behaviour constitutes the alleged offence. There will be many suspects who do not seek legal advice. I would say that the majority will not. Others, despite the scepticism of the noble Lord, Lord Brennan, will have literacy, language and learning problems, although there will be many who do not. Therefore, it makes sense to clarify exactly how they are implicated. The amendment seeks to do that.

8.45 p.m.

Lord Davies of Oldham

I shall address the three amendments in the group separately. I begin with the proposal in Amendment No. 9, moved by the noble Baroness, Lady Buscombe, that plain clothes officers should be able to give penalty notices for disorder. We do not believe that it is appropriate for plain clothes officers to issue penalty notices.

An essential part of the concept of the penalty notice scheme, and part of its usefulness, is that the action is taken by a uniformed officer who is visible and public. Such visibility would be reduced if the officer was in plain clothes. In addition, the giving of fixed penalties is a role clearly associated in practice with that of a uniformed rather than a plain clothes officer. It is a formal offer of the opportunity to discharge liability for conviction. Although clearly that is not a charge, if the offender were to be charged and went to the police station, this would be done by a uniformed officer.

I do not believe that the extension of the power to give penalty notices in that way would be appropriate. However, recognise one part of the force of the contribution of the noble Baroness; namely, that we would not want to render the plain clothes police officer powerless when he is witness to an offence. He will still be able to arrest or report for summons. The individual would then be taken to the police station where a uniformed officer would issue the fixed penalty notice. The contention behind the Government's position is clear. Fixed penalty notices are important documents and it is important that they should be given by an officer in uniform or at a police station in order to emphasise their importance.

I turn to Amendment No. 13. We recognise that correct identification details will be essential to the efficient operation of the new system. I recognise the contribution on this point made my noble friend Lord Brennan. We are not so naive as to believe that every offender engaged in disorderly or antisocial behaviour will volunteer correct information when asked. It is for that reason that we have built in a range of safeguards to deal with that potential problem. We believe that such safeguards make the creation of a new offence envisaged in the amendment unnecessary.

First, the Bill includes a power for the Secretary of State to issue guidance to the police about the issue of notices and the exercise of discretion under the new scheme. We intend to issue such guidance making clear that penalty notices should not be issued when identification is in doubt and that powers are available under the Police and Criminal Evidence Act to arrest offenders and take them to a police station for proper identification to be established.

Secondly, we believe that the deliberate telling of a lie to a police officer in those circumstances could be charged as an offence of wilfully obstructing a constable in the execution of his duty under the Police Act 1996.

Thirdly, if a penalty notice is completed with false particulars of the offender, those may relate to a person completely unconnected to the offence. If so, the first that person is likely to know about it is when he receives a notice informing him that a fine has been registered against him. We have included special provision in Clause 10 to deal with such a situation. Briefly, a default court considering the case will have the power to adjourn to allow the claim that the named person did not commit the offence to be investigated. It will then have to accept the claim unless the contrary can be shown. The court also has the power to set aside the fine in the interests of justice.

The fourth safeguard is against the possibility that a juvenile offender falsely claims to be over 18 and in consequence is issued with a penalty notice. We believe that in those circumstances the notice would be void, and provided the offender was informed of that and why, and any payment returned, it would be possible to deal with the juvenile for the offence in any way that would have been possible had the notice not been issued.

We believe that those various ways of handling the provision of false identification evidence are sufficient to deal with the problem to which noble Lords have alluded, and that the creation of a new offence is therefore unnecessary. If, as I hope I have shown, sufficient remedies already exist to cope with false personal details, which we do not deny could be a factor in the new arrangements, there is no need to create yet another offence to deal with the problem. I am afraid, therefore, that we are not able to accept the amendment.

Finally, I turn to Amendment No. 15, spoken to by the noble Lord, Lord Phillips. The amendment seeks to require a police officer issuing a penalty notice to provide detailed information about why he says that the recipient of the notice has committed the offence in a form which would be admissible in court under the Criminal Justice Act 1967 as oral evidence given by the police constable who issued the notice.

We do not believe that that is necessary. The information about the offence to be given under Clause 3, as presently drafted, should be sufficient to inform the penalty notice recipient of the specific offence he is alleged to have committed.

If after considering the matter the person receiving the notice does not accept that the offence is committed, he is free to opt to go to court. If he does so, he will be prosecuted in the normal way with the full protection of the criminal law, including the Criminal Justice Act 1967.

We do not therefore believe that it is necessary at this stage, when the notice is issued, for this level of detail to be provided. I am therefore unable to accept the amendment.

Lord Brennan

Before my noble friend sits down, perhaps I may again raise the question of Amendment No. 13 and invite those who advise him to consider the following two points between now and Report stage.

First, I fully accept the range of alternatives that he mentioned in relation to the failure to give proper information. However, when one introduces a new system into society people will ask obvious questions. One obvious question is, "What will happen to me if I don't give the right information?". The four alternatives might be considerably complicated for the ordinary yobbo in the street, with whom we are apparently dealing.

Secondly, to the best of my recollection, a fixed penalty notice for a parking offence contains an express provision stating that if one does not give the correct information a particular criminal offence has been committed. If we are to introduce the concept of fixed penalties, could those advising the Minister take into account that there should be consistency in the working of the system?

Lord Davies of Oldham

I understand the force of the arguments presented by my noble friend. He is right in saying that the new system will throw up issues which we need to consider in advance of implementation. I believe that we have had due regard to the scenario he has depicted. I recognise that the parking fine notices are in a different form and contain a definition of the circumstances in which fixed penalty notices will be implemented. We shall certainly consider the points he has raised.

Baroness Buscombe

I listened to the Minister's response to our Amendments Nos. 9 and 13. In relation to Amendment No. 9, I do not understand why it makes a difference whether or not the officer is in uniform. I hear the Minister's point that if the officer is in plain clothes he can arrest that person and take him to the station, but I do not understand the logic behind the provision. Why does the fact of whether the officer is or is not in uniform make a difference to whether an offence can stand?

In relation to Amendment No. 13, the noble Lord, Lord Brennan, took the words out of my mouth. I was grateful to the Minister for setting out the different safeguards, but although I have taken a long, hard look at the Bill through its various stages I found difficulty in finding them.

The system is new and many questions will be asked. Indeed, we are asking questions today about issues which had not previously occurred to us; for example, in relation to legal aid. Surely the Government will want to make it as straightforward and simple as possible for anyone to understand that providing false information carries with it a real sting in the tail.

Whenever I have received a notice for a parking offence I have always been aware of that sting in the tail; that if anything false is written, a criminal offence has been committed. In order for the provision to be effective, it is important that that should be on the face of the Bill. I believe that our amendment is clear and simple and much easier than trying to invoke all the different safeguards.

However, I hear the Minister's reply and his undertaking to consider the points that we have raised. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 10: Page 3, line 8, leave out subsection (3).

The noble Baroness said: I have a brief, simple question in relation to Amendments Nos. 10 and 12. Why must a penalty notice be given only by an authorised constable at a police station when any constable can issue a penalty notice on the street? I beg to move.

Lord Bassam of Brighton

It is at the chief officer's discretion as to which constables should be authorised. We do not wish to fetter that, but the amendment, which I realise is a probing amendment, would do so. We believe that it is right operationally that the opportunity should exist for chief police officers to control the issue of penalty notices at police stations. They will do so through those who they authorise to issue them and they must give careful consideration to that.

We do not believe that it is an onerous provision. We believe that it is a sensible tool partly for managerial control purposes.

Baroness Buscombe

I do not understand the procedure. When the penalty notice is being issued on the street, the chief police officer has no discretion; so why is it suddenly different in the police station?

Lord Bassam of Brighton

It will be the case that the chief officer will want to be confident that the person issuing the ticket is more than competent to do so and has been properly trained for that. I am sure that that is an important part of the process in the police station.

Baroness Buscombe

I wonder whether I should have made this more than a probing amendment because I am not satisfied with the Minister's response. I shall not press the amendment, but I ask him to think carefully about this simple question: is it really consistent? On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 to 13 not moved.]

Clause 2 agreed to.

Clause 3 [Amount of penalty and form of penalty notice]:

Baroness Buscombe moved Amendment No. 14: Page 3, line 21, at end insert— () The Secretary of State may, in respect of a penalty offence contrary to section 1(1) of the Criminal Damage Act 1971 (c. 48), specify the amount of compensation for which a person may be liable.

The noble Baroness said: I was incorrect in not moving Amendment No. 11, but I can pick up the point with Amendments Nos. 14 and 16 in relation to compensation. These are probing amendments and reflect our continued concern with the Government's will to include criminal damage as an offence leading to an on-the-spot fine. The point was raised earlier today by my noble friend Lord Cope of Berkeley.

As the Bill is drafted, there is no opportunity for a victim of criminal damage (where the fixed penalty system is applied) to receive compensation. The amendments would enable the Secretary of State to set a level of compensation that could be awarded to the victim in relation to the fixed penalty.

When the issue of compensation for victims of on-the-spot fines was debated in Committee in another place, the Government sought to reassure the Opposition that they will state in the guidance that where a person can be identified as a victim, no penalty notice should be issued. Further, the Minister of State made it clear that penalty notices should be reserved for cases in which the victims are unknown or are corporate bodies unlikely to seek compensation in minor cases.

