Lords Sitting of 3 February 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Birmingham.

Scottish Nursery Education and Segregation
Lord Taylor of Gryfe Lord Taylor of Gryfe asked Her Majesty's Government:
Whether they have received representations on the question of segregation of children attending pre-school education in Scotland.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, we have received no formal representations on the question of segregation of children attending pre-school education in Scotland.
Lord Taylor of Gryfe: My Lords, does the Minister agree that, while he has had no formal representations made to him, the view has been expressed by the leaders of the Catholic Church in Scotland that nursery school children in the three-to-five age group should be segregated wherever possible? Will the Minister agree that if such representations are received, the Government will oppose segregation of children of that age group? Will he also agree that such a step would not only be expensive, but in Scotland it would be socially divisive also?
Lord Sewel: My Lords, I can reply briefly to that point by repeating the comments made by my honourable friend the Minister for Education and Industry, Mr. Brian Wilson, who said that the Government do not believe it to be appropriate to organise pre-school education along denominational lines.
Lord Mackay of Ardbrecknish: My Lords, is the Minister aware that I am pleased to hear that response? It would be a considerable error if we segregated nursery education in Scotland. Speaking for myself, I feel that it is time we thought seriously about ending segregation further up the school system. Is the Minister aware that that would be particularly helpful to Glasgow City Council, who, at the moment, are having to rationalise their school estate and are faced with having to close schools in deprived areas rather than amalgamate denominational and non-denominational and thus keep open schools in certain deprived areas?
Lord Sewel: My Lords, denominational schools, as opposed to pre-school education, are part of the historic settlement of 1918 which established a pluralistic form of school education in Scotland where parents can exercise choice. How they exercise that choice is a matter for them to decide. The Government have no plans to alter the
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statutory framework. Where the amalgamation of denominational and non-denominational schools can be brought about as a process of consultation and agreement, it is to be welcomed.

Nuclear Weapons: Policy
2.40 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether, in pursuance of their policy of seeking the elimination of nuclear weapons and of their support and ratification of international conventions banning the manufacture, deployment and use of biological and chemical weapons, they will propose that nuclear weapons become the subject of a similar convention; and whether they will draft such a convention for consideration by the United Nations.
Lord Whitty: My Lords, this Government made very clear their commitment to the goal of the global elimination of nuclear weapons. In the Strategic Defence Review and elsewhere we are examining all aspects of our nuclear policy, including what practical steps we might take towards that goal.
Lord Jenkins of Putney: My Lords, I am glad to hear from my noble friend that that is the case and I therefore thank him for that Answer. However, can he elucidate a little more? He referred to the strategic review. Is he suggesting that the Government are unable to put forward proposals until the strategic review? And can we expect some proposals from the strategic review?
Lord Whitty: My Lords, some aspects of our approach to a practical and realistic strategy towards nuclear disarmament are already clear. By the end of March the Government will have withdrawn Britain's free-fall nuclear bomb. We have already taken a leading role in negotiations such as those relating to the comprehensive test ban treaty and are committed to the development of a fissile material cut-off treaty as the next treaty step. Some of the other options are being re-examined under the Strategic Defence Review and we hope to be able to present the conclusions of the review in that respect, as in others, in a few months' time.
Lord Judd: My Lords, does my noble friend agree that if the spirit of non-proliferation is to be upheld, it is essential that those powers which possess nuclear weapons demonstrate progress towards nuclear disarmament, particularly if they are to carry the rest of the world with them in preventing the spread of those dangerous weapons?
Lord Whitty: My Lords, I agree with my noble friend. The withdrawal of the free-fall nuclear bomb in

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Britain's nuclear armoury leaving the single Trident system is a step in that direction. We trust that other nuclear powers will take similar steps.
Lord Campbell of Alloway: My Lords, can the Minister say whether the elimination of nuclear weapons is wholly dependent on verifiable inspection and the elimination of chemical and biological weapons?
Lord Whitty: My Lords, in both respects, aspects of verification are key to the enforcement of the treaties. That has certainly been our approach on the test ban. It remains our position that we need to go further in relation to chemical and biological warfare in terms of both enforcement and inspection.
Lord Chalfont: My Lords, can the Minister assure the House that whatever else may be in the Strategic Defence Review and whatever results from it, there will be no resiling from the commitment in the Government's manifesto to maintain strong defence forces, including an effective nuclear deterrent?
Lord Whitty: My Lords, I can give the noble Lord an absolute guarantee that that remains the case. Our commitment to nuclear disarmament is on a global basis.
Lord Dean of Beswick: My Lords, can the Minister say whether he expects some progress to be made on this subject? Can he indicate whether he expects the defence review to put forward some more definitive proposals so that we can reach the objectives that we all desire?
Lord Whitty: My Lords, I cannot pre-empt the outcome of the Strategic Defence Review. We hope to produce a report in the first half of this year. At that point there will be aspects dealing with our nuclear defence force.
Lord Marlesford: My Lords, further to an earlier question, can the Minister reassure the House that within the Strategic Defence Review there is no question of reviewing the continuation of Trident, whose primary purpose and sole justification is the ability to deliver nuclear weapons in the cause of national defence?
Lord Whitty: My Lords, the Strategic Defence Review will be reviewing all aspects of our defence and deployment of weaponry. However, as I have said, Trident will shortly be our only nuclear weapons system. Until we reach some global agreement, that will be the case.
Lord Mason of Barnsley: My Lords, is the Minister aware that from what he has said it is obvious that we are gradually giving up our nuclear armoury? In the meantime, how many countries in the world are developing theirs?
Lord WhittyMy Lords, there are relatively few countries in terms of the verifiable development of
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nuclear weapons. The nuclear test ban treaty will prevent all signatory countries ever testing nuclear weapons. Our belief is that, apart from the existing nuclear powers, very few countries have the technology to produce nuclear weapons.
Lord Jenkins of Putney: My Lords, we all accept that any global agreement must be verifiable and verified. However, is it also not the case that the suspicion that the Government are not as enthusiastic to eliminate nuclear weapons as is sometimes suggested is given strength when they oppose the proposals recently put forward by Malaysia? It is not sufficient for the Government to reduce their nuclear strength; they must also put forward plans whereby the aim of elimination can be achieved. Only plans put forward by a nuclear power will be acceptable to nuclear powers.
Lord Whitty: My Lords, I hope no one in the House is under any illusion about both the Government's commitment to the elimination of nuclear weapons and the complexity of the task. My noble friend referred to the Malaysian resolution. We voted against it; but not because of its aim but because we felt it would not help move the difficult process further. Indeed, none of our NATO allies supported it. In particular, it had within it a fairly unrealistic timetable in its call for multilateral negotiations this year leading to an early conclusion and a nuclear weapons convention. We supported other resolutions tabled by Japan on the elimination of nuclear weapons and by the United States and Russia on bilateral nuclear arms negotiations. We also supported resolutions on nuclear weapon-free zones in central and southern Asia, Latin America, the Middle East and Africa. We are therefore in strong support of initiatives in many parts of the world. But let us not underestimate the difficulty of the task.

Independent Taxation within Marriage
2.48 p.m.
Lord Goodhart Lord Goodhart asked Her Majesty's Government:
Whether they are considering the reintroduction of joint taxation of the income of husbands and wives.
Lord McIntosh of Haringey: My Lords, decisions on tax are a matter for the Chancellor's Budget and the noble Lord would not expect me at this time of year to anticipate his Budget Statement. However, the Chancellor has made it clear that there is no question of returning to the pre-1990 position in which a wife was effectively treated as a chattel for tax purposes.
Lord Goodhart: My Lords, is the noble Lord aware that the establishment of the right of married women to separate taxation from their husbands is regarded as one of the most important steps forward to the independence and equality of women? Will he accept that there is now considerable concern about the possible erosion of that principle, especially in view of the proposed introduction of the working family tax credit, since it seems inevitable that that credit will have to be

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calculated on the basis of the joint income of husbands and wives and indeed of co-habiting couples? Will the Minister take note of the fact that any further extension of joint taxation of couples would be vehemently opposed? Can he give an undertaking that there will be no changes in taxation which will make married couples subject to a higher degree of income tax than if they were single and living separately?
Lord McIntosh of Haringey: My Lords, I entirely agree with the noble Lord that the principle of independent taxation within marriage is a very important element of equality between the sexes. The noble Lord referred specifically to the proposal which is out for consultation as regards the working family tax credit. I do not think he need make a conjunction between that proposal and independent taxation. After all, in Canada, for example, there is a perfectly effective system of independent taxation combined with a credit of this type.
Lord Mackay of Ardbrecknish: My Lords, I believe that I welcome the noble Lord's original Answer, although I shall have to read it in Hansard with care. Is the Minister aware that the reform which the previous government carried out of independent taxation was widely welcomed? We shall be greatly disappointed if this Government ever move away from that. Is he further aware that, if in an attempt to tax child benefit an effort is made to shift the benefit to the husband, that would be a reversal of Labour policy which I imagine the "Blair's Babes", as I believe they are called, in the Commons would be firm about? They should not move money from the purse to the wallet, I believe is the expression.
Lord McIntosh of Haringey: My Lords, I am aware, and the Chancellor is certainly aware, of the concerns which the noble Lord has expressed. He rightly said that the move towards independent taxation was undertaken by the previous government both in 1980, with the earnings election, and in 1990. We pay tribute to that. It is an important advance, as the noble Lord, Lord Goodhart, rightly said. However, if the noble Lord is seeking to tempt me to make a guess about the Chancellor's Budget, even if I knew the answers, I would not respond.
Lord Northbourne: My Lords, does the noble Lord agree that husbands and wives living peaceably together and bringing up their children are likely to cost the taxpayer less than some other forms of family structure and give their children the advantages of a stable and loving home? Therefore, can he assure the House that the Government will not do anything in their tax or benefits policies to discourage two-parent families living together?
Lord McIntosh of Haringey: My Lords, I can certainly confirm that the Government will not do anything to discourage two-parent families. The noble Lord is quite right in that. But the issue of independent taxation takes two forms: first, there is privacy between
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the partners. As I indicated, using the Canadian and American examples it is perfectly possible to maintain privacy. The second issue is whether the taxman takes more from two-parent families or from married couples. That is an issue on which it is much more difficult for me to respond at this time.
Baroness Lockwood: My Lords, is my noble friend aware that his Answer on separate taxation will be warmly welcomed by the women who campaigned for many years to bring about independent taxation for women? Is he also aware that there is unease among these women? If there is any infringement of that principle it is likely to lead to the kind of campaigning that we had in the 1970s and 1980s.
Lord McIntosh of Haringey: My Lords, I am aware of the force of the point that my noble friend makes. I know from his public statements that the Chancellor of the Exchequer is equally aware of them.
Lord Campbell of Croy: My Lords, is the noble Lord aware that his original Answer will be generally welcomed, in that wives should not be treated as chattels? Is there not another reason for not making a change at this time; namely, that for some time the Inland Revenue and the tax-returning public will find themselves recovering from the impact of the new system of self-assessment?
Lord McIntosh of Haringey: My Lords, when the noble Lord looks at the Minutes tomorrow he will find that the topical Question for Thursday, raised by the noble Lord, Lord Newby, is on this point. We might discuss the matter at greater leisure at that time.
Baroness Gardner of Parkes: My Lords, I support every word said by the noble Baroness, Lady Lockwood, and I, too, welcome the original Answer, but I hope the Minister will agree that it is important to investigate new ways, while retaining independence, to establish the family credit system? Something of that kind is desperately needed.
Lord McIntosh of Haringey: My Lords, the noble Baroness rightly indicates the complexity of the issues facing the Chancellor in his decisions about working family tax credit.
Earl Russell: My Lords, will the Minister consider the possibility that, since over the next generation we may legitimately hope that more and more women will join the ranks of top earners, in future the demand for independent taxation may also come from men with the same vigour as it now comes from women?
Lord McIntosh of Haringey: My Lords, the noble Earl is undoubtedly right.
Lord Bruce of Donington: My Lords, in consideration of matters raised by the Question on the Order Paper and in particular taking note of the expressed views of the House, will the noble Lord give

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the House an assurance that in the course of all this overriding consideration can be given to the simplification of the chaotic taxation laws?
Lord McIntosh of Haringey: My Lords, I believe that every Chancellor of the Exchequer this century, and probably going further back, has on coming into office indicated the need to simplify tax regimes. Some succeed more than others.
Baroness Carnegy of Lour: My Lords, for clarification, can the Minister confirm that the reply he gave two or three questions ago sounded like reassurance? Was he assuring the House only that the way in which tax returns are made will enable privacy to prevail or was he also saying that the amounts people will pay relatively will be preserved?
Lord McIntosh of Haringey: My Lords, my answers were more cautious than that. I was saying that there are two elements with which this Question is concerned. One is the issue of privacy. That can be dealt with by the way in which tax returns are submitted and considered. The other is whether the taxman takes more from a couple than from two individuals. My overriding response must be—particularly to the second question of the noble Lord, Lord Goodhart—that I cannot guess what will be in the Chancellor's Budget.

Cystic Fibrosis
2.58 p.m.
Lord McNally Lord McNally asked Her Majesty's Government:
What response they have made to the proposals made by the Cystic Fibrosis Trust in its document Fair care for all.
The Minister of State, Department of Health (Baroness Jay of Paddington): My Lords, I am grateful to the Cystic Fibrosis Trust for sending me and my colleagues copies of this report last month. I can assure the noble Lord that we are considering the report carefully. Many of the proposals are consistent with the policy of the White Paper, The New NHS, which the Government published before Christmas. We shall continue to work with health professionals, the Cystic Fibrosis Trust and all those with an interest to improve the care of people with cystic fibrosis and their quality of life.
Lord McNally: My Lords, does the Minister agree that this pernicious illness is suffering enough and that the sufferers have to endure a lottery in terms of the quality of the treatment that they receive? Is it not time for the Government to set national standards as regards treatment, so that sufferers do not receive varying levels of treatment according to the health authority area in which they live?
Baroness Jay of Paddington: My Lords, of course I am aware of the considerable suffering, particularly in
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families with young children suffering from cystic fibrosis. I believe that the noble Lord will remember that a study by the Clinical Standards Advisory Group, which looked at this problem in 1966, showed an improvement in the consistency of standards of care. But clearly it is one of the overriding objectives of the Government, particularly, as I said, through the NHS White Paper, to establish national clinical frameworks precisely to look at the abolition of the lottery of care to which the noble Lord rightly refers and which we are determined to abolish.
Lord Ashley of Stoke: My Lords, does my noble friend agree that one person in 25 carries the cystic fibrosis gene and that screening could save a great deal of suffering? Can she give a commitment to the House that screening will be available for everyone who wants it regardless of the attitude of their health authority?
Baroness Jay of Paddington: My Lords, my noble friend rightly draws attention to the enormous scientific advances which have led to doctors and scientists being able to identify the gene for cystic fibrosis. That in itself has made an enormous difference. The National Health Service's health technology assessment programme is at the moment conducting a systematic review of the process of screening for cystic fibrosis, both ante-natally and after a child is born. We are expecting the report of that health technology assessment exercise shortly. It will then go to the national screening committee which, as the House will be aware, judges the priorities for national screening programmes. I am sure that cystic fibrosis will be high on its agenda.
Earl Howe: My Lords, in opposition, the Labour Party accepted the case for free prescriptions for adults with cystic fibrosis. Will the Minister confirm that in the review of prescription charges there is a presumption in favour of such an exemption in the mind of the Government?
Baroness Jay of Paddington: My Lords, I am tempted to repeat the answers given by my noble friend Lord McIntosh of Haringey in relation to the Budget Statement. I am sure that the noble Earl does not expect me to pre-empt the findings of the comprehensive spending review which, as he is aware, within the Department of Health concerns prescription charges particularly. The noble Earl will also remember that the review in the Department of Health is being conducted in the context of the manifesto commitment that if you are ill or injured there will be a National Health Service there to help you and access to it will be based on need, and need alone.
Baroness Pitkeathley: My Lords, does my noble friend agree that it seems unfair that where a family with a member suffering from the condition takes home that family member rather than having him or her nursed in hospital, the family may have to pay for equipment such

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as nebulisers and feeding equipment which, had the patient remained in hospital, would have been provided free?
Baroness Jay of Paddington: My Lords, I am aware of this problem but, as I understand it—my noble friend may be in a better position to know through her work with the Carers National Association—if a nebuliser is prescribed by a hospital consultant, the family to whom it is prescribed may use it at home.
Lord Chalfont: My Lords, is the Minister aware that cystic fibrosis is one of the diseases which is likely to be most susceptible to treatment by gene therapy? Are the Government and their advisers examining possible future developments in that regard?
Baroness Jay of Paddington: My Lords, as I said in reply to a previous question, we are aware of the work that has been done to identify the gene for cystic fibrosis. That has made the potential for the screening programmes, which I mentioned in reply to my noble friend Lord Ashley, far more realistic. Clearly, work on gene therapy which could, for example, involve pre-embryo implantation work would be of great scientific interest. It would also have ethical considerations which I am sure that many people would want to discuss.
Lord Winston: My Lords, I am sure that my noble friend is aware that one of the strategies for dealing with cystic fibrosis in families which are affected and have a child who is already seriously ill is to screen embryos and to replace those which are free of the genetic defect. One problem faced by such families is that they can sometimes get treatment on the National Health Service, but sometimes they cannot and they have to pay for it themselves. As it is a cost-effective treatment, would my noble friend be prepared to give a cautious and favourable response, as she did to the noble Lord, Lord McNally?
Baroness Jay of Paddington: My Lords, as I said in reply to the noble Lord, Lord McNally, we would very much hope that specialist conditions, such as cystic fibrosis, would be susceptible to the national clinical frameworks. The priority with which those clinical frameworks are established will depend on many issues relating to resources and, frankly, the other conditions which are in the queue with regard to the establishment of that system.
Lord McNally: My Lords, as we have a moment to spare, I wonder whether the Minister would like to send her congratulations to the Welch brothers, my neighbours in St. Albans, who last Saturday organised a very successful sale of their toys as part of the "Blue Peter" appeal for cystic fibrosis, which has been one of the most successful "Blue Peter" appeals. The Minister's congratulations to "Blue Peter" and to the thousands of children who are participating in the appeal would be most welcome.
Baroness Jay of Paddington: My Lords, I am only too happy to underwrite the noble Lord's
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congratulations on the fund-raising appeal. I only hope, however, that that will not lead to another noble Lord rising to his feet to suggest either that I should congratulate his local fund-raising appeal or, following my noble friend Lord Winston, that that is the way to fund basic research in the health service.

Business
3.4 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. today. my noble friend Lady Jay of Paddington will, with the leave of the House, repeat a Statement that is to be made in another place on the future of London health services.
I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to,
"brief comments and questions for clarification".
There is a mandatory limit of 20 minutes from the end of the Minister's initial reply to the Opposition spokesmen.

Crime and Disorder Bill [H.L.]
3.5 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Anti-social behaviour orders:]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 1:
Page I, line 13, after ("acted") insert (", since the commencement date,").
The noble Lord said: In moving Amendment No. 1, I should like to speak also to Amendments Nos. 25 and 318. These amendments, as can be readily seen from their terms, are intended to ensure that the act in respect of which an anti-social behaviour order is sought takes place after the commencement of the clause but that where there has been behaviour before commencement which may help to explain why the act has caused, or is likely to cause, harassment, this is admissible as supporting evidence. It was formerly disallowed under Schedule 8, which specifically prevented any evidence being adjudged of any anti-social acts committed by the defendant prior to the commencement of the clause.
We considered carefully before putting forward these changes. Plainly, it is essential that the act which forms the reason for the order takes place after commencement to avoid the taint of the orders being retrospective. However, it may well be the case in practice that such an act is merely one of a series of anti-social actions and

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that there is a background of continued harassment—perhaps even from extraneous noise and things of that sort—and perhaps failed mediation and persuasion which the court could usefully take into account in considering the application for an order.
We considered that the restriction placed by Schedule 8 was too limiting upon the court's discretion and should therefore be removed. The three amendments together achieve that aim. The first makes it clear in the body of Clause I that the action which causes the application for an order must occur after commencement. The second defines commencement specifically as the commencement date of Clause 1. The third removes the limitation on supporting evidence in Schedule 8. Overall, they bring the provisions into line with the sex offender orders in Clause 2 and should therefore result in a more effective introduction to the order. I beg to move.
Lord HenleyI thank the Minister for moving Amendment No. 1 and for speaking also to Amendments Nos. 25 and 318. I do not intend to speak at any length on this amendment because we shall be taking some time over Clause 1 in due course in considering my amendments, those tabled by my noble friends and those from other noble Lords. At this stage I rise merely to thank the noble Lord, Lord Williams, for writing to me and, I take it, to others in considerable detail about the government amendments. I have read what he said in his letter of the 29th about the three amendments to Clause 1 and I am satisfied.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 2:
Page 1, line 13, leave out ("in an anti-social manner, that is to say,").
The noble Lord said: In moving Amendment No. 2, I should like to speak also to Amendment No. 6. Amendment No. 2 is one of a series of amendments which I and my noble friends have tabled to Clause 1—other noble Lords have tabled a number of other amendments—by which we wish to tease out exactly what the Government's intentions are in relation to the clause. An anti-social behaviour order is, dare I say, an entirely new concept. We believe it is important to explore exactly what the Government intend. Amendment No. 2 in my name has been suggested by the Magistrates' Association for whose advice I am grateful.
The first amendment deletes the words,
"in an anti-social manner, that is to say",
so that the clause reads:
"that the person has acted in a manner that caused or was likely to cause harassment, alarm or distress".
The second amendment deletes the words "anti-social acts by him" and substitutes the words "harassment, alarm or distress". The noble Lord is far more aware than I that the latter expression—although I turned to Archbold and looked at the public order offences—is to be found in the Criminal Justice and Public Order Act 1994. Those are words with which I am sure the noble
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and learned Lords opposite, in particular the Solicitor-General, are perfectly familiar. I am sure that other lawyers who speak later in the debate are also perfectly familiar with them. They are used in the clause itself.
I believe that it is better to keep to the well understood public order law phraseology rather than introduce the new and rather vague concept of "anti-social" which I understand has no legal context, although no doubt courts would offer an interpretation in due course. If "anti-social" were to be retained it would require a fairly clear definition. As to that we should welcome the advice of the Government.
We shall be pursuing a number of other amendments on this particular provision all of which go to the wording and meaning of the clause. The noble Lord will also note that we are proposing to oppose the Motion that the clause should stand part of the Bill. I do not intend to pursue that course unless there are further questions relating to this clause which have not been dealt with by the time we get to the end. However, we believe that there is a case for considerably greater clarification as to what is intended and how the clause is designed to go further than the public order Acts themselves. In particular, what mischiefs is it designed to pick up that would not be picked up by the Public Order Acts and the words "harassment, alarm or distress"?
I dare say that we shall come to many points on other clauses which Members of the Committee will wish to address. I shall be grateful to hear their views on this particular amendment and what they believe it means. I also believe it is important that in due course the Government explain, first, why they believe that "anti-social manner" is necessary and, secondly, exactly what that adds to the public order Acts and the words "cause harassment, alarm or distress". I beg to move.
3.15 p.m.
Lord Renton: I support Amendment No. 2 moved by my noble friend. The Committee should bear in mind that it is laying the foundation for the meaning of Part I of the Bill. The position is very strange. Use is made of two particular phrases. The expression "anti-social manner" appears in line 13 on page 1 and the expression "anti-social behaviour" appears in the sidenote. Further, "anti-social behaviour" appears in subsection (4) in line 15 on page 2, to which I shall refer in a moment.
I am sure that all Members of the Committee agree that "anti-social" is a very wide concept. All crime is anti-social, but here there is a definition which fortunately is much more precise and narrow; namely, "cause harassment, alarm or distress". In passing, one wonders whether I have correctly pronounced "harassment". Sometimes it is pronounced as though it has something to do with asses but I do not believe that it has.
When I had doubt as to the meaning of "anti-social manner" in this part of the Bill I turned naturally to Clause 17 on page 13. There one sees the following definition:
"'anti-social behaviour order' has the meaning given by section 1(4) above".

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If one turns to subsection (4) one finds that no definition is given. I believe that in the context of the two amendments to which my noble friend Lord Henley has referred the Committee must consider whether it is laying the foundation properly for Part I of the Bill. Eventually, the Government may wish to look at what is said in subsection (4) as well as in subsection (1). It is essential that we get this right. As far as concerns the language, it is far better to stick to the expression "harassment, alarm of distress" rather than bring it within the much wider concept of "anti-social behaviour" or "anti-social manner".
Lord Thomas of Gresford: I support the amendments to which the noble Lord has spoken. In line 13 "anti-social manner" is clearly defined because the words "that is to say" confine the expression to a manner that causes or is likely to cause harassment, alarm or distress. However, in line 3 on page 2 the expression "further anti-social acts" is not defined or limited in any way. Therefore, on one page one has "anti-social manner" clearly confined and defined and on another page "further anti-social acts" where the meaning is not clear. It is important that when an order of this kind is made a magistrates' court knows precisely what type of order it must make.
Lord Elton: I do not have the difficulty that noble Lords have had so far. I believe that there are two definitions. One in Clause 1(1)(a) deals with "anti-social manner"; the other is in Clause 17 and is concerned with an anti-social behaviour order. That order is defined pretty loosely in Clause 1(4). However, I have difficulty over the supposed breadth of the behaviour that is intended to be caught by the term "harassment, alarm or distress", particularly "distress". I take it that these cases would be tried by magistrates except on appeal. Therefore, that term will have to be understood very widely indeed, not merely by professional legal people. This provision will apply also to those who are not legally represented. Distress may be felt either reasonably or unreasonably by the neighbour of someone who keeps ducks or geese or who plants a high hedge. The question arises whether the Bill is directed at that kind of behaviour and, further, whether it will be taken to be directed at that kind of behaviour even if that is not the intention of the Government. I understand our function to be to ensure that the Bill means something precise and can be taken to mean only that. At present it does not appear to be in that form, and therefore I also support the amendment.
Lord Mishcon: My observation will be brief, and is a question. Is my noble friend the Minister aware, as I am sure that he is, of the anxiety within the legal profession to see that we have a precise definition of what is involved, in view, especially, of the penalty invoked by the Bill? Whether on this amendment or any other amendment, is my noble friend satisfied with the definition or would he wish to think again?
Lord Avebury: People's susceptibility to "harassment, alarm or distress" varies enormously. It might vary regionally, and between places which are
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inhabited by people of a certain class or ethnic origin. Therefore the interpretation of the clause could vary according to the demographic nature of the area in which the acts are performed. As I understand it, Clause 1(4), which refers to the anti-social behaviour order, points back to subsection (1). The reason for using the anti-social behaviour order is merely because the "prohibition of acts likely to cause harassment, alarm or distress order", would be a mouthful.
The anti-social behaviour order is merely a shorthand which includes all such conduct. I must confess that I am worried by the point raised by the noble Lord on what is "reasonable", and whether people should be susceptible to the causing of harassment, alarm or distress, because that will be a difficult concept for the courts to deal with. It is a highly subjective idea and. as I say, could be different in one part of the country than another.
Lord Renton: Does the noble Lord agree that if the word "anti-social" had to be interpreted by the courts, that would cause even more problems?
Lord Avebury: It probably would. I am disposed to agree with the noble Lord.
Lord Williams of Mostyn: The noble Lord, Lord Henley, was good enough to say that he welcomed the Government's approach in setting out the reasons for amendments as fully as possible. He helpfully indicated that he was not confining his opening remarks to Amendments Nos. 2 and 6, but was casting his net rather wider in the context of the whole of Clause 1. I entirely accept the spirit in which he put that, and can perhaps respond in the same way, bearing in mind that other Members of the Committee similarly raised rather wider questions than immediately derived from the amendments. I do not say that in any critical sense, because that is a useful way to proceed. The Government's stance is that if there are amendments which are so argued as to be convincing, then plainly we would wish to accept them.
As the noble Lord, Lord Henley, raised the general question of Clause 1, perhaps I may trespass on the Committee's time, thinking that it may save time in the end, to indicate the Government's thinking behind this part of the Bill.
Antisocial behaviour, as defined precisely—that is to say, acts which cause or are likely to cause harassment, alarm or distress to two or more persons not of the same household as himself—is a significant social vice for large numbers of people who live in this country. They do not live in the leafy green suburbs. They live on mean streets. The Government have a duty to protect them where they sensibly can, consistent with the rights and obligations of others who live in our country.
That is what we set out in our manifesto; that is what this part of the Bill is intended to deliver. I have stretched a little beyond the precise words of the amendments in specific response—I hope helpful—to what the noble Lord, Lord Henley, said, because he said

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that my response on the principled philosophy behind Clause 1 might affect his attitude as to the debate on Clause 1 stand part.
The important point about this proposed order is that it is a prohibitory order. I entirely agree with the noble Lord, Lord Renton, who said that it was a new order, perhaps even a new concept. The prohibited activity is to be limited only in so far as it is necessary to protect people in the area concerned from harassment, alarm or distress. That is to say, it will preserve the basic right of any citizen in our society to be protected; to have the opportunity which governments should provide to us all—namely, to have a calm life.
The Government take that duty seriously. It is not something that was fabricated on the back of an envelope in the Home Office. It has been considered for a long time, was the subject of widespread consultation, and was a specific manifesto commitment; and we regard it as a moral obligation.
I turn to the specifics. On the one hand, it is said that the definition is precise:
"harassment, alarm or distress to two or more persons".
On the other hand, it is said that it is vague. It is not vague. The noble Lord, Lord Henley, was right when he said that one has similar words in other legislation which has been dealt with satisfactorily by juries up and down the country. For my own part—I think that I can say this having had rather more years than I care presently to recall dealing with juries and magistrates—I believe that they have no difficulty in understanding concepts, when they have to be focused on the facts of a particular case.
We believe that acting in an anti-social manner is something which is not consistent with the responsibilities of a citizen who derives rights and benefits from living in our society. I stress again that many of the persons who would be "the complainants" on these occasions are poor, vulnerable, inarticulate and often living lonely lives. Who is to protect them if not the Government by passing the Bill?
At present such people have no protection. They cannot afford to look for civil injunctions. I go further: in many well-documented cases, they are afraid to do that. This offers the shield of the Government, through the appropriate authorities, to assist people who need assistance. They may need assistance because they are old, disabled, vulnerable, poor, or from a particular ethnic minority group.
My noble friend Lord Mishcon raised the question of anxiety in legal circles. I am aware of that. I suggest that it is misconceived. This anti-social behaviour order is merely a prohibition. It is analogous to an injunction. What does an injunction do in normal circumstances? It forbids the person to whom it is directed to act in a way which would otherwise be unlawful. It is not a criminal sanction. It says to Mr. X or Ms Y, "You must not maltreat your neighbours so as to harass them; distress them; or to alarm them". What on earth could be wrong with that as a concept? It is shameful that those remedies for those people have not been available as part of the spectrum of what our law can provide.
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I repeat: this is a prohibitory order. It requires the subject of it to do no more—I paraphrase bluntly—than to behave in a decent way to the fellow citizens of our country. There is nothing vague about the description. The antisocial behaviour order is, as the noble Lord, Lord Renton, rightly observed, in the rubric at the side of the clause. When one turns to paragraph (b), the phrase "anti-social acts" is qualified by the adjective "further"—plainly referring back to Clause 1(1)(a).
There is of course the distinct question raised by the noble Lord, Lord Avebury, as to whether some of these matters might not be unduly subjective. I take his point. I hope that he will find it fully reflected and respected in Amendment No. 13, to which I shall come in due time. I agree that some people's subjective alarm or distress might be unreasonable in all the circumstances. I might well have a neighbour who did not speak Welsh or vote Labour, but if I were alarmed or distressed I do not believe that the local magistrates' court would come to my immediate assistance.
I have deliberately been longer than anticipated in dealing with these two short amendments in order that we may go to our rest and cocoa at a sensible time tonight. I have specifically sought to respond to the spirit of the approach of the noble Lord, Lord Henley. I hope that I have dealt with queries, observations and resentments to your Lordships' satisfaction.
3.30 p.m.
Lord Renton: Perhaps your Lordships will realise that the noble Lord, Lord Williams of Mostyn, has made a convincing case for the use of the words, "cause harassment, alarm or distress-. However, those words are so clear and precise and can be so well understood that there is no need to introduce the wider and vague concept of anti-social behaviour. Could he not between now and the Report stage consider the drafting of the subsection? After all, it is a drafting matter which does not affect the substance and motives behind Part I of the Bill. As the noble Lord, Lord Mishcon, pointed out, we must try to get the matter clear.
Lord Williams of Mostyn: It is clear. I can think of no words clearer than,
"an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress".
We wish the objectionable nature of that behaviour, which will underpin the prohibitory order, to be properly described as "anti-social"; that is to say, acting in an anti-social manner. I respectfully suggest that that is simple and plain.
Lord Hardy of Wath: Will my noble friend consider the fact that some people in the areas to which he referred have for a long time put up with anti-social behaviour? They may not have had cause for harassment; they may not have had cause to feel distressed; they may not have been alarmed; but they may have been caused fury, frustration and disgust over a long period. The quality of their lives may have been made wretched by anti-social behaviour. If my noble friend were to accept the amendment and restrict the action to cases in which harassment, alarm and distress

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had been caused the Government would not be meeting the broader need which, sadly, exists in many parts of the country.
Lord Windlesham: The Minister has given a sketch of the general context of Part I, and that has been helpful. He spoke eloquently of the need to protect the individual citizen who is faced with such behaviour, however it is described; the Bill describes it as "anti-social". However, he left the Committee with the impression—indeed, I believe that he used the words—that the citizen can go to the courts to enforce the right by way of a civil injunction. In order to fill out his explanation, should he not make clear that the individual complainant does not have access to the courts? The individual complainant must persuade either the local authority or the police to take action, and therefore there is an intermediate stage.
Lord Williams of Mostyn: I said deliberately and specifically that action would be taken via the appropriate authorities. I am happy to clarify that issue. The noble Lord is right in saying that the appropriate authorities would be the local authority or the police.
I may have to disappoint my noble friend Lord Hardy, although I never like to turn away support. We wished to provide a description of an anti-social manner and anti-social behaviour. Within that description, we have included the meaning:
"that is to say, in a manner that caused or was likely to cause harassment, alarm or distress".
It is not simply the virtue of a propagandist description. We want it to be clearly understood, first, by our community generally and, secondly, by those who behave in ways which cause to some people indescribable and unimaginable harm in their own homes and communities, that such behaviour will not be tolerated because it is anti-social as described further in Clause 1(1)(a) as:
"likely to cause harassment, alarm or distress to two or more persons not of the same household".
I believe that the argument is proper not because it is in a government Bill but because we have got it right. I say to the Committee—not specifically to the noble Lord, Lord Renton, because I do not wish to encourage hopes—that, in respect of every dot, comma, colon and semi-colon of the Bill, if genuine improvement is available we shall look to take the opportunity to achieve it.
Lord Brightman: I do not know whether I have missed something, but I do not see the remotest difficulty with paragraph (a). "An anti-social manner" is merely an abbreviation which is defined by the words which follow. The Bill states:
"an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment",
and so forth. That is perfectly clear and there is no problem.
Lord Beloff: Does the Minister agree that, in order to make things clear, respect for the English language is important? I can see that one can cause distress or alarm,
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but I am baffled by the idea of causing harassment. To harass someone is a positive fact. I come here in order to harass noble Lords opposite, but I do not come here to cause them harassment. Would it not be possible to revise the wording so as to make clear the difference between causing alarm and causing harassment? That seems to me to be an odd concept.
Lord Williams of Mostyn: It is part of the criminal law. I readily accept that the noble Lord, Lord Beloff, does not come here to harass me. On the other hand, he often causes me harassment.
Lord Milverton: I have listened to the debate and I believe that the Minister answered well. I would not rush to support the amendment tabled by my noble friend on the Front Bench.
Lord Ackner: To what extent is the test to be applied to subsection (1)(a) objective or subjective? Does the supersensitive person who is caused distress give rise to the prospect that an application will be made, or is the test to be that the behaviour must be such as to cause the distress or alarm to persons of reasonable fortitude?
Lord Williams of Mostyn: It is a factual issue of whether the behaviour has caused or is likely to cause harassment, alarm or distress to two or more persons not of the same household. As the noble and learned Lord will see, my Amendment No. 13 provides that:
"For the purpose of determining whether the condition mentioned in subsection (I)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances".
I respectfully return to my proposition that magistrates' courts and juries up and down the land are perfectly able to deal with such concepts, bearing in mind that they do not find criminal liability but are the basis for a prohibitory order.
Lord Ackner: With respect, I do not believe that the Minister has answered my question. Is the test to be objective or subjective? The question must permit of an answer and I invite the noble Lord to provide it.
Lord Williams of Mostyn: I do not believe that one looks at those concepts in quite that legalistic way, if I may say so with all humility. The magistrates will deal with matters in their area. For example, if one has a particularly vulnerable old lady, it seems to me that the test will have to be applied to "two or more persons". It is the circumstances of those two or more persons which will have to be looked at.
If they are unusually susceptible to harassment, alarm or distress, the court will have to draw a balance as to what is suitable in all the circumstances. That does not depend on the purely legalistic question of whether it is subjective or objective. That is far too narrow and unhelpful a question.
Lord Henley: I thank my noble friend Lord Milverton for his fulsome support for my amendment.

