Crime and Disorder Bill [H.L.]

HL Deb 03 February 1998 vol 585 cc597-634

8.42 p.m.

House again in Committee on Clause 1.

The Deputy Chairman of Committees (Baroness Turner of Camden)

I have to inform the Committee that, if Amendment No. 21 is agreed to, I cannot call Amendment No. 22.

Lord Thomas of Gresford moved Amendment No. 21: Page 2, line 29, leave out from ("order,") to end of line 34 and insert ("his conduct shall be punishable as a contempt of court."). The noble Lord said: We have exhausted the making of the antisocial behaviour order and we now turn to the next stage; namely, the enforcement of that order. We are now in a position where the Government envisage that conduct which is not necessarily criminal may lead to an antisocial behaviour order, and a breach of that order by conduct which is not otherwise criminal can yet make the offender endure the slam of the prison door.

The word for the day that has percolated our discussions in Committee is "flexible". Everything about this Bill is "flexible", except the noble Lord, Lord Williams of Mostyn, and those supporting him. I hope that the noble Lord will take the trouble to consider, with the open mind that he always promises us he has, the proposal that I put forward by way of this amendment. Its purpose is to substitute a far more flexible and sensible method of dealing with a person who is in breach of an antisocial behaviour order than is set out in subsection (9).

The noble Lord, Lord Williams of Mostyn, has said that the antisocial behaviour order is a civil order; it is no part of a criminal regime; it is analogous to an injunction. One therefore has to wonder why the noble Lord does not go "the full Monty" and treat a breach of that order as though it were a breach of an injunction, and therefore a person should be punished by way of a committal for contempt.

Perhaps I may give a lightning sketch of contempt orders. The long-standing purpose of contempt proceedings was to impose sanctions for disobedience to a court order which would coerce the contemnor or offender into obedience. The normal practice, until the Contempt of Court Act, 1981, was to commit an individual to prison until such time as he chose to obey the order; and so committals, in the old days before 1981, were sine die rather than for a fixed term. If the contemnor changed his mind, then he was entitled to immediate release. But following the Phillimore Report of 1974 (Cmnd. 5794) the 1981 Act provided that, in any case where a court has power to commit a person to prison for contempt of court, the committal shall be for a fixed term and that term shall not on any occasion exceed two years in the case of a committal by a superior court, or one month in the case of committal by an inferior—that is, a magistrates'—court.

It is my argument in proposing this amendment that such a method of dealing with the offender has a flexibility that is not available in the sentences of imprisonment set out in subsection (9). First, the court has a discretionary power when dealing with a contempt to suspend the execution of the order of committal for such period or on such terms or conditions as it may specify. We were familiar in the past with suspended sentences of imprisonment. Those have now fallen out of favour; but the power still remains and may be exercised to suspend the execution of an order of committal pending good behaviour or whatever condition the court wishes to impose.

Secondly, and importantly, the court may release the offender before the end of his term of imprisonment either on his own application if he is prepared to purge his contempt and to give undertakings to the court about future obedience to the order, or alternatively on the application of the Official Solicitor, who has a duty to review the cases of all persons who are committed for contempt and to take such action as he thinks fit.

That gives an opportunity to the offender, the contemnor, to come to his senses and, instead of serving a term of up to two years' imprisonment, to come to the court and apologise and give assurances of good behaviour in the future. If he is an obstinate person who refuses to apologise, the Official Solicitor has a duty to step in and may intervene if he refuses to repent but has yet been sufficiently punished.

Subsection (7) in Clause 1 of the Bill provides for an application by the offender to the court to discharge the antisocial behaviour order. Once he is sent to prison, that is it—he is a convicted person; he is a criminal, a person who will not be released until he has served his time.

Another aspect of the contempt order is that a court may, in lieu of imprisonment, impose a fine and order costs against the offender. There is no limit in the High Court or the county court or Crown court; but there is a limit of £2,500 in respect of the magistrates' court. In deciding the amount of a fine instead of sending somebody to prison for contempt, the court will consider the culpability of the offender and the offender's means. There is also power in the court to take security for good behaviour and to require the offender to find sureties.

The superior courts, such as the Crown Court, have power to remand an offender for a medical report on his mental condition if there is reason to suspect that he is suffering from mental illness or severe mental impairment and may make a hospital order or a guardianship order. Again, there are provisions for young people if they are committed for detention in a young persons' institution rather than in a prison.