This explanation for dealing with the important question of compensation tells me that it is an afterthought prompted by a diligent Opposition, rather like when the little matter of whether or not penalty notices attracted a criminal record was raised by Her Majesty's Opposition at Second Reading in another place. Clearly, the Government were not sure.

We are pleased with the direction in which the Government are heading with regard to compensation. However, we also believe that their intention to exclude from the fixed penalty route all cases where there is a known victim is fundamental and should therefore be on the face of the Bill. As ever with this Government, far too much that is fundamental to the effectiveness of the legislation is being left to guidance notes which may—I stress that word—be issued by the Secretary of State. That gives us no opportunity to debate the matter on the Floor of either House. I beg to move.

9 p.m.

Lord Windlesham

Before the Minister replies, can he tell me at this stage, or later in writing if it is not possible to respond now, whether there has been any consultation with Victim Support on the issue just raised by the noble Baroness? In putting that question I declare an interest as president of Victim Support.

Lord Bassam of Brighton

We are in sympathy with the idea that victims of criminal damage should not be denied the opportunity to receive compensation; indeed, we are determined to ensure that the penalty scheme does not do so. We believe that the best way to achieve the objective is to ensure that guidance is given to the police that, where a victim may wish to claim compensation, no penalty notice is issued in the first instance. Penalty notices should be reserved for those cases where the circumstances of the case suggest that compensation is unlikely to be sought. This could include, for example, victims who are corporate bodies that are known to be unlikely to seek compensation in minor cases. This is a matter which will require very careful study during the pilot phase.

This amendment would ask a great deal of a police officer dealing with such a case. He would have to evaluate the scale of the damage and assess whether it was likely to exceed the compensation payable under the penalty notice. It is very difficult to see how a figure could properly be set for compensation under such an arrangement. There would be a good deal of opportunity for disagreement and difficulty where the victim disputed a damage assessment, or believed that an amount fixed by the Secretary of State was inadequate in his particular case. We believe that the setting of compensation is properly a matter for the courts, and that our proposals to deal with this issue in guidance represents a balanced approach. They allow the police discretion to deal with minor offending swiftly without removing the expectation of individuals that compensation will be considered.

The amendment would also lead to additional bureaucracy and administrative difficulty. Systems would have to record victims' names and compensation amounts and be able to pay the appropriate sums to victims and account for them. We believe that if corporate victims or public authorities wish to discuss the application of the scheme to damage to their property, the crime and disorder partnerships provide an excellent forum for discussion at local level. We are in favour of victims of criminal damage receiving compensation if a court so decides, but we believe that the way to achieve that is by guidance to the police about the issue of tickets, not by the complex means of building compensation into the scheme. For those reasons we cannot possibly accept the amendments.

To pick up the question asked by the noble Lord, Lord Windlesham, we have not consulted Victim Support about issues of compensation. Obviously, we shall be more than happy to consult that body before we issue the guidance. The noble Baroness complained that the Government placed too much emphasis on codes of practice and guidance. I recall that that was an argument which my party deployed when the House considered important pieces of legislation such as the Police and Criminal Evidence Act. I believe that that Act can be described as famously important for its many codes of practice and guidance. Ultimately, we accepted that piece of legislation in good faith. We believe that those codes of practice and guidance have served very well the police and also those who are the subject of charges and allegations. There must be a degree of trust in these matters, but guidance needs to be subject to very careful consultation.

Baroness Buscombe

I thank the Minister for his response to my amendments. I am disappointed. The question of compensation is so important. I believe that it is an afterthought but it should be on the face of the Bill. The Minister said that codes of practice had worked well. If the noble Lord says that when in opposition his party advanced a similar argument, my response is: why not implement it in government? I shall not press the matter and, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Clause 3 agreed to.

Clauses 4 and 5 agreed to.

Clause 6 [Secretary of State's guidance]:

Lord Cope of Berkeley moved Amendment No. 17: Page 4, line 23, leave out "issue guidance" and insert "by order issue a code of practice

The noble Lord said: Amendment No. 17 takes us in more detail to the question of guidance to be issued by the Secretary of State. As my noble friend has just pointed out, the Bill provides that the Secretary of State "may" issue such guidance. Clearly, it should say "shall" because the Government rely heavily on it and have distributed copies of the drafts. However, I do not press that. We believe that this might be better issued instead as a code of practice; it would have slightly more force. Although we have not specifically suggested it in the amendment, it could be made subject to proceedings in this House and in another place so as to give more formality to the code of practice and, hence, make the position clearer if the policeman is thought to have gone outside the guidance in the course of issuing a particular penalty notice.

I believe that inevitably the guidance will be a little vague in some respects. One sees that by looking at the draft guidance. Although it is obvious that those concerned have done their best, there will be matters of judgment in it. What is the legal position if a policeman is thought to have gone outside the guidance in the course of issuing the penalty? Clearly, the matter can end up in court, but is the court entitled to take account of the guidance which the Home Secretary has given?

The other four amendments in the group all relate to more detailed points on the guidance. Amendment No. 18 suggests that the constable's witness statement should be covered in the guidance as to the form, length and kind of detail that is required. That is obviously important if the matter does not finish with a penalty notice but goes on to become a court case. It could also be important for the person concerned when deciding whether or not to go on to a court case. If there is a powerful statement of case against him—an "open and shut" case, as it were—he would obviously be best advised to settle there and then at penalty. If there is not, he might be best advised to go to court and argue about the matter, particularly given that the standard of proof required is higher against the Crown if the matter goes to court.

My noble friend Lord Windlesham asked whether or not the individual will have legal advice. We can no doubt get an answer to that question in due course.

Amendment No. 19 concerns whether or not the constable is to take account of the apparent means of the individual concerned to pay the penalty specified. That will make a difference because some people obviously would readily pay a penalty and might accept it as part of life's rich pattern, in the way that people accept parking fines. Every now and then the best of us gets caught for a parking fine of one kind or another and one has to cough up and go ahead. Given the amounts that might be involved, it is not so easy for everyone to do that.

Amendments Nos. 20 and 21 concern the seriousness of the actual cases which will be raised. In Amendment No. 20 we suggest that a penalty notice should not be issued when there is considerable risk to life and safety and so on. That matter is covered in the draft guidance. It would be reinforced if it was on the face of the Bill. It would also ensure that the guidance was not altered in the future.

There are two points covered by Amendment No. 21 which relate to seriousness. Paragraph (a) states that where there is a significant risk of exacerbating the disorder a penalty notice should not be issued. Imagine an awkward situation in the street, maybe late at night—which after all is what all this is about—with disorderly behaviour going on. The constable suddenly produces a pad of penalty notices and starts waving it about and saying, "Hey, you there in the T-shirt. What is your name?" I have very little experience of this; the Minister may have more experience of these matters. The officer attempts to identify the individual concerned sufficiently to write down the particulars. It will not necessarily be easy at two o'clock in the morning with a load of drunks all over the place actually to carry out this procedure. That is particularly so if one starts saying, "My name is Mickey Mouse and I live all over the place" and so on, or "I live on the third park bench from the left", which is apparently sufficient for the electoral register these days. That is a point which constables will need to bear in mind, and maybe we should state it in the Bill.

Obviously, none of us wants to diminish the opportunity for restorative justice and reparations which we have discussed on other occasions. All these amendments deal with the seriousness of the offences which will be covered by these penalty notices. We know that the offences will not be frightfully serious.

There is one matter about which I have some doubt regarding the penalty notices. Charles Clarke, the Minister of State in another place, said in Committee that these penalty notices come below a caution in the scheme of things. A caution goes down on one's criminal record. It is a stage below that. The Home Secretary appears to have the view that they come between a caution and a court case—actually being taken to court and fined by a court.

The noble Lord, Lord Thomas of Gresford, talked about the penalty notice being a soft option by comparison with a trial. That is obviously true, but is it a soft option by comparison with a caution, given that the penalty notice does not go on the record whereas a caution does? Financially it is not a soft option, but in legal terms the position is a little more confused. This is, as I say, a question of the seriousness. We know that these notices will not be used for very serious offences. We think it might be better to write the offences covered by these types of amendment on the face of the Bill. I beg to move.

Viscount Goschen

Now that we are on the theme of procedures, I wonder whether the Minister would be good enough to drop me a line—and perhaps copy it to other Members of the Committee—giving an answer not only to the question raised by my noble friend Lord Windlesham about legal aid but also about the procedural questions that I raised in connection with Amendment No. 2. I think that I am justified in raising those matters at this stage because they all have to do with the procedure of what actually happens once the offender has been identified by the police and a decision is being made whether to issue a fixed notice penalty.

9.15 p.m.

Lord Brennan

I am a little concerned that so little enthusiasm has been displayed in the Committee with regard to these amendments. Aside from the effective enforcement of fixed penalty notices, the other critical part of making them effective is that there should be an effective system for the police to apply them across the country. As I understand the Bill, the amendments are directed at the clause that seeks to establish such a system.

Although the first amendment, Amendment No. 17, appears to be only a form of words, it may well be a significant form of words. The Police and Criminal Evidence Act introduced the idea of codes of practice. Whether they were intended that way or not, years on, lawyers certainly regard them as having special legal significance and hence the public might regard them as more significant than mere guidance. I invite the Government to take seriously into account the presentation of the guidance to the public.

