Crime and Disorder Bill [H.L.]

HL Deb 03 February 1998 vol 585 cc533-80

4.37 p.m.

House again in Committee on Clause 1.

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 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 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 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 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 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"?

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 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: 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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.

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 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.

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 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.

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 ". 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 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 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.

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 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 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".

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.

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 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 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 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 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. 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 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.

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 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—

1. (a) any conflict with an individual's religious beliefs; and
2. (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 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 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.