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I assure him that I did not intend to press this to a Division of the Committee. It is an amendment tabled to probe the Government's intentions.
I thank the noble Lord, Lord Williams, for giving us a very full reply to the points which Members of the Committee have raised. That is useful. We should all like to finish this day of Committee stage in time for early bed and cocoa, or something stronger, as the noble Lord puts it.
I should also add that we accept entirely, and in no way did I wish to imply otherwise, that anti-social behaviour can be a very real problem for large numbers of people throughout the country. Equally, it can be a problem whether or not they live in leafy suburbs. It can be a problem wherever they live.
Having said that, I believe that my amendment and the discussion that we have had arising from it have given rise to real problems. I note the point made by the noble and learned Lord, Lord Brightman, that the words,
"anti-social manner, that is to say",
are perfectly well defined by the words,
"cause harassment, alarm or distress",
and therefore were not superfluous. But there is that further use of "anti-social acts" as pointed out by the noble Lord, Lord Thomas of Gresford, in subsection (1)(b) where they are not so limited. That still creates a number of problems which need to be addressed.
The noble Lord, Lord Mishcon, rightly pointed out that such a clause could lead to extremely heavy penalties indeed being imposed on individuals who act in breach of what the noble Lord, Lord Williams, described as a "mere prohibitory order". I remind the noble Lord that if he looks at subsection (4), he will see that the courts have the power to prohibit the defendant,
"from doing anything described in the order".
The courts can go a very long way and can make that decision on evidence which has been accepted merely on the balance of probabilities and not beyond reasonable doubt. Therefore, an order made on such a basis can go as far as one cares to see. It is possible for that order then to be breached and, as a result of that, very severe penalties may be imposed. For that reason, it is important to make sure that the definitions within Clause 1 are tightly drawn so that the individual knows to what he is subject and everybody knows exactly how the clause can be interpreted.
As I made clear, I have no plans to test the opinion of the Committee at the moment. It may be that I am completely wrong to suggest that the words,
"in an anti-social manner, that is to say",
should be removed from the Bill. I believe that we need to hear more on this. The noble Lord did not address the point, to which I may wish to return later, of what precise mischief the clause is designed to address that would not be covered already by public order legislation and covered by those words,
"cause harassment, alarm or distress".
Lord Williams of Mostyn: I intervene only to be helpful in specific response to a question from the noble
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Lord. The whole point of this scheme is that it is not part of a criminal regime. If there is a prosecution under the public order Acts or the Protection from Harassment Act, it means that the prosecution has gone one stage beyond this prohibitory order stage.
Many, many people are afraid to be complainants in court when they have to make public allegations against their neighbours and against people who have made their lives an absolute misery. We are saying that prosecutions under the public order legislation and the Protection from Harassment Act have their place. But this is prior to that. I repeat that it is to endeavour to safeguard the vulnerable in our society, those who have their lives made a daily misery. I regret to say that at the moment our law does not protect them. Therefore, this is a much more considered remedy for a real social evil.
Lord Henley: I understand that we are not going as far as the criminal law in this case, although the noble Lord will appreciate that the penalties can be severe. Nevertheless, the words to be used are exactly the same and refer to causing "harassment, alarm or distress". That seems to imply that the same activities are being covered by both. That is why I have considerable doubts and why I wish to return to this matter either in our further deliberations on the clause or at a later stage of the Bill. As I made clear, at this stage I do not intend to press this matter to a Division, but it will require further thought. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn: I beg to move that the House do now resume, bearing in mind the indication that we had earlier from the Chief Whip that at a convenient time to your Lordships, a Statement would be repeated.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

London's Health Services
3.47 p.m.
Baroness Jay of Paddington: My Lords, with the leave of the House, I should like to repeat a Statement on the future of London's health services being made in another place by my right honourable friend the Secretary of State for Health. The Statement is as follows:
"At the general election we made clear that we wanted to make sure that every Londoner has access to top quality healthcare. We promised a moratorium on all hospital closures in London, while the future of London's healthcare was re-assessed against what Londoners really need. We have kept that promise.
"On 20th June last year, just seven weeks after coming to office, I announced that a swift and independent review of London's health needs was to be carried out by a distinguished panel chaired by Sir Leslie Turnberg, then President of the Royal College

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of Physicians, formerly consultant physician at Hope Hospital, Salford and professor of medicine at Manchester University.
"Since then the review panel has done a remarkable job. It has reviewed all the evidence, consulted widely and carried out a large number of meetings and visits. The panel received and considered over 1,800 responses from local people and organisations. It submitted its report on 18th November. Since then it has been considered very carefully by the Government. We have been faced with some tough decisions.
"Today, seven months after the panel was established, I am publishing the report of the independent review panel, the Turnberg Report. I am also publishing the Government's response. The Turnberg Report spells out a clear set of recommendations for the improvement of health services in London. I am glad to be able to announce that the Government accept all its recommendations. Many are in line with our proposals in the New NHS White Paper for a 10-year general improvement programme to make the NHS modern and dependable. All are accepted by the Government and the necessary further work necessary is already being put in hand.
"Time does not permit me to list all the important recommendations in the Turnberg Report. So I shall concentrate on a limited number of most immediate interest to Londoners.
"The report recognises that in many parts of London, particularly in the most deprived areas, primary care, mental health, intermediate care and community services are simply not up to the standard to which everyone in our country is entitled. It proposes a range of measures to bring things up to scratch. We will be providing an additional investment of at least £140 million in these services for London over the lifetime of this Parliament. An extra £30 million will be targeted on these services in the coming financial year.
"The report recognises the need for new arrangements to ensure a London-wide strategy for health and proposes as a medium-term aim a single NHS regional office for London. Without London-wide strategies and action, the necessary improvements in mental health services and the proper integration of services for children and other people will be hard to achieve, if not impossible.
"The report concluded that there is no evidence that,
'there are more acute hospital beds available to Londoners than the English average'.
The Government have therefore abandoned the presumption we inherited from our predecessors that London is overprovided with acute hospital beds. As a result any future changes in bed numbers in London will be in line with those in the rest of the country.
"The review panel was asked to look at the plans of London NHS trusts and health authorities, including their plans for capital developments. It was asked in particular to advise on the future of Queen Mary's
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Hospital Roehampton, Harold Wood and Oldchurch Hospitals in East London and St. Bartholomew's Hospital.
"For these purposes the panel reviewed London hospital provision in terms of five sectors covering north, south-east, south-west, west and east London respectively. It faced some awkward choices and made some tough recommendations. The Government have made similarly hard-headed decisions.
"For north London, the panel said that a new hospital building was sorely needed to bring together University College Hospital, the Middlesex Hospital, the Hospital for Tropical Diseases and the Elizabeth Garrett Anderson Hospital for Women. This would provide top quality local and specialist services with academic and research facilities shared with University College nearby. As Secretary of State—and as the local MP—my right honourable friend warmly endorsed that proposal.
"The panel also recommend urgent capital investment at the Whittington Hospital. We will invite plans for such improvements. The need for swift action is understood. But it will take time to carry out all the necessary evaluations before work can proceed.
"For south-east London, the panel endorsed the proposal to build the new Queen Elizabeth hospital at Greenwich through the private finance initiative. It also supported the proposals for further improvements to King's College Hospital on the Denmark Hill site.
"The panel considered the proposal to close the accident and emergency unit at Guy's Hospital. It called for a re-evaluation of the proposed closure to ensure that the alternative services will be able to cope. This evaluation has taken place. Additional A&E capacity is already in place at King's and Lewisham Hospitals. The situation will continue to be closely monitored in the lead-up to the closure of the Guy's A&E department and beyond. Contingency plans will be put in place to provide additional services if patient numbers are higher than expected.
"The panel also called for a re-evaluation of the proposed shift of other services from Guy's to St. Thomas's to ensure that the best use is made of some of the facilities at Guy's which on present plans would be vacated. That is likely to keep more services at Guy's than was planned by the previous government.
"In south-west London the panel favoured plans for investment in the development of a community hospital on the site of Queen Mary's Roehampton. This means the replacement of acute services currently provided at Queen Mary's by improved alternative acute services at Kingston Hospital and at St. George's. The Government accept this proposal.
"The panel also endorsed a proposed shift of services between St. George's and the Atkinson Morley Hospital.
"In west London the panel supports the shift of services from Queen Charlotte's to the Hammersmith site. It also called for special attention to be given to

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the need to foster the national and international role of the Hammersmith and its relationship with Imperial College. A series of service reviews is now under way in west London, addressing this aim and the need to serve local people.
"It was in east London that the panel faced the most difficult problems. It was asked to consider proposals involving the future of Harold Wood and Oldchurch Hospitals. It supports the development of a new hospital at Oldchurch, rather than at Harold Wood, to provide the full range of services for this area, not least because this is where the majority of the population live, including those with the greatest health needs. Like all other new reconfiguration proposals, this proposal will be the subject of local consultation.
"For the East End the panel recommended a package of measures to counter the deprivation and ill health of many of the local people. It proposes investment in intermediate and community services. It also proposes the full utilisation of beds at the Homerton and Newham Hospitals and new investment at Newham.
"The panel endorses the proposal to rebuild the Royal London Hospital at Whitechapel but with 900 beds rather than the 1,100 in the current stalled plans for that re-development. These have been difficult decisions.
"That leads me on to the future of St. Bartholomew's Hospital. The Turnberg Report recommends that Bart's should not close. The Government agree. Bart's will be saved. We will not countenance the closure of that great hospital which has served the people of London for 875 years.
"During the time the new Royal London Hospital is being built and other hospital developments are taking place in east London, Bart's will continue in its present role. When that period comes to a close, in line with the proposals of the Turnberg Report, Bart's will concentrate its renowned specialist expertise with a focus on cancer and cardiac services.
"We owe a great debt to Sir Leslie Turnberg and his colleagues for both their work and their wisdom. I believe that the Turnberg Report will prove to be a far-reaching and far-sighted plan for the improvement of health services in London. The Turnberg proposals have the backing of the Government. They have the personal backing of the Prime Minister. They will provide a firm foundation for a 10-year programme to provide London with a modern and dependable health service. That programme paves the way for the investment of well over £800 million to provide London's health service with the fine modern buildings that both patients and staff deserve, with support for primary care and mental health of at least £140 million. That is a £1 billion boost for London.
"There have been many reports on the future of healthcare in London. Some have mouldered on library shelves; others have been the subject of endless and indecisive debate. And all the while
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buildings have been left to deteriorate, staff have been left uncertain and patients have been left to wait. That will not be the fate of the Turnberg Report.
"By accepting all its recommendations the Government have turned this excellent report into an action plan to modernise London's health service. From today we will be mobilising all those who care about London's health services, not just the people who work in the NHS but also people in local government and universities, scientists and other researchers, people in business, patient groups and local people, mobilising them to work together systematically to deliver the improvements that we all want to see year by year. That is what the Turnberg Report recommends. That is no more than Londoners deserve. The chattering times are over. The time for action has come".
My Lords, that concludes the Statement.
3.57 p.m.
Earl Howe: My Lords, I am most grateful to the Minister for repeating the Statement. This is long awaited news and, to the extent that decisions have been taken to resolve some major uncertainties, it is news which is decidedly welcome. As the Minister said, our thanks are due to the Turnberg Committee for its careful and diligent consideration of these difficult issues. For the most part, too, the content of the Statement should be welcomed. However, I am a good deal less sanguine about one aspect of the announcement. I feel that the decision to reinvent Bart's as a specialist tertiary referral centre, attractive as that option may appear, requires very careful explaining indeed as regards its cost-effectiveness.
I should like to return to the question of Bart's in a moment, but perhaps I may come, first, to the main thrust of the announcement. It is fair to say that the problems being faced and the decisions to be taken as regards healthcare in London are absolutely no different from those currently being addressed in a number of big cities around the world. Acute hospital services need to be concentrated in fewer sites to maximise the benefits which patients can receive from specialist skills and expensive equipment. Accident and emergency departments need to be positioned next-door to intensive care and other specialist services and, not to be forgotten, medical and nursing staff need the best possible environment for training.
There is no argument about London's importance as an international centre of excellence both in treatment and in teaching. Whatever is done to change the nature and structure of London's hospitals, nothing must be allowed to place that excellence in jeopardy.
At the same time the thrust of Turnberg has been to acknowledge that, with the decline in London's population and with the huge advances in diagnostic and surgical techniques, the status quo is simply not an option. Londoners themselves need a different hospital service and indeed a change in the balance of health services as between those provided by GPs, by hospitals and in the community. The detailed decisions which the Government have taken have no doubt been complex.

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I do not think we should underestimate their considerable emotive aspect for Londoners all over the capital. No doubt Londoners, like Members of these Benches, will need time to digest what has been announced in terms of the scope and coverage of local hospital care.
The Minister has said that the presumption that London is over-provided with acute beds is to be abandoned. I think that that is a perfectly fair conclusion. Indeed, I believe we should welcome it. It was always said by Tomlinson in his report that if the rate of emergency admissions should increase, more beds would he needed. Professor Jarman was right in the views that he advanced consistently on this issue. It makes sense for Guy's to meet some of the need, as the Minister indicated that it will.
I turn to the issue which has perhaps aroused the greatest degree of interest in London, that of Bart's. The Statement refers to that noble hospital having been saved. I wonder whether that description is entirely appropriate. Of course we can only welcome the tertiary referral centre in terms of the services that it will provide. I have absolutely no doubt that the standards of care for cancer and cardiac patients from all over the country will be second to none. But the point that will not be lost on Londoners is that Bart's will no longer provide any of the local services normally provided by a district general hospital. Can the Minister say whether the boards of the Royal Hospitals Trust and East London and City Health Authority agree with the decision on Bart's? Did they believe that it would be more efficient to maintain split sites rather than transferring all services to a new hospital on the Royal London site? Do they agree with the decision to split hospital services and reduce the size of the new hospital which is being built with private funding?
I repeat that the standards of care to be offered at Bart's are not in question, and nor should they be. However, does not the Minister agree that such specialist hospitals—as Bart's is now apparently to be—run contrary to most expert opinion? Do not the Government believe that there is real advantage in having all specialist services grouped together on a single site? Equally important is the budgetary aspect. What estimate has been made of the additional cost of this decision as compared with the alternative which was to close Bares altogether? I understand that the local health authority is already running a sizeable deficit. The question needs to be asked as to how it will be reimbursed for the additional costs to be incurred.
It looks very much as though before the election Labour exploited the save Bares campaign, but now that Labour is in office it is not prepared to give local people what they want, which is a local district general hospital service on the Bart's site. What is being offered is a tertiary facility which could just as easily—and less expensively—have been provided as part of the new Royal London. It looks very much as though the people of East London will have to pay for that expensive decision. Will the Government publish the cost estimates of the two alternatives? Does the Minister agree that what is needed in East London is really better primary care, and that there are surely knock-on effects
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of the Bart's decision in that regard? Will she confirm that the extra costs arising from these decisions will reduce the budgets for local services, including primary care services, and that the people of East London will not gain much advantage from these tertiary services at Bart's, although they will be excellent in their own way? I feel that there is much in this Statement which is good news for London but much that needs to be explained. I look forward to hearing what the Minister has to say.
4.6 p.m.
Lord Newby: My Lords, we on these Benches are also grateful to the Minister for repeating the Statement and also for the extraordinary amount of work which the Turnberg Committee has undertaken in producing a comprehensive report in such a short time. We should ideally have liked to see the report at the time the Government received it so that we could have studied it at the same time as Ministers. We cannot see any particularly strong reason why that should not have been the case. It is, of course, much more difficult to influence decision-making at the point when Ministers have not only had the report but have had several months to chew it over before anyone else has seen it. and then produce firm proposals.
That having been said, we find much in the report to welcome. We also welcome the Government's commitment to a strategic review of the provision of health services in London. We are therefore slightly surprised to read the weasel words that the report proposes as a medium-term aim the establishment of an NHS regional office in London. We find the words "medium term" somewhat worrying as regards what appears to be a relatively modest institutional change within the NHS. Can the Minister help us by explaining what kind of timescale she envisages as medium term? Much as we enjoy discussing these issues in this House, as do our colleagues in another place, we believe that the correct place primarily to discuss the strategic needs of London health services is within a strategic authority for London and Londoners. Does the Minister believe that strategic healthcare is a matter that could sensibly be added to the powers of the proposed GLA? We would welcome the Minister's views on that.
We wish that the Statement had included what most strategic documents mention; namely, overall figures on beds, doctors, nurses and those other matters that concern Londoners when they consider healthcare. I raise that matter because we believe that when new hospitals are built under the PFI there is an inexorable pressure to reduce the number of beds. We have seen that in the proposals before us today in respect of the Royal London Hospital where it is proposed that 200 fewer beds are now provided than was originally proposed, at a time when some estimates at least suggest that the 1,100 that were originally provided might be insufficient. We wonder therefore whether Bart's might face a slightly odd fate, even when the Royal London is open, in that there will simply not be enough acute beds elsewhere in East London and Bart's will be required to continue to provide that kind of facility well beyond the medium-term, however that is defined.

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Your Lordships will be relieved to know that I do not propose to discuss the individual proposals in detail. However, I raise a general point with regard to Queen Mary's at Roehampton. In many cases what we are talking about here is replacing one provision with another. We are moving from one static position to another. We are concerned about what happens in the meantime.
I welcome an assurance that the provisions of Kingston—they need to be enhanced to match the increased demand which will arise as Queen Mary's services are transferred—will come on stream before they are required rather than months afterwards, and after patients have faced additional difficulties during the transitional period.
Two overriding issues are dealt with in the Statement. The first is a proper strategic framework for decision making in London. We feel that the Government have made some progress on that. Some of the progress is to be welcomed, but we believe that there is need to go further. The next key question relates to whether the Statement is satisfactory in terms of the overall level of resourcing of the special health needs of London. We are pleased to hear confirmed the additional funding for primary services, mental health, intermediate care and community services. Those funds are desperately needed. There must be more cases of acute under-provision in London than anywhere else in the country. Those of us who live in south London have in mind, for example, the horrendous murder in Tulse Hill a couple of weeks ago by a patient with severe mental health problems. That patient was not receiving the care in the community required. We can only welcome any action to improve and increase the level of funding for those Cinderella services. It is desperately needed, in particular in London. We are unconvinced that the proposals will be enough to provide the first-rate health services that Londoners need and deserve.
If we were confident that an NHS body, or the GLA, would discuss the issues at a strategic level, we might allow the matter to rest there. However, those bodies are unlikely to be in position for some considerable time. I hope that after an appropriate period the Minister will report again to the House on the progress made towards achieving the ambitious goals set out in the Statement. At the same time I hope that the noble Baroness will come forward with any further proposals necessary for funding or structural arrangements to meet those goals.
Baroness Jay of Paddington: My Lords, I am grateful to both noble Lords for their general welcome of the Statement, and in particular for their acknowledgement that the time has come to take some definitive action about the problems of London. On the final point of the noble Lord, Lord Newby, I always welcome the opportunity for further discussion of these issues. Indeed, I believe that there is a debate tomorrow in your Lordships' House in which they may well be covered
I am grateful, too, for both noble Lords' commendation of Professor Turnberg and his committee for their hard work, and for precise recommendations
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which we have welcomed and accepted. The noble Lord, Lord Newby, raised concerns about the way in which the proposals may have been set already in immoveable concrete. I hope that noble Lords understand that all the proposals that the Government have accepted which refer to major service reconfiguration will be subject to the normal consultation processes in which the health service always engages at these times.
The noble Lord, Lord Newby, referred to the need for a strategic approach to London's healthcare. The Government entirely accept that. It is the reason that we accept the proposal of Professor Turnberg and his panel that there should be one regional office for London. The use of the words "medium term" simply refers to the need, as we see it—and as he sees it, I think, given his subsequent remarks—for the potential for including the development of the London regional office for health alongside, and in connection with, the greater London authority which is still subject to the legislative process and the other complications with which your Lordships are familiar. In that sense, medium term simply refers to development rather than kicking the issue into touch in any sense.
The noble Lord also referred to the difficulties of mental health services in London. The report acknowledges, as do the Government, that they are a specific problem. The noble Lord and other Members of your Lordships' House will be aware that at the end of last year we undertook a review of mental healthcare. We are about to receive the report. I hope that it will inform some of the difficult decisions which need to be made. The noble Lord may know that additional funding of £5 million has been allocated to mental health services to help reduce the pressures on acute psychiatric beds by buying extra residential 24-hour nurse-staffed places for what we hope will be more effective approaches to patient crises. We hope that that will reduce in-patient admissions. Noble Lords may be aware of the concerns publicly expressed by my right honourable friend the Secretary of State about the validity or otherwise of dealing with some of those acute psychiatric problems exclusively in the context of community care. We shall bear that very much in mind as we develop the plans in London.
The noble Lord referred to the revised plans for 900 beds in the Royal London Hospital in the new redevelopment programme. He spoke, as did the noble Earl, about the acceptance that the original assumptions made by Professor Tomlinson on the need for acute beds in London may perhaps have been over-optimistic in the sense of the needs of London as we progress.
The noble Lord, Lord Newby, mentioned the conjunction of beds in the Royal London and Bart's. It means that as beds are kept open at Bart's, the need for the 1,100 beds on the original PFI project is regarded as unnecessary. But that in no way diminishes our concern to maintain the overall numbers of acute beds.
As it was the main burden of the noble Earl's concerns, I turn to the question of whether or not re-inventing Bart's, as he describes it, was an unnecessary procedure. The noble Earl will be aware, as indeed will your Lordships, of the success of specialist

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hospitals in other parts of London and the country. I cite the example of the Marsden Hospital, Christie Hospital in Manchester, or the Papworth Hospital in Cambridge. They suggest that such specialist hospitals for particular forms of tertiary care play an important role in our health services and healthcare. They are often very much part of the local community although they provide a specialist service. Although the noble Earl felt that it would not be an attractive proposition to the population which surrounds Bart's Hospital, I emphasise that again there will be an element of public consultation. I suspect that the local population will applaud the fact that the site is to continue to be used for health services rather than for some of the perhaps glamorous but not necessarily health-related suggestions made in the past.
As regards relative costs, the Government have considered with concern the precise difference between capital expenditure and revenue costs. At present the view is that the plans now proposed will not be radically different in capital costs from those proposed in the previous plan although the proceeds from a potential sale of the Smithfield site will no longer be available. Account will also have to be taken of the revenue costs associated with running the two sites. That will he an immediate issue for the East London health authority which the noble Earl rightly says will take the lead in developing the new strategy. I must point out to the noble Earl that these plans have been developed with its understanding and concern to work through that new strategy in a positive way, both to develop the high quality community services as well as the acute services for the East End.
I conclude by saying that I am pleased that both noble Lords made reference to the development of primary care in London. I believe that that is the priority with which we need to be concerned. I was glad to report that there will be substantial investment in that area. We feel that it will be the most important ingredient in transforming many of the everyday services which mean most to families living in London and in the long run will make the greatest difference to the status of the health services throughout the capital.
4.20 p.m.
Lord Annan: My Lords, will the noble Baroness enlighten the House a little further regarding the rebuilding of the hospital opposite University College? Is the new site to be that which is opposite University College, or is it to be the site presently inhabited by the Middlesex Hospital? How will it be possible to build a new hospital in close proximity to University College?
I very much welcome the whole scheme and hope to be convinced by it. I am less convinced by the arguments in favour of Bart's being kept open. The noble Earl put his finger on many spots which require examination. How is it possible, in terms of cost-effectiveness, that 200 beds kept open at Bart's will be cost-effective as compared with the extension of
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2 x 200 beds at the London Hospital? The population needs those beds at the London Hospital. not in the City of London.
Baroness Jay of Paddington: In response to the noble Lord's final point, I respectfully draw his attention to the great success of those tertiary centres for specialist care with that size of provision which exist in other parts of the country. As I believe I made clear both in the Statement and in my previous remarks, it was not intended that Bart's should remain as a district general hospital; however, given the specialist services, we feel that there will be very important provisions.
As to the University College Hospital site, that will be on the Gower Street site and will incorporate the Elizabeth Garrett Anderson Hospital, the Middlesex Hospital, the Hospital for Tropical Diseases and the other medical centres of excellence which at present are very broadly in the University College campus, but not in one building.
Baroness Ludford: My Lords, I declare an interest as a leading member over the past five years of the Save Bart's campaign in my role as a local councillor whose ward is a mere 250 yards from Bart's. Like my noble friend Lord Newby, I welcome some elements of the Statement, particularly the new hospital bringing together UCH, the Middlesex, the EGA and so on, the new investment at the Whittington and the Royal London, the retention of more services at Guy's. I also especially welcome the abandoning of the presumption that London was over-bedded.
However, I wonder whether the Minister is correct in saying that local people will applaud the retention of some health services on the Bart's site. I fear that when local people listened to the promise made before the general election by her right honourable friend in the other place, now the Secretary of State for Culture, Media and Sport, that a Labour Government would save Bart's, they would have thought that that meant as a district general hospital, not as a specialist tertiary centre. I fear that local reactions might vary from, "This is half a loaf", to even the word "betrayal". Can the Minister therefore give any reassurance to local people? The NHS White Paper to which she referred contained a reference to the "freedom to refer- of primary care groups. Will there be patient choice, in the sense that if the residents of south Islington or south Hackney wish to be referred to Bart's for a wider range of services—which, as she explained, will remain on the site for the next few years while the Royal London is redeveloped—they will be able to exercise that choice through their GPs? Will the Minister give an assurance that the situation at Bart's will be monitored over those years of transition, so that, if it becomes obvious that London is not only not over-provided but is under-provided with acute beds, there will be a chance to reassess the situation?
Baroness Jay of Paddington: My Lords, the simple answer to the noble Baroness's last point is no. The decision has now been taken about Bart's. I am amazed that she should describe that decision, on which I have

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elaborated in some detail, in such emotive language as "betrayal". This is a sensible use of the available resources. It uses the plant that exists at the Smithfield site and the very considerable medical and scientific expertise which exists at that site to provide a specialist service. As I said in reply to the noble Lord, Lord Annan, and to the noble Earl, we believe that there are very good examples of that kind of service being well provided. The noble Baroness's remarks merely illustrate the difficulties of the decisions that had to be taken in the context of cost-effectiveness, as pointed out by the noble Earl, and the remarks of the noble Lord, Lord Annan, about the potential for different uses of these beds. The right decision has been made, and that right decision is one that we shall stick with.
Lord Shore of Stepney: My Lords, as someone who has represented for more than 30 years the East London area in which the London Hospital is located, I wish to state how much I welcome—as I am sure local people will—the good sense that the Government have applied in their study and the urgent review that they have carried out. I welcome in particular the conclusion reached in the review, which the Government have accepted, that the previous government got it all wrong—the fons et origo of the mistakes of the past 10 years—in saying that London was over-provided with hospital beds.
Baroness Jay of Paddington: My Lords, I am grateful for my noble friend's support for these decisions. His experience is long and authoritative; it has deep roots among that population in East London. I am delighted that he feels that this proposal will be popular in that part of London. We look to the investment and involvement of the people in that community in developing the right sort of services—not simply through the revised hospital proposals but also in the very important primary care services. I am sure that my noble friend will do what he can to encourage that.
Lord McColl of Dulwich: My Lords, I wish to ask a very brief question about the re-evaluation of the proposed shift of other services from Guy's to St. Thomas's. I declare an interest; I work at both institutions.
I realise the problem of building new facilities at St. Thomas's to take the place of the services provided at Guy's. However, in view of the brand new hospital building there and the excellent facilities, particularly in ENT, who exactly will carry out the re-evaluation of the proposed shift? Clearly it will be quite difficult for the management of the Guy's and St. Thomas's Hospital Trust. I congratulate the Government on the choice of Sir Leslie Turnberg. He is an excellent physician and is very much respected by the profession.
Baroness Jay of Paddington: My Lords, I am very happy to accept that endorsement of Sir Leslie Turnberg's great skill in taking these proposals forward. I think the noble Lord will understand that the questions
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of management of the change between Guy's and St. Thomas's are, we hope, now that they are in a unified trust, subject to discussion around the table rather than confrontation between rival groups. The noble Lord raises his eyebrows. Perhaps I am more optimistic than the noble Lord, and his local knowledge does not give him that confidence. Sir Leslie's panel highlighted concerns that the extensive building going on at the St. Thomas's site might not represent value for money in the light of the capacity available at Guy's. We accept that view. That means the Department of Health and the NHS executive as well as the local trust, and the South Thames regional office are to review the options, which will probably mean that more services are left on the Guy's site. Precisely which services those are and how they are best configured will clearly be a matter for local discussion.
Lord Winston: My Lords, I declare an interest as a member of the newly-enlarged Imperial College School of Medicine. I believe that the report will be widely welcomed throughout London. The tenor of the Government's response to it is apposite. I particularly like the notion that firm decisions will be taken.
Perhaps I may draw my noble friend's attention to a problem that has dogged London medicine very seriously. As noble Lords will know, London medicine is largely academically led. Many of the hospitals mentioned in the Statement are academic hospitals. One of the problems in London has been a consistent blight on research, and particularly recruitment, because decisions were rather slow in being taken. Will the Minister assure the House that we shall not be kept waiting again and that any decisions needing to be taken will be taken with all speed, so that London medicine and London medical science can get on with the job of improving and maintaining the health of the nation?
Baroness Jay of Paddington: My Lords, I am delighted to reassure my noble friend that decisions will be taken promptly. I cannot give him quite the same assurance about the nature and type of procedures needed to effect some of the changes. For example, some of the capital programmes are subject to the PFI process, in itself a procedure which can take some time. As my right honourable friend said in the Statement which I repeated, this is, like the NHS White Paper, a 10-year programme in which we would expect to see visible improvement year on year but not all delivered within the first year. I hope that my noble friend will have heard the points in the Statement about the need to look at the configuration of London health services in this sectoral way, which enables the connection between the medical schools and the academic medical fraternity to be allied with the service provision in a way which makes sense for both parts of the healthcare system.
Baroness Nicholson of Winterbourne: My Lords, I congratulate the Minister and her colleagues on this remarkable new thinking for London healthcare. I declare an interest in Guy's Hospital as a foster parent of a child who has had many operations in the burns unit. With that experience, perhaps I may ask the

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Minister to think carefully about the transfer of burns services for London patients long-term from Queen Mary's Hospital, Roehampton, to Guy's Hospital itself. That would give a new reason and focus for Guy's to use the wonderful new facilities which the previous government appeared to be going to discard. As I understand it, there was no long-term planning at all in the previous thinking for London burns patients but merely short-term and possibly mid-term planning.
Baroness Jay of Paddington: My Lords, I am grateful to the noble Baroness, Lady Nicholson. She was kind enough to write to me and also, I understand, to Sir Leslie Turnberg about the proposal with regard to burns services. My understanding is that the burns and plastic surgery services were looked at in the strategic review which reported last autumn. Consideration was given at that time to the possibility of transferring burns services to Guy's or St. Thomas's but the steering group continued to recommend the transfer of those services to the Chelsea and Westminster Hospital, to remain within the South Thames Regional organisation. The noble Baroness will have heard that, as I said in response to the noble Lord, Lord McColl, the capacity at Guy's to retain certain services which might have been moved to St. Thomas's could perhaps produce another possibility in this area. At the moment I can only refer back to the previous appraisal which suggested moving the services to Chelsea and Westminster.
Lord Aberdare: My Lords, I was interested in the mention of the Elizabeth Garrett Anderson Hospital for Women. I have always had a great admiration for that hospital and had hoped that it would continue to be exclusively for women. It is not clear to me from the Statement whether it is in some way to be subsumed into University College Hospital.
Baroness Jay of Paddington: My Lords, I am sure that the characteristics and quality of the services of the Elizabeth Garrett Anderson Hospital, with which I am sure we are all familiar and about which we feel strongly, will retain their independence, but the buildings will become part of the new University College Hospital, which, as the noble Lord knows, is literally across the street from the old site.
Lord Rea: My Lords, as a practitioner who spent most of his professional life working in north London, perhaps I may say how pleased I am that the decision has finally been arrived at with regard to the UCL hospitals. I welcome also the further strengthening of primary care, particularly in east London where it is much needed. Another thing which greatly pleases me is the decision at last to have a strategic regional office for London. This is something my noble friend will recall arguing for over many years when we were in opposition. Can the Minister say what will happen to the current north and south London regional offices? When there is a strategic London office, will the peripheral health authorities be attached to another
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regional office or will they form their own? Will the regional strategic office be coterminous with the new GLA?
Baroness Jay of Paddington: My Lords, I am grateful to my noble friend for his remarks. He may he pleased to hear with regard to the UCLH building that we expect that the trust and its PFI partner will now be authorised to go ahead to financial close, which we expect to take place reasonably quickly.
With regard to the precise definition of what the regional office will cover and what its remit will be with the peripheral health authorities, I am afraid I cannot take that any further this afternoon. As I said in an earlier reply, this is in a sense rather ephemeral at the moment. Although there is a clear intention, there needs to be precise discussion about the relationship with the GLA, as I mentioned in my response to the noble Lord, Lord Newby, who picked up the use of the description "medium-term" in relation to this plan. I hope my noble friend will be reassured that it is a definite plan. The precise configuration and definition are still matters for discussion. My noble friend reminds me of the determination which he had to try to introduce this in the earlier health authorities Bill. I am sure he will also remember the extremely arcane discussions we had about the nature and definition of any possible strategic authority.
Lord Desai: My Lords, I too welcome the Government's decision as a consequence of Tomlinson. I was not one of those who joined the "Save Bart's" campaign, despite my east London connection, because I was convinced that something drastic needed to be done about the old buildings. I therefore welcome the proposal.
If London is to have a strategic regional authority, will the Minister bear in mind when making decisions the treatment of drug abusers? I do not ask for an answer this afternoon. As she knows, I have a connection with City Roads, a drugs intervention charity. One of the major problems of provisions for dealing with drug abuse in London has been the lack of an overall London authority.
Baroness Jay of Paddington: My Lords, I am grateful to my noble friend. An important part of the report by Sir Leslie Turnberg's panel which we have not discussed in your Lordships' House since it was not mentioned in the Statement—as my right honourable friend said, it was impossible to cover everything—is the great emphasis on the need for greater inter-sectoral and inter-agency working on such issues as drug abuse and the other social problems which contribute so much to the ill health of Londoners. A major recommendation of Sir Leslie's report is to invite health authorities, local authorities and voluntary organisations, such as City Roads, to work together to try to formulate more strategic plans for integrated care.