If the noble Lord, Lord Cope, will forgive me, I shall deal briefly with Amendments Nos. 18 to 21 by saying that they are either overly bureaucratic or too nebulous, but that is meant gently and not over-critically. The far more important question concerns what goes into the guidance itself. If the Committee will allow me, I wish to deal with three aspects of it. The first is the preparation of the guidance and how it works; the second is implementation; and the third is review. The amendments provide a convenient opportunity to mention those three points.

First, with regard to preparation, it is absolutely essential that the guidance is produced in co-operation not only the with Association of Chief Police Officers but also with the Police Superintendents Association, the Police Federation and everyone who will be practically involved in applying it. In addition, there must surely be training for police officers as to the way in which they are to apply the provisions. Issuing them with a guidance booklet is not enough. I have a final point on preparation. If the Bill eventually becomes law in this Parliament or the next, it will be the subject of major media interest. How will it work? Will there be consistency? Can we be sure that it is fair? The document to which everyone will look is the code of practice or guidance. Therefore, I think that preparation is very important indeed.

Secondly, I turn to implementation and identify one serious caution that I have and introduce one serious problem which the Government may face. I ask Members of the Committee to look back to Clause 1 of the Bill. As I sought to indicate at Second Reading, the offence under Section 5 of the Public Order Act—threatening, abusive or insulting words or disorderly behaviour—is commonly associated with a racial motive. I brought up that matter at Second Reading. I realise that the draft guidance is very much in draft but I found, with a little dismay, that there is no reference whatever in that document to the fact that that offence, if racially motivated, cannot conceivably be properly met by a fixed penalty notice.

This is serious stuff. The BNP and similar organisations will quickly determine how the law will work. A police officer faced with such people should not be in the predicament of having to decide whether to apply a notice, let alone the victims of such racial abuse. Many of us involved in the criminal law know that such threatening behaviour is often part of a process of demoralisation of ethnic communities living in a majority white community, and sometimes vice versa. That is my caution.

I shall now turn to a problem. A drunken farm labourer in a rural community will earn far less than someone who has just got drunk on champagne in the City. Each breaks a window and abuses a policeman. Is the fixed penalty system going to be uniform in its amount in relation to the offences involved? If not, how are distinctions to be drawn? Given the historical experience of the experiment in unit fines, which was designed to reflect the offender's capacity reasonably to pay within his income, it would be unjust, culpable though people who engage in misbehaviour are, if someone from a poorer area was faced with the same penalty as someone from a more affluent background. That is a very difficult problem.

As I understand the guidance, it will be for the Secretary of State to advise the police on setting the levels of fixed penalties in their local areas. The public will readily seize on inconsistencies in the way that this is applied.

Finally—noble Lords have been most patient—I refer to review. This is a completely new venture in the criminal justice system. The objective of the guidance, as set out in Clause 6, is said to be, with a view to encouraging good practice in connection with the operation of", the fixed penalty system. I invite the Government to put into the code, by way of codicil, rider or other method, that within a given time—but within a relatively short time of, say, 12 to 18 months—it will be made the subject of a full review and the results of that review made public.

All my points are designed to help to make the system work well. To that end, Clause 6 is central to the Bill.

Lord Carlisle of Bucklow

Before the noble Lord sits down, I take his point as regards the different effects of fixed penalties on different people. However, if a fixed penalty system is introduced, is it not inevitable that the amount of the fixed penalty is bound to be uniform? That is not same with regard to fines, to which the noble Lord referred. However, surely the inevitable consequence of fixed penalties is that the amount must be same, whether the penalty is levied from a wealthy young man in the City or from a farm labourer in a poor area.

Lord Brennan

The example of parking offences suggests that consistency in this regard is readily achievable because, for most people, if they can afford to run a motor car they can afford to pay the basic fines. However, the point I am bringing to the attention of the Committee is that if fixed penalties are logically forced to be the same, then we shall have this potential injustice. I do not necessarily agree that the fixed penalties should be the same. I know that it will be extremely difficult to apply, but at what level should the penalty be set? Should it be set at the level which best accommodates the richer offender or the lowest common denominator that affects the poorest? A problem will arise at each end. I introduced the subject as a problem, but I did not offer a solution.

Lord Davies of Oldham

We have had an interesting debate on an extremely important part of the Bill. First, perhaps I may give an assurance on behalf of my right honourable friend in response to the noble Viscount, Lord Goschen, and the noble Lord, Lord Windlesham, whose earlier contribution was noted very carefully. Of course we shall write to noble Lords who raise factual issues which cannot be answered satisfactorily during the course of the debate. We shall also ensure that that information is made known more generally.

The aim of issuing guidance, which is the main concern of these amendments, is to help the police and others to operate the scheme fairly and consistently, a point emphasised in the contribution made by my noble friend Lord Brennan. This will ensure a swift and immediate response to disorderly offending, while at the same time saving police time and bureaucracy. As Clause 6 suggests, guidance may help the police in the exercise of their discretion under the scheme and on the issuing of notices and encourage good practice in the operation of the scheme.

The Government believe that the Secretary of State would be able to issue guidance to help the police and others with the operation of the new penalty scheme without the power currently contained in Clause 6 but, because the scheme includes a number of discretionary elements, we felt it advisable to include a specific power to issue guidance which gives an indication of the areas which any such guidance can be expected to cover. As the noble Lord, Lord Cope, recognised, the Government have made available an outline of the guidance to the police, although this clearly needs further development with those most involved. It is, of course, draft guidance at this stage and is subject to further development and clarification.

I am sure that the need in a disorderly situation not to make matters worse by the issue of a notice—or, indeed, to issue a notice where the offence involves risk to a person's health or safety—will certainly be included in the guidance. Similarly, we shall ensure that some guidance is issued to the effect that it would not be appropriate to issue a penalty notice to someone who clearly does not have the means to pay. I hope that this response meets some of the points raised by the noble Lord. Lord Cope.

Amendment No. 17 seeks to replace this concept of guidance with a statutory code of practice. The Government's view is that this would be excessive and unnecessary. Statutory codes of practice are used, for example, in the regulation of coercive or determinative powers. Examples can be found in the Police and Criminal Evidence Act where a statutory code is necessary to set out the detailed rights of persons in police detention or of those stopped in the street and searched.

The new penalty notice scheme is entirely different. It contains no coercive powers. It merely offers an offender a way of discharging liability to conviction by paying a penalty. The offender's rights are completely preserved in that he is equally free to have his case heard by a court in the same way as he would have had if the scheme had not existed. In these circumstances, a statutory code of practice appears to be entirely unnecessary. Guidance issued by the Secretary of State is the time-honoured and appropriate way to proceed when new arrangements are introduced.

Of course, I recognise that my noble friend Lord Brennan has cautioned us about a range of important issues that need to be considered before the scheme is implemented and which should be included in the guidance. We take on board the points he made. The point that he raised in regard to the issue of race is particularly pertinent at a time when it is at the forefront of public concern. We also recognise the value of his suggestion that such guidance should be subject to review from time to time, and certainly to an early review against the background of a new scheme in British justice being developed.

In relation to Amendment No. 18, Clause 3 of Chapter 1 states that a penalty notice must, state the alleged offence", and, give such particulars of the circumstances alleged to constitute the offence as are necessary to provide reasonable information about it". We do not believe that it will be necessary when a penalty notice is issued to serve a separate witness statement with it. The information on the penalty notice itself will be sufficient to enable the recipient to take an informed decision on whether to ask for a trial or to pay the penalty. If he contests the penalty notice in court, the prosecution process, including the service of statements, would proceed in the normal way.

We believe that the information that is already required to be included in the penalty notice under the provision in Clause 3 is sufficient for the purpose of the notice. A requirement that the constable provide a statement in every case, as appears to be assumed in the amendment, would considerably reduce the saving of police time that we hope to bring about by this measure. In the absence of such a requirement, the amendment serves no purpose. Therefore, the Government do not accept the amendment but recognise the value of this debate to the development of our thinking on the guidance to be issued.

9.30 p.m.

Lord Thomas of Gresford

The more I listen to this debate, the more I realise the difficulties that will face the police officers who are supposed to put the fixed penalty scheme into operation.

If we were dealing with a situation in which a police officer was going round with a pocketful of notices to hand out to sober, quiet people who had thrown a stone or a firework in the street, that would be one thing. But we are not. We are dealing with a situation in which any constable on the street, who is not authorised—I take the point made by the noble Baroness—by the chief officer of police to issue notices in a police station, is faced with a drunken or violent person and attempts to issue him with a penalty notice.

From the police officer's point of view he is exercising a "reasonable belief'. That is all. He does not have to satisfy himself beyond that standard. He must simply believe that the person to whom he is issuing the notice has committed an offence. With a drunken and violent person he has to stand and write out the notice. During that time the person's friends, indeed his enemies, may all gather round and carry out a great disturbance because the policeman is standing there writing out the notice ready to hand to him. In that time, the police officer not merely ascertains the name and address of the drunken or violent person to put down on his notice; he also has to give the person some idea of the basis on which the notice is being issued. Then comes the amusing part. The Minister said that the person who receives the penalty notice—I am talking about a notice issued in the street—makes an "informed decision" as to whether to accept the penalty notice or whether to demand a court hearing. That is cloud cuckoo-land, is it not? The drunken person—one of those included in the schedule—

Lord Bassam of Brighton

The noble Lord is peddling a misconception; namely, that the person who is in receipt of the fixed penalty notice makes the decision there and then as to whether he will or will not contest it. That is not the intention of the legislation. It will not work in that way.