Very importantly, when in prison a contemnor is treated as an unconvicted prisoner and has the same privileges: he may wear his own clothing; he may receive as many visits as he wishes; and he is allowed to receive and send as many letters as he desires.

If this is a civil order analogous to an injunction that he has breached, why does he have to be treated as a common criminal? Why does he have to suffer all the indignities of a convicted person? In prison a contemnor is treated as a separate class of prisoner and is kept out of contact with convicted prisoners unless he expresses a desire to associate with them. First, the sentence can be suspended; secondly, it can be removed on his application; and, thirdly, he is treated as a separate class of prisoner and does not have to mix with other prisoners if he does not wish to do so.

It is a far more flexible order for a civil offence that he has committed—the breach of this quasi injunction. We on these Benches submit that he should be treated in that flexible kind of way. The order itself is described as flexible because it gives a wide discretion to the court. As we argued earlier today, the use of these orders by the magistrates' court is likely to be variable and subject to a wholly unstructured discretion about what to do with disruptive or tiresome neighbours.

Under these proposals a breach of the order is a criminal conviction which will appear upon the record of the individual. He will serve an ordinary sentence of imprisonment and will carry that stigma, even if he is a person who has otherwise been of completely good character.

I wish to say a word about Amendment No. 22, which has been linked with Amendment No. 21, regarding the length of the sentence. In my experience, it is inconceivable that an offender could be sentenced to imprisonment for five years, which is the length of sentence on indictment envisaged in the Bill, for conduct which did not otherwise amount to a serious criminal offence. If he has done something serious, he will be tried for assault, for wounding or for whatever it may be. For a person to be sentenced for up to five years' imprisonment for breaching what is described as a civil order is, in my respectful submission—if I may use that expression in your Lordships' House—scandalous.

If we compare the public order legislation, under the previous Tory Government, what do we find? In the Public Order Act 1986 a violent disorder offence carries a maximum sentence of five years' imprisonment. Breach of this quasi-injunction is being equated with a Tory violent disorder provision attracting a sentence of five years' imprisonment. For affray the previous government said that a sentence of three years was the maximum. For threatening, abusive or insulting behaviour, six months is the maximum.

I drew attention earlier today to the Criminal Justice and Public Order Act 1994 which created the offence of intentional causing of harassment by the use of abusive or insulting words or behaviour or the display of any writing, sign or other visible representation which is threatening, abusive or insulting. The maximum sentence for that offence is six months' imprisonment. Even in 1994, when things were going pretty well over the top under the previous government, an offence of a similar nature which also had the ingredient of having to be intentional and having the specific means of carrying the harassment, alarm or distress as part of it carried a maximum sentence of six months' imprisonment.

The ferocity of the sentencing power in this Bill is extraordinary. It can only be window-dressing. As the noble Lord, Lord Renton, said, Secretaries of State vary so much. Indeed, in the past few years we have witnessed rhetoric which distorted the whole of the criminal justice system, pushed up sentences of imprisonment and filled the gaols to overflowing even before their legislation came into effect.

I had hoped that the new Administration would have got over that aberrant period and would not have thought it necessary to inflict even longer sentences of imprisonment than did their predecessors. Ordinary terms of imprisonment are not the answer to the problem addressed in this Bill. Prison will not make the offender truly and earnestly repent and be in love and charity with his neighbours. I beg to move.

Lord Hylton

The noble Lord, Lord Thomas of Gresford, made out a formidable case for his amendment. I wish to support it on the grounds that it will tend to limit the number of people sentenced to prison and the length of time that they are likely to spend there and that those perhaps few—they may turn out to be a small number—who are sent to prison will be subject to a more liberal and humane regime.

Lord Northbourne

I am not at all happy about the Bill as drafted in this context and support the noble Lord, Lord Thomas. It seems to me that the Bill goes completely over the top with a potential penalty of five years' imprisonment for what may be just be a bit of bad behaviour by an adolescent. For heaven's sake, all of us were young once. Surely we remember the time when we thought it was rather funny to do something which cheeked older people and perhaps to do it again when we were told not to do it? Surely there were times when some of us got a little drunk, or even perhaps quite a lot drunk? Whether we accept Amendment No. 21, Amendment No. 22 or some other amendment, I believe that the Bill as drafted is not sensible and will be profoundly unfair.