Crime and Disorder Bill [H.L.]
4.37 p.m.
House again in Committee on Clause 1.
Lord Goodhart Lord Goodhart moved Amendment No. 3:
Page 1, line 14, after ("cause") insert ("serious").
The noble Lord said: This is the first of a series of amendments to Part I of the Bill standing in my name and those of my noble friends. There is a pattern to these amendments and I believe that it will save time if I explain at this stage our general attitude to Part I of the Bill as shown by these amendments, thus making it unnecessary for me or my noble friends to repeat ourselves each time we introduce an amendment.
Part I introduces five new orders: an anti-social behaviour order, a sex offender order, a parenting order, a child safety order and a child curfew scheme. Of these, the only one that we oppose in principle is the child curfew scheme. We are deeply sceptical about parenting orders and suspect that pilot schemes will show them to be unworkable. However, if the Government wish to try them, then let them be tried.
We welcome the other three orders in principle. They are capable of meeting a perceived need and the noble Lord, Lord Williams of Mostyn, explained why they were required. But, at the same time, we have strong objections to many of the detailed terms contained in Part I of the Bill relating to those orders. Let me outline those objections, of which there are four.
First, the threshold of behaviour which allows orders to be brought into force is too low. The effect of making an order is to subject the defendant to a criminal penalty if he thereafter does things which would not be crimes or perhaps even a civil wrong if done by others. It is therefore a powerful order. It creates a personal criminal law, not a general criminal law. The defendant is not being punished for breaking the law of the land but for breaking a law which applies to him personally or to him and a small group of his associates alone. The grounds for making an order of that kind must be compelling.
Secondly, the nature of the order which the court can make is in many cases too wide and vague. The people against whom the order is made—the subjects of such an order—must know what it is that they are forbidden to do and the order must not be such as to prevent them from leading normal lives.
Thirdly, the penalties for breach are excessive. Where a breach of the order involves a breach of the ordinary criminal law of the land, as it often will, the defendant can be sentenced for that breach. If the defendant does something which is not a breach of the ordinary criminal law, a lengthy term of imprisonment is inappropriate.
Fourthly, while the Government are conferring wide powers on the courts, they do not seem to trust the courts to use those powers properly. They therefore impose minimum times for which the order can be made; they refuse to allow the courts a free hand in varying the order; and in some cases they exclude the power for the court to give a conditional discharge by
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way of sentence. The Government should trust the courts to get it right. With a novel and powerful order of this kind, the Government should leave the courts the maximum flexibility to tailor the duration of the order and the punishment for breach to fit the circumstances of the case.
We must not forget that human rights are not just the right to behave well. One of the most important rights—it will not be found spelt out in any of the conventions but it is there all the same—is the right, up to a point, to behave badly. People have a right to be non-conformist; they have a right to be bloody-minded; they have a right within reason to make a bit of a nuisance of themselves. It is not easy to draw the line. We want to live in a law-abiding society with a low level of crime and a low level of fear of crime; we want a low level of vandalism and disorder of all kinds and a low level of fear of vandalism and disorder; but at the same time we do not want to live in an authoritarian state. In certain aspects of this Bill the Government verge towards authoritarianism.
Let us look more specifically at Clause 1. Each of the four objections I outlined applies to Clause 1. The threshold of the orders is too low. The power to make the orders is not adequately defined or clarified. The penalties for breach are excessive and the discretion of the courts is unreasonably restricted. The Government will be aware of a powerful article published in the magazine of the Howard League by six extremely distinguished academic lawyers. One passage from the article states:
"the Government's latest legislative proposal is neither sensible nor carefully targeted. It takes sweepingly defined conduct within its ambit, grants local agencies virtually unlimited discretion to seek highly restrictive orders, jettisons fundamental legal protections for the grant of those orders, and authorises potentially draconian and wholly disproportionate penalties for violations of them. While the Government claims that this measure is aimed at those who terrorise their neighbours, its actual reach is far broader and covers a wide spectrum of conduct deemed 'anti-social', whether criminal or not. We think it unfortunate that one of the Government's first major proposals on criminal justice policy is of such a character".
The conclusion of the author of that article is that the scheme for anti-social behaviour orders should be abandoned altogether. We do not go as far as that. We believe that the criticism contained in that extremely impressive article should be taken seriously. We accept that there is a need for anti-social behaviour orders. The individual claimants are, as the noble Lord, Lord Williams of Mostyn, pointed out, often not in a position to take action themselves, either for reasons of the cost of obtaining an order or for fear of retribution from those against whom the order is sought. But, at the same time, Clause 1 must be examined extremely carefully and it is in that light that I ask the Committee to look at Amendment No. 3 which is grouped with Amendment No. 4.
The purpose of the amendments is to ensure that, if an application is based on harassment, that harassment must have been serious. But if an application is based on alarm or distress, the defendant's conduct must have been such as to cause or to have been likely to cause alarm or distress to reasonable people. Acts of trivial harassment or causing minor alarm or distress do not

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justify an order as draconian as an anti-social behaviour order. After all, something like a strong and unfamiliar cooking smell may cause distress to a limited degree but, save in the most exceptional circumstances, one cannot imagine that it would justify an anti-social behaviour order.
I do not attempt to define what is serious. That should be left to the court. In addition, as the clause is drafted, an anti-social behaviour order may be made where the alarm or distress, which may be perfectly genuine, is caused to unduly sensitive people. Noisy neighbours can be neighbours from hell. But so, in a more limited sense perhaps, are neighbours who complain about the slightest noise from the flat above. Their distress may be genuine, but it should not be allowed to form the basis of an anti-social behaviour order.
Further, no element of intention to harass or cause alarm or distress is necessary for an anti-social behaviour order to be obtained. It may be that, by definition, harassment involves some degree of intention. But alarm and distress do not require deliberate intention to cause them as an element of their causation; they can be caused unintentionally. That reinforces the argument that the standard of conduct to trigger an anti-social behaviour order is not high enough.
The noble Lord, Lord Williams of Mostyn, referred to Amendment No. 13. I have to say—I will expand on this when we reach that amendment—that I do not believe that it is adequate to deal with the problem. It places the burden of proof on the defendant; it is the defendant who must show that his acts were reasonable and he should not have to show that. The seriousness of the alarm or the distress are one of the facts that should be established in order to enable an anti-social behaviour order to be granted. I beg to move.
4.45 p.m.
Lord Monson: The noble Lord, Lord Goodhart, made a powerful case, as one would expect, for Amendment No. 3. I particularly welcome Amendment No. 4, with which it is grouped and to which I added my name. One could only wish that its principles had been incorporated into earlier legislation touching upon the causing of alarm or distress.
As the noble Lord said, the point is that alarm and distress can be extremely trivial in nature. A person of exceptionally sensitive disposition could be alarmed at a neighbour bursting a paper bag in his or her back garden in the middle of an afternoon or could be distressed, for example, at the squashing of a bluebottle. Surely the heavy hand of the law should come into play only when the alarm or distress in question is subjectively significant.
Lord Thomas of Gresford: I support the amendment. Last year I recall that at the annual general meeting of the Gresford Memorial Trust a lady arrived to complain about young people outside a youth club opposite her home who were playing football after the youth club had closed. She asked the trustees, of whom I was one, whether there was some way in which we
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could force them to leave the street outside her home and go on to the ample playing fields and football pitches which the trust has at a distance of about 200 yards away. There is no doubt that the lady was distressed by the activity that was going on. But she had to be a person of extreme sensitivity to be distressed in that way. Under the Bill she could lay a complaint with the local authority which would cause the making of an order under Clause 1. Surely that is not the sort of thing for which the clause is designed. I fully support my noble friend when he asks that the word "serious" should be incorporated in the Bill.
Lord Ackner: I support the amendment. To a large extent it deals with my anxiety as to whether Clause 1 could have been interpreted on a wholly subjective basis.
Lord Elton: Perhaps I may put in my four-penn'orth. This comes back to a point I raised on the first amendment. I refer to the breadth of the form of behaviour that is potentially embraced by the wording. The amendment does something to narrow it. It may be that the noble Lord can tell us what these words are already taken by the courts to mean. There may be a precise meaning of "distress". However, if it is the colloquial meaning, we certainly need the words in the amendment.
Lord Henley: I rise neither to support nor oppose the amendment. However, like my noble friend Lord Elton. I should be interested to hear from the Government exactly what the words "harassment, alarm or distress" mean at the moment and how they are interpreted. No doubt the noble Lord will be able to refer to the large number of authorities which I have found in Archbold and take us through a brief legal seminar as to their meaning. The noble Lord shakes his head. I suspect that the Committee may be somewhat relieved. However, he would certainly assist the Committee if he could give us some idea as to what the words mean and to what extent and how much he thinks adding "serious" and, later on, "or reasonable and serious" would limit the words "harassment, alarm or distress".
Lord Hylton: I support the amendments in the hope that the Government may feel able to accept them, or something very like them, for the purpose of avoiding a huge mass of trivial and unsubstantial complaints both to local authorities and to the police.
Lord Dholakia: I support the amendments. Every time I have discussed this clause with colleagues the example that has been cited to me is the wild parties and music in Brixton. That is the type of situation that can cause alarm and distress. I have no difficulty in terms of bad neighbours and so on. The problem I have is that the clause could be misused. There is a parallel here in terms of stop and search legislation. Twenty-five per cent. of stop and search in this country relates to black people. In London, 40 per cent. of stop and search relates to black people. Unless we identify in the clause that we mean serious alarm and distress, the authorities

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could use it to target particular communities. I believe this is an appropriate amendment which I hope will put a further onus on those who have to prove the offence in court.
Lord Thomas of Gresford: Perhaps I may follow on from the noble Lord, Lord Henley. I, too, dipped into Archbold today to see what the words "harassment, alarm or distress" mean in the Criminal Justice and Public Order Act 1994, to which reference has already been made. The Act created a summary offence which consists of the intentional causing of harassment, alarm or distress to another person by the use of threatening, abusive or insulting words or behaviour, or the display of any writing, sign or other visible representation which is threatening, abusive or insulting. The words in the 1994 Act were carefully drawn to limit the scope. The sentence for the offence, which is a summary offence, is a maximum of six months' imprisonment. Now we are faced with those same words without any qualification, without the use of the word "intentional", and nothing to indicate the way in which "harassment, alarm or distress" is objectively to be caused or objectively to be assessed.
The other major difference is that the Bill proposes a maximum sentence of five years' imprisonment on indictment as opposed to the summary offence of six months' imprisonment in the 1994 Act, which is within the memory of those on the Government Benches who were then on this side of the House and were no doubt opposing at that time. It was seen to be more of a niche and much less of the big issue that the Government are making in this case.
The Earl of Mar and Kellie: Perhaps I may make three points from the point of view of those who will have to implement the anti-social behaviour orders in the Bill. First, there has to be a limit as to what is an acceptable complaint and what is not. I support the amendments because they appear to lay down a useful interpretation. Secondly, it is important that the Bill does not appear to promise too much. Thirdly, it is important that the Bill clarifies the intentions of Parliament for those local authority officers and police officers who will have to deal with and sort out the complaints.
Lord Williams of Mostyn: The noble Lord, Lord Goodhart, rightly said that he was deploying his arguments on a wider basis than Amendments Nos. 3 and 4, and, as with the noble Lord, Lord Henley, I found that extremely helpful. Perhaps I shall fall into the same error as he but respond fairly briefly on the points that he made. I entirely agree with him that a human right, nowhere defined, is the right to be different, the right to be a nuisance and the right to be an eccentric—up to a point. I omitted the words "Lord Copper", because I offered them to the noble Lords on the Bench opposite to fill in, which they kindly did. The Bill is entirely about defining that point. It was said by the noble Lord that the threshold of behaviour is too low because one is setting a criminal regime which is individual rather than general. But that is what injunctions do at the
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moment. An injunction is directed in respect of particular behaviour against a named individual. Breach of that injunction in appropriate circumstances entitles the court to fine or imprison. So there is no difference in principle or problem there.
Secondly, the noble Lord suggested that the order might be too wide and too vague. If one looks at Clause 1(4) one sees that the order will not be too wide or too vague because it is able to prohibit the defendant only from doing anything described in the order. If one stresses the word "anything", and rolls the eyes appropriately, of course it looks as though this will be endlessly Draconian. But it is not. The words "anything described in the order" are intended to be prescriptive; that is to say, the magistrates' court must specify with particularity what conduct is forbidden by the order.
The third point is that the sentence is too great. The court is given what we believe to be a reasonable range of options. It does not include a conditional discharge. That is a matter of particular, determined policy because the order itself is conditional—that is to say, if one obeys the terms of the order, first, there will be no criminal record and, secondly, there is no criminal sanction deriving from the order. It is purely prohibitory. So there is no difficulty there at all.
Of course we trust the courts by giving them an appropriate range of remedies. It will be the magistrates' courts in particular areas, knowing the problems of their particular peoples and communities, to decide about harassment, alarm or distress. The boys playing football outside the Gresford Club would not be subject to this order because this is an anti-social order as designated in Clause 1(1)(a); namely,
"likely to cause harassment, alarm or distress to two or more persons not of the same household as himself".
It is not designed or intended to be for an individual, but for an anti-social context.
5 p.m.
Lord Henley: I am sure the noble Lord will accept that there could be occasions when people playing football outside one or more houses cause alarm, distress or harassment by the very nature of football and how it is played.
Lord Williams of Mostyn: If that proposition is put to the footballers they have the perfect opportunity to say, "Oh! come on, look at Amendment 13 of the noble Lord, Lord Williams, which is a model of perfect parliamentary drafting, because it is perfectly reasonable in the circumstances". I take up the illustrations given by the noble Lords, Lord Dholakia and Lord Henley, which are not fanciful. We have a couple of black households living in a street, wishing only for their own private domestic contentment and order. Skinhead youths constantly play games such as baseball, football and loud games and make the lives of the people in the black households a misery. Why should that be subject, not to the sanction of immediate criminal prosecution, but a warning to them, "This country will not stand for that"?

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Why cannot it be said to them, "Therefore, you will be subject to a regime which is carefully crafted and constructed to deal"—and I repeat—"with real social harm?" As the noble Lord rightly observed—and I regret it if I have not made it abundantly clear—this is not a remedy for the individual aggrieved, but one that has to go through a filtering authority; namely, the police and the local authority. So that takes away the opportunity simply of the malevolent, obsessive individual who feels wronged. We have put in a filter.
The second filter is that it must go through the court process. We trust the courts, to use the phrase of the noble Lord, Lord Goodhart. We do not expect them to impose these orders on a trivial basis. They are subject to appeal. If there is difficulty and inconsistency, the appeal mechanism will bring about consistency. Amendment No. 13 has been designed with a view to meeting, if not perfectly, at least the thrust of the objections of the noble Lord, Lord Goodhart.
We believe that harassment, alarm and distress are perfectly simple words, which are frequently construed by courts on necessary occasions. It is perhaps noteworthy that the basic offence in Section 1 of the Protection from Harassment Act 1997—which is even more contemporaneous than that mentioned by the noble Lord, Lord Thomas of Gresford, which was 1994 and quite ancient—does not include the word "serious".
I recapitulate briefly what we have done here. We know that there is serious harm to vulnerable people. They presently cry for remedy without redress and that is a scandal. We want to put it right, but we realise that there may be problems. Therefore, we introduce a regime, which has the dual filtering of the police and the local authority added to the necessity for an application to a court. Further added to that is Amendment No. 13 which gives the defendant the right to say that his conduct was reasonable in all circumstances. All of this applies no criminal sanction whatever. It gives a warning that if the order is breached—which can be proved on a criminal basis in criminal proceedings where the defendant will be legally aided and represented, as appropriate—and in some circumstances the offences are so wicked, and I choose that word carefully because it goes to the heart of people's lives, then they should be met with criminal sanction. That is my answer to the noble Lord, Lord Goodhart.
I shall not seek to repeat my propositions as regards each subsequent amendment. On the particular amendments, I believe that we have got it right. We do not need these qualifying words. The conclusion of the noble Lord, Lord Goodhart, would be that the harassment had to be serious and the qualifying words to "alarm or distress" would be "reasonable and serious alarm" or "reasonable and serious distress". I am not sure that I entirely follow that.
Lord Elton: I am not sure that the noble Lord realises that we are all on his side in preventing the mischief which he has so eloquently described. In this House we have a duty to prevent such remedies spreading beyond the mischief to which they are intended to apply. When orders are made I suspect that most of those appearing
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will not have legal representation or the resources with which to appeal. Therefore, it is quite right to pursue the question of whether what we are saying here is capable of being applied more widely than the noble Lord intends. I take it that that is the intention of this amendment. It may be for argument as regards Amendment No. 13 that we should continue that. I myself am in some doubt concerning the arguments of the two Front Benches as to whether the delimitation is going to be achieved by Amendment No. 13. I hope the noble Lord understands that we are all trying to do the same thing and not to overdo it.
Lord Williams of Mostyn: I entirely accept that. As I believe I said at Second Reading, it was gratifying that the general scope and thrust of this Bill had had such general acceptance and strong approval in principle. I do not dismiss these points. As I said earlier, Amendment No. 13 was designed to meet what we thought were the reasonable objections of the noble Lord, Lord Goodhart. We believe that the general safeguards we have written into the regime, particularly bearing in mind the present context of legislation, gets it about right. I regret that we cannot accept this amendment. I accept, and will continue to do so, that these amendments propose improvements. But we are unable to agree that they would be improvements.
Baroness Warnock: Going beyond the actual amendment, the noble Lord, Lord Williams of Mostyn, used the word "malevolent" as a way of defining the objectionable conduct. That suggests very strongly that some such word as "intentional" should be brought in before the description of the alarm, harassment and fear caused. The courts are very well accustomed to trying to determine whether a series of acts was intentional. I cannot see any reason not to put in the "intentional" in this context. It would itself limit the application of the order.
Lord Thomas of Gresford: I agree entirely with what the noble Baroness said a moment ago. In order to defeat the argument advanced by my noble friend, the noble Lord, Lord Williams of Mostyn, used the expression "malevolence" which indicates a subjective intention in the mind of the person against whom the order is made. When one looks at a situation where, for example, there is malevolent playing of football outside the houses of two young, robust white households, the heads of those households can go to the local authority and say, "They are malevolently playing football outside my house. I want an order". In another situation, the people playing football outside the houses may not be doing so malevolently, but those who live in the households may be two elderly white couples—I do not want to introduce a racist element—who are distressed and who then go to the local authority saying, "Please may we have an order?"
The noble and learned Lord, Lord Ackner, raised this issue at the beginning of this Committee stage when he asked whether the test is to be objective or subjective. It seems to me that the noble Lord, Lord Williams of Mostyn, is now putting it forward in two ways:

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malevolence on the part of the offenders can cause an order to be made, or it can be caused by distress on the part of those who are the recipients of non-malevolent and unintentional conduct. If that is the Government's intention in promoting the Bill, no doubt the noble Lord will tell us.
Lord Mishcon: I intervene shortly to say that one's experience of the racial incitement legislation, which is already on the statute book and where the question of intention was a necessary ingredient, is that the courts have found the gravest difficulty (because of the onus on the prosecution in regard to those matters) and there have been acquittals where no acquittals were ever intended by Parliament, I am sure, when passing the original legislation.
Viscount Bledisloe: I would understand the argument of those proposing the amendments if it did not appear that there are already two filters in the Bill. Those proposing the amendments have spoken as though the over-fussy old lady has only to prove some harassment to get an order automatically. Surely that is wrong. First, she has to persuade the relevant authority that it ought to apply. It does not have to apply; Clause 1(1) is permissive. Secondly, even if the relevant authority does apply, the magistrates' court has the discretion to make an order. Surely those two discretions are perfectly adequate to filter out the footling and inadequate complaint and to solve the problem of people being subjected to an order just because a couple of extremely fussy old ladies do not like street football.
The Earl of Mar and Kellie: Are we trying to sort out whether the behaviour was malevolent or thoughtless?
Lord Williams of Mostyn: We are trying to sort out a reasoned response to Amendments Nos. 3 and 4 which deal with the insertion of "serious" and of "or reasonable and serious". We are not trying to sort out whether one needs to demonstrate malevolent intent. The question of intent is irrelevant to the mischief at which the order is directed. We are talking about an antisocial behaviour order. The question whether unintentional harassment which is unreasonable should be allowed to continue unabated. We suggest not. I am most grateful to the noble Viscount, Lord Colville of Culross, who has daily—
Noble Lords: The noble Viscount, Lord Bledisloe.
Lord Williams of Mostyn: I am so sorry. I did not properly turn round and I mistook the voice. I must be extremely careful in future. I am most grateful to the noble Viscount, Lord Bledisloe, who has knowledge of these matters. These are perfectly easy questions for the courts to deal with, given the will. I resisted a trawl through Archbold and I further resist the temptation to cite any cases with which I might have been involved. The divisional court concluded that whether a person is
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likely to be caused harassment, alarm or distress is simply a question of fact, easily to be determined by the magistrate.
We have been ranging fairly widely over questions of intent, malevolence and so forth, which are not the subject of the present amendments, Amendments Nos. 3 and 4. I have set out the Government's position on them. I commend it to the Committee as being a reasonable, well considered, middle way of dealing with undoubted problems.
5.15 p.m.
Lord Goodhart: I shall restrict my reply to Amendments Nos. 3 and 4. I welcome the fact that the noble Lord, Lord Williams of Mostyn, recognised that there is a human right to be a nuisance and an eccentric, up to a point, and that the purpose of the Bill is to define the boundaries. I think that the noble Lord has put those boundaries in the wrong position. All the examples given by the noble Lord involve acts that are obviously likely to cause serious alarm or distress, or serious harassment. I accept that intent is not a necessary requirement of an antisocial behaviour order and in these amendments I have not sought that it should be so. However, it seems necessary that there should be a threshold of seriousness of conduct before it is possible to make an antisocial behaviour order.
In response to the noble Viscount, Lord Bledisloe, I would say that the law should not rely on the exercise of a discretion by the local authorities or the courts to screen out the obviously footling and trivial cases. The threshold should be drawn high enough to exclude such cases.
I do not think that Amendment No. 13 is adequate to deal with the problem, for reasons that I shall explain when we reach that point. As the Government have gone half way to dealing with the problem I indicated, I simply ask why they do not go the whole way and accept perhaps not the exact wording, but at least the spirit of my amendments. I shall not press Amendment No. 3 today, but we may return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Lord Henley Lord Henley moved Amendment No. 5
Page I. line 15, leave out ("two") and insert ("one").
The noble Lord said: Again, much of the ground of this amendment has been covered in earlier discussions. I move the amendment now in order to ask the simple question: why "two" and not "one"? The noble Lord, Lord Williams, stated that the provision was designed to deal with matters which he implied related largely to the inner cities, but he then agreed that they could extend to the "leafy suburbs", as he put it. I suggest that they could also cover ground way beyond the leafy suburbs. It is possible that the single occupant of a single property, way out on its own in the country, could be caused alarm, harassment or distress by the activities of—dare I say it—malevolent footballers playing outside. I give that example as it is one that we have used earlier.
I raise this purely as a question of inquiry. Why on earth does the Bill have to state "two or more persons"? Is it purely an evidential matter that the authorities should not be empowered to act until at least two persons from separate households are making the complaint and that the authorities should not be empowered to act and to go to court until there are "two or more persons" involved; or is there some other reason behind the provision? I am mystified about this and I should be interested to hear the noble Lord say why it was thought that "two or more persons" was right instead of just "one person". I look forward to hearing the noble Lord. I beg to move.
Lord Monson: I welcome this amendment. I would have put my name to it had I spotted it earlier, although I have added my name to Amendment No. 47 which deals with a similar situation in Clause 18. Time and time again, we read of elderly widows or spinsters, and occasionally of widowers, who are mercilessly bullied by young people, whom they have often befriended earlier. Surely single people in that position deserve just as much protection as couples or groups of single people. I, too, am at a loss to know why at least two people should be required for the purposes of the clause.
Lord Renton: I regard this amendment as a very important one. It is extraordinary that a bench of magistrates may say that it finds serious harassment has taken place and that it caused great distress but that only one person has suffered and so the defendant must be found not guilty. Are we really to legislate like that? Are the Government to rely, by analogy, on one of the very few offences that can be committed by only two persons or more? I can think of only the offence of affray. I remember it very well because 30 years ago at Hertford Assizes I prosecuted the first case of affray that had occurred in about 100 years. I had the honour and pleasure of leading the noble Lord, Lord Wigoder, in that case. I hope that I am in order in mentioning it. In the offence of affray it is only when two or more persons are involved that an offence has occurred, but that is different from this situation. Here we have the possibility of a sad elderly person, perhaps a widow who lives alone, being harassed by a gang of irresponsible youths. Under the Bill as it stands there can be no conviction. We really cannot legislate like that.
Viscount Tenby: Perhaps I may clear up one small matter arising out of previous discussion on the clause. I assure the Minister that no court of which I was a member would convict him either for speaking Welsh or voting Labour, especially if it managed to bring into play an antisocial behaviour order.
I hope that the noble Lord, Lord Henley, does not think me patronising if I say that this amendment is a very important and interesting one, not least because of any answer that may be forthcoming from the Minister on the matter. To start the tariff at two or more persons will preclude the proverbial little old lady living alone. She is the person who is probably most in need of this provision. Presumably, she will suffer because of the difficulty of providing corroborative evidence in order
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to bring a successful prosecution. Noble Lords may regard the difficulty as compounded because here we are entering unknown territory in the context of what some noble Lords consider to be the loose terms of the order. After all, one person's living hell is another person's sensory enjoyment in an evening of heavy metal music from a CD.
But can one forget the anxieties about interpretation and the like, important though they are? This order has been in the wings for far too long. In my hook repeated assaults on the senses and gross intrusion into people's private space are no less serious in some instances than physical assaults on the person. Surely, what is required in the enforcement of this order is greater common sense at the end of the 20th century and less referral to legal precedents of the 16th and 17th centuries. I hope that the Minister can see a way in which a solitary complainant may reasonably be able to derive some satisfaction from this very important order.
Lord Hylton: I would have thought it a good thing to have two persons in the Bill as drafted because that is likely to introduce into the situation a greater element of objectivity. However, the noble Lord, Lord Henley, perhaps has a point when he speaks about the occupant, perhaps the single occupant, of a totally isolated house in the country. One may also visualise the solitary user and occupant of a hut on an urban allotment. I dare say that the ingenuity of the Government is such as to find a way to cover these rather exceptional situations.
The Earl of Onslow: I should like to seek help from the noble Lord. The Bill makes reference to "two or more persons not of the same household". If I read it aright—perhaps my reading of it is incorrect—it means that if three elderly people live in an isolated house they can be harassed without let or hindrance but that if there are two isolated houses with one person living in each the situation is different.
Lord Williams of Mostyn: I point out to the noble Earl that the wording is "not of the same household as himself'; that is to say, the defendant perpetrator.
Lord Mishcon: I should like to add one more instance that worries me and perhaps other noble Lords in view of the intent of these provisions. If I may take colour for the purposes of my example. Let us assume that a black gentleman is living in a house in a street which is occupied wholly by whites. As a result of some rather unpleasant people, that black person finds his life unbearable. Is he to have no remedy under the Bill?
Lord Thomas of Gresford: Can the Minister say whether it is possible for one person to suffer harassment, alarm or distress and for the court to assess that if other persons were around they would also have been likely to suffer harassment, alarm and distress?
Lord Williams of Mostyn: The ingenuity of the legal mind knows no bounds! Perhaps I may point out gently that possibly there has been undue focus on Clause 1(1)(a) without full appreciation of the totality

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of what Clause 1 is intended to deal with. I respectfully repeat that this is an antisocial behaviour order. One must pass over the hurdle in Clause 1(1)(a) before one comes to the point of the order in subsection (1)(b). The court may make the order if it finds the condition fulfilled in Clause 1(1)(a), over which we have pored for a little while, and if under subsection (1)(b)
"such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to he caused from further anti-social acts by him".
The whole point of the order is that it is not individualised in terms of a single individual complainant. It is designed to be a community measure. Therefore, (a) and (b), the latter not having been looked at so far this evening, go together. For that reason one has the filters referred to earlier by the noble Viscount: first, the police and the local authorities; and, secondly, the court. There will be individual disputes not covered by this particular remedy: for instance, frequent, indeed notorious, neighbour disputes about who has planted Leyland cypress where, how long ago and to what height—more money has been spent on Leyland cypress than any other living vegetable—or whether or not the cockerel next door is too noisy, rowdy or rampant at six o'clock in the morning. That is not what this Bill is intended to deal with. The Bill is concerned with behaviour which is in effect antisocial and anti-community.
We believe that where an individual is harassed that is covered by the Protection from Harassment Act 1997. That is a criminal offence. We do not expect the police, the local authority and the court to take part in individual disputes of the kind that have been cited by way of example. In answer to the noble Lord, Lord Henley, this is not an evidential problem but a conceptual difference. Nor is the illustration of affray given by the noble Lord, Lord Renton, to the point because here a magistrates' court will not arrive at a finding of not guilty because there is only one person adversely affected. Guilt or otherwise does not enter into it. The simple question is that if only one person is affected, or is likely to be affected, the police and the local authority will not even make an application to the court. If they did so wrongly or the court was not satisfied, an order would not be made.
The key to this matter is that one looks at the scheme of subsections (1)(a) and (I)(b) together. It is an entire scheme. It is intended to deal with a particular mischief in a particularly considered way; it is not intended to deal with all harm that happens to individuals. Single individuals, particularly the elderly or the handicapped, living on their own, have been mentioned. The Protection from Harassment Act, new on the statute book as it is, can be used for that purpose, but that is not the vice at which the Bill is aimed. It is different. That is why we have constructed it in this way. I hope, on the basis of that explanation of a considered policy stance, the noble Lord will feel content and happy to withdraw the amendment.
5.30 p.m.
Lord Ackner: I thought that one of the reasons for the provision in Clause 1 was to protect the person who is frightened to make the application herself, and, if she made the application, who would be the subject matter of victimisation by those against whom she made the application. If that is so, then the advantage of this clause is seriously cut down.
I do not understand the reference to subsection (1)(b) as being of any particular relevance. Paragraphs (a) and (b) are both conditions precedent to the making of an application. Unless both paragraphs (a) and (b) are satisfied, there can be no valid application, and that has been recently accepted, as one would expect, by the Minister. If the application were made without the two conditions precedent being satisfied, it would be thrown out. Therefore the Minister has not answered the criticism: how do you protect the individual who is scared stiff to take the initiative to make the application herself?
Lord Renton: The Minister made clear the Government's intention here. If the amendment is accepted, the Government's intention will still be fulfilled, because we shall have the expression, "one or more persons". It is extraordinary—is it not?—if we are to have protection of more than one person only and have to rely entirely upon the proposition that individuals do not need to be protected. because they are protected elsewhere in the law.
I take the point the Minister made about the Protection from Harassment Act. He is right about that, but Clause 1(1)(a) goes beyond causing harassment; it refers to "alarm or distress". I must confess that I do not know of any details in statutes which would give the kind of protection which the Bill would give, where mere alarm or distress is caused. If there are such examples in our legislation, we must be told about them. I should like to know.
As for the problem that the Minister mentioned relating to paragraph (b), that is easily overcome. If one looks at the first line on page 2, if the amendment were to be accepted, it would require consequential amendment which could be done on Report, putting before the word "persons", the words "a person or". That does the trick. I hope that the Minister will keep an open mind about this, because a strong case has been made for the amendment.
Lord Mishcon: Perhaps I may return to the point that I tried to make earlier when I gave the instance of the gentleman, or the lady, who was black, living alone in a street where all the occupants were white: and there are a few of those white occupants making the life of that person absolute hell. Are we legislating—I ask this most respectfully of my noble friend—on the basis that we know that there is an existing Act of which people do not take advantage because they are often frightened to do so, and we are passing some fresh legislation which will remove that fear, because the local authority and the police are brought in? Are we legislating now on the basis that, if on my example, it were a husband

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and wife, they would be entitled to see the local authority, and prima facie the conditions for bringing this matter before the magistrates' court would exist? If it is a husband and wife, they can make an application. If the husband dies the day before, the widow cannot do so.
Lord Elton: Perhaps I may add another point which has not been raised. I welcomed what the Minister said when he spoke to the earlier amendments, because he said that the provision was replacing recourse to an injunction for people who could not afford one. Single people cannot afford an injunction any more than couples or neighbours. In this case, I take it that the cost falls on the relevant authority, so it makes the law available to people who cannot afford it. That is important. Under the 1997 Act, the costs of course fall to the applicant. That does not bring the law to people who cannot afford it. So this remedy is needed, despite the existence of the 1997 statute. I hope that the Minister will look carefully at what he has been asked to do.
The Earl of Onslow: I am sorry to return to this again. The Minister answered my first question clearly, and I thank him for that. What the Minister is trying to do is a good thing. I do not know whether Conservatives are allowed to say that about Labour politicians, but this one is going to say it. It is unfair to leave out the weakest possible people. At least if there are two of you, you can moan and whinge together about the little so-and-so who is misbehaving outside. The person who is alone and frightened should have greater protection. The Minister has a great deal of support for this measure. I hope that he will think again. We are trying to help the weakest people. If this place cannot do that, we should all be abolished.
Lord Williams of Mostyn: I am grateful for the general spirit in which the questions have been put. The answer to my noble friend Lord Mishcon is that a single person would be without remedy in this clause, because this is not a clause which is presently intended to deal with all ills that befall individuals. It is an antisocial behaviour order cast on a much wider basis and, as Members of the Committee observed earlier, completely new to our law.
However, I recognise that the amendments are not drafting amendments to improve what we have already determined; they are much more fundamental in asking us to cast the net much wider. The Government's present view is that the antisocial behaviour order is intended to be a wider remedy rather than individualised. I raise no hopes, because I know conventionally in the past that when Ministers have said, "We will give it careful consideration", that has been almost an implied promise, capable of being sued on. I am not saying that at all. I am just making it plain that I listened with care to the questions that have been put, to the propositions that have been offered, and I shall ensure that those observations are considered. It is more likely than not, even as regards the civil balance, that on the next occasion I shall say that we wish to retain our present position. That is perfectly likely and I do not
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wish to mislead anyone. However, I have listened to the debate with care and will transmit the feeling of a significant majority of your Lordships to the Secretary of State.
Baroness Warnock: Does the Minister intend that antisocial behaviour requires that there shall be a society against which such behaviour is intentionally or otherwise directed and that a society shall consist of more than one person? Is that the basis for disregarding the powerful argument put forward by the noble Lord, Lord Mishcon, of there being a remedy one day, hut. when the husband dies, there being no remedy the next day? Is it essential that antisocial behaviour must harm, frighten or distress more than one person?
Lord Williams of Mostyn: As I have indicated, that is precisely the way in which the Bill is drafted in subsection (1)(b). A necessary precondition to the granting of the order, which a number of your Lordships have described as draconian, is:
"that such an order is necessary to protect persons in the local government area";
in other words, that there shall be a social dimension which is beyond individual harm.
I have made my position plain. There are strands which pull in different directions. Some of your Lordships say that the order is far too draconian, mitigated slightly because there must be more than one person, but others of your Lordships say that it is usefully draconian and ought to be limited to individuals. I can do no more than repeat the Government's present position and my undertaking, limited as it was, to transmit your Lordships' views.
Lord Belstead: The Minister has kindly said that he will look at the issue, which is characteristic of him. He said that if the amendment were made to the Bill the situation would be much wider. I suggest that it would be wider only because subsection (1)(b) will still exist. It means that the Bill will be more workable in the terms of the noble Lord, Lord Mishcon, but the amendment will not make the situation much wider because subsection (I)(b) will remain on the face of the Bill.
Lord Williams of Mostyn: I am not sure that it would help the example given by the noble Lord, Lord Mishcon, because the single black man or black woman, the married partner having recently died, could not necessarily overcome paragraph (b). The order would not be necessary to protect persons in the local government area unless one agreed to the further amendment suggested by the noble Lord, Lord Renton. We are piling hypothesis on hypothesis and I cannot usefully deconstruct those pyramidal hypotheses tonight.
Lord Goodhart: The Minister said that the Committee was divided between those who regard the Bill as too draconian and those who regard it as not draconian enough. As someone who has criticised aspects of the Bill for being too draconian, I make it clear that this amendment is not one which we would