Lord Thomas of Gresford

So the informed decision is to be taken the day after, when the person has no recollection of what happened the night before.

Lord Bassam of Brighton

The person has 21 days in which to make the important decision, whether or not he or she has a recollection of the event.

Lord Thomas of Gresford

In a situation in the street, any police officer newly out of police training school will have the power to issue fixed penalty notices. He has to fill out the notice regardless of what is going on around him and hand it to the person who is drunk or violent, who then has 21 days to make an informed decision as to whether to contest it. That is one situation. The other is that the man concerned has committed or, in the view of the police officer, may have committed an arrestable offence. So the police officer arrests him and he is taken to a police station.

The first thing that then happens is that the police officer must explain to the custody sergeant on duty why the man has been arrested. That custody sergeant has to take a decision as to whether to allow the charge, or whatever the technical expression is. One presumes that the notice is then written out—this is where the point made by the noble Lord, Lord Windlesham, arises. Before he takes his informed decision on whether to put his hand into his pocket and pay up, does the person concerned have a right to legal advice at that point? Do the codes of practice under the Police and Criminal Evidence Act 1984 apply to him in that situation; for example, the necessity for a custody sheet to be completed, as well as all the other safeguards that surround a person in that position? As the noble Lord, Lord Windlesham, asked, does he have a right to legal aid and the right to consult the duty solicitor before he decides what to do?

We then come to the point made by the noble Lord, Lord Brennan, with such force; namely, that, as the scheme is envisaged, there is no room for mitigation. There is no room for the question of the resources of the individual to be considered; he pays the fixed penalty. Presumably, that fixed penalty will not differ throughout England and Wales between one council area and another, depending on the gross earnings or level of average earnings in a particular district. Surely it will be a fixed penalty all round. The personal circumstances of the individual will not be taken into account; nor, indeed, any mitigation for the fact that he is drunk—such that his wife has left him, or whatever, or that he was racially insulted in a public house. None of those factors can be taken into account. He must face the penalty.

The more one studies the scheme, the more one realises how much it must be confined into a narrow set of circumstances. Is it not a matter of dressing up some new scheme just before an election? I respectfully suggest that the amendment be accepted.

Viscount Goschen

I should like to pick up one of the points made by the noble Lord, Lord Thomas. Clause 6 states: The Secretary of State may issue guidance— (a) about the exercise of the discretion given to constables by this Chapter". As I read Clause 2, which deals with penalty notices, it seems to me that there are two elements of choice in that a person to whom the opportunity is being offered has a choice as to whether or not to accept the fixed penalty route. However, Clause 2(1) states: A constable who has reason to believe that a person aged 18 or over has committed a penalty offence may give him a penalty notice in respect of the offence". But what if, for whatever reason, that does not happen; and not because it will incite further aggravation? One can perfectly envisage the latter occurring if someone who was drunk and abusive was given such a penalty. It would be rather like an abusive footballer being given a yellow card, who then turns round and gives the referee grief, and subsequently ends up with a red card. Indeed, one can imagine such a chain of events.

However, if someone ends up in court without having been offered the opportunity of a fixed penalty notice for an offence that could be subject to such a penalty, he might be liable to pay four-times the fine that someone else who was offered the opportunity had to pay. Therefore, in giving this guidance, will the Secretary of State make it clear on what grounds the constable may not issue a fixed penalty notice? Indeed, if someone requests such a notice in a situation where it was not offered, will there be guidance as to whether or not that person can be offered one? If someone who perpetrated an alleged offence were arrested, taken to the police station and then told that he would be charged, one could well envisage a possible situation arising if that person happens to know about such penalties. The noble Lord, Lord Brennan, said that this scheme will receive a great deal of publicity in due course, especially by way of the tabloid media. Will it be open to the person who is going to be charged to request a penalty notice, instead of having to go to court?

Lord Windlesham

I do not wish to prolong the discussion, but does not this show what extraordinary difficulties will arise in administering the scheme across 42 police areas? As we have heard, there are two mechanisms. The Secretary of State can issue guidance. One must hope that within a police area the police force will try to achieve some sort of consistency. If we accept that consistency is a basic element of any system of justice—which it must be—this begins to seem almost impossible to achieve, does it not?

The noble Lord, Lord Brennan, mentioned an extraordinary range and variety of offending behaviour and the possible consequences. The situation in inner cities may be quite different from that in large urban conurbations. He spoke evocatively of the number of people who flood into Manchester at weekends. We should compare that with the situation in a quiet, prosperous residential area. Are there to be different levels of penalty according to the circumstances of the individual? There should not be. However, some of the comments that have been made seem to suggest that the scheme may have little, if any, consistency. The longer the debate continues the more unsuitable becomes the concept of a fixed penalty in situations involving drunken or drug addicted offenders who are often excitable and "guyed up" by those around them. Those situations may also be exacerbated by racial conflict.

How can the Government or any Minister compare such situations with the imposition of fixed penalties for parking fines and certain driving offences? On the whole there is consistency in the imposition of parking fines. Parking fines are willingly paid by a large percentage of those who incur them. However, to say that the imposition of fixed penalties is effective for parking fines and speeding offences and therefore one should apply them to disorderly conduct is to invent a chimera.

Lord McNally

I do not wish to add to the Minister's woe but I refer to a matter that the noble Lord, Lord Brennan, mentioned to which the Minister did not respond; that is, police training. It is clear that we are asking the police to carry out a different kind of policing. Is there built into the measure—or is it under discussion—provision for training to enable the police to implement the proposals? I believe that the noble Lord, Lord Brennan, asked for clarification on that point.

Lord Goldsmith

The debate has gone wider than the amendments. Therefore, I am encouraged to comment further. It seems to me that one either takes the view that this is a useful, additional way to deal with problems, which happens to be the view that I take, or one does not. If one takes that view it is important to recognise that police forces who are to exercise the powers will need to have operational discretion and that those in charge of police forces will need to have discretion to instruct their officers in a way which is appropriate for their area.

Having listened to the debate, I am concerned at the suggestion that the Committee should impose prescriptive guidance in what are essentially operational matters. The noble Lord, Lord Thomas of Gresford, mentioned an important issue. He asked what would happen if a police officer decided to impose a fixed penalty and was then confronted with more disorderly behaviour. I anticipate that chief constables and police officers will be aware of that possibility. An officer may do the only thing that he can do in those circumstances which is to arrest the person involved. Whether that is in the interests of the person who has committed the offence, others can decide. In those circumstances the offender is likely to face a more serious penalty. The police officer, if he has the opportunity, may point that out to him before events reach that stage.

What is the position of someone who wishes to put forward the circumstances of the offence in mitigation? It is important to bear in mind that a notice of this kind does not oblige the person to whom it is given to pay a fine. There is a choice to be exercised within 21 days, or perhaps even later, whether to submit to a trial and put before magistrates the circumstances relevant to the offence.

9.45 p.m.

Lord Thomas of Gresford

The noble Lord will appreciate that in so doing that person opens himself up in serious offences to sentences of imprisonment and fines of four times the level of the fixed penalty.

Lord Goldsmith

That is what he is subject to at present. In the absence of the fixed penalty scheme, that is all he will be subject to. I do not regard that as an answer.

It comes back to this issue. One either considers it a useful additional weapon in the armoury to maintain law and order—there will be cases where it is wholly inappropriate; that much is clear—or one does not. I simply say in relation to these amendments that too much prescription will undermine the operational freedom that police forces will need in order to make the system work.

Lord Davies of Oldham

The only contribution to the debate to which I violently objected was the suggestion by the noble Lord, Lord McNally, that it was my time of woe. I was enjoying the debate and learning from it. I enjoyed even more the contribution from my noble friend Lord Goldsmith. He presented, but in a more erudite and accurate form, the arguments I would have sought to deploy on the issues raised.

Of course these are operational matters in one obvious respect. There are certain circumstances where, as the noble Lord, Lord Thomas, accurately defined, it would be beyond belief that the policeman would calmly issue a fixed penalty notice. The noble Lord referred to drunkenness. Drunkenness is often attended by violence. We would all expect our police officers to be able to protect themselves effectively without incurring unnecessary risk to themselves. In those circumstances the police officers would either effect the arrest themselves or ensure, with assistance, that the individual reached the police station where the matter could be dealt with. If the offender were drunk, that might occur after a period of sobering up. If an individual had been violent, some constraint would be attached so that the policeman was able to discharge his responsibility without threat to himself.

These are fixed penalty notices with the same penalty attached. It is not expected that an enormous range of potential punishments will be attached to it. The fixed penalty means exactly that. If you are caught, that is what you will get. Of course there are elements of unfairness. There are massive unfairnesses in parking and speeding fines. Someone may cost the community several thousand pounds by his illicit parking, but he receives the same fine as someone whose parking in the wrong place has caused minimal trouble to his fellow citizens. That element of injustice applies to any concept of fixed penalty.

It is clear that this approach is being extended to a different range of narrowly defined and lower scale offences. I am not sure whether I am expected to exercise the judgment of Solomon as regards where the offences lie in the list of my right honourable friend the Secretary of State or my dear friend the Minister of State. However, these are defined as offences which can appropriately be dealt with on most occasions in the judgment of the police officer at the point at which the offence is committed. That must be a limited range. That is why the issue is presented in these terms.