Lord Monson

I added my name to Amendment No. 22 because, like the noble Lord, Lord Thomas of Gresford, and my noble friends on these Benches, I believe that a maximum of five years' imprisonment is quite excessive for an offence of this nature.

Whenever one casts doubt upon the desirability of even higher maximum sentences, the Home Office Minister of the day invariably says, as I dare say the noble Lord, Lord Williams, will say tonight, "Yes, but do remember that the maximum sentence is only a maximum; the courts are under no obligation ever to impose it in practice". That may well be so, but I submit that a maximum sentence which looks preposterously high to the man in the street will bring the law into disrepute and will therefore be counter-productive.

Lord Henley

My name is down to one of these amendments and it might be helpful if I say a word or two. I do not intend to follow the noble Lord, Lord Thomas of Gresford, on the subject of sentences. I am sure that the Government are well able to defend their own policies and to justify the inclusion of a maximum sentence of five years for offences which I dare say on some occasions could be very serious indeed.

The amendment I wish to speak about is Amendment No. 24, which has been grouped with Amendments Nos. 21, 22 and 37. The noble Lord, Lord Goodhart, has added his name to that amendment. I put it down merely as a probing amendment because I wanted to know, first, what subsection (10) was about. I think I have worked that out now: it will not be available to the court to make an order of conditional discharge. Secondly, I should like to know why that should be the case and why the Government feel that that discretion should not be open to the court. Just as there will be occasions when the offence is of the utmost seriousness and therefore the court may wish to make use of the maximum powers available, there will be occasions when such a decision would not be right and where the minimum would be required. For that reason I believe there may be occasions when an order for conditional discharge could be made. I look forward with interest to hearing what the Minister has to say.

9 p.m.

Lord Goodhart

My noble friend Lord Thomas of Gresford spoke eloquently and powerfully on Amendment No. 22, and at this time of the night I do not wish to add anything to what he said except to say that I am in complete support of everything he said, both on the question of substituting the punishment for contempt rather than a gaol sentence and also on the length of the sentence if a gaol sentence was to be imposed.

I should like to add a few words on Amendments Nos. 24 and 37 which have perhaps been wrongly grouped with Amendment No. 22. They raise a different point, as the noble Lord, Lord Henley, said. They are more than simply probing amendments. They relate to the question of why the power of the court to punish a breach of an order by a conditional discharge has been excluded. The same point arises in the case of the anti-social behaviour order and in the sex offender order in Clause 2(9) which is covered by Amendment No. 37.

What is the point of excluding the power to grant a conditional discharge? It is a useful weapon in any court's armoury. It leaves the possibility of having a sentence hanging over the offender's head if a further offence—not necessarily an offence of the same kind—is committed. It may well be that there are cases where that is the appropriate order. As matters now stand, if the possibility of a conditional discharge is excluded and the courts find themselves in a situation where there has been a breach of the order which they regard as trivial, they can still deal with that. They can indicate that they regard it as trivial by imposing a nominal fine of £5 or £10 or something like that. Why should small fines be allowed but, at the same time, the court be refused the power to order a conditional discharge which may well, in those circumstances, have a stronger deterrent effect?

The subsections appear to be without logical justification and are explicable only on the basis of a distrust of the courts. I believe them to be wholly unjustified.

Lord Dholakia

Perhaps I may add a further dimension in relation to Amendment No. 22, which I support and for which a strong case has been made out.

It is an accepted principle that the use of imprisonment and the length of a prison sentence takes into account the seriousness of the offence. That was acknowledged by the Government in the White Paper, Community Safety Order. That paper stated that proceedings for breach of an order would be dealt with summarily.

I do not dispute that, from time to time, there may be cases where imprisonment for a period over two years may be justified—not for the breach alone, but due to persistent criminal behaviour. What worries me is that none of that behaviour has to be proved to the criminal standard. The normal procedure available to defendants in criminal proceedings should not be set aside in a process which can result in a serious criminal conviction and a lengthy prison sentence.

Baroness David

I support Amendments Nos. 24 and 37. I was mystified as to why the possibility of a conditional discharge was put out of court, so to speak, and look forward to hearing the explanation for that from my noble friend.