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regard as being draconian. We regard it as one which removes a logical inconsistency which the noble Lord, Lord Mishcon, so clearly pointed out.
Lord Henley: I thank the Minister for going as far as he did. I assure him that I believe that the clause should not be designed to deal with the disputes of neighbours. That would be like taking a sledgehammer to crack a nut or—dare I say it?—taking a chainsaw to a leylandii.
The Minister's argument is that the Protection from Harassment Act will deal with the cases in which only one individual is affected as opposed to a number of people. As I understood the Minister's earlier argument—and it was referred to by the noble and learned Lord, Lord Ackner—448witnesses are reluctant to come forward and to take action particularly in the criminal courts. That is why the Government saw such a clause as a half-way house, whereby actions can be pursued without their having to go to the criminal courts; that is, to make use of the local authority and the police authority.
However, as the noble and learned Lord, Lord Ackner, and my noble friend Lord Renton pointed out, that does not apply in the case of the single individual, in particular the single black person whose spouse has recently died, referred to by the noble Lord, Lord Mishcon. As a result of the support I have received, I must press the Minister further. Although I intend to withdraw the amendment tonight, I, and I suspect other noble Lords, will wish to return to it at a later stage. I hope that that assurance will concentrate the minds of the Minister and his honourable and right honourable friends in the Home Office when they consider the matter. Strong feeling has been expressed by Members on all sides of the Committee. All those in favour of the Bill and of this clause—and I repeat that I am, as is my noble friend Lord Onslow—believe that the clause should cover the single individuals to whom reference has been made.
I hope that the Minister will take note of what has been said, in particular by those more learned than I, and discuss the matter with his colleagues in the Home Office. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
[Amendment No. 6 not moved.]
Lord Henley Lord Henley moved Amendment No. 7:
Page 2, line (). leave out from first ("area") to end of line 7.
The noble Lord said: This is a probing amendment. Amendment No. 5 was also a probing amendment, but the debate continued for almost half an hour. The amendment deletes the words:
"or any chief officer of police any part of whose police area lies within that area".
Can the noble Lord give an assurance as to the extent to which the police were consulted before the legislation was drafted? Which police bodies and associations were consulted and what was the response that the Home
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Office received from the various bodies representing the police at different levels to their inclusion in this part of the Bill? I beg to move.
Lord Windlesham: Although those interesting and pertinent questions will elicit a reply from the Minister, I do not believe that we should pass over the amendment too quickly. It provides the Committee with its first opportunity to concentrate attention on the intermediate stage in the provision of redress. I commented on those lines in our debate on the first amendment. What the Minister said, in particular in reply to the previous amendment, fills out to a considerable extent the role of the police and the local authorities.
What is the intermediate stage? What is to happen? We need to look at the proposal because it is easy to concentrate on what is in the Bill. There is the complainant, the person whose objectionable behaviour is complained of, the court which makes the order and possibly a court which imposes a criminal penalty for breach of the order. However, there is also this obscure ground which must first be traversed by the victim who is seeking redress. Therefore, the complainant must satisfy the relevant authority, which is either the local authority or the police. They must consult each other before making an application. How will they respond when a complainant comes forward in pursuit of a remedy?
The complainant must show that he has been subjected to an antisocial manner within the meaning of Bill. Harassment, alarm or distress must have been caused or might have been caused. Two or more persons not of the same household need to be involved unless the persuasive tongue of the noble Lord, Lord Williams, manages to reduce that to one or more.
How are those decisions to be taken by local authorities? Local authorities already have an enormous number of responsibilities. They are conscious of how they must respond to those who are persistent complainers. I do not like the use of the word "trivial." What may appear trivial to those in authority may be very important to the individual concerned. It is for the individual to persuade a local authority or the police that the conduct does amount to grounds for an order under this particular legislation.
Who takes the decision, not just whether to accept the application and go forward to the court but whether, under this legislation, in the view of the local authority or, more particularly, in the view of the police, the conduct complained of warrants the initiation of criminal proceedings? Let us remember that there is not just the recent Protection from Harassment Act 1997 but there is also the 1994 legislation. Therefore, there are a number of avenues which are open to those who must take those decisions.
It is important that there should be some consistency in how those decisions are taken. I suspect that there is a real risk that some of the relevant authorities in certain areas will respond in one way which may be quite different from those which respond in another. Is the Home Office proposing to publish any guidelines as regards the criteria against which those decisions are to

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be taken at the preliminary gate? That is a gate through which, if this legislation is to have any effect at all, the complainant must pass. Therefore, uniformity and criteria are important. I should like to know whether it is proposed that there should be any pilot experiments before the scheme is brought into more general effect.
Lord Thomas of Gresford: I follow the noble Lord, Lord Windlesham, in his query to the Minister. In September 1997 there was a suggestion that there might be professional witnesses employed, presumably by the local authorities, in order to investigate matters which arise under this Bill. Is it therefore the intention that a local authority should be required to set up a separate department, a counter, for complaints—an enforcement agency with professional witnesses who would go out and take statements and do all manner of things necessary to bring the complaint before the court? Alternatively, are those matters which are normally dealt with by the police to be left to police forces? Do the Government have any idea at all or any assessment of how many orders they would expect to be made in a given average-size local authority or police authority area during a year? What thought has been given to those issues? It seems to me that this amendment raises for consideration the roles envisaged for both local authorities and police authorities as regards the implementation of the proposals in the Bill.
The Earl of Onslow: Yet again I am seeking after enlightenment, and I always do seek after enlightenment. Will the noble Lord please tell me at which level of local authority the decisions are to be taken? Will it be the borough, county or parish council? Which level of police will be involved? To where does the complainant go?
Lord Williams of Mostyn: First, I shall deal with the question put by the noble Lord, Lord Henley. We consulted very widely. A summary of the responses to the consultation paper was placed in the Library on 18th December last year. Perhaps I may deal with something of specific interest to the noble Lord, Lord Henley. The ACPO general policing committee supported the proposal that the police should be involved. We believe that it is quite fundamental that the police should be involved. It is obvious that local authorities and the police should work together; but they have different functions. Obviously local authorities support and manage their local communities in numerous ways but they do not patrol the streets, deal with vandalism or public protection as a whole. That is the role of the police. We believe that it is right that both authorities should be involved.
As regards specifics, the question was put as to guidelines. The noble Lord, Lord Thomas of Gresford, asked about particular details. We intend to issue guidelines prepared in consultation with local authorities, the police and magistrates. That process is due to start shortly. Therefore, the detailed questions about particular administrative arrangements will follow those consultative guidelines.I should have thought that before the guidelines are produced there is ample scope
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here for authorities to decide their own procedures and their own enforcement mechanisms. After all, we should bear in mind that local authorities vary infinitely in the problems with which they must deal. The problems which an inner city authority has may be utterly different from those to be found in a country local authority in west Wales.
The level of local authority will be the district authority. Any police officer who is authorised by a chief constable or commissioner of police will be able to make the application. We believe that that will be a useful tool. I understand entirely the point behind the noble Lord's question. Consultation and guidelines will be very important. There is room for discussion. However, ACPO wants guidelines, as do the local authorities, and we propose to offer them.
Lord Henley: I thank the noble Lord for that answer. I must examine the consultation paper which was placed in the Library on 18th December. However, I am grateful to the noble Lord for his summary of ACPO's views.
I tabled this amendment because my understanding was that ACPO had reached a slightly different view in Scotland. That is why, when one looks at Clause 18, one finds that the police are not involved in the antisocial behaviour orders there whereas they are involved with the orders in England. That may be something which my noble and learned friend Lord Mackay of Drumadoon and the noble and learned Lord the Lord Advocate may wish to pursue at a later stage. However, I accept that it is one of those occasions when different procedures can operate in different parts of the Kingdom.
Having said that, I am grateful to the noble Lord for his explanation of the view of the police on those matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 8:
Page 2, line 9, at end insert—
("( ) A relevant authority shall not make such an application in respect of a person under 18 years of age without receiving a report from a Youth Offending Team.").
The noble Baroness said: This is a probing amendment designed to explore the Government's thinking behind how antisocial behaviour orders for juveniles will inter-relate with other orders which may be made with regard to juveniles.
Part III creates multi-agency youth offending teams to manage and supervise individual young offenders and act as the focal co-ordinating point for the many significant reforms that this Bill introduces to the youth justice system. These teams will operate on a county-wide basis led by the social services authority for the area. However, the antisocial behaviour orders which can be served on anyone over the age of 10 years will operate at the district level, as the Minister has just said, which is consistent with the need to respond to neighbourhood nuisance. But in the two-tier areas of the country, this level of local authority is not the social services authority. There is therefore concern that

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antisocial behaviour orders will be applied to juveniles independently of the youth offending teams and perhaps contrary to the approach that the team may have applied to a particular offender.
It is vital that all approaches to be applied to a particular young offender flow through the work of the youth offending team in order to ensure proper co-ordination between agencies and consistent application of approach. Thus, an application for an antisocial behaviour order should not go forward until it has been considered by the relevant youth offending team. Any delay that that might impose on the process is more than offset by the need to maintain a co-ordinated effort between agencies. I beg to move.
6 p.m.
Lord Hylton: I do not wish to anticipate Clause 30 with which we shall deal later, but, if Members of the Committee will allow me. I should like to take this opportunity to object to the wording in the amendment of, "Youth Offending Team". As the whole thrust of the Bill is towards prevention, I feel that that is a very unfortunate choice of words. Surely a better name could be found for this very important kind of work.
The Solicitor-General (Lord Falconer of Thoroton): Perhaps I may pass on the last point made by the noble Lord because we are not dealing with youth offending teams in principle in relation to the amendment now before us. Perhaps I may deal with the substance of the amendment moved by my noble friend Lady David. The Government have no argument with what the amendment is designed to achieve.
We fully support the need for consultation before applying for such an order, with all parties who may have an interest, as regards a youth who may be the subject of consideration for an antisocial behaviour order. If possible, we believe that there should be consultation with social workers, education authorities, probation officers or the relevant youth offending team, as suggested by my noble friend.
However, we do not see the provision in my noble friend's amendment as being appropriate on the face of the Bill. There are two reasons for that view. The first is a purely practical one. The youth in question may well not be an offender and not be known to a youth offending team. It may well be an important part of the process to consult with some of those who play a part in such a team, but to ask for a formal report in all such cases would not be sensible.
The second reason is a more general one and is one upon which my noble friend Lord Williams of Mostyn touched when replying to the previous amendment. Apart from the statutory provision for consultation between the police and the district authority which is referred to in the Bill, we are keen to leave the position as flexible as possible. This is a new and untried procedure. We will be issuing detailed guidance, on which we will be consulting all interested parties. We also expect a local strategy for dealing with such orders to be part of the crime and disorder strategy to be
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worked out for each local area. There are a lot of different interests which should be involved depending on the circumstances in which each order is considered, and we do not want to be prescriptive or restrictive at this stage. In effect, we believe that it is for each area to draw up its own local strategy.
Nevertheless, as I said, we should like to make it clear that we endorse the principle behind my noble friend's amendment. Our discussion here will be a useful reminder of the importance of this kind of consultation to those preparing the guidance on the order. However, for the reasons that I have explained, I hope that my noble friend will not press her amendment.
Baroness David: I thank my noble and learned friend the Minister for that reply. As I said, this is a probing amendment and we are, as has been said several times, discussing an entirely new idea which has been welcomed; indeed, it has certainly been welcomed by me. However, the local authorities which wanted the amendment tabled are anxious to obtain more information about how the whole process will work. I am grateful to hear that there will be guidance because I believe that that is what is needed. It will be useful all round. It has also been useful to get my noble and learned friend's reply. I shall of course consult with the people who wanted the amendment tabled. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 9:
Page 2, line 9, at end insert—
("( ) In making such an application, the relevant authority shall have regard to such guidance as may from time to time be given by the Secretary of State.").
The noble Baroness said: The discussion so far this afternoon has been so wide-ranging that, of my four amendments on the Marshalled List, I believe my noble friend the Minister has already replied to three of them. Indeed, specifically in relation to Amendment No. 9, I believe that my noble friend gave a very clear answer when responding to Amendment No. 7; namely, that the Government do intend to issue guidance. This amendment was intended to provide an opportunity within the Bill for the provision of guidance by the Secretary of State.
We have already heard at some length this afternoon about the problems of definition, about the problems of uniformity of application and about the problems of application in areas which have different social classes, different ethnic mixes, and so on. It is, therefore, most important not only to issue guidance at this stage but also to do so because other problems will arise from time to time. It seems to me to be essential that the Secretary of State can issue guidance to deal with specific problems as they arise. I beg to move.
Lord Renton: With deep respect to the noble Baroness, for whom we all have a great regard, I feel that there are two difficulties with her amendment. The first is that Secretaries of State do vary rather, to put it mildly. Secondly, local circumstances vary a great deal

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as indeed do local councils. If the Secretary of State had the responsibility of giving advice—as that is what it would come to—right across the country, I believe that he would find it difficult to give advice which applied sensibly to every kind of local circumstance. Therefore, with the deepest respect to the noble Baroness, I doubt whether her amendment is acceptable.
Lord Falconer of Thoroton: As I indicated in relation to the previous amendment, it would be the intention to issue guidance from the Secretary of State. However, bearing in mind what the noble Lord, Lord Renton, said, it cannot be too prescriptive because it is intended that local strategies will be prepared in the local areas. We feel that the guidance need not be statutory. That is especially the case given the Human Rights Bill that we recently introduced, which will give further effect in domestic law to the rights and freedoms contained in the European Convention on Human Rights. It would be unusual for such guidance to be given the status suggested by my noble friend's amendment. Moreover, with a new procedure of this kind, there is advantage in the flexibility provided by non-statutory guidance, which can be amended in the light of experience and after consultation with those concerned. Perhaps we should also bear in mind the points made by the noble Lord, Lord Renton, in that respect.
It may also be helpful if I explain, again, how we intend to take the guidance forward. We will be consulting all interested parties on its preparation during the passage of the Bill. That, in itself, should lend the guidance extra weight while preserving the need for flexibility. For the reasons that I have given, I hope that my noble friend will feel able to withdraw her amendment.
Lord Henley: Before the noble Baroness does so, perhaps the noble and learned Lord could answer the following question. He said that the Government will be consulting "during the passage of the Bill". However, will we have a chance to look at this guidance before the Bill leaves this Chamber and goes to another place? Alternatively, by referring to "the passage of the Bill", does the noble and learned Lord mean at a later stage? In other words, will we see the draft guidance before the Report stage?
Lord Falconer of Thoroton: I cannot say at present precisely when the guidance will be available. Therefore, I can give no assurance as to whether or not it will be available before the Bill has passed through this Chamber or another place. However, we shall certainly bear in mind the noble Lord's point.
Baroness Hilton of Eggardon: I am grateful to my noble and learned friend for his response. I regret that the amendment will not appear on the face of the Bill. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Amos Baroness Amos moved Amendment No. 10:
Page 2, line II, after ("court") insert ("or by originating application to the county court or high court").
>The noble Baroness said: I move Amendment No. 10 on behalf of myself and my noble friend Lord Bassam of Brighton. The purpose of the amendment is to allow the county court, as well as the magistrates' court, to deal with antisocial behaviour orders. I am aware that local authorities have gained much experience in recent years by using the county court route to seek injunctions against antisocial behaviour.
County courts are experienced in applying the mechanisms of civil justice; they determine points of law; and would offer a direct route to the Court of Appeal if an antisocial behaviour order is challenged on technical grounds, or if there is a need to establish a legal precedent. The ability to obtain an antisocial behaviour order from the county court will offer the police and local authorities the additional recourse of actions for contempt of court if the order is breached and the Crown Prosecution Service declines to take action. I beg to move.
Lord Falconer of Thoroton: The effect of this amendment would be to enable applications for antisocial behaviour orders to be heard in three different courts: the magistrates' court, the county court and the High Court. The clause at present provides only for the magistrates' court. We undertook consultation on the antisocial behaviour order. We specifically drew attention to the question of the best court to deal with that matter. My noble friend Lord Williams announced to the House in a Written Answer on 18th December that a summary of the response to the consultation paper was being lodged in the Library. The overwhelming majority of the responses favoured the magistrates' court and not the county court. I think there are good reasons for that. First, many of the applications will be made by the police who have much greater familiarity with the magistrates' court than the county court or the High Court. Secondly, the enforcement of the orders by proceedings where there is a breach will take place in the magistrates' court. It seems to us sensible that both the original application for the order and its enforcement should be dealt with in the same court.
I appreciate that there are arguments along the lines of points of law being better dealt with in courts other than the magistrates' court—although some magistrates would not necessarily agree with that—but any appeal is to the Crown Court which is presided over by a professional Crown Court judge. I should have thought such a judge would be capable of dealing with points of law. For the reasons I have set out we cannot accept the amendment. I ask the noble Baroness to consider withdrawing it.
Baroness Amos: I am grateful to my noble and learned friend for his reply. The amendment was motivated by a desire to make the antisocial behaviour order procedure as flexible as possible and sensitive to the needs of the police, local authorities and the communities they serve. However, in view of the

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response which has been given and the views which were expressed in the consultation process, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 11:
Page 2, line 13, after ("proved") insert ("beyond reasonable doubt").
The noble Lord said: This amendment is self-explanatory. It seeks merely to add the onus of proof of beyond reasonable doubt to the application to the magistrates' court. As we know, two or more persons—unless the noble and learned Lord agrees to think again on this matter—have to suffer from harassment, alarm or distress. They presumably make their application to the relevant authority which will either be the police or the local authority. The local authority then applies to the courts to seek an order prohibiting the defendant from doing anything described in that order.
This raises a number of questions. First, as I understand it, at the moment any evidence put before the court would have to be considered on the balance of probabilities and not beyond reasonable doubt. Secondly, as regards the individual who is described as the defendant, to what extent would he be involved in that court procedure and to what extent would he be legally represented? I think I understood the noble and learned Lord to say earlier that the defendant certainly would be legally represented if there was a breach of the order and he came before the courts for the courts to decide how they should resolve that breach of the order. However, it is not clear whether he would be represented at all; that is, whether he had a right of defence; whether he would be legally represented; or whether he would obtain legal aid in the magistrates' court.
It is important that the noble and learned Lord also addresses the point about the standard of proof that the magistrates' court should have to observe. As the order could prescribe some fairly onerous obligations on the person described as the defendant, it is important that these matters should be proved conclusively in the court and not just left to hearsay evidence or, as I put it, the balance of probability. I think the noble and learned Lord said earlier that the defendant had little to fear from such an order which merely prohibits him from doing certain things. We shall discuss that later. However, the things described in the order which the defendant could be prohibited from doing could be very onerous. If it was thought that he was making a nuisance of himself in a certain area, one would think it highly likely that he could be prohibited from going into that area. We shall discuss this on later amendments but that area might be an area in which he seeks to work or needs to be able to cross to get to work. Therefore the burden on him would be serious and one which the courts must take seriously. Therefore the courts need to have conclusive evidence before they make such an order. I hope, with that explanation and the self-explanatory nature of the amendment, that the noble and learned Lord will be able to satisfy my concerns. I do not know whether other noble Lords also have
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concerns about these matters. I shall be interested to hear what the noble and learned Lord has to say. I beg to move.
6.15 p.m.
Lord Mishcon: Many Members of the Committee will have views upon this matter and they will be concerned about it. However, I think that the principle behind what we have been discussing so far is that we want to make the procedure as flexible as possible. We want to make it administratively sensible and therefore we have involved the police. But we have regard to the fact that the measure might easily have involved the jurisdiction of the county court or the High Court but for the arguments that were brought forward by the Minister a moment ago.
I think it would be singularly unfortunate if we were to lose the situation that would be created if these proceedings took place in a civil court with the usual provision of an injunction to which we have been referred in the past, and if these proceedings entered very much into the criminal area by having to be proved beyond reasonable doubt. As the Committee knows, the guiding principle in the civil court is the balance of probabilities. I should have thought that this was the appropriate basis for the orders to be made under this Bill.
Lord Renton: The noble Lord, Lord Mishcon, has raised a very important point. This is a quasi civil proceeding in a way, although it will take place before magistrates and arise out of a criminal possibility. I think that to insist on the very strict burden of proof that we have in criminal cases—which is what my noble friend Lord Henley is suggesting—may prevent what the noble Lord, Lord Mishcon, has rightly called an injunction from being made when, on the balance of probabilities, it looks as though it should be made. I hope that my noble friend will not feel that he should press this amendment, but it raises a very interesting and important point.
Lord Thomas of Gresford: The noble Lord, Lord Henley, raised an important matter which I think deals with the framework within which we should look at this amendment. A complaint to the magistrates' court under current rules would normally be served upon the respondent to that complaint. No doubt fresh rules will be promulgated for the new procedures under this Bill, but I should be grateful to hear from the Minister what is intended. Can there be ex parte hearings before the magistrates? If it is envisaged that there should be ex parte proceedings where the complaint is not served and where, by reason of a desire for speed, the defendant is completely unaware of the making of the order, a high degree of proof should be required for the order to be made. It would not be surrounded with the safeguards for ex parte injunctions in the county court or the High Court, in all probability. Accordingly, one would require a high degree of proof in that eventuality.
On the other hand, if the complaint is to be served upon the defendant and he chooses not to appear, and absents himself, and proof of service is given, a

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prohibitory order—which the Minister says this is—could no doubt be made on a lesser standard of proof. I shall be grateful if the Minister will outline what he sees as the framework in the rules that would be applied under the Bill.
Viscount Bledisloe: I entirely agree with what was said by the noble Lord, Lord Mishcon. Perhaps I may ask the Minister one question. If the matter was dealt with in the county court, the complainant would be able to swear an affidavit and the lady's attendance could then be dispensed with. If she is this intimidated person who has been much spoken of, that will be highly attractive to her. Will that procedure be available in the magistrates' court? Alternatively, because the magistrates' court is more used to oral evidence, will it be essential for her to verify her complaint personally? If that is necessary, will that not give rise to the same problems; namely, she will say, "I am too frightened to come, and therefore it cannot happen"?
Lord Williams of Mostyn: I am most grateful for those questions. Before I deal with them, perhaps I may say this. While the noble and learned Lord the Solicitor-General dealt with earlier proposed amendments, I flicked my eye down to the definition of "local government area". The noble Earl, Lord Onslow, asked me whether the level of complainant authority could be as low as the parish council. I gave a shorthand reply by saying "district council". In fact it is,
"a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly; in relation to Wales, a county or county borough".
I believe that I answered the spirit of his question but not as accurately as I might have done. I hasten to correct it.
In respect of the burden of proof and the standard of proof, I understand the noble Lords' concerns. However, I believe that they are misplaced. An antisocial behaviour order is a serious matter but it is a civil matter. The criminal question does not arise until a breach is alleged. When the breach is alleged, of course the breach must be proved to the degree of sureness to which we are well accustomed in criminal matters. So one needs to look at these issues quite distinctly.
The noble Lord, Lord Henley, spoke of the responsibilities of the magistrates. Those responsibilities will be at least twofold. The magistrates will have to say to themselves, "Are we so convinced on the balance of probabilities that an order should be made?" That is the first important step. The second important step is what the terms of the order should be. The terms of the order must be such as are within the spirit and letter of the Bill. The noble Lord gave an example of someone who perhaps wishes to go to work across a particular area. There is nothing to stop him doing so if he is not harassing, alarming or distressing people. Quite often— believe that it will figure in a later amendment—young people will need to go to their places of education. Nothing would stop them from doing so, provided that they do not behave in a grossly antisocial way, in the way that the order would have been cast.
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I suggest that with his vast experience of these matters, my noble friend Lord Mishcon has put the matter right, as did the noble Lord, Lord Renton. This is a civil procedure and the magistrates would have to be guided by their clerk about the seriousness of the orders.
The noble Lord, Lord Thomas of Gresford, is right. Doubtless, an amendment of the magistrates' courts' rules is likely to be required. Even at present, as he observed, proceedings on complaint can take place in the absence of the defendant, but only if he has been proved to have been served with a summons. That is the sort of regime one would anticipate coming into effect when the new rules, if they require close scrutiny, would be put into effect.
There is a specific question as to whether or not complainants would have to attend. The complainants would not have to attend. Evidence can be given by the local authority witness or the police witness. So the vice to which the noble Viscount referred would be avoided.
The order stage is genuinely a civil process. There may well have been no actual offence; there is certainly no penalty; simply, I repeat again, the equivalent of an injunction.
The penalty for breach of an injunction may well itself be imprisonment. But to obtain an injunction one does not have to prove matters beyond reasonable doubt or so that the court is sure on a criminal standard. It is also necessary to bear in mind that the civil standard of proof, although described as a balance of probabilities, is not itself set in stone. I think that it was the noble and learned Lord, Lord Denning, who well said many years ago that in civil cases—and it is the commonplace of the burden of proof in civil cases such as defamation—the court always directs the jury, or itself where there is no jury, that the more serious the allegation the more important it is to have a high standard of proof. Therefore in civil cases it is axiomatic that it is not just 51 per cent., and judges and magistrates direct themselves accordingly. It is a flexible instrument. If the court has particular concerns, one would expect it to apply a higher test. I believe that it is a matter best left to the courts.
In this context of general anxiety about the safeguarding of the individual's interests, I have already mentioned Amendment No. 13 and shall revert to that in its appropriate place. We therefore feel that it is wrong in principle to specify a criminal standard. They are civil orders. There is no risk of imprisonment to the defendant. He does not even have a criminal record.
Having answered the questions, I hope, reasonably fully, I therefore invite the noble Lord to withdraw his amendment.
The Earl of Onslow: Perhaps I may say one thing in support of the noble Lord. We want to try to keep as many people as possible away from criminal proceedings, especially when they are young. Once they are enmeshed it is extremely hard to get them out. This system can become a method of warning, consequentially stopping people going down the ghastly line of juvenile courts, imprisonment, and so on. If it has that effect, it will be very good.

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If we put standards of criminal proof into the provision, I suspect that it will make the issue more criminal than civil. That is an important point to bear in mind.
Viscount Bledisloe: The Minister has not fully answered my question. I understand that if some lady complains that children have been making a row outside her house, knocking on her window all night, and so on, a representative of the local authority can go to her house, experience the incident, and give evidence of that event. He cannot say that it has been happening for the past six months night after night. Alternatively, the children may be wise enough to know that the representative is there and may avoid the situation. But if the evidence of the lady herself is necessary, will it be essential for her to attend, or may she either give evidence or make a statement to the local authority which the local authority reads out or in some way adopts?
Lord Williams of Mostyn: I confirm what I did not make plain earlier. There will be no requirement for the complainant, the old lady to whom the noble Viscount refers, to attend court.
Lord Henley: On the question of burden of proof, I am entirely satisfied. It would be difficult for me not to be entirely satisfied when the noble Lords, Lord Mishcon and Lord Renton, have supported the noble Lord, Lord Williams, as has my noble friend Lord Onslow. With that support, the noble Lord should be well pleased. I can say to the noble Lord that I have no intention of coming back to this issue at Report stage or later.
The noble Lord did not address what might be described as the "going to work" issue, which is important. We shall return to the matter on a later amendment. It is important to remember that subsection (4) makes it quite clear that the order can prescribe anything. The words are:
"doing anything prescribed in the order".
It therefore could prohibit individuals from going across a particular area, irrespective of whether they are, or are not, causing harassment, alarm or distress as they go across that area. As I said, we shall return to the matter. As regards this amendment, I am perfectly satisfied with the explanation given and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 12:
Page 2, line 16. leave out ("anything described in the order") and insert ("further anti-social acts similar to those proved on the application").
The noble Lord said: Subsection (4) of Clause 1 allows a court to prohibit a defendant from "doing anything". That has to be read in the context of subsection (5), which states:
"The prohibitions that may be imposed…are those necessary for the purpose of protecting persons…from further anti-social acts".
In practice, I suggest that the question of what a magistrate thinks is necessary for that purpose can be highly subjective with the consequence that the order made could be extremely wide.
The noble Lord, Lord Williams of Mostyn, said earlier that the antisocial behaviour order was analogous to a civil injunction—and so indeed it is. But if an injunction was made by a civil court, what that court would prohibit would be the continuance of the course of conduct that gave rise to the application for the injunction. I suggest to the noble Lord that this Bill should do the same. It should ban continuance of conduct similar to that which led to the application of an order. Incidentally, it would also have the advantage of making the clause slightly shorter by rendering subsection (5) redundant. Why do the Government not restrict the order in that way? I accept that there may be a reason and am interested to hear the noble Lord's reply.
The noble Lord, Lord Williams, said in relation to the previous amendment that an order would not be made to exclude the defendant in the case envisaged by the noble Lord, Lord Henley, from crossing an area that he needs to cross in order to get to work. It is, however, very difficult to see what provision there is in the present clause to prevent that. Therefore I suggest that the Government should consider restricting, in the way proposed in Amendments Nos. 12 and 15, the ambit of an antisocial behaviour order. I beg to move.
Lord Monson: I hope that the noble Lord, Lord Williams, will look favourably upon this amendment, at least in principle— not least because he seemed to imply, when replying to Amendment No. 3, that it was the Government's intention that the court's powers should be restricted in the way suggested by the amendment.
Lord Thomas of Gresford: There are two areas of concern in relation to the words,
"doing anything described in the order".
One is the curfew; the other is the exclusion order. The temptation for a court—for example, in the situation I described earlier of playing football outside an old lady's house—is to say, "All right, nobody goes near her house after eight o'clock at night"; or alternatively "You stay indoors from nine o'clock every night." Restrictions of such a wide ambit would come within the wording of subsection (4) and should not be there.
Lord Henley: I voiced my concerns earlier about the use of the words,
"anything described in the order".
However, having said that, I see that there could be a case, as the noble Lord, Lord Thomas, put it, for exclusion orders which in fact the noble Lord, Lord Thomas, would rather not see. Therefore, for that reason, I cannot go so far as to support the amendment in the names of the noble Lords, Lord Goodhart and Lord Monson.

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As I said, I have some considerable alarm, or possibly distress, in relation to,
"anything described in the order".
I wonder whether some other small limit could be imposed on "anything". I make that point merely to say that I will give some thought to the matter and possibly come forward with a further suggestion at Report stage. I do not think that I could support a limit as extensive as that proposed by the noble Lord, Lord Goodhart. It would exclude exclusions, which would be a useful part of the armoury available to magistrates.
Lord Williams of Mostyn: I have some sympathy with the noble Lord's amendment and the purpose behind it, as I think does the noble Lord, Lord Henley. The effect of what is proposed by the noble Lord, Lord Goodhart, would be little different in practice from what is contained in the clause at present. I say quite specifically that we would generally expect the prohibitions in the order to reflect the defendant's current behaviour.
However, there might be some circumstances where what the noble Lord proposes could be too limiting and lead to endless argument about what is a "similar" antisocial act. There may be different forms of continual nuisance, for instance in a shopping centre, which is quite distressing to some people and quite alarming to others. One does not want to be too restrictive in what is intended to be—I echo the noble Lords, Lord Renton and Lord Mishcon—a flexible remedy and not too circumscribed.
However, we have to bear in mind that when both Houses of Parliament have passed the Human Rights Bill, which I hope will not be too long, all of these provisions will have to be construed under that over-arch. That will be extremely important. These orders are to be local and geared to the needs of a local community. They need a certain amount of flexibility, as the phraseology presently allows. We would not expect them to be used inflexibly by magistrates and, if they were, that could be put right readily on appeal. So, generally, I believe that the consequence of the power that is given would produce the conclusion that is desired by the noble Lord's amendment.
One finds under subsection (5) of Clause 1 that:
"The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons in the local government area from further anti-social acts by the defendant".
We should have thought that the introduction of proportionality is sufficient to meet what I recognise might be an adverse consequence if the provision were not there.
Lord Goodhart: In view of the noble Lord's assurance that in general the orders that are expected to he made are likely to be in the form envisaged in the amendment, I am happy to withdraw it and beg leave to do so.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 13:
Page 2, line 16, at end insert—
("( ) For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.").
The noble Lord said: I mentioned this provision earlier, so I hope to be reasonably brief. The amendment indicates that an order should not be made where a defendant can show that any of his acts are reasonable in the circumstances. That meets in part the various proposals put forward that some complainants are unduly tetchy, unduly susceptible or unduly sensitive. It may well be that apparently antisocial actions may have been reasonable in the circumstances although that was not immediately apparent.
We originally took the view that the reasonableness of the behaviour would be one of the factors taken into account by the court in assessing whether the need for an order be made out. Following debate at Second Reading in this House and outside comments received, it was quite plain that there was substantial concern from a number of quarters that the clause as presently drafted is not sufficiently tight.
We paid attention to the remarks at Second Reading, and to the representations, and believe that the concern is valid. We have therefore included the defence of "reasonableness" on the face of the Bill. I take examples at random. A charity worker, for instance, is collecting door to door; an aircraft company has aircraft flying over a residential area during permitted hours. There are all sorts of actions which might be "offensive" but where a sensible explanation ought to provide a defence. That is one of the reasons, bearing in mind what was said by your Lordships and others, for our belief that the provision should be on the face of the Bill. I beg to move.
Lord Hylton: I much appreciate the spirit and intention that underlie the amendment. However, it seems probable that many of the people complained about will be children or young people for whom it will be much harder to show that their actions were reasonable than it will be for adults. I should be interested to hear from the Government how that difficulty may be overcome.
Lord Goodhart: I believe that Amendment No. 13 is defective in two ways. First, it will apply only where the defendant's actions are reasonable whereas it should apply also to circumstances where the actions are not entirely unreasonable but the misbehaviour itself is trivial. An example might be when someone produces cooking smells from a flat which cause genuine distress, but not serious distress, to the neighbours. That is not behaviour which should be capable of being made the subject of this very powerful order. Amendment No. 13 should therefore apply not only to actions which can be proved to be reasonable but also to actions which in the circumstances do not justify proceedings before a magistrates' court.