I am grateful to my noble friend Lord Goldsmith. He identified that the issue must be tackled with appropriate discretion. I bear in mind his point, emphasised by the noble Lord, Lord McNally, that training will be necessary. Our police forces will be faced with a new situation. We all recognise that this is a new development. Appropriate training will be needed against the background of the guidance issued by the Secretary of State. I assure your Lordships that that is envisaged.

Viscount Goschen

Can the Minister answer my question?

Lord Davies of Oldham

I am sorry. I thought that I had answered all the points that had been raised. I said that if there was anything that I had not covered, I would ensure that I wrote to the noble Lord concerned. If there is a particular question that the noble Viscount asked that I have forgotten, I shall be only too pleased to respond.

Viscount Goschen

The debate has emphasised that, while there are considerable advantages in theory to the idea of fixed penalty notices, there is a great deal of detail that needs to be probed through, particularly the points raised by my noble friend Lord Cope and the noble Lord, Lord Thomas. The noble Lord, Lord Goldsmith, invited us to accept that we cannot be too prescriptive in the legislation but it will be all right, on the night. There are some important questions of detail.

I apologise for having intervened three times on the amendment. I was looking for an answer, not on the first set of questions but on the second set about an individual who went to court and told the magistrate that he had not been given an opportunity to get the discounted fare of the fixed penalty. If he was issued with a fine, which could be four times the fixed penalty, would that individual have any redress against the court? Could be use that defence to get the fine lowered?

Lord Davies of Oldham

The categorical answer is no. It is for the police officers concerned to decide whether to issue a notice. There can be no subsequent plea bargaining in the court with the individual claiming that they never had the chance to pay the fixed penalty. If the individual did not take advantage of the opportunity to respond to a fixed penalty notice when it was applied to him, the fault would rest with him. If he was involved in an offence for which a fixed penalty was not applicable, he could not plead to the court that the offence was applicable under the framework.

Viscount Goschen

I apologise for troubling the Committee further, but with the greatest respect, that was not the question. Let us suppose that next year, when the Bill has received Royal Assent, I went into the street and let off a firework, which is clearly covered under Clause 1 as an offence for which a penalty notice can be served, and was arrested by the police and not offered the opportunity to pay the fixed penalty. I would have done nothing different from another individual who had committed a comparable offence. Would I have to pay the full fine that could be imposed by the court, or could I argue that I should be allowed to pay only a quarter of it?

Lord Davies of Oldham

I am clearly not going to satisfy the noble Viscount on that point in sufficient detail this evening. I shall have to write to him about it.

Lord Cope of Berkeley

As has been pointed out, we have had a much wider debate than I anticipated when I tabled these modest amendments. I hope that our contribution will be helpful to those who will work on the guidance.

The original question was whether we should have a code of practice or guidance. The Minister responded with the same phrases that were used by his colleague in another place when similar points were made. The Government believe that codes of practice should be used specifically to safeguard the rights of individuals. However, the rights of individuals are being safeguarded by the opportunity to go to a court. I suspect that the Minister's response to my noble friend will be that, when one appears in front of a court, one can argue in mitigation all types of circumstances. Unlike a police constable, the court is able to vary the level of a fine or other penalty from nought to whatever the maximum may be in accordance with the pleas that are put before it. I believe that that is a genuine way in which flexibility exists in the system, even though the penalty for different offences will be fixed under Clause 3.

I believe that we want to give the police all reasonable help in their very difficult task. However, we are also all concerned that such help should be practicable and workable. There will be difficulties in connection with this scheme, particularly during the early stages. I hope that the idea will work. I believe that we all want to see it work if it helps the police to do their duty and helps to protect the public.

However, we must try to tease out the details of what we seek to achieve through this measure. Clearly it will not provide an easy, "snap" solution to the difficult problem of the disorderly behaviour of people over the age of 18. The measure applies only to people over the age of 18. By definition, it applies to people who are likely to be drunk, and so on, and often such situations will arise in the small hours of the morning or late at night in difficult circumstances for the police.

I hope that we have made at least some contribution towards ensuring that the guidance makes the provision as workable as possible. Of course, as the noble Lord, Lord Brennan, said, it will need to be subject to review. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 to 21 not moved.]

Clause 6 agreed to.

Clause 7 [Payment of penalty]:

Lord Cope of Berkeley moved Amendment No. 22: Page 4, line 36, at end insert "by recorded delivery".

The noble Lord said: In moving Amendment No. 22, I shall speak also to Amendments Nos. 23 and 24. In earlier debates, we identified the importance of establishing the identity of an individual against whom a penalty notice will be issued. However, that will be very difficult, given that, unlike motor cars, people do not have licence plates with numbers on them that can be read and followed up—at least, not yet.

In Clause 10, provision is made for what would happen in the court if an argument arose as to whether the individual concerned was the person who committed the offence. In order to take into account such a circumstance, we have made some modest suggestions to try to improve the drafting, such as the use of recorded delivery. Various ways exist to attempt to show that a letter with payment was posted when in fact it was not; for example, by asking a friend to testify that he saw it being posted. However, there is a simpler way to ensure that those difficulties, at least, do not arise—that is, by using recorded delivery.

In Amendment No. 24, we also suggest that a person's last known address should be sufficient. The type of offender who will dodge penalties may make himself difficult to track down when it comes to giving notice. I hope that these modest suggestions will help to avoid some of the problems. I beg to move.

Lord Renton

These are relatively minor amendments compared with those which we discussed recently. However, I believe that they are practical and important. As it stands, if a person says that a letter was posted, that is a very vague notion. My noble friend's suggestion in Amendment No. 22 that it should be posted using recorded delivery is practical. I should have thought that the Government would welcome that. I have to say to my noble friend that I have a very small doubt about Amendment No. 23, which would use the word "send" instead of the word "give". There are various ways in which to move a letter. Using the word "send" is rather limiting. However, my noble friend may be right.

Amendment No. 24 refers to a person's "last known address". That is helpful because people move and the police do not necessarily know that. The best that can be done is to send a notice to the last known address.

10 p.m.

Lord Cope of Berkeley

If the word "give" were left in the Bill, the justices' chief executive would, either physically himself or through a representative, have to hand the notice to the defaulter giving notice of the registration. In practice, however, the notice will come through the post. That is why I suggested using the word "send" instead and proposed sending the notice to the "last known address" by recorded delivery.

Lord Renton

My noble friend may well be right, but we should perhaps bear in mind the fact that the word "give" is somewhat wider than the word "send".

Lord Davies of Oldham

I appreciate the good intentions that lie behind the amendments, which serve as potential aids to make the Bill more effective. Unfortunately, I am not sure that the Bill would be improved by them.

I turn first to Amendment No. 22. Subsections (3) and (4) of Clause 7 have a twofold purpose. First, they will ensure that people who make their penalty payments by post can rely on the letter having arrived in due course, Unless the contrary is proved". If they can prove that the letter was posted, it would be for anyone disputing the fact of payment to show that it did not arrive in the usual way. Secondly, those subsections will ensure that claims to have posted payments are not accepted without evidence. We do not wish the provisions to be restricted to people who use only the recorded delivery system. If they wish to use it, that would be helpful but some people might prefer to use registered post or simply get a certificate of posting, which can be obtained free of charge from a post office. We regard each of those as adequate evidence of posting and of the date of posting. In each case, we think that it is right for the person to be able to rely on the presumption of delivery.

In other words, the burden of proving non-delivery should be borne in these cases by anyone seeking to assert that the fine has not been duly paid. It is important to ensure that people cannot simply claim to have posted a payment without any evidence to support that claim. However, when they can produce that evidence, they should be entitled to the presumption.

Amendments Nos. 23 and 24 would be inappropriate. Clause 9(3) as it stands does not exclude the possibility of notice being sent to an offender's address but it does place on the courts the responsibility of ensuring that notice is given. We think that that is right. A registration is a serious matter and the responsibility must rest with the courts. Ultimately, whether notice has been given is a matter of evidence in the circumstances of any given case. I emphasise once again that I appreciate the intentions that lie behind the amendments but I am not convinced that they would improve the Bill.

The justices' chief executive must issue notices of registration at the last known address. That is the answer to Clause 24; that is, that the responsibility lies with the justices' chief executive.

The registration certificate issued under Clause 8 must include the defaulter's last known address, so that where there is notification it will be sent by the justices' chief executive. That will ensure that the notices are sent effectively, that there is proof that that is so, and the responsibility thus rests with the court.

Lord Cope of Berkeley

I shall reflect on that answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 7 agreed to.

Clause 8 agreed to.

Clause 9 [Registration of sums payable in default]:

[Amendments Nos. 23 and 24 not moved.]

Clause 11 [Interpretation of Chapter 1]:

Lord Cope of Berkeley moved Amendment No. 25: Page 6, line 21, at end insert "and the Chief Constable of the Ministry of Defence Police;

The noble Lord said: Amendment No. 25 is a probing amendment. We want to look a little closer at which police officers from which forces will be empowered to issue the fixed penalty notices.