Lord Williams of Mostyn

Amendments Nos. 21, 22, 24 and 37 are grouped together and I shall speak to them all together. They go to the heart of the policy on the new orders. We want a two-stage process: first, the civil order with preventative force acting like an injunction but not a perfect twin to an injunction; secondly, punishment for breach of an order by a criminal offence.

The reason for that is very strong. Anti-social behaviour is a menace on our streets; it is a threat to our communities. We aim to prevent it as far as we may. A civil order is part of the regime for doing that. But, ultimately, we regard such behaviour as criminal. If it cannot be stopped at stage one—the order, after the safeguards I identified earlier—it must be recognised and dealt with for what it is. That is why we made the deliberate decision to invoke the criminal law at the breach of the order stage.

I deal now with some hyperbole. This is by no means unprecedented. If one looks at the Protection from Harassment Act 1997, Section 3 provides that, A complainant may obtain an injunction against a defendant from the High Court or the county court". If there is in fact a breach of such an injunction granted by the High Court or the county court, and the defendant, without reasonable cause, commits a prohibitive act, he is guilty of an offence. What further happens if he is found guilty of that criminal offence? He is liable on conviction on indictment to imprisonment for a term not exceeding five years or a fine, or both.

Lord Goodhart

Will the Minister accept that there are two vital differences in the case of an order under the Protection from Harassment Act which distinguish it from the proposed order under the Bill? One is that under the Protection from Harassment Act a restraining order or injunction can only be made following an actual conviction for criminal harassment, and the making of the order requires a criminal standard of proof. Secondly, the restraining order can only be broken by an act which is itself a breach of the general criminal law of the land.

Lord Williams of Mostyn

That does not go to the point of principle being addressed earlier by the noble Lord, Lord Thomas of Gresford; in fact, it does not bite on it at all.

If one looks at Section 3 of the Protection from Harassment Act 1997 an actual or apprehended breach of Section 1 may be the subject of a claim and an injunction may be granted. My point, to which I return because it will not elude us, is that on breach of the injunction, the conviction on indictment carries a maximum sentence not exceeding five years, a fine or both.

The injunction itself is analogous, we suggest, to an antisocial behaviour order. Perhaps I may tease out one or two further points in the spirit of flexibility and open mindedness for which I have been so often, and indeed, rightly, commended. What the noble Lord, Lord Thomas of Gresford, wishes is this. A man is subject to an antisocial behaviour order. He breaches it. It may be grossly, wilfully and continuously breached. We say, balancing all things as they are duly appropriate, that if it is relatively minor, on summary conviction the offender may be dealt with by imprisonment of not more than six months—the usual magistrates' court limit. On indictment, he may suffer a penalty of up to five years. So introduced there, as is customary in our law, is that if a sentence of more than six months—I omit the occasional two consecutive sentences in the magistrates' court—is to be passed, a man or woman can look in our system to trial by jury. That is what our system provides. But the noble Lord, Lord Thomas of Gresford, does not wish that as a safeguard for a defendant. He wants judge, and judge alone, to decide on guilt and sentence up to five years.

Lord Thomas of Gresford

In answer to my query, what circumstances does the noble Lord envisage would have to have occurred for a five-year sentence of imprisonment to be passed for a breach of one of his antisocial behaviour orders and where a more serious offence has not been committed?

Lord Williams of Mostyn

My learned friend is like the mariner upon the icebergs. One of them is sinking and so he jumps on to the other one. I just want to sink the first one fully. I return to my point. If someone is liable to serious consequences by way of extensive imprisonment, our regime—liberal, enlightened and well informed—is that the man should be tried by a jury.

Lord Thomas of Gresford

Does the noble Lord intend, therefore, to change the system of civil injunctions so that anyone who is liable to two years' imprisonment for a breach of a civil injunction will now face trial by jury?

Lord Williams of Mostyn

No, because at the moment, as is normal in these circumstances, we are dealing with law reform one step at a time. What I am attending to now is the proposition that the noble Lord put forward. I do not mind if he is sorry that he put it forward when I expose what might charitably be described as internal self-contradictions.

There are circumstances that we know well—they are possibly rare but not as rare as we want them to be—where the kind of behaviour, but much, much worse, that my noble friend Lord Mishcon referred to earlier—racist behaviour—may have continued for a significant period of time, with people having no redress.