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The second defect in the amendment is that it puts the burden of proof on the defendant to show that his actions were reasonable. Surely the burden of proof ought in general to be on the applicant for the order to show not only the existence of something technically within the present definition of "antisocial behaviour"—namely, something which caused alarm or distress—but also that it was likely to cause a level of alarm or distress sufficiently high to justify the making of an antisocial behaviour order.
Those defects led me to prefer the formula in Amendments Nos. 3 and 4 which I moved and withdrew at an earlier stage of the debate. I ask the Government to look carefully at what I consider the potential defects in the amendment to see if something more effective can be drafted to deal with the subject more thoroughly.
Baroness Warnock: The intention of the amendment in seeking to limit the possibility of triviality or misunderstanding falling within subsection (1)(a) is very good. However, I wonder whether the noble Lord, Lord Williams, will consider the use of some alternative to the word "reasonable". Noble Lords will be expecting a lot of orders to be made against young persons, as has already been said. The problem is not only that they will find difficulty in proving that what they did was reasonable but also that a lot of the things that they do are not particularly reasonable but are done out of thoughtlessness or high spirits or some other defect of youth which may well cause the required degree of exasperation or distress. I believe that some other way of limiting the definition of what falls within subsection (1)(a) other than having to prove that the behaviour complained of was reasonable should be incorporated in this kind of amendment.
6.45 p.m.
Lord Williams of Mostyn: I am obliged for those comments. Obviously, when dealing with a new remedy magistrates' courts will have to adapt their procedures, particularly when defendants are not represented. It seems to me that the Magistrates' Association would undoubtedly wish to join in the consultations with the aim of giving indications to magistrates about how to deal with children and young persons or people who may be inarticulate and not assisted.
On the increasingly inflexible model that our courts adopt, I see no difficulty in a court itself being a shade more proactive and finding out from someone who is disadvantaged what the true circumstances are. All that has to be shown by the defendant on the civil balance of probabilities is that his action was reasonable in all circumstances.
For a number of reasons, I do not believe that cooking smells will be a difficulty in practice. First, the order cannot be made except within the constraints of Clause 1(1)(b); namely,
"that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused ".
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In the inquiry into the smell, whatever kind of smell it was—Kentucky Fried Chicken or tandoori lamb—surely the defendant would say, "But I have planning permission; I have complied with the building regulations; I have met all the constraints which the local authority put upon me. This is just trivial." I suggest that such a complaint would not get beyond the first stage of local authority approval.
As far as concerns domestic smells—for example, if someone does not like the smell of fishcake batter wafting over the garden, or the barbecue irritates the next-door neighbour—I stress that this law is not for those eventualities. I believe that someone going to the local authority or the chief police officer in those circumstances would receive a very short answer. I delete any expletive that might be added to the advice given. It is plain that, if one wants to be fanciful, one can produce all kinds of difficulties about what is intended to be a useful measure of public support.
I say in answer to the noble Baroness that, of course, young people are sometimes thoughtless and their behaviour just high spirits. In those circumstances there would be no question of an order being capable of being made because the situation would not fall within Clause 1(1)(b) or Clause 1(5). This provision is being introduced to safeguard the defendant's interests. Examples can be conjured up but they are simply the product of imagination.
On Question, amendment agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 14:
Page 2, line 16, at end insert—
("( ) When considering an application for an order under subsection (1) above, the court shall take into account evidence provided by a relevant authority that witnesses are being or may be intimidated.").
The noble Baroness said: I rise to move Amendment No. 14 but perhaps I may revert for a moment to the previous amendment. The earliest dispute between neighbours to which I was called did relate to cooking smells, but in a tenement in Cable Street, not the kind of middle-class scenario described by the noble Lord, Lord Williams, of barbecues in gardens.
Amendment No. 14 is another of my amendments to which I think the noble Lord, Lord Williams, has already provided an answer. This one relates to placing on the face of the Bill the possibility of having so-called professional witnesses. As the Minister said earlier, the people who are harassed and distressed are often themselves poor, vulnerable or inarticulate. It is therefore important that courts should accept evidence from housing managers, police officers and other professional witnesses before an order is made.
This probing amendment is also intended to allow the Minister an opportunity to tell us about the progress of the working group which is looking at the problem of witness protection where witnesses are harassed or threatened or are afraid to give evidence. I beg to move.
The Earl of Mar and Kellie: I wish to express some support for this amendment. It is important that we

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dispel the myth that defendants will not know who is complaining about them. I believe that the process of investigation, which I am certain will include some form of attempted mediation, will ensure that it is not possible to make a secret complaint and that, although the complainant may not have to go to court, he or she will be well known to the defendant. We should not be under any misapprehension that such a degree of protection will be possible.
Lord Falconer of Thoroton: In dealing with the amendment of my noble friend Lady Hilton and her point on cooking, I should say that people in all parts of the world and from all social groups cook.
The amendment identifies a real problem with which, in part, the creation of the antisocial behaviour order sought to deal. As my noble friend pointed out, the need to protect witnesses who are the victims of antisocial behaviour should be dealt with to some extent by the fact that professional witnesses can give evidence of those matters that are necessary to make out the claim for the order. That was in the minds of the draftsmen. As my noble friend Lord Williams said, in those circumstances there is strictly no need for the relevant authority to call an intimidated witness; the position can be dealt with by calling what my noble friend Lady Hilton described as a professional witness. To a large extent that is dealt with by including the words in Clause 1 (1)(a),
"caused or was likely to cause harassment".
A description can therefore be given of the kinds of events that are taking place.
I fully take on hoard the point made by the noble Earl, Lord Mar and Kellie; that is, that a case must be made out, and in many cases the making out of the case will identify to the respondents to the application who the complainant or complainants are. The position of the vulnerable witness, both in relation to court and in relation to their protection in a wider sense—namely, from intimidation before or threats after—is being dealt with by the interdepartmental review concerned with vulnerable witnesses which the Home Secretary announced in another place on 13th June.
The review is wide ranging and covers procedures relating to the investigation stage through to the trial itself and beyond. The work of the review is nearing completion. A further meeting is to take place in March and we expect some product from the work not long after that. I believe that deals both with the point in relation to the amendment and also with the inquiries involving the working group on witnesses. In those circumstances, I hope that the amendment can be withdrawn.
The Earl of Onslow: Perhaps the noble and learned Lord can help me once again. Let us assume that we have a case of a frightened couple who have a gang of yobs running up and down the street, making noise and generally causing mayhem. The couple go to the local authority who, with police support, say that it must stop. So far so good.
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However, the gang of yobs says, "We are not a gang of yobs. We are the Salvation Army and all we have been doing is walking about singing hymns". Somebody must provide proof. Will not that be difficult when one has what is hearsay evidence? I ask this question in a spirit of genuine inquiry. The yob may deny the charge. Do we not then become involved with human rights? The yob may say, "I have had an injunction brought against me by a witness on hearsay evidence".
Does the noble and learned Lord see where my mind is going and can he please illuminate me?
Lord Falconer of Thoroton: The couple may go to the local authority or the police saying that a gang of yobs is making their lives a misery and the police or local authority will investigate. If that antisocial behaviour is taking place, it is more likely than not that the police or local authority investigator will be able to see it for themselves. If the gang of yobs then says, "We are actually Salvation Armyists trying to encourage proselytisation in the area", as a matter of reality they can lay that before the magistrates' court and the respondents can evaluate the strength of the claim.
In relation to hearsay, it must be remembered that these are civil proceedings and that in certain circumstances hearsay is admissible by statute in civil proceedings. That does not give rise to problems, as long as it is within the four corners of the Act, under the human rights convention. Though I understand the anxiety expressed by the noble Earl, in reality it will not give rise to a problem in relation to being able to prove the applications and the victim will not have to give evidence. I hope that that explanation is helpful.
The Earl of Mar and Kellie: Can the Minister tell us whether the forms have been made out for antisocial behaviour orders? If so, will there be an automatic condition on the form which says that the person subject to the order shall not make contact with specified people, by whom I mean the complainants?
Lord Falconer of Thoroton: I do not know whether a precise form has been prepared, though I can find out and write to the noble Earl. Whether the form should contain a condition such as that suggested by the noble Earl will depend upon the circumstances of each application. It will be recalled that the form of the Bill is such that the court can make any order with a view to preventing any sort of conduct. It seems to us that if flexibility is what is sought to prevent that happening, we do not want a form which must be used in every case with a specified form of order; we want a magistrates' court to address itself to the specific case and decide what is best to protect, the community against that antisocial behaviour.
Baroness Hilton of Eggardon: No legislation will cope with the problems raised by the noble Earl, Lord Mar and Kellie. That is one of the realities of life. But I am

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grateful to the Minister for his response to my amendment. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]
Lord Henley Lord Henley moved Amendment No. 16:
Page 2, line 20, leave out ("(not less than two years)").
The noble Lord said: Again, I can speak briefly to Amendment No. 16 which has been grouped with Amendment No. 17 in the name of the noble Lord, Lord Goodhart. The noble Lord spoke on Amendment No. 3 about a lack of trust of the courts in this clause in terms of what discretion was left to them. I take the extreme libertarian view, such as I am, and give the courts total discretion to do whatever they want for as long as they like.
The Government take the view that, whatever the courts do, it must be for two years or more; the noble Lord, Lord Goodhart, puts forward a different variation whereby he gives them full discretion up to two years. I shall be interested, first, to hear the noble Lord, Lord Goodhart, and also to hear the Government's response to these points and why they feel that the discretion of the magistrates' courts should be limited in this matter. I beg to move.
The Deputy Chairman of Committees (Lord Ampthill): I should remind the Committee that, if this amendment is agreed to, I cannot call Amendment No. 17.
Lord Goodhart: I rise to speak to Amendment No. 17. In so far as it proposes that there should be no minimum duration of the order, I support Amendment No. 16. However, the Act should fix a maximum and not a minimum duration of an antisocial behaviour order.
Why is it wrong to impose a minimum duration? The answer is that the order is close to being a form of punishment. The defendant is being told that if he does this or that, he can be sent to prison even though he has broken no general law of the land. Most people against whom an antisocial behaviour order will be made will be young. Two years is a long time in a teenager's life. There will be a great deal of change and development in their personalities during that period. Being subject to an antisocial behaviour order will involve a stigma and is likely to be a matter of local knowledge. In those circumstances there may well he cases in which it would be right to make an order for a term shorter than two years.
It would be absurd to make an antisocial behaviour order that lasts for only a week, but for a young person it may well be reasonable to say, "We are imposing the order on you for a year"—perhaps even as little as six months—"and if you comply with the order and do not commit any breaches of it, then it will come to a stop at the end of that period. But if you go back to your old habits of behaviour, it will always be possible to impose another order on you".
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Why then impose a maximum time for the order? Again I say that the order is very close indeed to being a sentence. It is normal for Parliament to specify the length of a sentence, and that is something it should do here. The effect of the amendment is to make the maximum period of the order two years. I am not specifically wedded to the concept of a two-year maximum—there may be a case for making the maximum length of the order a somewhat longer period—but I do suggest that there is no case for a power to make an indefinite order. If a defendant has had an order imposed on him or her and has complied with it for a period of two years, three years, five years or whatever the maximum length of the order may be, the defendant is surely entitled to have that order lifted and to be treated again in the same way as if he or she were not subject to the order. The order can, of course, be imposed again if there is a resumption of the harassing behaviour. But the defendant should surely be entitled at some point to a discharge from the order in the same way as he or she is entitled at some point, if he or she commits a breach of that order, to a discharge from his sentence. I cannot move my amendment at this stage, although I would if I could.
7 p.m.
Viscount Bledisloe: Perhaps I may raise a point which is somewhat related to this. Am I right in understanding that under subsections (6) and (8) as presently drafted it is impossible for a court to make an interim order pending, let us say, the rehearing of the matter? Is that not a serious defect in the light of the point made by the noble Baroness, Lady Hilton, a moment ago?
Let us suppose that a matter comes before the court. There is prima facie evidence of nasty behaviour which frightens an old lady. The defendant says that he wants to call lots of witnesses, or the court runs out of time, and so the matter cannot be dealt with and has to be adjourned. Surely it is essential that in those circumstances the courts can say, "Right, you can have an adjournment but until we come back you are not to do X, Y and Z". As I understand it, at the moment the court cannot do that because the order has to be for a period of not less than two years and cannot be discharged within that period except with the consent of both parties. If we are to be able to protect the complainant, surely it is essential that when the matter has come to court once and is then postponed, perhaps for reports from the youth authority, an interim order can be made which will lapse automatically when the matter comes back.
The Earl of Onslow: It is essential, especially bearing in mind what the noble Lord, Lord Williams, said earlier on, for flexibility to apply in this case. By imposing a minimum period of two years, one is taking away the very flexibility which is part of the attraction of the scheme. I accept that there is a slight illogicality in the idea of the noble Lord, Lord Goodhart, that it cannot run for more than five years. In other words, you must stop being antisocial for five years and after five years and one day you can go back to being antisocial. There is an element of illogicality about that.

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However, as the noble Lord said, the majority of people who are going to be difficult are young males. Let us be frank about that. It would not be my late great-aunt Vera who was 103. It would not be her. It will be young males. Young males eventually grow up to be either Lord Onslow or Lord Williams of Mostyn. We grow up, we hope, to be sensible human beings and not to behave like yobs. Therefore, it is essential that there should be the flexibility that was attractively proposed by the noble Viscount, Lord Bledisloe. If you take out the two years you give back to the magistrates' courts, which are supposed to be, and are on the whole, satisfactory local justice dispensers, the freedom to give a six-month order, a nine-month order and so on. Therefore, I strongly support the amendment moved by my noble friend.
Lord Williams of Mostyn: I shall respond to both Amendments Nos. 16 and 17. In answer to the specific question of the noble Viscount, Lord Bledisloe, there is no power at the moment for an interim order. There are two answers to the problem. First, since we have the original filter that a private individual complainant cannot make use of this procedure and it has to go through the local authority and the police first, one would expect the necessity for interim orders to be limited. However, I am bound to say that the noble Viscount raised an interesting question and I undertake to give thought to it.
On the substance of Amendments Nos. 16 and 17, perhaps I may explain how we view the order. We have included in the clause a minimum duration of two years to emphasise the very serious nature of the order. A number of noble Lords have been good enough to support the Government's stance in recognising the problem and also rightly indicating that it is a novel step and a serious action which affects the individual and therefore ought to be marked with a minimum duration which will indicate to the appropriate authorities—the local authority and the police—how they are to deal with these matters. In other words, this tells them not to seek orders lightly or for trivial incidents but where there is a real problem in a particular locality. In many ways they are a last resort before criminal sanctions.
Replying specifically to the noble Earl, it is important that the minimum duration is not set in stone. He will see that the order can be varied before the end of the period. What we have done is to introduce flexibility within our overall scheme. Under Clause 1(7) the applicant—the local authority or the police—or the defendant,
"may apply by complaint to the court … for it to be varied or discharged by a further order".
So we have the flexibility there. There is variation or discharge by a further order. Subsection (8) states that no order,
"shall he discharged before the end of the period of two years beginning with the date of service of the order",
except with the consent of both parties. It is important to bear in mind that the parties there referred to are the applicant and the defendant. So it is not the individual complainant, as it were, who has the right to agree or disagree.
Lord Henley: If the noble Lord is seeking flexibility, rather than pursuing the amendments that we have
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pursued, might it not be better to follow the line that his colleagues north of the Border are suggesting? I refer him to Clause 20(7), which states:
"An order to which this subsection applies—
(a) shall have effect for a period specified in the order or indefinitely",
which seems to give the courts there the absolute flexibility which the noble Lord seeks and certainly far more than he is giving to the courts in England under the provisions for England.
Lord Williams of Mostyn: The difference between practice north and south of the Border is that, historically, we have dealt with these problems differently. We have scrupulously gone out to consultation within our jurisdiction—I say that without disrespect to the former Lord Advocate—and it received wide support. Views differed north of the Border particularly vis-à-vis the respective involvement of the police authority and the local authority. What we have here is a scheme that gives a minimum duration of two years. In other words, it is saying to the police, to the local authority and to the court, "Do not use this tool except in circumstances where it is manifestly justifiable".
Circumstances may change. The noble Earl was good enough to say that at least two Members present in your Lordships' House had grown up to be mature and were no longer yobbish.
A noble Lord: Only two?
Lord Williams of Mostyn: Only two were mentioned. It was a very discreet separation of the sheep from the goats.
After the two-year order has been imposed, with these indicators specifically relevant to them—in other words, one is saying to the applying authority "this is serious"; one is saying to the court and the defendant that it is serious and reflecting to the local community that all relevant participants are taking its seriously—if appropriate, then the applying authority and the defendant, can go to court and agree on a limitation of time. I repeat, if the defendant refrains from antisocial behaviour of such seriousness that it has justified intervention and court sanction, he will have no criminal record and the obligation only to behave lawfully. That is the virtue of having a civil order.
The minimum duration is not a burden on any individual unless he or she wishes to restart the previous pattern of activity. As I said a moment or two ago, we consulted widely on the proposed two-year minimum duration and received widespread support. We believe it to be an important part of the order. I stress that if a court does not believe that a case has been made out for the minimum period of time, it is better not to make an order at all.
As regards Amendment No. 17, I repeat what I said earlier in response to the noble Lord, Lord Henley, and his general review of Clause 1. This is not a tool to deal with petty irritations, grievances or disputes between neighbours. The minimum duration is a mark of

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seriousness. We believe that everyone will understand that our scheme is intended to be a serious remedy for a serious problem. There is flexibility, but that lies within the scheme that we have set. It may seem harsh and severe, but I believe that it will not be such in practice. We cannot accept either of these amendments.
Lord Henley: I thank the noble Lord for that point. I shall look carefully at what he has said. I am grateful for his reaction to the noble Viscount, Lord Bledisloe, and his point about interim orders.
I have one further point to make on my amendment. Let us assume that abuse has taken place and all the appropriate procedures have been gone through; the local authority and the police have consulted each other. They then go to court and establish a case for making such an order, with the evidence pointing to the fact that such an order should be made. However, there is one exception: that the court does not feel that the matter is serious enough to warrant a two-year provision. I believe that the local authority would find it very difficult to persuade the public that this was not a nonsense. Every aspect of the procedure has been satisfied, with the one exception that the court is not satisfied that an order should be for as long as two years. The court would not have a discretion to make such an order for one year.
I ask the noble Lord to think very carefully about that point between now and another stage of the Bill. As I said, I do not intend to press this amendment tonight. The noble Lord, Lord Goodhart, might have other views about his own amendment. This is a matter to which we shall need to return, particularly in the light of the rather different provision in Scotland where the courts have been entrusted with greater flexibility. 1 beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
Lord Goodhart Lord Goodhart moved Amendment No. 18:
Page 2, line 25, leave out subsection (8).
The noble Lord said: The purpose of this amendment is to delete subsection (8) of Clause 1 which requires that the local authority or the chief officer of police, shall, in effect, have a veto over the discharge of any antisocial behaviour order within the period of two years from the date when it is made.
I can see that if an antisocial behaviour order is made for a minimum of two years, it could be argued that there should not be a power at all to discharge it before the end of that period. No doubt the Government have appreciated—as I am sure all Members of the Committee have—that there may be circumstances in which a defendant has shown a substantial change in his behaviour before the expiration of the order. It may be that a young tearaway against whom an order was made has settled down, has a steady girlfriend and a steady job, and is a respectable citizen. In those circumstances it is right that it should be possible to return to the court to ask for the order to be discharged.
In such situations why should it not be for the court to decide whether the discharge is justified? Why should the council or the chief officer of the police have a veto? It is wrong that the prosecutor should have a veto over the exercise of the court's discretion in many circumstances. In particular, it is contrary to the principle that the prosecution does not involve itself with sentencing. For that reason, if for no other, I wish this power of veto to be removed.
I wonder how far the Government have appreciated another problem. The power of veto will create problems for a local authority or chief officer of police. It will clearly be their duty to consider whether to consent to the discharge of the order. Again, that duty will clearly be subject to judicial review. Is it really desirable that this duty should be imposed on a local authority or the chief officer of police? Would it not be better that, as on the original application, the local authority or chief officer of police should put before the court any evidence it or he has to show that the order is still needed and that it or he should be entitled to cross-examine the subject of the order on his evidence, which he is putting forward to show that the order is not needed?
Therefore, it may well be a considerable improvement to remove this veto and simply to make the applicants to the order, and the subject of the order, free to put forward the case for or against discharge in exactly the same way as they were free to put forward their case for or against the making of the additional order. I beg to move.
The Deputy Chairman of Committees (The Countess of Mar): I should inform the Committee that if Amendment No. 18 is agreed to, I cannot call Amendment No. 19.
7.15 p.m.
Lord Henley: I shall speak very briefly to my amendment, which is grouped with Amendment No. 18. The noble Lord, Lord Williams, stated earlier that there were occasions when, with the consent of both parties, as set out in Clause 8, it would be possible to discharge the order. Our amendment takes that just a little further. It is self-explanatory. It makes it clear that, where there are exceptional circumstances the court shall be able to discharge the order without the consent of both parties. As a safeguard we have made it clear that we believe that the court should state its reasons on such occasions. I hope that the noble Lord follows the reasoning behind our amendment. I shall be very interested to hear his response when he responds to the amendment of the noble Lord, Lord Goodhart.
The Earl of Onslow: When the noble Lord, Lord Goodhart, spoke something immediately came to mind. It is bound to be much easier for a police authority or a local authority not to give consent because that involves making a decision which may then be proved wrong. People in all walks of life tend to take that view. It seems to be wrong that somebody who has reformed, grown up, changed his name to Mostyn Onslow, and is behaving well, should not be allowed to show that to

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the court. Just because officials, be they the police or the local authority, do not want to get involved—and that is a risk—he should not be prevented from showing that he has reformed, without idleness stopping him from so doing.
The Earl of Mar and Kellie: I support my noble friend's amendment. I began by thinking that the antisocial behaviour order was unsupervised. On the face of the Bill it remains as such, because there is nothing in it about supervision by an officer of the local authority. It is becoming quite clear that there needs to be a review system. Clearly, how can a request for discharge of an order be brought forward without formal consultation?
Are the Government to establish a formal review process? If so, will that be specified on the face of the Bill or in guidance? It will certainly be necessary. I have another question. The Bill refers to the "parties". Does that mean the defendant and the complainant or the defendant and the local authority? Can that point be clarified?
Lord Williams of Mostyn: As I said earlier, the word "parties" refers to the applicant authority on the one hand and the defendant on the other. The whole scheme is designed to avoid the individual who is harassed, alarmed or distressed having to be the complainant or party.
I have to resist both amendments. We believe that there are some misconceptions here. No prosecutor is involved. The noble Lord, Lord Goodhart, referred to the prosecutor, but there is no such beast. The Bill as drafted allows for an order to be discharged if both sides agree. There may well be circumstances in which that would be sensible. After all, these are local remedies. I accept entirely what the noble Earl says about the likelihood of such acts being committed by young males. But let us suppose that a teenager goes away to college where he is growing up and maturing. He may move to a different area. That is the kind of change which fundamentally affects the basis of the order. In those circumstances, we would expect there to be no difficulties in discharging the order, but we do not believe that we should go further than that.
The order is not a penalty. There is no prosecutor. The order prohibits antisocial behaviour only. It does not interfere in the defendant's everyday lawful and socially acceptable activities. There is no criminal record implication. All that the defendant knows, and is made to understand, is that he has behaved in such a way that the powers of the court are attached to him. If he ceases his wrong activity, there is no sanction at all. There is no interference with his personal liberty. We do not want to give the signal that the order bans activity which will become acceptable in time. Flexibility is built in so that both parties can agree for an order to be discharged.
I turn now to Amendment No. 19 in the name of the noble Lord, Lord Henley, which relates to exceptional circumstances. There is a danger that a cottage industry may grow up relating to the discharge of orders. That would benefit the legal profession, but no one else.
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There will be endless opportunities for requests for courts to discharge orders except in exceptional circumstances. If there are truly exceptional circumstances, such as I specified a moment ago, to justify the discharge of the order, there will be no reason for the police and the local authority not to consent to it. We do not want to open up a potential area for legal dispute. That would be a waste of time for the police and the local authorities. This is not an unduly totalitarian approach. I repeat my earlier point: all that this is doing is telling X or Y, "Don't behave unlawfully." That presents no great difficulty. We are all under that obligation. The obligation is simply being reduced to writing by a court.
Lord Henley: I am sure that the noble Lord will accept that occasionally an order can go further than telling an individual that he must not behave unlawfully. We have referred to occasions when it might be suitable for an order to exclude an individual from given areas. Does the noble Lord accept that that makes things somewhat different in relation to his summing up of this amendment as opposed to the position of a court telling an individual that he cannot do certain things and that he cannot behave illegally?
Lord Williams of Mostyn: I do not—because of the nature of the order and the nature of the facilities and protection built into the provisions. The police have to be satisfied. They have to consult the local authority and vice versa. The court has to be satisfied about the nature of the order it is making. An order can be varied if circumstances change, but there is no criminal record implication. It is a serious step that will be taken by a court only if it is really necessary in the public interest. We do not think that there is any analogy with mandatory sentences. This power is intended to be severe, but it is also intended to be appropriate. We cannot accept these amendments.
The Earl of Mar and Kellie: I thank the noble Lord for reclarifying the point about the two parties. That leads me to ask a further question. I think that we have established that the local authority will have to review a case before seeking a discharge. Will the local authority be required to contact the original complainants and will they be required to give their consent to the local authority seeking a discharge of such an order?
Lord Williams of Mostyn: That is the sort of problem which is likely to be addressed by local authorities using their discretion on the one hand. It is also likely to be part of the consultation programme about the production of guidelines, to which my noble and learned friend the Solicitor-General referred earlier.
Lord Dholakia: Does the Minister accept that making an order is ultimately a judicial decision taken by magistrates and that it is therefore right and proper that the magistrates or the court should discharge the

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order? Nobody should have the right to interfere in that decision other than to be consulted about the appropriateness of what is required.
Lord Williams of Mostyn: I entirely agree. We have looked at this with due seriousness. As the noble Lord indicated, it is the magistrates who impose an order and ultimately it must be the magistrates who reach a conclusion about its discharge. We say that both parties must consent. Both parties do not have to consent to variation, but both do have to consent to discharge. We think that that is reasonable.
The Earl of Onslow: I do not like to disagree with the noble Lord, Lord Williams, because much of what he says seems reasonable. However, it seems totally unfair that if the magistrates say, "This chap has grown up; he is reasonable; it is now time that the order was discharged", a policeman or a local authority officer, for perfectly normal reasons of self-protection—because they will feel safer if they say no—has the power to veto the discharge. There is then no way that the magistrates can say that they think that discharging the order is right. It seems wrong that somebody should have the power to veto a court's decision just because he does not like it and is covering himself.
We should trust the magistrates. We trust them with lots of other things. So why can we not trust them to say, "Yes, this person is behaving; he has now grown up; there is no further reason for the order and were it not for the fact that the police are worried we would discharge it?" I find that hard to believe, yet mostly I have considerable sympathy with the Bill.
Lord Williams of Mostyn: I am sorry to be repetitious, but this is an order of, in one sense, last resort before the use of criminal sanctions. It is intended to be serious. It is not intended to be an easy let-out. It is not intended that any court should be able to impose an order thinking, "By the way, this can be reduced without the agreement of the applicant authority." We are quite firm on this point. We believe that we must approach the matter firmly and resolutely. I am sorry to say, without discourtesy, that we do not intend to give way on the amendments. Much thought has been given to these provisions because the problem has been approached and attacked in a number of different ways in different amendments. We are satisfied that we have got it right. We may not have, but we are morally certain we have.
Lord Goodhart: The noble Lord, Lord Williams of Mostyn, took issue with me over my description of the applicant in such cases being analogous to a prosecutor. That is little more than a play on words because this is a quasi-criminal procedure. It is certainly not an ordinary civil procedure. It is a quasi-criminal procedure in which the local authority or the chief officer of police is playing a role which is virtually indistinguishable from that of the prosecutor in a criminal prosecution. That is why I believe that the analogy is perfectly fair.
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Frankly, the noble Lord did not answer my question about why the discretion of the court should be excluded by requiring the consent of the applicant. It was said that removal would lead to a cottage industry in applying for discharges, but the noble Lord did not disagree with my statement that the decision of the local authority or chief officer would be capable of being judicially reviewed. Therefore, what is barred to lawyers by one route comes back through another. I strongly believe that this amendment represents a fairer and better system than that proposed by the Bill. I beg leave to withdraw the amendment, but it is one to which I may return on a future occasion.
Amendment, by leave, withdrawn.
7.30 p.m.
[Amendment No.19 not moved.]
Lord Henley Lord Henley moved Amendment No. 20:
Page 2, line 27, at end insert—
("( ) Requirements specified in an anti-social behaviour order shall. as far as is practicable. be such as to avoid—

(a) any conflict with an individual's religious beliefs; and

(b) any interference with the times, if any, at which he normally works or attends an educational establishment.").

The noble Lord said: I shall speak to Amendment No. 20 briefly. I imagine that noble Lords prefer to adjourn for dinner fairly soon. I believe that we shall adjourn very soon after the Committee has dealt with this amendment. Amendment No. 20 is tabled as a probing amendment. To some extent I touched on it earlier when I asked particularly about those cases where an exclusion order had been made by the court and how an individual would be able to cope if, for example, his place of work was on one side of the excluded area and his place of residence was on the other side. I asked whether exceptions could be made.
For the sake of clarity, I should explain that the amendment has been lifted from Clause 9(4) where such an exclusion is set out. I should like to ask the Government why they believed it necessary to make an exception in Clauses 8 and 9(4), which deal with parenting orders, but not in Clause 1. I beg to move.
Lord Hardy of Wath: I feel rather uneasy about the amendment. In my experience two cases merit a cautious view in this area. The noble Earl, Lord Onslow, referred to the Salvation Army a few moments ago. Some years ago I experienced a serious problem. The congregation of a fundamentalist chapel gathered after evening service to sing hymns very loudly and, after a fairly long period, greatly upset all the people who lived nearby. Fortunately, they were persuaded to move away. However, had they not done so and had the situation today applied they would have been able to claim religious freedom. The second case was a much more serious matter. Some years ago an individual came to see me about a constituency problem. He lived in a terraced house which had a common yard. One day one of his neighbours came to that yard in which his children

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were playing and proceeded to slaughter a sheep. When he objected the neighbour said that that was his religious freedom.
This amendment would provide an excuse for that kind of behaviour. In my area—it will apply in many others—a great deal of attention, resources and care have been devoted to the promotion of good race relations. That kind of case imperilled those relationships. I believe that we must be careful not to provide an excuse for an individual who may exercise an extremely destructive influence in society. I hope that my noble friend will look at the amendment with very great care.
Lord Renton: My noble friend Lord Henley said that this amendment was intended to be a probing amendment. It gives rise to some difficulty. There are some religions which encourage antisocial behaviour according to our definition of it. Indeed, there is one religion that justifies the killing of a woman who has committed adultery. We would find ourselves in the greatest difficulty if we said that there was never to be a conflict with an individual's religious beliefs.
In case my noble friend intends to pursue this matter at a later stage, I observe that in paragraph (b) the word "works" is rather imprecise. Would working in the garden be a justification for an exemption? I believe that "earns a living" is more appropriate.
Lord Hylton: The merit of this amendment is that it draws to our attention the unintended consequences of the orders that will become possible under the clause. I ask the Government to think of the possible consequences of exclusion. For example, might an individual be excluded from access to his normal place of worship? It may be thought that there are plenty of places of worship for each denomination, but there are minority religions that may be very thin on the ground. This is a serious point. As the whole thrust of the Bill is the prevention of crime, I believe that anything, whether under an order or otherwise, that prevents people from going to their normal place of work or education is contrary to the spirit and intention of the Bill. The amendment raises very serious points, and I hope that the Government will consider them as fully as they deserve.
Lord Williams of Mostyn: I am entirely supportive of what the amendment seeks to achieve. We differ on the question of whether it is appropriate to include it on the face of the statute. We do not believe that such inclusion is right. We have said on a number of occasions that we propose to issue detailed guidance on the orders which will clearly set out that this kind of requirement should not if at all possible be included in an order. To put such a provision on the face of the Bill in this context is both unnecessary and may cause problems in itself.
As to the regime under Clause 9(4), the context is entirely different. That relates to parenting orders. It relates only to the parents of children under the age of 16. It is appropriate in that case to make specific reference to the parents' religious beliefs and education
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because one is dealing only with the parents of children under 16. This is a completely different regime which we believe is best dealt with by way of guidelines. I take the points that have been made. We intend to issue detailed guidelines on the nature of the orders. I hope that the noble Lord regards that as a sensible way of proceeding rather than putting it on the face of the Bill.
Lord Henley: I am entirely satisfied by what the noble Lord has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hoyle: My Lords, I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again at 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Children with Special Educational Needs
7.40 p.m.
Lord Addington Lord Addington rose to ask Her Majesty's Government what steps they are taking to ensure that appropriate provision will be guaranteed for those children with special educational needs who cannot reasonably be integrated into mainstream education.
The noble Lord said: My Lords, first, I thank all noble Lords who have put their name down to speak in this debate. We have just one regret, that we have only one hour to cover the subject with such an impressive list of speakers. I look forward to hearing the maiden speech and wise counsel of my noble friend Lady Linklater who has had considerable experience of special schools within the education system.
When we talk about special schools within the education system we are continuing an argument which has gone on at least since I joined your Lordships' House. Some people have always maintained their battle cry that everyone should be integrated within the system, while others have said that they should be educated outside it. Both sides of the argument have waxed and waned fiercely, sometimes inside the Chamber but more often outside. The arguments are often based on fears and dogma. I hope tonight that we shall be able to reach a compromise based on best practice. That is finally starting to be accepted across the whole spectrum.
I sought briefing on this subject from outside bodies. I was astounded by the six or seven replies I received. They all said virtually the same thing: inclusion—that is, bringing people into the education system where that is appropriate—is a good thing; integration is essentially a bad thing because it does not take into account special needs. At least that is what the term is thought to mean.
Special schools with back-up facilities and sheltered environments will be needed for the foreseeable future. That was something that was so universally endorsed

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that I began to doubt it. When everyone is on the same side one always thinks that something must be wrong somewhere. However I suspect that we do have it right. I suspect that, because I have heard the arguments before. It has taken us a long time to reach that level of consensus. Even the Government agree. We should all be worried by that. However, there are certain caveats.
The Government's Green Paper, Excellence for all Children, follows a series of best practice procedures, or something close to them. That is a position for which we have striven for a long time. I shall inject some politics into the discussion. There is always the question of how we will achieve that aim within current spending levels. Excellence in any field is never cheap. With a Government who accept the expenditure plans of the previous government, which my party thought could have been expanded, there is always the danger of going along the integration route as opposed to the inclusion route.
That is effectively care in the community—a concept which sounded so good but which was never given the resources, and indeed probably never could be given the resources, to enable it to work in the way envisaged. That is a worry that always nags at the back of the mind: the image of going down the right path without sufficient will to drive oneself to the end.
If we are moving towards inclusion, we must ensure that there is something to back it up. Special schools are centres of excellence and havens for some people within the school system. The people who are aware of the various special needs are centred at such places and have the resources to provide the necessary support.
Unless there is a vast increase in expenditure on education we shall never be able to match that across the board or in all schools. It is almost impossible. We must bear in mind that some types of learning and support for learning require sheltered environments and different teaching methods from those appropriate to mainstream education.
I promised myself that I would not start my speech by mentioning dyslexia. I shall use it as an example. A dyslexic learns language in a different way and has to be taught differently from someone who is not dyslexic. They need different types of teaching and so the common classroom is not appropriate for both groups.
With a little thought those with moderate disabilities can adjust themselves to the mainstream classroom. Many of the areas of worry can be removed from those with moderate difficulties. People with other disabilities—for example, those whose movement is impaired—can often be easily catered for in the classroom. There is no real problem for someone in a wheelchair, once that person is allowed inside the classroom. It is agreed that there is no reason why someone in a wheelchair, with a stick, or on crutches should not have access to a classroom. There are relatively cheap ways of overcoming the difficulties. Ramps can be installed. One chairlift per floor can be provided in a school. Such things can be done. That removes the problems for a whole group of disabled
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people. That leaves those people with specialist needs which are best met in a specialist teaching environment. That is the group about which we are talking.
When dealing with children or young adolescents, we must bear in mind that we are dealing with the most conformist group in our society. It is the group which is probably least tolerant towards those outside it. If we place a young person who is vulnerable, because his confidence has been damaged due to his academic failure in school, in such a situation such a person will probably be bullied. If we put someone with severe learning difficulties in a classroom without the appropriate back-up facilities, we might as well put a sign across their head saying, "Victimise here", because that is probably what will happen.
There is the further problem that young people who are placed in such an environment without the appropriate help tend to react badly to school discipline. I know dyslexics who feel, "If I cannot cope with the classroom, I shall ensure that no one copes, and I will disrupt it". If such a young person has not received the help needed to manage in the classroom, a specialist school may be the only answer.
The move towards inclusion could be greatly helped if the Government were prepared to find the appropriate resources or to restructure teacher training so that teachers were better equipped to recognise disabilities within the classroom. I know that the Government are studying that problem now. This is an opportunity for the Government to tell us how far they have gone towards ensuring that teachers have the skills required to give the necessary assistance.
The Government now have the chance to say that they will keep these necessary support structures. They will make available the appropriate resources and back-up to allow them to work and to enable them to be accessible to the rest of the school system. Without such support, there is a grave danger that the Government's best intentions will come to nought, especially if they allow the accountants or the balance sheet to rule their education policy.
7.49 p.m.
Baroness Pitkeathley: My Lords, it is well known that in the field of special education, we have come a long way in a generation. Until the passage of the Education (Handicapped Children) Act 1970, the conventional wisdom was that some children were ineducable. It took many years of dedicated work to challenge and overturn that negative approach. I thank the noble Lord, Lord Addington, for giving us the opportunity to debate this important subject. While I acknowledge his concerns, I must make it clear that I do not support them entirely.
I speak as the chief executive of the Carers National Association which has frequent contact with parents of children with special needs and, more significantly, with the information and opinion received from respected voluntary organisations like Contact a Family and the Council for Disabled Children. They believe that parents of children with special educational needs should be able to choose a mainstream school for these children,