A number of police forces, apart from the regular forces, come under the purview of the Home Office. It is clear that officers of the British Transport Police will be able to issue fixed penalty notices and will have responsibility for specific offences such as trespassing on the railways. But in the Armed Forces Bill the Government are significantly extending the powers of the Ministry of Defence Police.

The intention is clearly that the force's role in relation to the wider community should be increased. That is a move not without controversy, as was clear in the debates on the Armed Forces Bill. I believe that it would be more contentious if the Ministry of Defence Police were empowered to issue fixed penalty notices to members of the civilian population who were nowhere near Ministry of Defence property and thought that point worth probing with the aid of this amendment.

Other forces, such as the Royal Parks Police and the Atomic Energy Authority Police, may also be included. If the Minister can tell us anything about the Government's policy in that regard, that too will be helpful. I should make it clear that I am speaking here specifically about the Ministry of Defence police force, not about the service police—the Royal Military Police, the RAF police and the marine equivalent—because their remits are within their respective services and it would not be appropriate to include them in this amendment. This is intended to be a probing amendment to draw out the Minister's thinking on this matter. I beg to move.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo)

Before putting the question on Amendment No. 25, I must stand part Clauses 9 and 10. The Question is that Clauses 9 and 10 be agreed to.

Lord Windlesham

We went over Clause 10 rather swiftly. I have a point I wish to make on it in relation to enforcement. We are right at the end of the first chapter of the Bill and I should like to leave this point with the Minister for his consideration. It relates to Clause 10 and the enforcement of penalty notices. Enforcement is likely to prove the Achilles heel of the whole scheme. Some information from Australia has just come to my notice and I hope that the Government will consider it carefully. In New South Wales the police have powers to issue on-the-spot fines for certain breaches of the Police and Public Safety Act. Those include failure to comply with a reasonable direction by a police officer and being in possession of a knife. The New South Wales debt recovery office recently carried out a survey which shows that very few people paid their fines, either in the time allowed or at all. Even when infringement notices were issued, only 6.1 per cent of the total were paid within the 28-day period allowed.

The published figures on fine defaulters for those categories of fixed penalties were 95 per cent of those who received a fixed penalty notice for the possession of a knife and 91 per cent for those who had refused a direction or order from a police officer. Those figures of non-compliance are simply astonishing. As we come towards the end of this part of the debate, perhaps I may ask a question. Does that not show once again that the whole concept of fixed penalty notices for offences of disorder, which are totally different in character to parking and driving offences, is such that the likelihood of them having the effect sought by the Home Secretary is minimal?

Lord Thomas of Gresford

Perhaps I too may raise a query under the same heading as that raised by the noble Lord, Lord Windlesham. I understand that the policy of the Bill is that a person who is served with a penalty notice will not have a conviction recorded against him. Consequently, unlike a caution, it will not form part of any criminal record kept in the criminal records office.

Let us suppose that a person is a defaulter. Would that then become something that is recorded against him in the criminal records office? What is the future position? If, for example, a person has 10 penalty notices for breach of Section 5 of the Public Order Act, will no record be kept of that? Is that not a matter which would come before a court at a subsequent time?

Lord Bassam of Brighton

Perhaps I may deal with the points raised by the noble Lords, Lord Thomas and Lord Windlesham, concerning fixed penalty notices. All I can say as regards the point raised by the noble Lord, Lord Windlesham, is that that is the Australian experience. Obviously, those figures are dramatic and interesting. I shall certainly want to see the evidence.

There are problems within the criminal justice system of recovering fines in any event, but compliance figures are far higher with fixed penalty notices which relate to traffic offences. I suggest that we need to build on the experience in that field. The fixed penalty notices will probably be comparable in terms of quantum. There will be a default court provision for the processing of fixed penalty notices. It will therefore be in people's interests to pay them. Experience and time will tell, but I would expect there to be a far higher compliance level in this country where there is more generally a history of compliance with such matters. I register the concern raised by the noble Lord, Lord Windelsham, and shall study the research with interest when I am presented with it. However, I do not share his gloomy prognosis.

I turn to the points raised by the noble Lord, Lord Thomas of Gresford. A record will be kept of a fixed penalty notice, but not in the same way as a criminal record. That record will be kept locally and the accumulation of FPNs on a regular basis will be known.

I see no reason why the accumulated number of notices cannot be drawn to the attention of a court where perhaps subsequently someone is in default of a fixed penalty notice because he has not paid it; or perhaps where someone opts not to pay the FPN and contests the issue in court. I see no reason why the record of there having been fixed penalty notices cannot be made known to the court. Obviously, we must study that matter closely and take careful cognisance of people's views.

I turn to the amendment which the noble Lord, Lord Cope, moved a few moments ago.

10.15 p.m.

Lord Burnham

Are we not discussing the Question whether Clause 10 shall stand part of the Bill?

Lord Bassam of Brighton

I concede the point.

Lord Burnham

The noble Lord seems yet again to equate parking offences and public order offences. Does he really believe that? Furthermore, he seems to believe that the British are more likely to pay up the FPNs than are the Australians. Why is that?

Lord Bassam of Brighton

I equate them in the sense of process and operation. As regards compliance levels here, there is a tradition of compliance particularly with fixed penalty notices—

Lord Burnham

But not in Australia.

Lord Bassam of Brighton

The Australian situation is the Australian situation. Clearly, the noble Lord, Lord Windlesham, has made an interesting point but it does not undermine the point that there is great relevance in having fixed penalty notices. The noble Lord's party supports the principle of them, and I am interested that that is the case given some of the hostile observations that have been made by Members opposite during the course of the debates. I understand and appreciate the importance of having a critical debate, but we need to concentrate our minds on ways in which we can make the provisions practical and workable. That is what we are trying to do in government.

We believe that the provisions are valuable and resist any effort to oppose Clause 10. We believe that over time fixed penalty notices will prove their value to the criminal justice system and make an important contribution.

Lord Carlisle of Bucklow

Like the noble Lord, Lord Windlesham, I am concerned about the possible effect of the proposals. In principle, I support what the Minister said about fixed penalties in cases of this kind because it helps to reduce the number of people who will have criminal convictions for the rest of their lives in respect of perhaps reasonably minor indiscretions at a young age.

However, if the effect is that more people go to prison for non-payment of the fine, the scheme will have failed. I understand that the comment of my noble friend Lord Windlesham was that where the system has been tried it has had that result. Therefore, can we be assured that the Government will keep a close eye on the matter? If it is shown that in practice the non-payment of fines causes a greater increase in the prison population than the existing law, the whole system of attempting to have a fixed penalty rather than a criminal offence for various matters will have failed. I hope that the Minister will bear that in mind.

Lord Cope of Berkeley

As to Clause 10 stand part, I cannot answer the question about the higher compliance rate in Australia. It is a good thing that the Australians are not regarded as a race; otherwise, the aspersions cast on those individuals might get the Minister into serious trouble, but it is an extremely good point.

As to the question of a record, the draft guidance states that where it is known that the alleged offender has been issued with a number of penalty notices for disorder offences within the previous six months, or a year, a penalty notice is unlikely to be a suitable response to the offence. It may be known to the policeman in the street who is about to issue a penalty. However, the guidance goes on to say that chief officers can obtain information which will enable local ticket office records to be checked for the purpose of deciding whether to issue a penalty notice for the current offence or to charge the alleged offender. In practice this will happen only if the officer has gone back to the police station to consult the records rather than in the street, but it throws light on the idea that no criminal record will exist. It is not a criminal record in the ordinary sense of the word, but it is a record of the penalties which will be available both to the police when making their decisions and also to the courts if the offender is charged. It is not quite true that there is no record and no penalty with repeat offences, unless the offender is ingenious enough to commit the offences in different jurisdictions, or follows a football team which travels, in which case it will be less easy for the police to trace the record.

Lord Thomas of Gresford

Before the noble Lord sits down, I wonder whether he is aware that the current practice in court is for a list of convictions and cautions to be produced when a person is sentenced. Apparently a third list of fixed penalty notices is to be produced.

Lord Bassam of Brighton

I am delighted that we have had more debate on this matter which has provided the opportunity for further clarification and new information. I take to heart the 'sensible observations of the noble Lord, Lord Carlisle. The noble Lord was kind enough to support fixed penalty notices, and I am pleased to see that support for them is growing within the Committee. The noble Lord is right to suggest that we need to keep under review such matters as the collection of fixed penalty notices and fines, and we undertake to do that.

As I indicated in earlier debates on this Bill, we intend to pilot these matters very carefully after detailed consultation. The guidance will be all-important as to the way in which the fixed penalty notice scheme operates. All of those points need to be taken into account very carefully when considering this particular clause stand part debate.

Clause 9 agreed to.

Clause 10 agreed to.

The Deputy Chairman of Committees

We return to Clause 11, Amendment No. 25. Amendment proposed: page 6, line 21, at end insert "and the Chief Constable of the Ministry of Defence Police".

Lord Cope of Berkeley

I shall not repeat the remarks I made prematurely a few moments ago. I beg to move.

Lord Burnham

As my noble friend said, there is here a degree of cross-fertilisation with the Armed Forces Bill, which is why I rise to speak to this amendment. It is noticeable that the British Transport Police are included in the Bill but the Ministry of Defence Police, the United Kingdom Atomic Energy Authority Constabulary and the Royal Parks Constabulary are not. The Ministry of Defence Police is the tenth largest force in the country. I can only assume that the Government team concerned with this legislation has not spoken to the team responsible for the Armed Forces Bill. At the Committee stage of the Armed Forces Bill we shall oppose the provisions whereby the Government seek to extend the powers of the Ministry of Defence Police. The relevant clause is Clause 31. We shall not oppose the clause as a whole but parts of it, as indeed did my honourable and right honourable friends in another place.