Lord Northbourne

Will the noble Lord give way?

Lord Williams of Mostyn

I am trying to answer the noble Lord, Lord Thomas of Gresford. I am perfectly happy to answer all conceivable questions on all possible subjects but I want to deal with the noble Lord's specific question. We reach the situation where the only redress for the individual citizen—black, white or whatever—is to try to establish through the relevant authority (a local authority or the police) that the order is required. If behaviour of that kind continues time and again even after the offender has been brought to court, even after the proceedings have been introduced, there may well be extreme circumstances where a five-year sentence would be justified. I can easily conceive of those circumstances. I now give way.

Lord Northbourne

I was going to ask the noble Lord whether under those circumstances the offender could not have been indicted under other legislation, possibly the Race Relations Act.

Lord Williams of Mostyn

The noble Lord's point is well made. If that were so, the prosecuting authorities would have their choices, as they have choices now, as to the basis on which they wished to bring charges against a particular individual. If that were so, that might be the appropriate action to take. What we are offering here—I know that the noble Lord, Lord Monson, anticipated my answer—is a maximum. It is a maximum which may be of utility in some circumstances. It is a maximum also which is intended to demonstrate the seriousness with which we regard this type of activity in certain circumstances.

I stress that imprisonment follows only when the order has been made, when criminal proof of the order has been demonstrated and when the defendant has the safeguard, if he wishes it, of trial by jury before he is exposed to a sentence of any more than six months.

I believe that we have put the balance right. I am very glad to have had the opportunity to deal with these questions and these propositions. I believe that the five-year maximum may never be used or very rarely indeed. It may well be appropriate in the circumstances which I have described.

We now come to the linked questions of Amendments Nos. 24 and 37, which I believe the noble Lords, Lord Henley and Lord Goodhart, rightly put in tandem because they address a slightly different aspect of the problem. As both noble Lords have identified, the consequence is that the conditional discharge will not be available. If a breach of the order is alleged there is provision for the defence of reasonable excuse. So for the breach to be proved that would have to be disproved by the court. To allow a further conditional discharge is really serving a further order, a further final warning and a further last resort.

We have come to the conclusion that that is otiose. The original seeking of the order gives a message to the defendant which is, "Carry on like this and serious consequences may well come about. If you breach the order there will be criminal sanctions." For a conditional discharge to follow a breach there will be the same statement over again. It ignores the original order and we shall be back in a situation which most people have regarded as foolish in the extreme; namely, caution, caution and caution.

We have come to the policy conclusion that if, without reasonable excuse, which is a defence, a breach of the order occurs, it must mean that the defendant has continued in his actions in defiance of the court and in the knowledge that his conduct will be viewed in that way. It means that he has a pattern of behaviour that he either cannot or will not control. In that context, with all the safeguards built in, we believe we are right not to accept these amendments. We are talking about serious matters. I recognise the rights of defendants. We believe in giving the defendant the opportunity of trial by jury and the reasonable excuse defence. We believe that that is the right outcome. We do not believe that a conditional discharge, which so often, as they say in the trade, is just a slap on wrist with a wet lettuce, is appropriate.

9.15 p.m.

Lord Goodhart

Would it be possible for the court to impose a fine of £5 or £10 or does the Minister intend to exclude that power as well?

Lord Williams of Mostyn

The noble Lord has rightly scanned the Bill and come to the same conclusion as I have. A fine is possible, but a conditional discharge is not.

Lord Northbourne

I am sorry to delay the Committee. Can the noble Lord give me an example of a situation in which the five-year prison sentence would be appropriate and which could not and should not be dealt with under other legislation?

Lord Williams of Mostyn

It may well be that there are evidential difficulties with other legislation, but I do not know. I cannot possibly scan all possible hypothetical situations. We are saying two things: firstly, this is serious business to which we are intent and, secondly, the prosecutor still has the discretion to choose the appropriate charge. I do not believe anyone in this Committee has any doubt that there is serious social mischief here.

Lord Renton

In support of what the noble Lord, Lord Williams, has said and with deep respect to the noble Lord, Lord Northbourne, it is a fairly frequent practice, when drafting indictments, to create more than one offence out of the same facts. The prosecution need to play for safety. If it does not get a finding against one statute, it may do so against another. So, as a matter of precaution, that is done quite frequently.