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no matter what their disability, and that a compulsory direction to a special school is unfair, discriminating and against the best interests of the child. Most parents make it clear that they, too, want their children educated in the mainstream. I therefore welcome the speed with which the Government and the Department for Education and Employment produced a Green Paper on special educational needs for consultation last year and the statement of intent included in that Green Paper,
"to increase the level and quality of inclusion with mainstream schools".
I am sure your Lordships will agree that an inclusive education within a mainstream school has much to recommend it in terms of reducing the social isolation of children with special educational needs, enhancing the range of curriculum subjects available to them and, not least, informing the whole of society about special educational needs and disability issues. The Government's decision to increase the monies available to the School Access Fund, which is directed to improving facilities in mainstream schools and to allow better access for children with special needs, is also to be welcomed.
Parents, then, want inclusion on the whole, but they do want the guarantees which should go with it. They will not be confident about letting children leave special school environments unless they can be confident that the mainstream school will not tolerate bullying; be reasonably resourced in terms of staff, including trained classroom assistants and equipment; have ready access to qualified medical help if a child needs it; and provide a good quality education for each child.
I willingly concede that in some cases this may be a big "if" within the mainstream and therefore welcome the fact that the Government's statement of intent in the Green Paper. while increasing the level and quality of inclusion within the mainstream, goes on to say:
"while protecting and enhancing specialist provision for those who need it"
—the point emphasised by the noble Lord.
Some parents will continue to choose a special school place for part, at least, of their children's school career and I share the noble Lord's concern and agree with him that, where special schools exist and have a valued continuing role, they should be properly resourced and indeed connected with mainstream schools and other educational bodies. The report of Her Majesty's Chief Inspector of Schools, The SEN Code of Practice 2 Years On, published last year, gives examples of good practice. They include the provision of full information to parents and the involvement of parents at all stages; strong commitment by staff and by governors to special educational needs; and the involvement of pupils in planning their individual education plans.
The report also makes clear that not all special schools are centres of excellence. I am afraid that there is scope for improvement in practice in many of the schools, particularly about parental involvement. It is clear that too many schools do not have adequate information about funding arrangements and that there are too many examples of planning for a child being impossible because of lack of information about available funding.
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We have heard about the need for special schools for children with special needs such as dyslexia. I must also point out the widespread shortage of support services for children with emotional and behavioural difficulties and I welcome the fact that the Social Exclusion Unit at the Cabinet Office has given priority to school exclusion and truancy.
Finally, I pay tribute to all voluntary organisations and Members of this House who work so hard on this issue and endeavour to ensure that government, local education authorities and school governors take the view of parents either with regard to mainstream or special education seriously when planning the education of these important future citizens—children with special needs.
7.54 p.m.
Lord Astor of Hever: My Lords, we are in a period of great opportunity. The Government's Green Paper. Excellence for all Children, has been widely welcomed for its clear determination to improve the educational opportunities of that wide-ranging group of children with special needs. I declare an interest as the father of a daughter with autism.
There are children whose needs are so complex or severe that from the outset of their education they should be identified as such and given specialist support, perhaps through a special school. It may be that the economics and organisation of mainstream education will, for a long time, make it difficult to address needs such as those of a child with classic autism or challenging behaviour. Does the Minister therefore agree that there is a continuing and important role for specialist schools, underpinned by clear educational principles and by properly trained staff and professionals? In such cases, the vital need is for accurate early identification of the nature of the child's learning and communication difficulties, followed by the right kind of teaching and educational environment. Early intervention is crucial.
So it is disappointing that the Green Paper is so vague about how children with special needs are to be identified on arrival in primary school. We now have baseline assessment, but this, apparently, is not intended to pick up such children. How then will they be identified? What universal mechanism is to be put in place to ensure that children, with less obvious and visible difficulties, are identified at this crucial stage? Without early intervention there can be no assurance that the main aims of the Green Paper can be met. I hope that the Minister will look at this concern, which is widely shared by organisations working in the special needs field.
Early intervention can work only if professional skills are in place. This applies both at the stages of assessment and practical support in the class. A recently published survey showed that in a large sample of families with an autistic child as many as one in three were mistakenly turned away by the health professionals concerned, resulting in years of delay and waste. Will the Minister make a commitment to address this crucial

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area of supporting teachers in special needs knowledge, without which it will be impossible to achieve effective early intervention?
Finally, I should like to emphasise the role of parents. Speaking as one, I know of the anguish which parents of children with special educational needs feel and I therefore lay great emphasis on the need to involve them and recognise their entitlement. The Green Paper work should recognise the principle of involving parents and ascertaining the wishes of their children. It is premature to set targets for the reduction in statements or special school placements. The more important goal should be to focus on achieving higher levels of confidence in the process from parents. Will the Minister therefore make a commitment to look at ways of measuring relative parental confidence in the system? I say "relative" because, of course, parents of children with special educational needs are hardly overjoyed by their situation. It must, however, be possible to find ways of measuring the progress which the Government hope they will make in helping parents and their children to feel that they are reasonably treated, respected for their views and receive the right level of specialist support where it is needed.
When parents say that they and their children are getting a good deal we will have made some progress.
7.59 p.m.
Baroness Linklater of Butterstone: My Lords, it seems appropriate that I am making my maiden speech on education since for any newcomer to this place the experience is just like coming to a new school. However, a key difference from any other school that I have experienced is the unqualified welcome and helpfulness towards my own integration that I have had from your Lordships and all associated with this House, for which I am truly grateful.
I realised the parallel when, having kindly been offered the loan of some robes by a noble friend, he said that he would leave them for me on my peg—the very symbol of a school cloakroom. I then had the pleasure of finding that it is next to that of the noble Earl, Lord Longford, of whom I am a lifelong fan and whose peg is laden with books and carrier bags under which I respectfully squeeze my own.
I should declare a special interest in this subject because I founded a small, specialist secondary school about five years ago which caters for educationally fragile children. I founded it having watched our youngest daughter, who had been born minimally brain damaged but who is nonetheless intelligent, go through mainstream schooling never being truly integrated and, as a result, having a miserable time. My school is now full of boys and girls from all over Scotland, none of whom had been integrated in any way in their previous schools.
I have reservations about the assumed desirability of integration into mainstream of many more children with special educational needs, which is the key thrust in the Government's Green Paper. We have heard also how those reservations are shared strongly by many of those with first-hand experience in the field.
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We are talking about 1.5 million or so children, so the issue is of major importance. Superficially the notion of integration seems to be self-evidently right. What could be more just and equitable? Who could possibly be in favour of the opposite—segregation? However, I believe that it is a notion belonging to a social model, and what we should be seeking instead is an education model based on educational need. We should aim at policies which encourage us to value differences and celebrate diversity rather than subsuming as many children as possible into some integrated whole.
Today, we talk about inclusion rather than integration. But as Professor Tomlinson states so clearly in his important report Inclusive Learning, it is not synonymous with integration. It requires new thinking and the development of a variety of environments for learning, acknowledging that all students have different learning styles and needs. Of course, the integrated setting has its place but it is not the be-all and end-all.
Policies must take account of how children behave towards the less able—very cruelly sometimes—and the practical implications of learning needs. In that regard, class size is crucial and must be addressed. The reality is that for a significant number of children, current education methods do not work. They also put an extra burden on already overstretched mainstream teachers, and it is no wonder that we have so many excluded and under-achieving children in our system.
Support strategies of attaching a teacher to a child in the classroom or withdrawing children for special help often highlights their difficulties, and those strategies are very expensive in cash and human terms. Simply to put a child into an integrated school setting, even with support, does not make him or her integrated. The experience can be frightening and excluding, with disastrous results, to confidence and self-esteem. That was the experience of all the children in my school: and they are the tip of the iceberg.
If our goals in education include helping our children to realise their potential and have a real place in society, we need more rather than fewer specialist schools and a system which reflects the complexity and diversity of our society. I hope that the Government will look again at their assumptions in the interests of properly meeting the needs of that significant and vulnerable group of children.
8.3 p.m.
Lord Rix: My Lords, as I suspected when I first met the noble Baroness, Lady Linklater of Butterstone, at a delicious dinner in Edinburgh last September, and as her maiden speech has confirmed, she will be a most valued addition to your Lordships' House and a formidable ally for those of us trying to represent people with disabilities which create special educational needs. I, and I am sure all noble Lords present, congratulate and welcome her.
The question is mainstream or special schools. The issue is appropriate education. Today's inspectorate report is about standards. Standards are individual things, and how well an individual child does depends on that child receiving an appropriate education.

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The experience which best explains the origins of MENCAP, which I have the honour to chair, is that of a mother taking her child to school on the first day of the child's school life, and being summoned later in the day to take the child away because it had been found ineducable, the same verdict passed on my own daughter some 46 years ago. She had to be certified as educationally subnormal. Children are no longer being turned away in that peculiarly heartless way.
But we do need to worry about the level of school exclusions of children with severe learning disability from special schools; and we need to be concerned about what happens to children when they are in school, mainstream or special. If children with the most severe learning disabilities are to be taught in school, including mainstream schools, they have to be taught by teachers who know how to teach these children, using methods by which the children can learn, and measuring their progress by standards appropriate to them.
Inclusion which involves putting children with very special needs in a mainstream classroom and keeping your fingers crossed for a fruitful social experience, denies opportunity; it does not provide it. I warmly support the Government's emphasis on standards, underlined again today. I simply ask for relevant standards. The issue is added value: it is what the school has done to ensure that each and every child has fulfilled his or her potential.
If that means good examination results, fine. If it means being able to communicate basic needs, fine. What is not fine is labelling as a successful school one whose very able pupils have not become any less able by the time they leave, while labelling as a failure a school whose profoundly and multiply disabled children have been helped to conquer mountains of achievement but will never come within hailing distance of an exam pass.
Perhaps I may make some suggestions: first, the issue of inspection. Effective inspection processes are a vital tool in raising standards and spreading good practice. I should like to see Ofsted working with schools and the teacher training agency to develop appropriate measures and finding ways for inspections of celebrating non-traditional achievements. Mainstream schools can learn from special schools. MENCAP's profound intellectual and multiple disability project is at the leading edge of this work and has a great deal to offer all interested parties.
My second area of concern is inter-agency working. It is so often the case that for a pupil with special needs, support is needed from a wider number of agencies than just the education department. That is hard to secure in many mainstream schools. As the Minister may know, I have a particular concern about speech and language therapy.
I cannot emphasise enough the importance of such services. I should like to see the work being undertaken in Scotland extended to the rest of the UK. Scottish education authorities can negotiate contracts to purchase specified speech and language therapy services for pre-school and school age children with statements. In three years this has led to the creation of 80 additional speech and language therapy posts in Scotland.
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We shall never again say that children with special needs are ineducable. That battle has been won. But now we must continue to fight for the best education possible for all children if we are to create a society where all citizens are respected for their abilities and the unique contribution they can make. A society which fails to educate all its citizens has failed all its citizens.
8.8 p.m.
Baroness Nicholson of Winterbourne: My Lords, it is a very great pleasure and honour to be able to congratulate my noble friend Lady Linklater of Butterstone on her maiden speech. She has effected that difficult and delicate transition by translating personal experience into professional and public service provision. It is not easy to do that successfully and in just five years her special school has become nationally known and highly regarded. As such, she brings both familial and professional experience to your Lordships' Chamber.
I thank my noble friend Lord Addington warmly for giving us the opportunity through this debate to look back at what have been, in effect, the results of the Warnock Report of the early 1980s which brought special needs children more into mainstream schools; and I fully support that thrust.
I wish to touch on two schools which are special schools. In that regard I speak against the thrust of the interesting and excellent points put forward by the noble Baroness, Lady Pitkeathley. I, too, know from professional and personal experience, that special schools are needed for some children.
I take Kingsdown School in Southend. Its head is a Mr. Hagyard. It offers specialist provision for physical and neurological impairment for children from all over Essex—quadriplegics, those with spina bifida or cerebral palsy, those with no speech. and so on. Indeed, it contains 115 exceptional children who are also exceptionally fragile physically. It has received a first-class report from Ofsted. I have a list of the practical problems that those children experience in sitting exams. However, because of the shortness of the debate—just four minutes for speeches is insufficient—I shall put those problems in a note to the Minister and doubtless he and I can also discuss them. Much provision has been made for special needs children in examinations but experience shows that more is needed of a different sort.
I turn, secondly, to the Mary Hare Grammar School for the Deaf where the head is Ivan Tucker. It responded recently to the Government's Green Paper. It is a different sort of special school with 200 pupils. Indeed, I believe it is the only special school featured in the Financial Times top 1,000 schools in the A-level league table. That school reminds us that fewer than 400 severely and profoundly deaf babies are born every year in the United Kingdom. Its conclusion, and indeed mine, is that the current educational provision for such children—those who, in terms of decibel shortage, fall into the category of 71 to 95 minus decibels of severe and profound deafness—is, frankly, largely ineffective.

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That is because responsibility for them is scattered over 132 LEAs, 32 special schools and a large number of units in mainstream schools.
There is, alas, little consistency and, not surprisingly, remarkably little data on educational achievement; there is inefficiency and ineffectiveness due to the lack of critical mass. Those are proven facts and not suppositions. I speak of the educational and not the medical needs of profoundly and severely deaf children; for example, speech and language therapy, acoustical excellence, hearing aid provision and use, and so on. The school delivers the national curriculum profoundly well and still it has no core funding from the Government. It costs £17,500 a year for each child: some special schools can charge up to £45,000. The school has experience to offer us, but solutions cannot be given this evening because there is insufficient time. Again, if I may, I shall write to the Minister and perhaps he will be kind enough to grant me a meeting so as to allow these these two important sectors to be examined. They are positive proposals that I have for him.
8.13 p.m.
Lady Kinloss: My Lords, I should like to thank the noble Lord, Lord Addington, for tabling this very topical Question this evening. I should also like to congratulate the noble Baroness, Lady Linklater of Butterstone, on her most interesting maiden speech which reflected all her experience. Although there are many technical aids to help children with special educational needs, there will still be some children who will need to be taught in very small groups on a one-to-one basis in specialist schools. SENSE finds that most deaf-blind, multi-sensory impaired children fall within the group of children whose needs cannot be met within mainstream education. Inclusion should mean that every single child should have access to the highest quality education which will meet his or her individual needs. Mainstreaming every child, irrespective of his or her needs, will not serve the interests of many disabled children and it will not lead to social inclusion later on.
While most of us agree that it is best for children with special needs to be educated with their peers in mainstream schools, we must recognise that meeting that goal will take time and resources. Mainstream schools need support and advice on how they can meet individual children's needs and to ensure that the child gets an education appropriate not only to his or her needs but also to his or her abilities. Can the Minister say what work is being undertaken to ensure that a curriculum is developed to meet the needs of children with severe and profound learning disabilities?
In 1985, 200 teachers gained a specialist teaching qualification for teaching children with severe learning disabilities, but by 1995 there were just 40 of them. During their training, teachers receive a little training in special needs, but not really enough. Teachers used to teach for a time, and then take extra qualifications for specialist training in severe learning disabilities. It would seem strange that to teach the deaf-blind one needs a special qualification, but not for other equally complex children with a range of severe disabilities.
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The drop in the number of teachers with special qualifications will surely put a strain on mainstream schools to manage those children who need specialist help and who cannot manage a mainstream school without help. Can the Minister say what can be done to encourage more teachers to specialise in the teaching of children with severe learning problems, and others with mild disabilities who, nonetheless, sometimes find it difficult to follow the curriculum?
Does the Minister consider that there is too much concentration on assessment tests, especially at primary school level with children who have slight problems in learning, which discourages schools at secondary level from taking these children with less serious special needs, such as lack of concentration or dyslexia, which I realise can be severe at times?
The question of choice in education is important to all families, especially those families with children with special educational needs. I know of families who find it difficult to send a child with learning difficulties to the school of their choice because of difficulties with local education authorities which do not agree to pay the other authority. This is possibly a case of where the child lives. Is it still a case of where these children happen to live, or whether or not there is a school for those with special needs? In some areas of England and Wales there is a growth of local specialist services and support which is beginning to recognise and meet children's needs. That is to be welcomed.
I am sure that many will agree with both MENCAP and SENSE that a statement is, for many parents, the end of a long battle to get their child's needs recognised. Can the Government reassure parents that they will in no way undermine the rights that children have to funded education provision that meets individual needs, especially for those who cannot be educated in mainstream schools?
8.17 p.m.
Lord Pearson of Rannoch: My Lords, I add my thanks to those already expressed to the noble Lord, Lord Addington, for introducing this debate. I should also like to congratulate the noble Baroness, Lady Linklater of Butterstone, on her truly knowledgeable maiden speech. As usual in debates of this kind, I declare my interest as a father of a 17 year-old daughter who has Down's syndrome. I therefore speak especially on behalf of mentally handicapped children and their parents, and would like to highlight two areas of concern this evening.
First, I share the hope of other noble Lords that the Government's policy of greater inclusion into mainstream schools will not come to mean that children such as my daughter are forced too near mainstream education for their own good, or for their parents' peace of mind. The Government's Green Paper, Excellence for All Children, is a well-intentioned document. But if it has a fault, as my noble friend Lord Astor has already indicated, it is that it does not appear to give enough weight to parents' wishes. Indeed, parents do not seem to get a mention at all in Chapter 5, which deals with the planning of SEN provision. So one is left with the

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impression that the professionals will continue to decide what is best for our children, without being obliged to listen carefully enough to the people who almost always know those children's needs best—that is to say, their parents.
My daughter is extremely fortunate to go to a Camphill Community Rudolf Steiner boarding school for children in need of special care. There is not time for me this evening to explain to your Lordships just how that school has worked such wonders for my daughter, but I hope that noble Lords can accept that it has done so. I would, therefore, be very worried if the emphasis on inclusion were to damage schools like my daughter's. There is tremendous demand from parents for such schools; indeed, far more than can be satisfied.
Of course, at first sight these schools may appear expensive, but that may not really be so if one looks at what the cost has to be of a special unit in a mainstream school which is really able to offer all the advantages of a special school. Small units lose economies of scale, and so if they are to do their job properly—and that is a very important "if"—their per capita cost must become just as high, perhaps sometimes higher, as that of special schools.
My second area of concern is one which we debated under the previous government on several occasions, but to which a solution was not found then. This occurs when children with fairly severe learning difficulties reach the age of 19. I trust this is not outside the scope of this debate because these young people often have a much lower mental age, and in many ways are still children. But the problem is that social services do not want to take them on, and nor does the FEFC, and so many of them are falling through the gap in the middle. One difficulty here is that higher education tends to be less structured than the school environment, and so lends itself even less easily than primary and secondary education to the kind of protected environment which is so essential for these young people.
Lack of time again prevents me from giving your Lordships specific examples of cases where this is happening but, if the Minister has time, I would be happy to prove to him that this is a serious defect in our educational provision today. I feel sure that the solution is to encourage community special schools and colleges, whereas at the moment they are often discouraged, especially at local level. Whatever happens, we must stop forcing these young people into entirely unsuitable environments or, more often, abandoning them altogether.
8.21 p.m.
Baroness Warnock: My Lords, I add my thanks to the noble Lord, Lord Addington, and my sincere congratulations to the noble Baroness, Lady Linklater, on her maiden speech. I thought it was a great speech—and it was—but I doubt whether it fulfilled the criterion of being wholly uncontroversial.
I wish to say a few words about the class of children we are discussing, those children who cannot properly be educated in mainstream schools—the severely emotionally and behaviourally disadvantaged or
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disabled. I entirely agree with the Green Paper that such children are frequently excluded from mainstream schools, or effectively exclude themselves by simply truanting. Therefore it follows that much of their education is bound to be outside the mainstream.
It is a fact that a large number of these children who are excluded from school are children in care who go to school by day—if they go at all—either to mainstream or to special schools and who are either statemented or not statemented. I think the question of who has a statement and who has not is increasingly irrelevant. On my deathbed I shall continue to regret that my committee ever introduced that distinction, but that is by the way.
The alternative of boarding school for some of these children who are in care—even though they may have to go back into care during the holidays—is an option which I think is largely disregarded. That is no doubt partly on grounds of expense but partly, I fear, because of the continuing grave difficulties which stand in the way of social services and the education services collaborating with one another. Boarding school, uniquely, can provide the kind of 24 hour education which is quite often the only and the last hope for severely disturbed and severely disruptive children. That is especially true for those whose parents are not the wonderful, adequate, co-operative, concerned people so often invoked in documents from the DfEE.
I ask the Minister whether it is not time to consider a policy of providing more, better and more properly inspected special boarding schools to replace those which have been closed—this happened over and over again in the past decade—and for which our greatly missed friend Lady Faithfull had a particular fondness and a particular interest in. In her sad absence we ought to reconsider boarding education for children who are so disruptive that they are positively dangerous in a school which cannot give them 24 hour care and care which is centred on education.
My next point is very important. If such schools are inspected—as they must be—the criterion of success must not be simply whether or not they conform to the regulations of the national curriculum. The aim must be that such children should be educated in accordance with the national curriculum, but first they have to learn how to be educated at all. I hope very much that when the Green Paper is debated the question of boarding education will not be neglected.
8.26 p.m.
Baroness Blatch: My Lords, I begin by apologising most profusely to the House for having neglected the most basic task of all; namely, that of adding my name to the speakers' list. I am particularly aggrieved that I did not do this as this is a subject which interests me deeply.
I thank the noble Lord, Lord Addington, for initiating the debate. Although speakers have had little time in which to speak I am deeply impressed by the points that have been made in the course of this short debate which no doubt will be expanded when we discuss the Green Paper.

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I also add my most warm congratulations to the noble Baroness, Lady Linklater. I can remember how daunting it was to make a maiden speech in this House. I was full of trepidation on that occasion. But if the noble Baroness's maiden speech is anything to go by, I am sure we shall hear much more from her in the future which will enrich the debates in this House. I wish to make warm remarks about other speakers. I pay tribute to the noble Baroness, Lady Warnock, on the work that she did preceding the 1981 Education Act, and the work that she did to bring the whole issue of special needs educational provision to the centre of our discussions on education. I suspect that the noble Lord, Lord Rix, has worked tirelessly for hundreds of thousands of people, young and not so young. Those people have benefited from his work with people with mental disabilities. My noble friend Lord Pearson of Rannoch has been a doughty fighter—both with me when I was on the Government Front Bench and no doubt with the new Government—in fighting for appropriate provision for young people in education. That will form the thrust of my remarks. We miss my late friend Lady Faithfull when these causes are being fought for.
The 1981 Act was a turning point and a real milestone on the road to placing the needs of young people with disabilities at the centre of education. I am proud to have been involved with the 1993 Act which built on the 1981 Act and came into effect in September 1994. Central to that Act was the concept of giving parents more choice and a presumption always towards meeting the choice where that was possible and where it was consistent with the needs of the child. From that date on all schools were required to have regard to a code of practice—I understand that code of practice has been widely welcomed throughout the educational sector—and all schools had to publish information on their special needs policies and to report annually to parents. The code of practice and guide for parents were published later that year.
Ofsted carry out inspections. It was given responsibility for monitoring the code of practice on the identification and assessment of special educational needs. That is stated in the foreword to the code of practice. Ofsted has reported twice now on the working of the Act in 1995-96 and again in 1996-97. Those reports are well worth consulting in order to address weaknesses and to build on strengths. Each school is required under the code to keep a register of all children with special needs and to keep records. A five-stage approach was established which makes a great deal of sense. I refer to early identification, dealing with those problems that can be dealt with effectively in school by developing plans for each and every child. However, where the school believes through the special educational needs co-ordinator that those needs cannot be met entirely by the school and require external support, it works with other agencies.
I accept what the noble Baroness, Lady Warnock, said about statementing. However, the system provides an official statement of the needs of a child and the rights of the child to have those needs met.
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I conclude by saying to the Minister that I hope any changes contemplated will build on the 1993 Act. I hope that the inspection reports will be used, and that policies will be based on a sound assessment of need and the effective provision to address such need. Early identification must be the key. I also wish to thank the Minister's honourable friend in another place, Ms. Estelle Morris, with whom I had a fruitful meeting recently on this matter. Again, the need is for the most appropriate provision for young people. Mainstream is not always the answer. Therefore we must not give way only to some ideological philosophy which says that integration and inclusion is the only way forward.
8.30 p.m.
Lord Whitty: My Lords, I thank the noble Lord, Lord Addington, for initiating the debate. I congratulate the noble Baroness, Lady Linklater of Butterstone, for an impressive maiden speech which indicated a vast expertise in this field. I feel very humble because much personal experience and experience as parents have been reflected in the speeches, as well as knowledge of the organisations concerned in this field. It is important that those concerns are reflected back to the department in conjunction with the consultation process on the Green Paper that has already begun. Noble Lords will know that the consultation period on the Green Paper, which was produced with the assistance of a high level national advisory group, ended on 9th January. We have yet to assess the full burden of the comments which came from a wide range of sources. But it is clear that the great majority of those who expressed a view welcomed the Green Paper. It was the first opportunity for many years to consider all the issues regarding special educational needs.
It is equally clear that there are many detailed and important suggestions for ways of improving provision; and some concerns about the safeguards that need to be retained. They have been reflected here today. I welcome the general tenor of the speech of the noble Lord, Lord Addington. I may disagree with some of his technology. But he recognises that the Green Paper is not dogmatic; it seeks to generalise existing good practice and to stimulate new good practice. I hope that noble Lords will not be worried when I say that I agree with most of what the noble Lord said about special schools as centres of excellence, and his emphasis on the need to consider the different situations faced by children with different types of special educational needs.
I can assure the noble Lord that the Government have no intention to promote inclusion where that might damage an individual child's interest. As the noble Lord, Lord Rix, said, we are not concerned about dogmatism but the appropriate mix of education for each child.
However, it is the Government's aim, subject to the outcome of the consultation, to increase the level and quality of inclusion within mainstream schools. That does not mean the end of special schools in any sense. Nor does it mean taking away the choice from parents that was incorporated in the 1993 Act, to which the noble Baroness, Lady Blatch, referred. The Education Act enables parents to express a preference for special

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schools where they consider that appropriate to their child's needs. The Green Paper and the Government make it clear that that right will remain. We want parents to choose a mainstream education in those areas where they feel that it is right for their children. As my noble friend Lady Pitkeathley emphasised, the majority of parents want inclusion within mainstream schools. It is already the fact that the vast majority of children with special educational needs are within mainstream schools already; and therefore the concentration to some extent must be on improving the quality of that inclusion.
The noble Baroness, Lady Linklater, and others, perhaps slightly underestimate the success which some mainstream schools have demonstrated in including a wide range of children with special education needs. To say that is not to disparage the achievement of specialist schools but to recognise also that mainstream schools have often been very successful. We want therefore to develop the quality of education in mainstream schools and the necessary support services to keep children in mainstream schools. The Green Paper sets out proposals to cut through the bureaucracy which parents often face. We recognise that there are a variety of views on the sensitive issue of where an individual child or form of disability will best prosper. We believe that some children currently educated solely in special schools would benefit educationally and socially from being in the mainstream school. But all schools are included as equal partners in the school community. The benefits are felt by all.
Traditionally the role of special schools has been to provide specialist teaching, support and facilities to meet the needs of the pupils. In excellent specialist schools, this has often meant a concentration of experience and expertise in a small number of establishments. We want to see a new role for special schools. The context in which they operate has already changed. The categorisation of special schools is no longer as clear as it once might have been, and many now cater for a wide range of increasingly complex needs. We are looking for better, more flexible schools, in some cases more specialised, with boarding facilities, and so on, rather than abolishing or reducing the special schools sector.
I entirely agree with the points raised by the noble Lord, Lord Astor of Hever, about early identification of problems. In many cases that identification should happen pre-school, before even the baseline assessment comes into play. But we know that there are problems for those not identified as having SEN before they start in reception classes in mainstream schools. We need to consider that baseline assessment so that it is more targeted in regard to SEN assessment procedures. We want to make sure that no child drops through the cracks. We shall work with parents throughout, recognising that parents have a unique perspective on this.
We are quite clear that there will be a continuing and increasingly demanding role for special schools. We want to build on the expertise they have developed. We want them to become centres of excellence, working directly with children with complex special educational needs but also providing support to their mainstream colleagues. As with so much in the Green Paper, we
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know that that transformation will not happen overnight. Staff in special schools will need training to work alongside their mainstream colleagues; and they will need the time to do so. Nor should we forget that mainstream schools may have much from which special schools can learn.
In all of this we want to see a serious and continuing role for special schools. But over time we wish to see special schools providing a more flexible pattern of support. Some children will be in full time placements; others part-time or short-term. Staff will he supporting some children in mainstream schools. They will be helping mainstream schools to implement inclusion policies; and they will be a source of training and advice for mainstream colleagues. This is a challenging medium-term agenda, but it means that the term "special school" will no longer be a totally adequate reflection of what it does.
We also recognise that many different patterns of support beyond the school, to which the noble Lord, Lord Rix, referred, will be necessary to cater for the range of individual needs. At present there is a wide variation in the percentage of children in local authority areas who are educated in special schools. There is no reason why children with similar needs in different parts of the country should not have similar opportunities to attend mainstream schools; but in many cases they will need specialist support in the education and other services to take advantage of those opportunities.
When the Green Paper was launched, some people said that the Government were hostile to the process of statutory assessment and statementing. That is not the case. What we are concerned about is that, in some cases, the process is over-bureaucratic and not driven by children's needs. We pay tribute to the work that was done in this field some 20 years ago by the noble Baroness, Lady Warnock. She expresses some regret at the over-rigidity of the statement process, and we wish to break that down. Every statutory assessment carried out for a child whose needs could, with the right approach to funding and support, have been met without a statement means that resources that could have been used to provide support are instead diverted to bureaucratic procedures.
The question of resources, raised by the noble Lord, Lord Addington, is central to people's approach to the Green Paper. In regard to access to mainstream schools for children with special educational needs, we have already provided a substantial increase under the schools access initiative. In 1998–99, £11 million will be available in that area, compared with the £4 million allocated in 1997–98. The Secretary of State has also made clear his commitment to providing resources for this area in general.
A number of other points were raised. The noble Baroness, Lady Nicholson, requested that we should hold discussions on these issues. I note the points that she made and the difficulties experienced by some children with special educational needs in mainstream schools. The noble Baroness may wish to speak to me, but my friend, Estelle Morris, who has special

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responsibility for that area, would also be willing to have a discussion with her, as she has already with the noble Baroness, Lady Blatch.
I assure the noble Lady, Lady Kinloss, that the Qualifications and Curriculum Authority is already working on the issues to which she refers. The outcome will be seen shortly. I recognise the important point made by the noble Lord, Lord Pearson, about post-16 provision. I shall refer his comments back to the department.
The Government are quite clear about the direction in which they want to move in relation to provision in mainstream schools. But they are also quite clear about the vital importance of developing and changing specialist schools. As the noble Lord, Lord Rix, said, a society that fails to educate all its citizens is failing all its citizens. We understand that point. We look forward to further consultation on the Green Paper and further discussion in this House. Certainly, the points made by your Lordships, including some to which I have not had time to reply, will be reflected back to the department during consideration of the Green Paper.