Overall, there is an extension of the authority of the Ministry of Defence Police in the Armed Forces Bill. I cannot see the logic for not extending the powers in the same way in this Bill. In the Armed Forces Bill the Government clearly seek to equate the powers of the Ministry of Defence Police within the vicinity of or on Ministry of Defence property, so far as is possible, with the Home Office Police. They are also extending their powers when travelling between one place and another.

Many of the provisions are quite logical, although, in our opinion, they have gone too far. However, I ask the Government to carefully look again at the relative powers of the British Transport Police and the Ministry of Defence Police with the other police forces I have named. I support my noble friend's amendment.

Lord Bassam of Brighton

As my honourable friend Mr Charles Clarke said in another place: The role of the Ministry of Defence Police is an important and significant issue".—[Official Report, Commons Standing Committee F, 15/2/01; col. 205.] I should like to make it clear, as he did, that we would not want to give the Ministry of Defence Police extra powers in these matters unless there were powerful reasons so to do. No such reason really has been advanced prior to this debate. We have as yet received no official request from the Ministry of Defence Police for it to be given these powers. We have been in touch with that force. It has been asked for its view on these matters. It has made no official request to have this range of powers.

The protocols of agreement between the Ministry of Defence Police and the territorial forces about how they should operate together are important and complex. We would not wish to jeopardise the relationships involved by granting powers which the police force involved has not requested. The MoD Police has not requested these powers. We have been in touch and consulted it on these matters. Therefore, the amendment is not one that we can accept.

The term "chief officer of police" only covers so-called police forces—for example—for police areas in England and Wales. It does not cover the Royal Parks Police, MoD Police or any other non-territorial police forces. The British Transport Police has been included within the legislation because it expressed a wish to be so included. Logically that makes a great deal of sense because the range of offences covered in Clause 1 comprise offences which could take place in areas where the British Transport Police is operationally active.

I hope that I have clarified our position on this issue. For those reasons I hope that noble Lords opposite will feel able to withdraw their amendment.

Lord Burnham

The Minister says that he can see no case for extending the provision to the Ministry of Defence Police. The positions of the Ministry of Defence Police and the British Transport Police are absolutely identical. They are meant to defend the cause of justice, law and order, whatever one chooses to call it, on land for which they are responsible, either Ministry of Defence land or railway land. The cases are absolutely identical.

If, as the noble Lord says, he can see no case for extending the powers to Ministry of Defence Police, why can he see a case for the British Transport Police? Is it merely because the noble Lord happens to have talked to the British Transport Police and encouraged that force to ask for these powers and not the Ministry of Defence Police? There can be no other reason.

Lord McNally

Further to that point, it would seem also that the parks police are even more four-square with the British Transport Police. Have the Government simply not talked to them? Why were they left out?

10.30 p.m.

Lord Bassam of Brighton

I am sure that all of those police forces have been consulted over these matters. I am not aware that the parks police have expressed a desire to have these powers, although, particularly with regard to the parks police, I can see the point made by the noble Lord, Lord McNally. However, the MoD Police are quite clear that they do not require the powers. It would be wrong of us, particularly given the protocols of agreement between the MoD Police and territorial forces, to oblige them to take on powers that they have not positively expressed an interest in having. Members of the Committee have made their points forcefully. I shall ensure that we redouble our efforts and check once again, but I am confident that that is the position.

Lord Cope of Berkeley

The amendment has produced another interesting debate. We shall reflect on what has been said. I shall not add anything at this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 [Alcohol consumption in designated public places]:

Baroness Buscombe moved Amendment No. 26: Page 6, line 32, at end insert "and reasonably believes that their behaviour may lead to an offence

The noble Baroness said: In moving Amendment No. 26, I wish to speak also to Amendments Nos. 27 and 28. These amendments bring me to a point which I raised at Second Reading with regard to the consumption of alcohol in designated public places, most commonly referred to, under current bylaws, as alcohol free zones.

As currently drafted, if a constable reasonably believes that a person is or has been consuming alcohol in a designated public place or intends to consume alcohol in a designated public place, the constable may require the person concerned not to consume the alcohol in that place or to surrender the alcohol to the constable. We believe that, in order for a constable to exercise his or her powers under Clause 12 of the Bill, he or she should, as our amendment suggests, reasonably believe that the behaviour of the person either consuming or likely to consume the alcohol in a designated public place may lead to an offence.

Perhaps I may repeat the example that I used at Second Reading. Let us suppose that a group of people—perhaps on a family outing to a beach which is in a designated public place—take with them a few beers and a bottle of wine. A police constable will have the right to remove that alcohol on the spot even though it may be obvious to most people that the likelihood of that group's behaviour deteriorating to such a degree that it may lead to an offence is fairly remote. The fact is that once this Bill is passed all of us will feel fairly uncomfortable about consuming alcohol in a designated public place, just as we do if tempted to park even for a brief moment on double yellow lines.

The Minister responded to those concerns at Second Reading by saying that drinking alcohol in a designated public place does not by itself constitute an offence. I accept that. However, we firmly believe that for that effectively to be the case Clause 12 must be more narrowly defined. As currently drafted, a keen constable would be acting quite within his power to compromise all of us, no matter how innocent the activity. This is an example of a nanny state if ever there was one. Amendment No. 27 deals with the disposal of anything surrendered to a constable under Clause 12. We on these Benches have considered this point at some length and have concluded that, while it is important to retain as much flexibility in procedures to be followed by police officers as possible, it should be the responsibility of the chief of police in that area to dispose of anything surrendered as and when he or she deems it appropriate. For example, there is always the possibility of some dispute arising following the confiscation of alcohol or containers, a dispute that may be hard to settle if the physical evidence is disposed of prematurely. In addition, I believe that we are now all very aware of the dangers involved in handling receptacles of any kind found in a public place. Surely it would make sense for the responsibility to rest with a senior police officer.

Turning to Amendment No. 28, this emphasises our wish to see flexibility in the system, given the often difficult circumstances that a constable will need to face and the realistic time-frame within which he or she must decide the right course of action and implement the right procedures. In essence, we think that it would be too draconian to expect a police officer, when seeking to restrain someone or, more likely, a group of individuals, from consuming alcohol and, if necessary, removing the alcohol from that person or those persons, to remember to state that failing without reasonable excuse to comply with the requirement is an offence. Yes, that would be both a good idea and good practice, but it should not be made a hard and fast rule of law.

What would happen if, on one occasion where the offence was clear cut, a constable should forget to make the statement? It would be a nonsense for the offence to be negated in a court of law just because the constable failed to meet the requirements of Clause 12(5). I beg to move.

Lord Bassam of Brighton

The Government believe that these amendments would both weaken and complicate the new police powers provided by the clause. Clause 12 will not make it an offence for a person to drink in a place that is designated by virtue of Clause 13. The noble Baroness has accepted that an offence would be committed only if a person continues to drink alcohol in such a place after having been warned by a police officer not to do so, or fails to comply with the officer's request to surrender any alcohol or alcohol containers in his or her possession, in accordance with Clause 12(2). There is, therefore, an important safeguard written into the clause to protect those who may innocently or unwittingly be drinking in such a public place. We would expect people in this position to comply with the officer's request.

The police will have a discretion as to the circumstances in which they exercise these powers. If they do not warn an individual not to drink, no offence will be committed. In addition, by virtue of Clause 13, it will be only those public places that have experienced problems associated with anti-social public drinking that will be designated by the local authority for this purpose. It is right that the police should have effective powers to tackle antisocial drinking in such places and to contain public disorder situations where alcohol misuse plays a part.

We must avoid a situation occurring in which the police consider it to be appropriate to exercise the Clause 12 powers in a designated public place, but then are required to exercise a judgment in respect of each and every individual as regards whether an individual may go on to commit an offence if allowed to continue drinking before exercising their powers.

Baroness Buscombe

I hope that the Minister will forgive me for intervening. The Minister has just contradicted himself. On the one hand he has said that by drinking in an alcohol-free zone, one is not committing an offence, but on the other hand it is entirely at the discretion of police officers to decide that it is an offence. That does not make sense.

Lord Bassam of Brighton

I think that the position is plain. It is not an offence to drink; it is an offence to refuse an officer's request. That is the important point to remember here.

Lord Carlisle of Bucklow

While I accept that it appears not be an offence to be drinking, even though someone may have been told by an officer that he should not do so, this gives a power to the officer to confiscate from an individual anything he may have in his possession. Following on from the point made by my noble friend Lady Buscombe, if I visit a beach not knowing whether it is a designated area and have with me a cask of wine, is the Minister saying that the police will have the power to remove that cask of wine simply because I happen to be in a designated place? Not unreasonably, having a cask of wine and a glass with me, the police might think that I am likely to have a drink. I understand that the police will be given the power to remove that alcohol from me.