Lord Thomas of Gresford

It is a sad day that the Government Benches have to support their arguments by reference to the final kick of the previous Home Secretary in the previous administration; namely, the Protection from Harassment Act. I am glad that the noble Lord, Lord Williams, referred to that legislation because I attacked it root and branch for precisely the same reasons as I am attacking this. I put forward a scheme very similar to what I am arguing today. I am completely consistent. Unhappily, the Labour Government have followed in the footsteps of their predecessors. As I say, it is a very sad day. That legislation was swallowed up in the rush to get things on the statute book just before the general election. It is for that reason and because the Government are now relying on the last Act of the previous Home Secretary that I welcome the lack of support from the Conservative Front Bench. That rather makes my point. However, I most warmly welcome the support that I have received from other noble Lords, including my noble friends, who have recognised the importance of this point.

When the noble Lord, Lord Williams of Mostyn, uses the word "serious", which is now replacing "flexible" as the word of the night, is he suggesting that I am joking? Is he suggesting that I do not appreciate that there is a social evil which has to be addressed? But that social evil has to be addressed with regard to the liberties of the people of this country. These matters should be dealt with properly and sensibly.

The noble Lord was unable to answer the questions put to him by the noble Lord, Lord Northbourne, and was unable to name a single circumstance that he could envisage in which a five-year sentence could be imposed when another criminal offence had not been committed. If the argument is that a person may be in breach of the order time and again, the answer is that under my proposals he could go to prison for up to two years at a time on each breach. This is a serious matter. I do not propose to press the amendment tonight for obvious reasons, but I assure the noble Lord, Lord Williams, that I shall return to it in due course. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.22 not moved.]

Baroness Hilton of Eggardon moved Amendment No. 23: Page 2, line 34, at end insert— ("( ) Proceedings under subsection (9) above may be instituted by a relevant authority.").

The noble Baroness said: We come to one of my amendments on which I do not think that I have yet had an answer from the Minister. The purpose of the amendment is to ensure that the relevant authority—that is, the police and the local authority combined—will be able to apply directly to the courts for conviction in the case of a breach of an antisocial behaviour order. That is partly so that the Crown Prosecution Service will not be able to exercise a veto. It is felt that the CPS might exercise a veto because, on the whole, it is concerned with probably more serious criminal offences than those that may have led to the passing of the order in the first place. It is also felt that the CPS might not be sympathetic to what has gone before or to the long-term harassment and distress of those affected by such behaviour.

More seriously perhaps, the amendment relates to the necessity of achieving a speedy prosecution. If people have been subjected to racial taunts, graffiti, harassment and distress over a period of many weeks or months and, despite the imposition of an order, the distress and harassment continue, it is essential (both in terms of respect for this whole new system and in order to alleviate the distress of those affected and to rescue them from their awful situation) that criminal proceedings can be instituted with the greatest possible rapidity and that some of the law's delays can be obviated.

Local authorities have considerable experience of prosecuting cases in various fields. Therefore, it is not necessary to involve the Crown Prosecution Service. I think that this is one instance where the police and the local authorities combined could be trusted to proceed directly to court and to apply for proceedings in relation to a breach of an antisocial behaviour order. I beg to move.

Lord Falconer of Thoroton

The effect of the Bill as drafted is that if criminal proceedings are brought they should be treated in the normal way and just like any other criminal proceedings; namely, the prosecution should be in the hands of the Crown Prosecution Service. My noble friend Lord Williams of Mostyn has described the reasons why the policy decision has been taken that once a breach is established it should be dealt with not as a matter of civil remedy but as a matter of criminal offence. In those circumstances, the logic of that policy decision is that the matter should be dealt with by an independent prosecutor like any other serious criminal offence—namely, the Crown Prosecution Service—following investigation by the police. The CPS decides whether or not a prosecution should be brought or continue. That is the logic of our position, and I believe that that is the correct approach to take in relation to it.

I do not believe that the concern of my noble friend is justified. Her concern is that, if a local authority is prosecuting, the matter will be dealt with more quickly than it would be by the CPS. One hopes that the CPS would establish appropriate internal guidelines to make it possible for these matters to be dealt with quickly and expeditiously, particularly where a victim was suffering as a result of the antisocial behaviour that gave rise to the order in the first place and the criminal proceedings in respect of breach.