Crime and Disorder Bill [H.L.]
8.42 p.m.
House again in Committee on Clause 1.
The Deputy Chairman of Committees (Baroness Turner of Camden): I have to inform the Committee that, if Amendment No. 21 is agreed to, I cannot call Amendment No. 22.
Lord Thomas of Gresford moved Amendment No. 21:
Page 2, line 29, leave out from ("order,") to end of line 34 and insert ("his conduct shall be punishable as a contempt of court.").
The noble Lord said: We have exhausted the making of the antisocial behaviour order and we now turn to the next stage; namely, the enforcement of that order. We are now in a position where the Government envisage that conduct which is not necessarily criminal may lead to an antisocial behaviour order, and a breach of that order by conduct which is not otherwise criminal can yet make the offender endure the slam of the prison door.
The word for the day that has percolated our discussions in Committee is "flexible". Everything about this Bill is "flexible", except the noble Lord, Lord Williams of Mostyn, and those supporting him. I hope that the noble Lord will take the trouble to consider, with the open mind that he always promises us he has, the proposal that I put forward by way of this amendment. Its purpose is to substitute a far more flexible and sensible method of dealing with a person who is in breach of an antisocial behaviour order than is set out in subsection (9).
The noble Lord, Lord Williams of Mostyn, has said that the antisocial behaviour order is a civil order; it is no part of a criminal regime; it is analogous to an injunction. One therefore has to wonder why the noble
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Lord does not go "the full Monty" and treat a breach of that order as though it were a breach of an injunction, and therefore a person should be punished by way of a committal for contempt.
Perhaps I may give a lightning sketch of contempt orders. The long-standing purpose of contempt proceedings was to impose sanctions for disobedience to a court order which would coerce the contemnor or offender into obedience. The normal practice, until the Contempt of Court Act, 1981, was to commit an individual to prison until such time as he chose to obey the order; and so committals, in the old days before 1981, were sine die rather than for a fixed term. If the contemnor changed his mind, then he was entitled to immediate release. But following the Phillimore Report of 1974 (Cmnd. 5794) the 1981 Act provided that, in any case where a court has power to commit a person to prison for contempt of court, the committal shall be for a fixed term and that term shall not on any occasion exceed two years in the case of a committal by a superior court, or one month in the case of committal by an inferior—that is, a magistrates'—court.
It is my argument in proposing this amendment that such a method of dealing with the offender has a flexibility that is not available in the sentences of imprisonment set out in subsection (9). First, the court has a discretionary power when dealing with a contempt to suspend the execution of the order of committal for such period or on such terms or conditions as it may specify. We were familiar in the past with suspended sentences of imprisonment. Those have now fallen out of favour; but the power still remains and may be exercised to suspend the execution of an order of committal pending good behaviour or whatever condition the court wishes to impose.
Secondly, and importantly, the court may release the offender before the end of his term of imprisonment either on his own application if he is prepared to purge his contempt and to give undertakings to the court about future obedience to the order, or alternatively on the application of the Official Solicitor, who has a duty to review the cases of all persons who are committed for contempt and to take such action as he thinks fit.
That gives an opportunity to the offender, the contemnor, to come to his senses and, instead of serving a term of up to two years' imprisonment, to come to the court and apologise and give assurances of good behaviour in the future. If he is an obstinate person who refuses to apologise, the Official Solicitor has a duty to step in and may intervene if he refuses to repent but has yet been sufficiently punished.
Subsection (7) in Clause 1 of the Bill provides for an application by the offender to the court to discharge the antisocial behaviour order. Once he is sent to prison, that is it—he is a convicted person; he is a criminal, a person who will not be released until he has served his time.
Another aspect of the contempt order is that a court may, in lieu of imprisonment, impose a fine and order costs against the offender. There is no limit in the High Court or the county court or Crown court; but there is a limit of £2,500 in respect of the magistrates'

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court. In deciding the amount of a fine instead of sending somebody to prison for contempt, the court will consider the culpability of the offender and the offender's means. There is also power in the court to take security for good behaviour and to require the offender to find sureties.
The superior courts, such as the Crown Court, have power to remand an offender for a medical report on his mental condition if there is reason to suspect that he is suffering from mental illness or severe mental impairment and may make a hospital order or a guardianship order. Again, there are provisions for young people if they are committed for detention in a young persons' institution rather than in a prison.
Very importantly, when in prison a contemnor is treated as an unconvicted prisoner and has the same privileges: he may wear his own clothing; he may receive as many visits as he wishes; and he is allowed to receive and send as many letters as he desires.
If this is a civil order analogous to an injunction that he has breached, why does he have to be treated as a common criminal? Why does he have to suffer all the indignities of a convicted person? In prison a contemnor is treated as a separate class of prisoner and is kept out of contact with convicted prisoners unless he expresses a desire to associate with them. First, the sentence can be suspended; secondly, it can be removed on his application; and, thirdly, he is treated as a separate class of prisoner and does not have to mix with other prisoners if he does not wish to do so.
It is a far more flexible order for a civil offence that he has committed—the breach of this quasi injunction. We on these Benches submit that he should be treated in that flexible kind of way. The order itself is described as flexible because it gives a wide discretion to the court. As we argued earlier today, the use of these orders by the magistrates' court is likely to be variable and subject to a wholly unstructured discretion about what to do with disruptive or tiresome neighbours.
Under these proposals a breach of the order is a criminal conviction which will appear upon the record of the individual. He will serve an ordinary sentence of imprisonment and will carry that stigma, even if he is a person who has otherwise been of completely good character.
I wish to say a word about Amendment No. 22, which has been linked with Amendment No. 21, regarding the length of the sentence. In my experience, it is inconceivable that an offender could be sentenced to imprisonment for five years, which is the length of sentence on indictment envisaged in the Bill, for conduct which did not otherwise amount to a serious criminal offence. If he has done something serious, he will be tried for assault, for wounding or for whatever it may be. For a person to be sentenced for up to five years' imprisonment for breaching what is described as a civil order is, in my respectful submission—if I may use that expression in your Lordships' House—scandalous.
If we compare the public order legislation, under the previous Tory Government, what do we find? In the Public Order Act 1986 a violent disorder offence carries
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a maximum sentence of five years' imprisonment. Breach of this quasi-injunction is being equated with a Tory violent disorder provision attracting a sentence of five years' imprisonment. For affray the previous government said that a sentence of three years was the maximum. For threatening, abusive or insulting behaviour, six months is the maximum.
I drew attention earlier today to the Criminal Justice and Public Order Act 1994 which created the offence of intentional causing of harassment by the use of abusive or insulting words or behaviour or the display of any writing, sign or other visible representation which is threatening, abusive or insulting. The maximum sentence for that offence is six months' imprisonment. Even in 1994, when things were going pretty well over the top under the previous government, an offence of a similar nature which also had the ingredient of having to be intentional and having the specific means of carrying the harassment, alarm or distress as part of it carried a maximum sentence of six months' imprisonment.
The ferocity of the sentencing power in this Bill is extraordinary. It can only be window-dressing. As the noble Lord, Lord Renton, said, Secretaries of State vary so much. Indeed, in the past few years we have witnessed rhetoric which distorted the whole of the criminal justice system, pushed up sentences of imprisonment and filled the gaols to overflowing even before their legislation came into effect.
I had hoped that the new Administration would have got over that aberrant period and would not have thought it necessary to inflict even longer sentences of imprisonment than did their predecessors. Ordinary terms of imprisonment are not the answer to the problem addressed in this Bill. Prison will not make the offender truly and earnestly repent and be in love and charity with his neighbours. I beg to move.
Lord Hylton: The noble Lord, Lord Thomas of Gresford, made out a formidable case for his amendment. I wish to support it on the grounds that it will tend to limit the number of people sentenced to prison and the length of time that they are likely to spend there and that those perhaps few—they may turn out to be a small number—who are sent to prison will be subject to a more liberal and humane regime.
Lord Northbourne: I am not at all happy about the Bill as drafted in this context and support the noble Lord, Lord Thomas. It seems to me that the Bill goes completely over the top with a potential penalty of five years' imprisonment for what may be just be a bit of bad behaviour by an adolescent. For heaven's sake, all of us were young once. Surely we remember the time when we thought it was rather funny to do something which cheeked older people and perhaps to do it again when we were told not to do it? Surely there were times when some of us got a little drunk, or even perhaps quite a lot drunk? Whether we accept Amendment No. 21,

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Amendment No. 22 or some other amendment, I believe that the Bill as drafted is not sensible and will be profoundly unfair.
Lord Monson: I added my name to Amendment No. 22 because, like the noble Lord, Lord Thomas of Gresford, and my noble friends on these Benches, I believe that a maximum of five years' imprisonment is quite excessive for an offence of this nature.
Whenever one casts doubt upon the desirability of even higher maximum sentences, the Home Office Minister of the day invariably says, as I dare say the noble Lord, Lord Williams, will say tonight, "Yes, but do remember that the maximum sentence is only a maximum; the courts are under no obligation ever to impose it in practice". That may well be so, but I submit that a maximum sentence which looks preposterously high to the man in the street will bring the law into disrepute and will therefore be counter-productive.
Lord Henley: My name is down to one of these amendments and it might be helpful if I say a word or two. I do not intend to follow the noble Lord, Lord Thomas of Gresford, on the subject of sentences. I am sure that the Government are well able to defend their own policies and to justify the inclusion of a maximum sentence of five years for offences which I dare say on some occasions could be very serious indeed.
The amendment I wish to speak about is Amendment No. 24, which has been grouped with Amendments Nos. 21, 22 and 37. The noble Lord, Lord Goodhart, has added his name to that amendment. I put it down merely as a probing amendment because I wanted to know, first, what subsection (10) was about. I think I have worked that out now: it will not be available to the court to make an order of conditional discharge. Secondly, I should like to know why that should be the case and why the Government feel that that discretion should not be open to the court. Just as there will be occasions when the offence is of the utmost seriousness and therefore the court may wish to make use of the maximum powers available, there will be occasions when such a decision would not be right and where the minimum would be required. For that reason I believe there may be occasions when an order for conditional discharge could be made. I look forward with interest to hearing what the Minister has to say.
9 p.m.
Lord Goodhart: My noble friend Lord Thomas of Gresford spoke eloquently and powerfully on Amendment No. 22, and at this time of the night I do not wish to add anything to what he said except to say that I am in complete support of everything he said, both on the question of substituting the punishment for contempt rather than a gaol sentence and also on the length of the sentence if a gaol sentence was to be imposed.
I should like to add a few words on Amendments Nos. 24 and 37 which have perhaps been wrongly grouped with Amendment No. 22. They raise a different point, as the noble Lord, Lord Henley, said. They are
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more than simply probing amendments. They relate to the question of why the power of the court to punish a breach of an order by a conditional discharge has been excluded. The same point arises in the case of the anti-social behaviour order and in the sex offender order in Clause 2(9) which is covered by Amendment No. 37.
What is the point of excluding the power to grant a conditional discharge? It is a useful weapon in any court's armoury. It leaves the possibility of having a sentence hanging over the offender's head if a further offence—not necessarily an offence of the same kind—is committed. It may well be that there are cases where that is the appropriate order. As matters now stand, if the possibility of a conditional discharge is excluded and the courts find themselves in a situation where there has been a breach of the order which they regard as trivial, they can still deal with that. They can indicate that they regard it as trivial by imposing a nominal fine of £5 or £10 or something like that. Why should small fines be allowed but, at the same time, the court be refused the power to order a conditional discharge which may well, in those circumstances, have a stronger deterrent effect?
The subsections appear to be without logical justification and are explicable only on the basis of a distrust of the courts. I believe them to be wholly unjustified.
Lord Dholakia: Perhaps I may add a further dimension in relation to Amendment No. 22, which I support and for which a strong case has been made out.
It is an accepted principle that the use of imprisonment and the length of a prison sentence takes into account the seriousness of the offence. That was acknowledged by the Government in the White Paper, Community Safety Order. That paper stated that proceedings for breach of an order would be dealt with summarily.
I do not dispute that, from time to time, there may be cases where imprisonment for a period over two years may be justified—not for the breach alone, but due to persistent criminal behaviour. What worries me is that none of that behaviour has to be proved to the criminal standard. The normal procedure available to defendants in criminal proceedings should not be set aside in a process which can result in a serious criminal conviction and a lengthy prison sentence.
Baroness David: I support Amendments Nos. 24 and 37. I was mystified as to why the possibility of a conditional discharge was put out of court, so to speak, and look forward to hearing the explanation for that from my noble friend.
Lord Williams of Mostyn: Amendments Nos. 21, 22, 24 and 37 are grouped together and I shall speak to them all together. They go to the heart of the policy on the new orders. We want a two-stage process: first, the civil order with preventative force acting like an injunction but not a perfect twin to an injunction; secondly, punishment for breach of an order by a criminal offence.

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The reason for that is very strong. Anti-social behaviour is a menace on our streets; it is a threat to our communities. We aim to prevent it as far as we may. A civil order is part of the regime for doing that. But, ultimately, we regard such behaviour as criminal. If it cannot be stopped at stage one—the order, after the safeguards I identified earlier—it must be recognised and dealt with for what it is. That is why we made the deliberate decision to invoke the criminal law at the breach of the order stage.
I deal now with some hyperbole. This is by no means unprecedented. If one looks at the Protection from Harassment Act 1997, Section 3 provides that,
"A complainant may obtain an injunction against a defendant from the High Court or the county court".
If there is in fact a breach of such an injunction granted by the High Court or the county court, and the defendant, without reasonable cause, commits a prohibitive act, he is guilty of an offence. What further happens if he is found guilty of that criminal offence? He is liable on conviction on indictment to imprisonment for a term not exceeding five years or a fine, or both.
Lord Goodhart: Will the Minister accept that there are two vital differences in the case of an order under the Protection from Harassment Act which distinguish it from the proposed order under the Bill? One is that under the Protection from Harassment Act a restraining order or injunction can only be made following an actual conviction for criminal harassment, and the making of the order requires a criminal standard of proof. Secondly, the restraining order can only be broken by an act which is itself a breach of the general criminal law of the land.
Lord Williams of Mostyn: That does not go to the point of principle being addressed earlier by the noble Lord, Lord Thomas of Gresford; in fact, it does not bite on it at all.
If one looks at Section 3 of the Protection from Harassment Act 1997 an actual or apprehended breach of Section 1 may be the subject of a claim and an injunction may be granted. My point, to which I return because it will not elude us, is that on breach of the injunction, the conviction on indictment carries a maximum sentence not exceeding five years, a fine or both.
The injunction itself is analogous, we suggest, to an antisocial behaviour order. Perhaps I may tease out one or two further points in the spirit of flexibility and open mindedness for which I have been so often, and indeed, rightly, commended. What the noble Lord, Lord Thomas of Gresford, wishes is this. A man is subject to an antisocial behaviour order. He breaches it. It may be grossly, wilfully and continuously breached. We say, balancing all things as they are duly appropriate, that if it is relatively minor, on summary conviction the offender may be dealt with by imprisonment of not more than six months—the usual magistrates' court limit. On indictment, he may suffer a penalty of up to five years. So introduced there, as is customary in our law, is that if a sentence of more than six months—I omit the
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occasional two consecutive sentences in the magistrates' court—is to be passed, a man or woman can look in our system to trial by jury. That is what our system provides. But the noble Lord, Lord Thomas of Gresford, does not wish that as a safeguard for a defendant. He wants judge, and judge alone, to decide on guilt and sentence up to five years.
Lord Thomas of Gresford: In answer to my query, what circumstances does the noble Lord envisage would have to have occurred for a five-year sentence of imprisonment to be passed for a breach of one of his antisocial behaviour orders and where a more serious offence has not been committed?
Lord Williams of Mostyn: My learned friend is like the mariner upon the icebergs. One of them is sinking and so he jumps on to the other one. I just want to sink the first one fully. I return to my point. If someone is liable to serious consequences by way of extensive imprisonment, our regime—liberal, enlightened and well informed—is that the man should be tried by a jury.
Lord Thomas of Gresford: Does the noble Lord intend, therefore, to change the system of civil injunctions so that anyone who is liable to two years' imprisonment for a breach of a civil injunction will now face trial by jury?
Lord Williams of Mostyn: No, because at the moment, as is normal in these circumstances, we are dealing with law reform one step at a time. What I am attending to now is the proposition that the noble Lord put forward. I do not mind if he is sorry that he put it forward when I expose what might charitably be described as internal self-contradictions.
There are circumstances that we know well—they are possibly rare but not as rare as we want them to be—where the kind of behaviour, but much, much worse, that my noble friend Lord Mishcon referred to earlier—racist behaviour—may have continued for a significant period of time, with people having no redress.
Lord Northbourne: Will the noble Lord give way?
Lord Williams of Mostyn: I am trying to answer the noble Lord, Lord Thomas of Gresford. I am perfectly happy to answer all conceivable questions on all possible subjects but I want to deal with the noble Lord's specific question. We reach the situation where the only redress for the individual citizen—black, white or whatever—is to try to establish through the relevant authority (a local authority or the police) that the order is required. If behaviour of that kind continues time and again even after the offender has been brought to court, even after the proceedings have been introduced, there

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may well be extreme circumstances where a five-year sentence would be justified. I can easily conceive of those circumstances. I now give way.
Lord Northbourne: I was going to ask the noble Lord whether under those circumstances the offender could not have been indicted under other legislation, possibly the Race Relations Act.
Lord Williams of Mostyn: The noble Lord's point is well made. If that were so, the prosecuting authorities would have their choices, as they have choices now, as to the basis on which they wished to bring charges against a particular individual. If that were so, that might be the appropriate action to take. What we are offering here—I know that the noble Lord, Lord Monson, anticipated my answer—is a maximum. It is a maximum which may be of utility in some circumstances. It is a maximum also which is intended to demonstrate the seriousness with which we regard this type of activity in certain circumstances.
I stress that imprisonment follows only when the order has been made, when criminal proof of the order has been demonstrated and when the defendant has the safeguard, if he wishes it, of trial by jury before he is exposed to a sentence of any more than six months.
I believe that we have put the balance right. I am very glad to have had the opportunity to deal with these questions and these propositions. I believe that the five-year maximum may never be used or very rarely indeed. It may well be appropriate in the circumstances which I have described.
We now come to the linked questions of Amendments Nos. 24 and 37, which I believe the noble Lords, Lord Henley and Lord Goodhart, rightly put in tandem because they address a slightly different aspect of the problem. As both noble Lords have identified, the consequence is that the conditional discharge will not be available. If a breach of the order is alleged there is provision for the defence of reasonable excuse. So for the breach to be proved that would have to be disproved by the court. To allow a further conditional discharge is really serving a further order, a further final warning and a further last resort.
We have come to the conclusion that that is otiose. The original seeking of the order gives a message to the defendant which is, "Carry on like this and serious consequences may well come about. If you breach the order there will be criminal sanctions." For a conditional discharge to follow a breach there will be the same statement over again. It ignores the original order and we shall be back in a situation which most people have regarded as foolish in the extreme; namely, caution, caution and caution.
We have come to the policy conclusion that if, without reasonable excuse, which is a defence, a breach of the order occurs, it must mean that the defendant has continued in his actions in defiance of the court and in the knowledge that his conduct will be viewed in that way. It means that he has a pattern of behaviour that he either cannot or will not control. In that context, with
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all the safeguards built in, we believe we are right not to accept these amendments. We are talking about serious matters. I recognise the rights of defendants. We believe in giving the defendant the opportunity of trial by jury and the reasonable excuse defence. We believe that that is the right outcome. We do not believe that a conditional discharge, which so often, as they say in the trade, is just a slap on wrist with a wet lettuce, is appropriate.
9.15 p.m.
Lord Goodhart: Would it be possible for the court to impose a fine of £5 or £10 or does the Minister intend to exclude that power as well?
Lord Williams of Mostyn: The noble Lord has rightly scanned the Bill and come to the same conclusion as I have. A fine is possible, but a conditional discharge is not.
Lord Northbourne: I am sorry to delay the Committee. Can the noble Lord give me an example of a situation in which the five-year prison sentence would be appropriate and which could not and should not be dealt with under other legislation?
Lord Williams of Mostyn: It may well be that there are evidential difficulties with other legislation, but I do not know. I cannot possibly scan all possible hypothetical situations. We are saying two things: firstly, this is serious business to which we are intent and, secondly, the prosecutor still has the discretion to choose the appropriate charge. I do not believe anyone in this Committee has any doubt that there is serious social mischief here.
Lord Renton: In support of what the noble Lord, Lord Williams, has said and with deep respect to the noble Lord, Lord Northbourne, it is a fairly frequent practice, when drafting indictments, to create more than one offence out of the same facts. The prosecution need to play for safety. If it does not get a finding against one statute, it may do so against another. So, as a matter of precaution, that is done quite frequently.
Lord Thomas of Gresford: It is a sad day that the Government Benches have to support their arguments by reference to the final kick of the previous Home Secretary in the previous administration; namely, the Protection from Harassment Act. I am glad that the noble Lord, Lord Williams, referred to that legislation because I attacked it root and branch for precisely the same reasons as I am attacking this. I put forward a scheme very similar to what I am arguing today. I am completely consistent. Unhappily, the Labour Government have followed in the footsteps of their predecessors. As I say, it is a very sad day. That legislation was swallowed up in the rush to get things on the statute book just before the general election. It is for that reason and because the Government are now relying on the last Act of the previous Home Secretary that I welcome the lack of support from the Conservative Front Bench. That rather makes my point.

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However, I most warmly welcome the support that I have received from other noble Lords, including my noble friends, who have recognised the importance of this point.
When the noble Lord, Lord Williams of Mostyn, uses the word "serious", which is now replacing "flexible" as the word of the night, is he suggesting that I am joking? Is he suggesting that I do not appreciate that there is a social evil which has to be addressed? But that social evil has to be addressed with regard to the liberties of the people of this country. These matters should be dealt with properly and sensibly.
The noble Lord was unable to answer the questions put to him by the noble Lord, Lord Northbourne, and was unable to name a single circumstance that he could envisage in which a five-year sentence could be imposed when another criminal offence had not been committed. If the argument is that a person may be in breach of the order time and again, the answer is that under my proposals he could go to prison for up to two years at a time on each breach. This is a serious matter. I do not propose to press the amendment tonight for obvious reasons, but I assure the noble Lord, Lord Williams, that I shall return to it in due course. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.22 not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 23:
Page 2, line 34, at end insert—
("( ) Proceedings under subsection (9) above may be instituted by a relevant authority.").
The noble Baroness said: We come to one of my amendments on which I do not think that I have yet had an answer from the Minister. The purpose of the amendment is to ensure that the relevant authority—that is, the police and the local authority combined—will be able to apply directly to the courts for conviction in the case of a breach of an antisocial behaviour order. That is partly so that the Crown Prosecution Service will not be able to exercise a veto. It is felt that the CPS might exercise a veto because, on the whole, it is concerned with probably more serious criminal offences than those that may have led to the passing of the order in the first place. It is also felt that the CPS might not be sympathetic to what has gone before or to the long-term harassment and distress of those affected by such behaviour.
More seriously perhaps, the amendment relates to the necessity of achieving a speedy prosecution. If people have been subjected to racial taunts, graffiti, harassment and distress over a period of many weeks or months and, despite the imposition of an order, the distress and harassment continue, it is essential (both in terms of respect for this whole new system and in order to alleviate the distress of those affected and to rescue them from their awful situation) that criminal proceedings can be instituted with the greatest possible rapidity and that some of the law's delays can be obviated.
Local authorities have considerable experience of prosecuting cases in various fields. Therefore, it is not necessary to involve the Crown Prosecution Service. I think that this is one instance where the police and the local authorities combined could be trusted to proceed directly to court and to apply for proceedings in relation to a breach of an antisocial behaviour order. I beg to move.
Lord Falconer of Thoroton: The effect of the Bill as drafted is that if criminal proceedings are brought they should be treated in the normal way and just like any other criminal proceedings; namely, the prosecution should be in the hands of the Crown Prosecution Service. My noble friend Lord Williams of Mostyn has described the reasons why the policy decision has been taken that once a breach is established it should be dealt with not as a matter of civil remedy but as a matter of criminal offence. In those circumstances, the logic of that policy decision is that the matter should be dealt with by an independent prosecutor like any other serious criminal offence—namely, the Crown Prosecution Service—following investigation by the police. The CPS decides whether or not a prosecution should be brought or continue. That is the logic of our position, and I believe that that is the correct approach to take in relation to it.
I do not believe that the concern of my noble friend is justified. Her concern is that, if a local authority is prosecuting, the matter will be dealt with more quickly than it would be by the CPS. One hopes that the CPS would establish appropriate internal guidelines to make it possible for these matters to be dealt with quickly and expeditiously, particularly where a victim was suffering as a result of the antisocial behaviour that gave rise to the order in the first place and the criminal proceedings in respect of breach.
Although my noble friend raises an important point I believe that the decision to treat this matter like any other criminal offence is the right one both logically and practically. I hope that my noble friend will reconsider the matter and seek to withdraw her amendment.
Baroness Hilton of Eggardon: I understand the logic of treating the matter via the Crown Prosecution Service. The difference is that this will be part of an ongoing series of offences rather than a single offence. Normally, a single offence is committed and the matter is then concluded, but in the case of harassment and distress, as here, there is an ongoing situation which is not like a single act of burglary, murder or other criminal offence. I believe that it is therefore qualitatively different. However, I would like to consider what my noble and learned friend has said. In the circumstances I seek leave to withdraw my amendment, which I may return to at a later stage.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn] moved Amendment No. 25:
Page 2, line 40, after ("section") insert—
(""the commencement date" means the date of the commencement of this section;").
The noble Lord said: I have already spoken to Amendment No. 25. I beg to move.
On Question, amendment agreed to.
Lord Henley Lord Henley] moved Amendment No. 26:
Page 2, line 43, at end insert—
("( ) The Secretary of State shall within two years of this section coming into effect make a report to Parliament on the working of anti-social behaviour orders.").
The noble Lord said: I promise to be brief. We come more or less to the end of Clause 1. Given that there are a further 95 clauses to go, I do not intend to delay the Committee on clause stand part on this particular clause. This afternoon we have had a pretty thorough discussion on a single clause, albeit one of the more important ones in the Bill. This and a number of other similar amendments in my name which relate to other clauses were originally grouped together. However, I felt it better to reserve the right to take them separately and ungroup them.
Amendment No. 26 is designed purely to ask the Secretary of State within two years of the provision coming into effect to make a report to Parliament upon its working. I move the amendment purely on the basis that this is a new concept in terms of antisocial behaviour orders. The same is true of some of the other later amendments.
It may be that these orders will prove very effective; they may prove to be ineffective. I considered tabling sunset amendments to this clause which would have ceased to have effect after a certain period unless Parliament decided otherwise. Having considered the matter, I thought it best to leave them as they were and merely ask the Secretary of State to make a report to Parliament so that Parliament would have an opportunity to debate the working of the provision. No doubt the noble Lord or the noble and learned Lord—I do not know who will reply to this debate—will resist this with his usual flexibility and tolerance. I believe that this is an important matter. It is important that with new concepts of this kind Parliament should in due course have an opportunity to examine how they are working and decide whether they are as effective as both we and the Government hope they will be. I beg to move.
9.30 p.m.
Lord Renton: I hope that the Government will not resist the amendment which I regard as one of great importance. Unless a report is made to Parliament from time to time, Parliament will not know how the Bill is working out. It breaks new ground of an unusual kind. Even if the Government cannot accept the amendment tonight, I hope that they will keep their minds open because, it is, as I said, an important matter.
The Earl of Mar and Kellie: It is important that Parliament hears how this new measure is working out.
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I shall pick up two points which have emerged during the past few minutes. First, I am strongly in favour of the rapid response to a breach of the antisocial behaviour order that the noble Baroness, Lady Hilton, recommended. That is especially important if offenders are young.
The second point relates to what the Minister said. It may have been a slip of the tongue, but he referred to people who cannot or will not control their behaviour. I am not certain that someone who cannot control his behaviour should be placed under such an order. As a criminal justice social worker I was brought up to believe that one should not set people up to fail. I may be reading too much into the casual expression, "cannot control his behaviour", but such a person should perhaps be made the subject of a probation order. Someone who cannot control his behaviour should not be made the subject of an unsupervised order. I wonder whether I picked up the Minister correctly.
Lord Williams of Mostyn: It was not a slip of the tongue. Some people are violent criminals. They cannot or will not control their behaviour, because they often enjoy their thuggery and violent behaviour. If it comes to a choice between protecting the public on the basis that they will not or they cannot, then I regret to say that simple supervision by a social worker is not a remedy in every case. It was no slip of the tongue.
I turn to the amendment. I agree entirely with noble Lords who have said that a review of the success or otherwise of legislation is desirable. It will tell us what we may have done wrong, what lessons we can learn for the future, upon the basis of what past experience shows. I can say to the noble Lord, Lord Renton, that we are increasingly looking to do that on a regular basis.
Even now we are looking at proposals to review the early workings of two recent pieces of legislation from 1997—the Sex Offenders Act and the Protection from Harassment Act—both of which broke new ground in the criminal field. We believe that that should be normal practice. So I welcome encouragement to do that. The only difference between us is whether we provide that on the face of the Bill or continue the workings of review which can be the subject of Question and debate in this place.
We believe that it is not necessary to provide for review on the face of the Bill. There was no review on the face of the Sex Offenders Act and the Protection from Harassment Act. I forestall the noble Lord, Lord Thomas of Gresford, by saying that just because they were Conservative Acts I should necessarily follow them. We believe that there is a strong case for continuing scrutiny, but that that should be done in the way that we are doing it rather than have it as a statutory obligation.

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I hope that the Committee will take my rejoinder in the way that I took its inquiries; namely, that we need information; we need periodic review; but it is better done in the way that I suggest rather than on the face of the Bill.
Lord Renton: The Minister has given an encouraging reply, but he did not mention the possibility of reporting to Parliament, which is important and the essence of the amendment.
Lord Williams of Mostyn: I believe that I did, because I indicated that, periodically, as the reviews develop there is the opportunity for a short debate in this Chamber and Answers to oral Questions or Written Questions. A short debate in this place, of which there are occasional examples, is beneficial, because specialists in particular areas can ask about the conduct of reviews. We are united in spirit and I hope that the noble Lord will not press his amendment to the point of having a statutory obligation.
Lord McNally: This is my maiden intervention as home affairs spokesman for the Liberal Democrat Benches. I have remained silent partly out of the trepidation of crossing a fluent Welsh Silk, which is why I have come armed with one of my own! However, I find great encouragement in the Minister's comments.
During recent years, there has been the danger of producing a ratchet effect in our laws. The idea has been that more draconian measures and more imprisonment will solve the problem of crime and disorder. We must take stock of such measures, whichever Administration introduced them, so that we do not continue to fool ourselves that we are on the right road simply because we are responding to popular demand. There is a need for cool assessment and Parliament is the place to undertake that.
Lord Henley: Like the noble Lord, Lord McNally, I am neither Welsh nor a Silk, nor ever likely to be. I, too, found the Minister's answer relatively encouraging. However, at this time of night I should not wish to press such an amendment; nor should I wish to press it on another occasion, although I might wish to raise the matter in respect of a number of other clauses.
The Minister said that the Home Office would keep these matters under review and from time to time make reports. Do I understand that the reports will be available to Parliament and therefore open to my noble friend Lord Renton or myself to find a way to debate them? Our ingenuity is such that we can always find ways to debate them.
Secondly, speaking with authority as a Minister, can the noble Lord go a little further and give the Committee an idea of the timescale within which the Home Office will review such clauses? When will it make pronouncements about the workings of this clause or others?
Lord Williams of Mostyn: That would depend on the date of commencement. All noble Lords have welcomed the process of consultation and guidelines.
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However, perhaps I may say without prejudice that it would not be unreasonable to be looking at a review of the way in which the provisions had worked in practice after 18 months or two years of the relevant clause coming into effect. That would give local authorities and police authorities an opportunity to bring issues before the courts. I speak without deep thought or consultation. but that timescale would seem to be appropriate. I notice that two years was the period which the noble Lord had in mind.
Lord Henley: I am grateful for the Minister's response. He went much further than I expected him to go at this stage in offering some kind of timescale. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon] moved Amendment No. 27:
After Clause I. insert the following new clause—
EXCHANGE OF INFORMATION BETWEEN LOCAL AUTHORITIES AND POLICE
(" . After section 28(4) of the Data Protection Act 1984 there shall he inserted the following subsection—
"(4A) A local authority is acting for the purposes referred to in subsection (I)(a) and (b) when investigating any matters which amount to or could amount to a criminal offence notwithstanding that the local authority may be considering civil rather than criminal proceedings as a result of those investigations.".").
The noble Baroness said: The amendment attempts to address a long-standing problem. I have 40 years' experience—your Lordships will be glad to hear that I shall not detail it—of the difficulties of exchanging information between different organisations with different cultures. Mutual suspicion about motivation and what people will do with their precious information can be extremely inhibiting. There are specific legal problems, too. The Data Protection Act, for example, has prevented the exchange of information which may be held on computers. Fear of our draconian libel laws has been another reason for prohibiting the free exchange of information about paedophiles. Sometimes police forces must resort to nods, winks and nudges to inform social workers that perhaps they should look more closely at somebody's background.
Therefore, it is a long-standing problem in relation to the free exchange of information between different organisations. This amendment proposes a way in which, at least under the Data Protection Act, the matter might be dealt with so that information on computers relating to crime prevention can be freely exchanged. But this is intended entirely as a probing amendment. I hope to hear how the Government believe that they can encourage the exchange of information in that field. Common databases could perhaps be set up and formal links established in that way. I hope that the Minister will have some constructive suggestions about how police and local authorities might combine together to set up databases of information to deal with those problems. I beg to move.
Lord Williams of Mostyn: I am grateful to my noble friend for tabling this amendment. As she may know,

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my honourable friend Alun Michael and I had a lengthy and fruitful discussion with the Local Government Association about the legitimate concerns which local authorities have, and, of course, consequentially, police authorities have, about the duties which will be laid upon them as a result of the Bill.
As the Committee will know, the Data Protection Act 1984 will be superseded by the Data Protection Bill currently before your Lordships' House which the Solicitor-General and I are presently conducting.
I accept that the amendment is probing. It attempts to exempt certain applications for antisocial behaviour orders from the full regime of data protection. It seems to me—and I believe that my noble friend confirmed this—that the key point is to make sure that statutory bodies, for example, police authorities and health authorities, can exchange and use information for purposes envisaged in the Bill without fear of legal attack.
At present we are giving careful consideration to see whether there is sufficient legal protection for those authorities which properly share information where it is necessary for the purposes of the Bill. I can say to my noble friend that we are determined to remove any doubt about the extent of the power of such bodies to do so. That is the fundamental point and I am grateful to my noble friend for raising the issue. I hope that I have given my noble friend sufficient reassurance.
Baroness Hilton of Eggardon: I am grateful for that extremely encouraging response. I feared that this amendment might not fit the bill but I am extremely pleased that the Government are addressing the problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Sex offender orders]:
Lord Henley Lord Henley] moved Amendment No. 28:
Page 3. line 6, leave out ("serious").
The noble Lord said: This simple amendment is self-explanatory. At present, before orders can be made under Clause 2, it must be shown,
"that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him".
We are merely suggesting with this amendment, and Amendment No. 30 which is related to it and to which I also speak, that the word "serious" should be deleted.
I raise the matter partly because I wish to know exactly what "serious" means on this occasion. Secondly, a more substantial point, I wish to question whether the inclusion of the word "serious" is really necessary, bearing in mind the very real danger presented by certain sex offenders to young children. I am thinking of paedophiles in particular. I wonder whether the word "harm" alone would be sufficient. I bear in mind the possibility that certain lawyers may wish to use a considerable amount of court time arguing that although harm might come of whatever was threatened by the individual, it would not be serious harm. I do not believe that we would wish to see that
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happen. I hope therefore that the Minister who is to respond to the amendment will be able to give me some reassurance on both those points. I beg to move.
9.45 p.m.
Lord Goodhart: In speaking to Clause 1(1) earlier, I sought to persuade the Government to include a reference to alarm or distress being serious. I am sure, therefore, that it will come as no surprise to the Minister that, on this occasion, I wish to support the Government in the retention of the word "serious" and that I cannot support the proposed amendment.
The sex offender order is an extremely powerful one; indeed, it could quite properly be described as draconian. It is therefore an order which should only be introduced and made applicable to a person where there is a real risk of serious harm. The way that the Government have drafted the wording seems to me appropriate on this occasion.
Lord Thomas of Gresford: Can the Minister indicate what sort of conduct is envisaged by this paragraph in the clause which would cause harm or serious harm and which does not amount to an offence in itself? In this particular instance. I find it difficult to understand. For example, stalking is now an offence. So what particular kind of harm is envisaged that this sex offender order will prevent?
Lord Williams of Mostyn: I am bound to say that I have a certain sympathy with the purpose behind these two amendments. The whole purpose of the proposed new sex offender order is to protect the public, especially its most vulnerable members, and it is tempting to see that as the only consideration. I have to tell the Committee that we have looked long and hard at this definition and there has been much anxious discussion about it. We came to the decision that we should not dilute the test of serious harm. If one looks at the order, it will be seen that we start from the presumption that a person is a sex offender. That covers all offences in Schedule I to the Sex Offenders Act 1997 and all disposals. including cautions.
After the commencement of the clause, if an offender acts in such a way as to give cause for concern, that does not necessarily mean a further offence. The behaviour may be unexceptionable if it were not for his past history. I take note of the point made by the noble Lord, Lord Thomas, in that respect. Stalking may be an offence as, indeed, may other forms of harassment. However, the noble Lord and I know perfectly well from a recent notorious case in north Wales, which I shall mention generally only, that one can have the classic example of watching children in a school playground. The activity in itself is, of course, potentially neutral, but with the knowledge of the offender's previous history and activities it no longer remains so. Therefore, what one has here is, I believe, a fair balance. There has to be reasonable cause to believe that an order is necessary to protect the public from serious harm. Of course the paedophile who may be devious, who may have a large number of previous convictions—but, equally dangerous, who may not have a large number of