Lord Bassam of Brighton

As they do in many instances, the police will have a discretion to exercise such powers. I think that we can expect the police reasonably to exercise that discretion. What they are looking for is anti-social drinking in places where they reasonably believe that public disorder may occur. That is the important point. An area will not be designated unless the area is likely to be a place where disorder may occur. That is how this particular set of powers has been built up and developed in our thinking.

There are already 113 local authorities which exercise similar powers—many of them, I hasten to add, Conservative authorities. They have welcomed these powers and the reasonable way in which they have been exercised. If the noble Baroness would like to draw to my attention to real, practical examples of where there have been difficulties of the order and the nature that she has described to the Committee, I shall be very interested to hear of them.

Baroness Buscombe

The situation at the moment is slightly different; it is much more difficult to invoke by-laws. If the Bill is introduced, it will be a straightforward process for local authorities to introduce these alcohol-free zones—probably in a blanket way—to try to eradicate anti-social behaviour. However, because it will be so easy and straightforward, it will not solve the problem; it will only move it. Creating these blanket areas of alcohol-free zones could make criminals of all of us. That is the point that I am trying to make.

Lord McNally

I should like to bring a word into the debate which I know is much loved by the Minister—that is, "proportionality". The noble Baroness is getting out of proportion the dangers of what is proposed against the real menace it is intended to deal with.

Late at night we always get marvellous images. The thought of the noble Lord, Lord Carlisle, in shorts and sandals, toddling on to the beach with a cask of wine in one hand and a glass in the other, can be considered only as a social exercise and not as an anti-social one. Knowing the noble Lord's hospitality, I am quite sure that a beach party would soon be in motion.

It has been pointed out that Liberal Democrat councils, Conservative councils and Labour councils have all come up against the problem of areas of a town being taken over and denied to ordinary citizens. That has been caused by one of the facts of modern life; that is, the easy access to cheap alcohol in supermarkets, and to not only groups of deadbeats and ne'er-do-wells but also groups of young people making whole areas no-go areas for the ordinary citizen. The fact is that local government has increasingly needed to use these powers. I do not see that as the action of a nanny state but as a reasonable power to deal with a real menace to the ordinary citizen.

I am not as convinced as the noble Baroness that this power will merely move the problem to another area. The areas that become known drinking centres are easily identifiable and, once the drinkers are removed, some of the problems will be removed with them.

10.45 p.m.

Baroness Buscombe

Perhaps I may respond to the point made by the noble Lord, Lord McNally. We on these Benches collectively are not against alcohol-free zones. My concern is that a blanket approach will not solve the problem but merely move it to another area. Does the noble Lord think that people will stop drinking? Of course they will not. It will not make a difference in that sense at all.

The amendment seeks more narrowly to define the offence to ensure that a police officer will approach those people only where it is reasonably likely that an offence will take place. In other words, the rest of us will be left to have a social drink, as opposed to an antisocial drink. That makes it easier for the police officer to carry out his duties in a sensible way. He will not be accused, if he stands back, by some who say, "Look at them. They should stop drinking. It is not allowed. It is an alcohol free zone". He can then say, "I am absolutely correct to stand back and allow those people to carry on drinking because I do not believe that what they are doing at the moment is likely to cause any difficulty or that they will commit any offence". That is the point I am making. I simply want to see a more narrowly defined provision.

This is not about being prescriptive. I heard what the noble Lord, Lord Goldsmith, said in relation to the need for us not to be too prescriptive in terms of the operation of the Bill's provisions. That is important. We have tried in some of our amendments to concede that point and to help the Minister in that way. But, at the same time, the public need to be reassured that they will be allowed to continue to go about their lawful business and to enjoy urban areas and rural areas, no matter whether they are alcohol free zones, if they are behaving in a way that is social and is not likely to lead to an offence. That is purely what this provision is about.

Lord McNally

Before the noble Baroness sits down, does she agree that a large group of people, even if they are drinking socially, in a public place can be intimidating to the rest of the community? She must take that point into account when deciding whether it is to the greater good that people should be able to exercise the kind of freedom to which she refers. It is not about people unfurling the rug and opening the picnic hamper somewhere and enjoying a glass of wine. It is about groups of people—often young people in quite large numbers—drinking alcohol that they have bought in supermarkets. They may not be going to commit any offence, but they certainly cause disquiet, particularly among older citizens. In the end, whole areas where this activity is carried on become no-go areas for those other citizens.

Baroness Buscombe

I find it hard to accept this argument coming from a Liberal Democrat. I assume, therefore, that the noble Lord is suggesting that, even if groups of young people are in no way in danger of committing a n offence and their behaviour is not likely to deteriorate to the extent that they are committing an offence, they will have to be teetotal? Is that what the noble Lord is saying?

Lord McNally

No. But if 20 or 30 young people go into Tesco's in central St Albans and then go across to the Arena Plaza and start consuming the alcohol that they have purchased, they cause disturbance and in some cases distress.

Baroness Buscombe

That is exactly my point. If they cause disturbance, our amendment kicks in. They are likely to cause an offence, in which case the police officer then feels comfortable that he is right to go up to them and ask them to surrender their alcohol to him. It is to assist the police that we are proposing this amendment. It is not in any way to try to make the provision more difficult or more draconian.

Lord Bassam of Brighton

I am not quite sure that the noble Baroness lives in the real world. I have been dealing—

Baroness Buscombe

Forgive me, but I find that deeply insulting. I hope that the Minister will refrain from such remarks and that he will retract that statement.

Lord Bassam of Brighton

I am not one for being offensive across the Dispatch Box. That is not my style. I try to be polite and precise. But what we are trying—

Baroness Buscombe

Will the Minister apologise for that statement?

Lord Bassam of Brighton

I apologise if I have given offence. It was not intended as a personal aside. But we do have to have real world considerations. That is the point that I am trying to drive home. I ask the noble Baroness to reflect on that. I live in a city which is very busy for 24 hours of the day in summer. There is a real problem with young males aged 20 to 35 drinking on the streets in a particular part of the city, St James Street. The local authority is extremely keen to have this range of powers in the way in which they are described in the Bill. It feels that they will help it to deal with a real nuisance. There is actually cross-party agreement within the city council as to how those powers might properly operate.

The Government have very carefully consulted with the Local Government Association and with local authorities generally about the exercise of these powers. We are simply trying to replicate a situation that existed by application through by-laws. That is all that we are seeking to put in place. When the noble Baroness says that this is the "nanny state", that is when I say that we need to deal with real situations in real places and in real time. As the noble Lord, Lord McNally, said, this will give genuine relief to people who feel threatened and menaced by others in such circumstances. I give way.

Lord McNally

Perhaps I may give the Minister another example; namely, the city of Liverpool, which, as he knows, is under Liberal Democrat control. The local authority has taken very strong measures against this kind of public-place drinking, partly because the old image of Liverpool was associated with whole areas where such behaviour could take place. This reflected very badly not only on the image of the city but also on the commerce and the trade; and, indeed. people's willingness to visit the city. One of the first results of that hard-line policy is the fact that more people now go into central Liverpool to enjoy themselves in a social way because they no longer feel intimidated by such public abuse of alcohol.

Lord Bassam of Brighton

That is precisely the point, is it not? In a city like Liverpool, or one like Brighton and Hove, people will want to drink socially in restaurants and in bars where there are, perhaps, open areas in the summer from which people spill out on to the streets in a confined way. Indeed, tables are often placed on the pavements so as to enable people to enjoy a meal in the open air. It is to protect that very social act of drinking in a more generally considered public place that we are seeking to enable local authorities to make application in the way proposed.

There is adequate protection in the legislation. Officers will be able to exercise judgment and discretion. The power will not be abused in the "nanny state" way of which the noble Baroness is so afeared. I certainly cannot see it interfering with her glass of wine on the beach at Rock, or wherever it is that she takes her pleasure in the summer—according to the example that she mentioned on Second Reading. There are significant safeguards available. Clause 13 will ensure that it is only those public places that have experienced problems associated with public drinking that will be designated for this purpose. In those circumstances, I have absolutely no doubt that the local authority will very carefully define the area to be covered.

I know from my own example in Brighton and Hove that very careful debate has taken place with local amenity groups, local traders, hoteliers, restaurateurs, local action groups on alcohol, and so on, so as to define where the line should be drawn. Indeed, that debate has been most important. Because local councils will be held to account locally, they will have some difficult choices to make as to exactly where that line is drawn.

We do not find these amendments to be workable. We do not believe that they will significantly enhance the quality of this legislation. As I said at the outset, I believe that they would significantly weaken it. For all of those reasons, I must continue to resist the amendment. I invite the noble Baroness to withdraw it.

Baroness Buscombe

In responding to the noble Lord, perhaps I may, first, point out that I, too, live in the real world. I happen to live in London where I know that all of these problems manifest themselves on a daily basis—hence my reaction to the rather insulting comment that was made.

I am disappointed in that I do not believe that the Minister responded to Amendments Nos. 27 and 28. We are looking for ways to emphasise the need for flexibility in the system and to help police officers in the process of carrying out what we know to be a very difficult job for all of them on a day-to-day basis. I am sorry that the Minister does not seem to understand that I am trying by way of these amendments to support the work of the police in terms of effectively managing these alcohol-free zones in a way that we believe would help everyone in the long term. Such provisions would help the general public to understand where the parameters lie within the Bill. However, I shall not press my arguments at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 27 and 28 not moved.]

Clause 12 agreed to.

Lord Davies of Oldham

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.