Although my noble friend raises an important point I believe that the decision to treat this matter like any other criminal offence is the right one both logically and practically. I hope that my noble friend will reconsider the matter and seek to withdraw her amendment.

Baroness Hilton of Eggardon

I understand the logic of treating the matter via the Crown Prosecution Service. The difference is that this will be part of an ongoing series of offences rather than a single offence. Normally, a single offence is committed and the matter is then concluded, but in the case of harassment and distress, as here, there is an ongoing situation which is not like a single act of burglary, murder or other criminal offence. I believe that it is therefore qualitatively different. However, I would like to consider what my noble and learned friend has said. In the circumstances I seek leave to withdraw my amendment, which I may return to at a later stage.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Lord Williams of Mostyn] moved Amendment No. 25: Page 2, line 40, after ("section") insert— (""the commencement date" means the date of the commencement of this section;").

The noble Lord said: I have already spoken to Amendment No. 25. I beg to move.

On Question, amendment agreed to.

Lord Henley] moved Amendment No. 26: Page 2, line 43, at end insert— ("( ) The Secretary of State shall within two years of this section coming into effect make a report to Parliament on the working of anti-social behaviour orders.").

The noble Lord said: I promise to be brief. We come more or less to the end of Clause 1. Given that there are a further 95 clauses to go, I do not intend to delay the Committee on clause stand part on this particular clause. This afternoon we have had a pretty thorough discussion on a single clause, albeit one of the more important ones in the Bill. This and a number of other similar amendments in my name which relate to other clauses were originally grouped together. However, I felt it better to reserve the right to take them separately and ungroup them.

Amendment No. 26 is designed purely to ask the Secretary of State within two years of the provision coming into effect to make a report to Parliament upon its working. I move the amendment purely on the basis that this is a new concept in terms of antisocial behaviour orders. The same is true of some of the other later amendments.

It may be that these orders will prove very effective; they may prove to be ineffective. I considered tabling sunset amendments to this clause which would have ceased to have effect after a certain period unless Parliament decided otherwise. Having considered the matter, I thought it best to leave them as they were and merely ask the Secretary of State to make a report to Parliament so that Parliament would have an opportunity to debate the working of the provision. No doubt the noble Lord or the noble and learned Lord—I do not know who will reply to this debate—will resist this with his usual flexibility and tolerance. I believe that this is an important matter. It is important that with new concepts of this kind Parliament should in due course have an opportunity to examine how they are working and decide whether they are as effective as both we and the Government hope they will be. I beg to move.

9.30 p.m.

Lord Renton

I hope that the Government will not resist the amendment which I regard as one of great importance. Unless a report is made to Parliament from time to time, Parliament will not know how the Bill is working out. It breaks new ground of an unusual kind. Even if the Government cannot accept the amendment tonight, I hope that they will keep their minds open because, it is, as I said, an important matter.

The Earl of Mar and Kellie

It is important that Parliament hears how this new measure is working out. I shall pick up two points which have emerged during the past few minutes. First, I am strongly in favour of the rapid response to a breach of the antisocial behaviour order that the noble Baroness, Lady Hilton, recommended. That is especially important if offenders are young.

The second point relates to what the Minister said. It may have been a slip of the tongue, but he referred to people who cannot or will not control their behaviour. I am not certain that someone who cannot control his behaviour should be placed under such an order. As a criminal justice social worker I was brought up to believe that one should not set people up to fail. I may be reading too much into the casual expression, "cannot control his behaviour", but such a person should perhaps be made the subject of a probation order. Someone who cannot control his behaviour should not be made the subject of an unsupervised order. I wonder whether I picked up the Minister correctly.

Lord Williams of Mostyn

It was not a slip of the tongue. Some people are violent criminals. They cannot or will not control their behaviour, because they often enjoy their thuggery and violent behaviour. If it comes to a choice between protecting the public on the basis that they will not or they cannot, then I regret to say that simple supervision by a social worker is not a remedy in every case. It was no slip of the tongue.

I turn to the amendment. I agree entirely with noble Lords who have said that a review of the success or otherwise of legislation is desirable. It will tell us what we may have done wrong, what lessons we can learn for the future, upon the basis of what past experience shows. I can say to the noble Lord, Lord Renton, that we are increasingly looking to do that on a regular basis.