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relevant previous convictions—and who is acting in that way, really needs to be caught by such an order. It would be very difficult to categorise that sort of action as a criminal offence at present, but it needs to be caught.
I am happy that the noble Lord posed the question because it is the sort of question with which officials and Ministers have been wrestling for some time. There is no doubt at all about the enormous and well-justified public anger over some recent cases where sometimes the law is powerless, even when children are involved. I believe that that has been a matter of reproach to all of us on all sides of the Committee.
It is indeed a narrow line we are walking and I do not overlook that fact. As the noble Lord, Lord Goodhart, said earlier, we must bear in mind that it is very easy to be benevolent in the human rights context to nice people who are reasonable and as open-mindedly flexible as we all are here. However, it is much more difficult to bear in mind that others also have rights.
Therefore the order sought will be preventive only, but it may prevent an individual from actions which for another individual—as I have indicated—might be neutral. I use the word "neutral" but perhaps a better word is "unremarkable". We must have justification for this measure and we feel that the words "serious harm" constitute the proper level to achieve that. The term "serious harm" is used in the Criminal Justice Act 1991 covering psychological and physical harm. Protecting the public from serious harm under Section 31(3) of the 1991 Act constitutes violent or sexual offences. Although this is not a decision that one can reach with any absolute conviction, we believe that we have the balance about right. It is difficult to achieve a balance here between human rights in their broadest sense and the absolute necessity of protecting, in particular, children. What we have tried to balance is the question of reasonable cause and, on the other hand, serious harm.
We must bear in mind that the police do not have to prove that an order is necessary to protect the public from serious harm; all they have to prove in this regard is that the person has acted in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm. I believe that we have reached a difficult conclusion which is probably the right one. However, I entirely respect what has been said; this is a delicate balance to achieve. We believe that if we take the word "serious" away, that would constitute an undue infringement. We have balanced reasonable cause with the prospect of serious harm. I regret that I cannot accept the amendment. All Members of the Committee who have spoken recognise the problem and are aware of the difficulties. One can only trust that one has achieved the right balance.
The Earl of Mar and Kellie: I support what the Minister has said. I believe that paedophilia is generally untreatable. I also think that any act of paedophilia constitutes serious harm. I question whether there is
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anything that a paedophile does which is not serious. Therefore I think it would be wrong even to suggest that such an act is just harmful; it is seriously harmful.
Lord Elton: I wonder whether the Minister can enlighten me on a small point as to the definition of a sex offender, which on the face of it is pretty simple. Is it or is it not the case that sex offences are subject to the Rehabilitation of Offenders Act, in which case there may be people in this category who are not known? That seems to me to affect the way the Bill will work when it becomes an Act. I wonder whether the Minister can tell me that.
Lord Williams of Mostyn: The definition of sex offender is someone who has committed any offence covered in Schedule 1 of the Sex Offenders Act 1997. I always shudder at specific questions from so informed a source as the noble Lord, Lord Elton. My recollection is that the Rehabilitation of Offenders Act relates to the Sex Offenders Act. If I may, I shall research further the specific connection which the noble Lord has mentioned. I shall, of course, write to him as soon as I can.
Lord Henley: I am most grateful for the care with which the noble Lord has responded to my amendment. I entirely take his point about the fine balance as to whether one should include the word "serious". I have listened carefully to what he has to say. I accept that he has made a perfectly good and valid case for including "serious" in conjunction with "harm" on this occasion. For that reason I have no hesitation in withdrawing the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Amos Baroness Amos] moved Amendment No. 29:
Page 3, line 8, at end insert?
("( ) The chief officer shall have regard to any guidance issued by the Secretary of State to provide that as far as is practical he shall consult the council for the area and every probation committee any part of whose area lies within the local government area before applying for an order under this section, and in any case shall consult such bodies as soon as possible afterwards.").
The noble Baroness said: This amendment seeks to ensure that the police consult with the local council and the Probation Service either before applying for a sex offender order or as soon as possible afterwards. Once granted, an order will have implications for the Probation Service, which will be responsible for the supervision of such offenders, and for the local authority, which may have to rehouse the offender or provide other services. We are all aware of recent cases which have shown that the identification of sex offenders in a locality is fraught with difficulty. It is important that all the relevant public agencies are made aware of what is taking place before an order is granted. This would build on the collaborative multi-agency approach which is the consistent theme of the Bill and of the Government's approach to crime prevention. I beg to move.
Lord Falconer of Thoroton: I have real sympathy with the view expressed by my noble friend Lady Amos

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that wide consultation should take place before, or even shortly after, an application is made for an order, for all the reasons she gave—for example, rehousing, and SO on.
It will be the Government's intention to issue guidance in due course which will cover all aspects of consultation. However, we believe that the cases where applications for orders under this section are made should be dealt with on a case-by-case basis. To impose an obligation, for example, to consult a body which has not been involved in the case in question, could merely hold up the process and might impose an unnecessary and over-bureaucratic obligation to consult. Again, not all of those against whom orders are being considered or have been granted will be on probation. Moreover, focusing on one group to be consulted could lead to others being overlooked.
Although the Government are in sympathy with the idea of consultation with all the appropriate agencies, they do not think that the appropriate way to deal with this is by such an amendment or any provision on the face of the Bill. In the light of what I have said, I hope that my noble friend will consider withdrawing the amendment.
Baroness Amos: I thank my noble and learned friend for his reply. I am reassured by the commitment to consultation and to publishing guidance. I in no way wish to add or create a further layer of bureaucracy. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 30 not moved.]
Lord Goodhart Lord Goodhart] moved Amendment No. 31:
Page 3, line 18, at end insert—
("( ) No order under subsection (4) above shall deprive the defendant of the right to seek and undertake employment (other than employment of a type which is inappropriate having regard to the nature of the offences in question) or of access to facilities which are reasonably required in the normal course of life.").
The noble Lord said: This is a probing amendment. The powers in subsections (3) and (4) of Clause 2 are extremely wide. But there must be some limit to the nature of the orders which a court can make. What limits do the Government envisage? It surely cannot be right to make an order, for example, which prevents the subject of the order from going into a public place. That would amount to house arrest, which clearly would not be an acceptable application of the power to make an order.
My amendment is intended to ensure that the subject cannot be prevented from obtaining or holding a job unless that job is itself inappropriate because of the nature of the offence—for example, a paedophile obtaining a job in a school. The purpose of the amendment is to ensure that an order cannot prevent the subject of the order from going shopping, going to see the doctor, or doing all the other things that are reasonably necessary in the course of leading an ordinary life.
The answer to the problem may be that when the Human Rights Bill comes into force, Clause 2(3) and (4)of the Crime and Disorder Bill will have to be interpreted as being compatible with the right to liberty under Article 5 of the European Convention on Human Rights. If so, it would follow that an order could be made only in so far as it contained restrictions that were themselves compatible with Article 5. Do the Government accept that that is so? If they do, that would satisfy the purpose of the amendment. I beg to move.
10 p.m.
Lord Williams of Mostyn: I entirely accept both propositions put by the noble Lord, Lord Goodhart. The aim of the sex offender orders is to prevent further offences, not to interfere except where absolutely necessary in a defendant's life. I am sure that, in making the orders, the courts will be well aware of that principle. We intend to set out guidance along those lines to accompany the order.
It is very difficult, as the noble Lord implied, to produce definitions on a general basis. For instance, one looks at:
"employment of a type which is inappropriate having regard to the nature of the offences in question".
Some employment is quite easily categorised—for instance, working in childcare services or areas of that sort. I have had these problems in discussion with the NSPCC in the past. What does one say about a taxi driver? His employer may well have a contract for delivering children to the local school, or perhaps disabled children to special residential accommodation; or a bus driver similarly; or perhaps a café proprietor—which may not present a problem in general, but the cafe may be visited by vulnerable small children who hang about there, which may be a problem. We are very much aware of the difficulty.
The second principle put forward by the noble Lord was how the proposal would tie in with the European Convention on Human Rights. We believe that interference with personal rights and individual freedoms without real necessity could easily be struck down as contrary to the European Convention. To divert for a moment, that is going to be one of the significant and glorious effects of incorporation. I have always suggested, and believed, that the simple headline, "Bringing rights home", does not do justice to the concept which I know the noble Lord so fully supports.
I hope that in this very short reply I have been able to satisfy the noble Lord, Lord Goodhart. The officials in the Box provide such service as would shame Rolls-Royce at Crewe and have reminded me that the Rehabilitation of Offenders Act has no application to Clause 2—which will save research and a first-class stamp.
Lord Elton: I thank the noble Lord for that reply. Is any help to be given to the courts to avoid the endless cases that would otherwise flow to test their orders against the Convention when it becomes part of our statute law?

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I see from Clause 96 that there is no precise date for this part of the Bill coming into effect. I do not know whether it has been decided yet; it is to be at a date decided by the Minister. It would be interesting to know when the measure is expected to come into effect, and whether there are to be guidelines. The noble Lord's noble friend has already mentioned that some guidance will be brought forward in due time. I presume that that will be before the coming into effect of this Bill as an Act of Parliament. Is there any prospect of any guidance to the courts? I speak as a layman, but magistrates, with due respect, are to some extent laymen themselves. It is important—is it
not?—that we should avoid endless referrals of magistrates' decisions eventually to the European authorities.
Lord Williams of Mostyn: The noble Lord raises two questions: one spoken, and one consequential. It has not been decided as to when the commencement date will be, in respect of the noble Lord's specific question. Of course, the commencement date of the Human Rights Act has also not been decided.
My right honourable friend the Home Secretary has said that a large amount of funding is to be put to judicial training. Inevitably there will be queries and questions, significantly we believe in the criminal courts—we believe that the major activity on ECHR is likely to be in the criminal courts. There will obviously be guidance. We work together very happily with the senior judiciary and very productively with the Magistrates' Association. I take the noble Lord's point absolutely. There has to be training; there have to be guidelines and guidance. As I think we have demonstrated, we believe in constructive co-operation and inquiry with those who will have these tasks. We accept that all orders made in this context will have to comply with the European Convention on Human Rights. I happily re-emphasise that nothing in Clause 2 detracts from that proposition.
The Earl of Mar and Kellie: At the beginning of Clause 2 it states:
"If it appears to a chief officer of police that the following conditions are fulfilled…"
The conditions laid down are that the person be a sex offender and that he has acted in an unacceptable way. We have talked about guidance. Will the guidance be that the chief officer of police and the police force should be proactive in promoting such an order or will they have to wait until members of the public complain that a person is acting unacceptably?
Lord Williams of Mostyn: First, I suggest that that is much too general a question. The guidance will follow consultation. I believe that, if there is to be consultation, the consultation should take place before the guidance is given. In specific answer to the noble Earl's question, it will depend on the circumstances. For instance, if a well known convicted and potentially dangerous paedophile is lurking around a school yard and the local constable notices that, in a sense—though I am not sure that the label is particularly helpful—the police will be proactive. If the local beat constable does not notice but
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the head teacher does, the police will be reactive to what the public have told them. However, I believe that that is a distinction without a difference.
Lord Goodhart: In view of the most helpful reply by the noble Lord, Lord Williams of Mostyn, on Amendment No. 31, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart] moved Amendment No. 32:
Page 3, line 19, leave out ("(not less than five years)").
The noble Lord said: This amendment is grouped with Amendments Nos. 33 and 34, which raise a slightly different point. Amendment No. 32 raises the question of whether there should he a minimum time limit for sex offender orders. That question was also raised in the debate on the antisocial behaviour order in respect of Clause 1. Unlike the case of the antisocial behaviour order, I do not seek a maximum time limit for a sex offender order. There may well be cases where it is necessary for the order to remain in force for many years because of the unquestionable tendency of paedophiles and other sex offenders to re-offend. There may be some cases where even a five-year order may be excessive. This is so particularly with young people, in whom great changes in behaviour are possible over quite short periods. The court has a discretion as to whether to make an order at all. Why should it not have a discretion as to the length of the order? I would be less concerned about the minimum time limit if the court had independent power under subsection (6) to grant an early discharge from the order where the circumstances justified it.
Amendments Nos. 33 and 34 raise the same point as was raised in connection with the antisocial behaviour order; namely, the restriction on the court's power to discharge an order before the expiration of the five-year period without the consent of the chief officer of police. The effect of this is to transfer the power to grant early discharge from the court to the chief officer. The court cannot give a discharge if the chief officer does not agree. Equally, it is unlikely to refuse to discharge the order if the chief officer of police does agree to a discharge.
I repeat briefly the arguments that I raised before. First, it is contrary to the principle that sentencing should be a matter for the court and not for the parties to the proceedings. Secondly, a decision of the chief officer of police in these circumstances cannot be arbitrary. He will be under a duty to consider whether to give consent to the discharge. Refusal of consent would therefore be subject to judicial review, which I do not believe would be in the interests of the police. I suggest that here again it would be much more appropriate for the court to have a discretion after hearing the arguments placed before it by the parties for and against the discharge of the order. I beg to move.
Lord Williams of Mostyn: I too wish to speak to Amendments Nos. 32, 33 and 34. I accept, as I said a moment ago—not least in the context of the European

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Convention on Human Rights—that a sex offender order is a serious matter. It should not be sought lightly and can only be justified by the overriding need, which we identify, to protect the public from serious harm. Unfortunately, the reason such orders are necessary—as the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Goodhart, indicated—is the dismal likelihood, of which we are all well aware, that particular offenders in this category of case will re-offend. It is no good pretending otherwise and I am sure that no one will.
That likelihood—again, it is a gloomy assertion that I make confidently—is a near certainty in some cases, as we all know perfectly well. If that is so, and bearing in mind the seriousness of the situation in the context of human rights, we ought to look at a five-year minimum duration for these orders. For the order to be justified at all we should look at a period of at least five years for its continuation. The order should not be sought lightly. It should not be granted where there is not real concern for the protection of the public. The minimum duration ought to be an in-built check that an order is only sought and granted when the situation really demands it. It is therefore intended to be, in part, a safeguard against misuse.
We do not believe that we are fettering the discretion of the courts by setting down such a minimum period. It is a determined acknowledgement of the nature of the orders and the likely victims of continued offending—in other words, the serious harm that they are designed to prevent. I do not pretend that this is an easy decision. It is again a balance and we have tried to get it right.
Lord Goodhart: I hear the Minister's response. We do not wish to press the matter of the minimum period further. However, the fettering of the courts' jurisdiction, without the consent of the chief officer of police, to discharge an order early is one at which we might possibly look again; however, not tonight. I am happy therefore on this occasion to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 33 and 34 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford] moved Amendment No. 35:
Page 3, line 33, leave out from ("order") to end of line 38 and insert ("his conduct shall be punishable as a contempt of court").
The noble Lord said: We heard from the Minister a short time ago that the Rehabilitation of Offenders Act does not apply to sex offenders. By that I understand—no doubt I shall be corrected if I am wrong—that the convictions for sex offenders cannot be spent so that they remain with the offender for the rest of his life.
There is a grave danger that we forever talk in terms of paedophiles, rapists and so forth, forgetting that sex offenders are involved in a wide range of offences from the most serious to the least serious—the youngster convicted at an early age, for example, of an indecent assault which caused little harm. He carries that conviction and is to be termed "a sex offender".
I do not propose to worry the Committee at this time of night with a repetition of the arguments that I addressed on Amendment No. 21. The Solicitor-General appears to be relieved at that. I do not wish to be hyperbolic twice in one evening. However, I ask that the Minister and those advising him consider the argument that I addressed and the possibility of an alteration in the framework which they have so far envisaged. I plead with them to try to justify their position from first principles and not from the record of the previous government in matters of this sort.
I wish to address only one specific matter. Under subsection (8) there could be a jury trial on indictment. But so far from being a protection for the defendant, it would be the reverse. What would the prosecution set out to prove? They would prove that the defendant was a sex offender and thereby reveal instantly to the jury the whole of his chequered past and the convictions he has for sex offences. Secondly, they would prove the existence of a sex offender order which would have been made for unremarkable conduct and which would not remotely constitute a criminal offence or any offence if the person concerned were not a sex offender in the first place. Then they would have to be satisfied that the defendant had been guilty of further unremarkable conduct; so if, for example, the jury were told that he had been standing outside the school playground looking at the children inside, they would be bound to convict him; the conditions would all be fulfilled and he would thereby be liable to a sentence of imprisonment of up to five years.
That is the result of adopting the hybrid approach of having the equivalent of a civil injunction and then bringing in the criminal law to deal with breaches of that injunction. If, instead of doing that, the Government were prepared to follow the path that I have outlined—despite the minor clashes we may have had on that, I hope that will not prevent the Government from considering the arguments put forward—that would be a far better way of approaching the issue and would satisfy many of the problems that the Bill causes.
10.15 p.m.
The Deputy Chairman of Committees (Baroness Lockwood): I have to point out that if this amendment is agreed to, I cannot call Amendment No. 36 under the pre-emption rule.
Lord Williams of Mostyn: As the noble Lord indicated, we have gone over the principle of this construction between the prohibitory order, which is not a criminal order, and the criminal sanction for breach. As cocoa time approaches (though I am told by some noble Lords that by the end of the evening they will be looking forward to something a little better than a cup of cocoa) I hope your Lordships will acquit me of discourtesy if I do not rehearse the arguments which, as the noble Lord recognised, we have already gone over.
Perhaps I may deal with his specific question, because it is a legitimate one, about the Rehabilitation of Offenders Act, which derived from the earlier question from the noble Lord, Lord Elton. The 1974 Act does not apply to sex offender orders; but it applies to sex

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offenders, for instance, in so far as they are applying for employment. If their convictions are spent, they do not need to declare their previous convictions in the employment context. So there is a difference there which I am happy to have elucidated.
Lord Thomas of Gresford: I am sorry to interrupt the noble Lord. Am I right in thinking that if it came to a trial, on indictment the jury would have to be told that the defendant had previously offended in a sexual context?
Lord Williams of Mostyn: It would be a case of adopting a formula between Crown and defence, approved by the judge, a formula with which the noble Lord and I will be familiar in our previous incarnations. The same difficulties arise with the specific offence of being in possession of a firearm within five years of discharge from prison. Notoriously, the courts—prosecution, defence and certainly the judges—bend over backwards to try to have a neutral formula to draw the sting so far as possible. I imagine that that is how this would be dealt with. It is possible to attend to the problem but I do not think one could have a perfect solution in those circumstances. There are many other offences one could think of, though I shall not elaborate them, where similar problems arise.
There is a difference between the position of the noble Lord, Lord Thomas of Gresford, and my position. One of us—I shall not say which—believes the world is flat; the other believes it is round; and I do not think we are going to convince each other.
Lord Thomas of Gresford: Standing as I do on this circular globe, it would be churlish of me to waste the time of the Committee any further because I hope that the sun is going to rise sometime. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 36 to 38 not moved.]
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Hylton: I have listened as carefully as I could to the various debates on this clause. I am still not entirely clear or necessarily happy about some of the wording. The very beginning of the clause reads,
"If it appears to a chief officer of police".
I have the feeling that that really means that the chief officer has a reasonable suspicion. I am reinforced in that surmise because of what is said in line 5,
"give reasonable cause to believe".
I am not sure whether "appears" is the right word. That is my first worry.
My second worry arises because, if I heard him rightly, at one point the noble Lord, Lord Williams of Mostyn, said—describing the person who would be subject to such an order—that, "He has committed a sexual offence". On another occasion I believe I heard him say, "With or without previous convictions". That opens up a certain area of doubt.
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Thirdly, I shall be most grateful if the noble Lord can explain because I have not got a copy of the Sex Offenders Act 1997 here. Perhaps he can explain the meaning of "the relevant date".
The Earl of Mar and Kellie: Since the noble Lord, Lord Hylton, has raised the issue of whether Clause 2 shall stand part of the Bill, perhaps I may express my one concern with this type of order. Nobody in the Committee disagrees that we are dealing with very serious misbehaviour. I am concerned that this remains an unsupervised order. Is that really sustainable?
Lord Williams of Mostyn: I do not think there is any real difficulty about the words,
"If it appears to a chief officer of police".
That implies that he has made appropriate inquiries or material has been brought to his attention. He therefore comes to the conclusion that the following conditions are fulfilled. When I spoke of a sex offender, I defined that as someone who has committed an offence within Schedule 1 of the Sex Offenders Act. I did not say, "With or without previous convictions". I said that he might have been cautioned. I am happy to repeat the definition of a sex offender. He is someone who has committed one of the offences in Schedule 1.
As regards "relevant dates", I believe that the noble Lord, Lord Hylton, will find that in Clause 3(2) on page 4 of the Bill. It states,
"the relevant date, in relation to a sex offender, means"—
and then the words are set out there. I am happy to read them, but they are on the face of Clause 3. I hope that that deals with the three specific questions that the noble Lord, Lord Hylton, raised.
Clause 2 agreed to.
Clause 3 [Sex offender orders: supplemental]:
Lord Goodhart Lord Goodhart] moved Amendment No, 39:
Page 3, line 46, at end insert ("(the conviction for such offence not being a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974)").
The noble Lord said: Members of the Committee may well be pleased to know that apart from this amendment and the two amendments with which it is grouped, the next amendment to which my name has been appended comes in at No. 122, so the Committee will be spared hearing any more from me this evening and perhaps for some time to come—
Noble Lords: Ah!
Lord Goodhart: Amendment No. 39 was intended as a probing amendment to see whether the Government took the view that the Rehabilitation of Offenders Act applied to sex offender orders. The noble Lord, Lord Williams of Mostyn, has told us on information provided from the official Box that the Rehabilitation of Offenders Act has no application to the sex offender order, but I wonder whether that is correct. An application for a sex offender order is not itself a criminal proceeding. Therefore, it appears to me that Section 7(2) of the Rehabilitation of Offenders Act does not apply so as to exclude the operation of that Act. If

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that is so, a spent conviction cannot be used as the basis for a sex offender order although it might have to be taken into account in a criminal prosecution for breach of such an order.
Whatever the answer to that might be—I hope that the noble Lord will be able to reply to me by correspondence—I hope that the Rehabilitation of Offenders Act does apply to the making of a sex offender order because that Act never applies to a sentence of imprisonment of more than 30 months, which excludes most convictions for serious sex offences. For shorter terms of imprisonment, the Act will come into operation only after seven to 10 years from the date of imprisonment. It seems wrong that an offender who has not reoffended for a substantial period and whose crime did not justify a sentence of more than 30 months should have the possibility of a sex offender order hanging over his head for the rest of his life.
I turn to Amendments Nos. 40 and 41, which are grouped with Amendment No. 39, but which raise the entirely different point of whether a sex offender order should be capable of being triggered by a caution. Amendment No. 41 is merely consequential, striking out a definition of what constitutes a caution. It would not be appropriate for an order to be triggered in that way because cautioning applies only where an offence is regarded by the police as insufficiently serious to justify a prosecution. There would have been no trial and no conviction. I suggest that it is inappropriate that anything short of conviction by a court should trigger potential liability to a sex offender order, which is a draconian order (although in many circumstances it can, indeed, be justified), but the very strength of the order means that the threshold must be high enough to justify the application of that order. Where an offence has been dealt with by a caution, I do not believe that that threshold has been passed. I beg to move.
Lord Henley: I have my name down to Amendment No. 40 but the Committee will be pleased to hear that although my name is appended to a considerable number of amendments between now and Amendments Nos. 99 and 100, when the noble Lord, Lord Goodhart, and I start again, I shall be exercising a self-denying ordinance for the next few clauses and leaving the next amendments to my noble and learned friend Lord Mackay of Drumadoon.
I put down my name to Amendment No. 40 originally as a result of misreading Clause 3(1)(c) regarding the cautioning of an offender. I thought it somewhat severe that someone who had only been cautioned should be considered to be a sex offender. Having studied the clause, I see that it relates to a person who has been cautioned by a constable,
"in respect of such an offence which, at the time when the caution was given, he had admitted".
Having noted the words "he had admitted", I am perfectly content with the clause as it reads and have no intention of pressing Amendment No. 40 any further.
Lord Northbourne: I am inclined to support these three amendments in so far as I understand them. While
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being rightly anxious to protect young people from sex offenders and having a degree of righteous indignation about sexual offences we must be just to people who have made this mistake in their lives. Earlier this evening reference was made to Lady Faithfull. One of her concerns in your Lordships' House was the rehabilitation of sex offenders. It is wrong that any one particular crime in the whole plethora of possible crimes should be unforgivable, unredeemable and never removed from the records. We must balance the protection of young people with the need to be just to those who have committed offences but have reformed their lives. I urge the noble Lord to ponder these matters.
Lord Monson: Unlike the noble Lord, Lord Henley, and his noble friends on the Front Bench who appear to have had second thoughts, I strongly support Amendment No. 40, in part for the reasons given by the noble Lord, Lord Thomas of Gresford, in moving Amendment No. 35. As he pointed out, sexual offences vary enormously in heinousness. Take indecent assault as an example. It may range from an act that is almost as bad as rape—perhaps even worse than that in one or two instances—to something as trivial as planting an unwanted kiss on the cheek of a 17 year-old girl. It is the latter type of indecent assault that is likely to be dealt with by a caution rather than prosecution. I believe that it would be quite inappropriate for people to be caught for something as trivial as that. I strongly support the principle of Amendment No. 40.
Lord Thomas of Gresford: I strongly support my noble friend's amendments. If those in authority, the police, thought it sufficient to caution a person for a sexual offence, whether or not admitted, that should be the end of it, unless the person committed a further offence. For him to have to carry the stigma of being a sex offender for the rest of his life, or a substantial number of years, is not fair and may lead to fewer cautions being accepted.
Lord Williams of Mostyn: Perhaps I may start usefully with Amendment No. 40 bearing in mind that the recent contributions have dealt with that amendment. One must look at how cautions work in practice. There may be many reasons for an original disposal by way of caution: the age of the offender, the promise of a supportive environment to help him overcome problems or other matters. Typically, the reason may be that the complainant is simply not up to the trauma of giving evidence in court. In this connection one thinks of quite small children. I believe it is the commonplace experience of those who practise in this area that the mere fact of caution does not always mean that the offence is simply one of giving the blushing 17 year-old a kiss at Christmas. There is quite a wide spectrum of cautions.
We believe that what really matters in the assessment to be made in this context is the nature of the original offence and the up-to-date assessment of the offender. The original disposal is not something that necessarily matters. If on the spiral of sexual offences, which everyone who has spoken tonight recognises, there was

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a time when someone was sentenced to 20 months, if quite young for a first offence, it might, nevertheless, have been serious. Therefore, I am not persuaded by the arguments on Amendment No. 40, because disposition is not the point; it is the nature of the offence, and the present nature of the offender.
On Amendment No. 39, no order is capable of being granted unless the behaviour of the individual concerned, at the time the order is applied for, gives reasonable cause to believe that the order is necessary to protect the public from serious harm. So the proposal hears no element of being retrospective, because it is behaviour which decides whether the order is appropriate, not the previous offence.
The order is not a sentence; it is not a conviction. To deal with the philosophic point of the noble Lord, Lord Thomas of Gresford, about rehabilitation, the previous conviction merely serves as evidence that the defendant has a history of offending in this particular way. I readily accept that to use the words "sex offence" is sometimes prejudicial. There are many sex offenders who will never re-offend. The boy of 17 who has sexual intercourse with his girlfriend of 15 years and 11 months is different from the sort of dangerous sex offender upon whom we are focusing in our discussion this evening and whom the Bill is intended to catch.
The fact that the conviction is spent is just a fact; it does not mean that he may not re-offend. We believe that we have the balance right again: duty to protect the public; duty to have due regard to individual rights and liberties.
We have difficulties with Amendment No. 41. I have reached the last ignoble refuge of thinking that this is technically misconceived. I have treated myself to that.
Lord Goodhart: Amendment No. 41 is purely consequential upon Amendment No. 40. It merely removes something that would become irrelevant were cautioning no longer the basis for a sex offender order.
Lord Williams of Mostyn: I accept that. We believe that there are technical deficiencies, but I am sure that the Committee is not panting for a description of the deficiencies.
Lord Goodhart: I am grateful to the Minister for his answer. I remain not wholly persuaded by it. One of the problems with using the caution as a basis for a sex offender order is the fact that there has been no conviction in a court. That would be the necessary prior basis for the making of any sex offender order.
On retrospectivity—to refer to an amendment which is not here—on Second Reading I raised the point about whether there was an element of retrospective punishment, where the original conviction occurred before the Bill is enacted. I have seen a copy of the letter from the noble and learned Lord, Lord Falconer, on that subject. There is an arguable point here. The appropriate place at which to decide that point is in the courts, and I have not tabled an amendment to raise the specific point of retrospectivity.
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The question of whether a caution is an appropriate basis for a sex offender order is one which we will consider. We may return to it. For this evening, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 40 and 41 not moved.]
Clause 3 agreed to.
Clause 4 agreed to.
Clause 18 [Anti-social behaviour orders]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon] moved Amendment No. 42:
Page 14, line 29, after ("authority") insert ("on credible evidence, from two or more witnesses,").
The noble and learned Lord said: In moving Amendment No. 42, 1 shall speak also to Amendments Nos. 51, 52 and 69. In turning to the provisions of Chapter II, which deal with the introduction of antisocial behaviour orders and sex offender orders into the law of Scotland, I am reminded of the old Scots expression of something tasting like cold kale. Another expression which might be more fully understood is: "reading yesterday's newspapers". Undoubtedly, a number of the issues which are to be addressed in Amendments Nos. 42 to 97, which I suspect we shall not complete in the next 20 minutes, were addressed in particular in Clauses 1 and 2.
As the Minister indicated, there are differences between the procedure in England and that in Scotland. I listened with interest to the full and reasoned—and to himself convincing—arguments he advanced in defending the English provisions from criticism or attack from the noble Lord, Lord Thomas, on the role of the police during the minimum period for which the orders are to exist and the existence or otherwise of the penalty of conditional discharge. Members of the Committee who have read the Scottish provisions will note that in all three respects a different approach is followed in Scotland. Ministers might do well to reflect between now and the Report stage on whether the differences can be as fully justified as they suggest.
It might assist the Committee if I indicate my approach to Clause 18. Those Members who were present on Second Reading will recall that, although warmly and without qualification I welcomed certain parts of the Bill as they apply to Scotland, I expressed a measure of reservation about these orders, in particular the antisocial behaviour order. Since then, I have been able to carry out further research and have been much assisted by two fellow members of faculty; they are, Jonathan Mitchell QC and Simon Collins. Mr. Collins has written a book entitled Anti-social Behaviour and Housing Law, published last year. Much to my surprise, both colleagues, although they are considerable experts in housing law, do not support the proposal to introduce antisocial behaviour orders. Even more to my surprise, I discovered something I should have been aware of: that the Scottish Affairs Committee of another place, in a report prepared during the previous Session, reported to the other place on housing and antisocial behaviour. That is a cross-party committee which took evidence from a considerable number of witnesses. Although it

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made a large number of recommendations about how the law in this area might be improved, and although it considered the possibility of introducing antisocial behaviour orders into Scotland, it did not support that.
Among its recommendations which are set out towards the end of the report, it invited the then government to consider whether the law on interdict ought to be altered; whether a power of arrest should be added to interdicts pronounced by the civil courts so that as soon as an alleged breach occurred the person who was interdicted could be arrested by the police; and it recommended speeding up the procedures.
Unfortunately, the consultation paper on that topic which was issued in Scotland in September, with a four week period for responses, failed to mention the existence of the Scottish Affairs Committee report and the fact that it had not supported antisocial behaviour orders, and failed to mention the recommendations which it had made and which the government of which I was a member had accepted.
Therefore, while I accept readily that in response to the consultation paper, the majority of those consulted supported the introduction of antisocial behaviour orders, I suggest that they did so without being fully informed by the Government of what many might think were relevant considerations.
In moving and speaking to these amendments, I pose a number of questions to which I hope the noble and learned Lord the Lord Advocate will respond either this evening or when we return to the matter a week today. First, do the Government intend that an antisocial behaviour order could be justified by conduct which would not found a criminal prosecution; in other words, whether the behaviour which would satisfy the first hurdle to be found in Clause 18(1)(a) which would not at the same time justify a conviction for breach of the peace, assault or other offences relating to the question of antisocial behaviour?
Secondly, could such an order be justified by conduct which would not be sufficient to justify the granting of an interdict at the instance of the person against whom the conduct was directed? In other words, putting it in shorthand form, could an order be pronounced when no crime had been committed and no civil wrong had occurred?
It is important that those issues should be addressed and answered by the Government before the Committee can be satisfied that this idea, which has been discussed fully in relation to England, is appropriate for Scotland. When one reads the report of the Scottish Affairs Committee, one sees that it was unable to find any clear evidence of an increase of antisocial behaviour. Furthermore, I understand that the Scottish Office is currently commissioning research as to the best way to deal with such behaviour. In particular, it has instructed and funded Glasgow University to carry out research as to the cost efficiency of legal solutions to antisocial behaviour compared with non-legal solutions. It has funded other research as to the actual workings of the court process when dealing with antisocial cases in relation to housing tenancies.
The more research I have undertaken since Second Reading—and I apologise to Members of the Committee for not having done it before—the more concerned I am that the case may not have been made out. It may well be that the noble and learned Lord the Lord Advocate will be able to provide answers to the questions that I pose but, as I say, research has failed to convince me any more than I was convinced on Second Reading that this is a sensible way forward.
It is against that background that I turn briefly to the detail of the first group of amendments. In the debate which took place today issues were raised about whether it is right to mix criminal standards of proof or criminal requirements of sufficiency of evidence with what is undoubtedly a civil proceedings. But if there is to be no requirement for corroboration, if the rules of hearsay will not exclude hearsay evidence and if professional witnesses employed by a local authority will be sufficient, there is concern, both at the stage of deciding to bring an application and at the stage of placing it before the sheriff, regarding the risk that the latter could be satisfied on the evidence of one witness that it is appropriate to impose an order of a very serious nature.
I listened earlier to the noble Lord, Lord Williams, when he said that this was a last resort before prosecution or a last warning before that stage was reached and that, once the order was pronounced, then, provided that the defender—as we would call him in Scotland—behaved himself, he would have no need to worry. I find that difficult to reconcile with what the noble and learned Lord the Solicitor-General said on the last occasion; namely, that in terms of an order pronounced under Clause 18 it would be possible to exclude a man from a house indefinitely even though he was the tenant of the house or the owner of the house. So undoubtedly in appropriate cases an order could have very serious ramifications. That is why I pose the question whether, as an additional safeguard, it might be sensible to require a local authority to look for evidence from two sources before it decides to go forward, and to place a similar requirement on the sheriff.
I have a further problem with the Bill as drafted. How precisely is the local authority going to deal with the matter? That point was made by my noble friend Lord Windlesham earlier today. Is it to be dealt with by the social work committee? Is it to be dealt with by the environmental health committee or by the housing committee? How do the Government envisage this happening? Will it be dealt with by officials, or will it be the decision of councillors? These are practical matters. They may, no doubt, be dealt with in guidance, but we have not as yet seen anything in the nature of draft guidance or in the form of a consultation paper about guidance. Those are the matters of unease that I have and which I very much hope the noble and learned Lord the Lord Advocate will answer either tonight or when we resume proceedings on the Bill next Tuesday. I beg to move.
The Earl of Mar and Kellie: I should like briefly to add the same type of start to this discussion on antisocial behaviour orders in Scotland. I have four brief points to make. The first is that I believe an antisocial behaviour

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

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should not be required. I ask the noble and learned Lord, Lord Mackay of Drumadoon, to consider this. Why should a higher standard be placed upon a local authority than upon any other litigant when the local authority is engaged in civil litigation, which this will be?
An order should be able to be granted if the need for it is proved on the balance of probabilities. This is what happens with interdicts, as the noble and learned Lord is well aware, and with applications to the civil court for non-harassment orders. Antisocial behaviour orders will be similar in effect. I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Advocate for dealing with many of the questions I raised. He posed the question as to why there should be a higher standard on local authorities and other litigants. If the Government were following the interdict route I would fully appreciate that. But this is a new procedure. It has been
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said numerous times today that it is only a prohibitory order. It is not a punishment; it is not a sanction; it will not carry any criminal convictions, and so on.
My concern is that the order will be perceived by those upon whom it is imposed as a punishment. If the individual is prohibited from staying in the house that he has bought or tenanted and is separated from other members of his family as a result, that will be as much a punishment in the eyes of the recipient as other orders pronounced by the criminal courts of a non-custodial nature.
However, I do not intend to press the amendments to a vote. I might be tempted to do so to see whether it might be possible to count the Committee out. But as we are all going home early, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at four minutes past eleven o'clock.