Even now we are looking at proposals to review the early workings of two recent pieces of legislation from 1997—the Sex Offenders Act and the Protection from Harassment Act—both of which broke new ground in the criminal field. We believe that that should be normal practice. So I welcome encouragement to do that. The only difference between us is whether we provide that on the face of the Bill or continue the workings of review which can be the subject of Question and debate in this place.

We believe that it is not necessary to provide for review on the face of the Bill. There was no review on the face of the Sex Offenders Act and the Protection from Harassment Act. I forestall the noble Lord, Lord Thomas of Gresford, by saying that just because they were Conservative Acts I should necessarily follow them. We believe that there is a strong case for continuing scrutiny, but that that should be done in the way that we are doing it rather than have it as a statutory obligation.

I hope that the Committee will take my rejoinder in the way that I took its inquiries; namely, that we need information; we need periodic review; but it is better done in the way that I suggest rather than on the face of the Bill.

Lord Renton

The Minister has given an encouraging reply, but he did not mention the possibility of reporting to Parliament, which is important and the essence of the amendment.

Lord Williams of Mostyn

I believe that I did, because I indicated that, periodically, as the reviews develop there is the opportunity for a short debate in this Chamber and Answers to oral Questions or Written Questions. A short debate in this place, of which there are occasional examples, is beneficial, because specialists in particular areas can ask about the conduct of reviews. We are united in spirit and I hope that the noble Lord will not press his amendment to the point of having a statutory obligation.

Lord McNally

This is my maiden intervention as home affairs spokesman for the Liberal Democrat Benches. I have remained silent partly out of the trepidation of crossing a fluent Welsh Silk, which is why I have come armed with one of my own! However, I find great encouragement in the Minister's comments.

During recent years, there has been the danger of producing a ratchet effect in our laws. The idea has been that more draconian measures and more imprisonment will solve the problem of crime and disorder. We must take stock of such measures, whichever Administration introduced them, so that we do not continue to fool ourselves that we are on the right road simply because we are responding to popular demand. There is a need for cool assessment and Parliament is the place to undertake that.

Lord Henley

Like the noble Lord, Lord McNally, I am neither Welsh nor a Silk, nor ever likely to be. I, too, found the Minister's answer relatively encouraging. However, at this time of night I should not wish to press such an amendment; nor should I wish to press it on another occasion, although I might wish to raise the matter in respect of a number of other clauses.

The Minister said that the Home Office would keep these matters under review and from time to time make reports. Do I understand that the reports will be available to Parliament and therefore open to my noble friend Lord Renton or myself to find a way to debate them? Our ingenuity is such that we can always find ways to debate them.

Secondly, speaking with authority as a Minister, can the noble Lord go a little further and give the Committee an idea of the timescale within which the Home Office will review such clauses? When will it make pronouncements about the workings of this clause or others?

Lord Williams of Mostyn

That would depend on the date of commencement. All noble Lords have welcomed the process of consultation and guidelines. However, perhaps I may say without prejudice that it would not be unreasonable to be looking at a review of the way in which the provisions had worked in practice after 18 months or two years of the relevant clause coming into effect. That would give local authorities and police authorities an opportunity to bring issues before the courts. I speak without deep thought or consultation. but that timescale would seem to be appropriate. I notice that two years was the period which the noble Lord had in mind.

Lord Henley

I am grateful for the Minister's response. He went much further than I expected him to go at this stage in offering some kind of timescale. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Baroness Hilton of Eggardon] moved Amendment No. 27: After Clause I. insert the following new clause— EXCHANGE OF INFORMATION BETWEEN LOCAL AUTHORITIES AND POLICE (" . After section 28(4) of the Data Protection Act 1984 there shall he inserted the following subsection— (4A) A local authority is acting for the purposes referred to in subsection (I)(a) and (b) when investigating any matters which amount to or could amount to a criminal offence notwithstanding that the local authority may be considering civil rather than criminal proceedings as a result of those investigations.".").

The noble Baroness said: The amendment attempts to address a long-standing problem. I have 40 years' experience—your Lordships will be glad to hear that I shall not detail it—of the difficulties of exchanging information between different organisations with different cultures. Mutual suspicion about motivation and what people will do with their precious information can be extremely inhibiting. There are specific legal problems, too. The Data Protection Act, for example, has prevented the exchange of information which may be held on computers. Fear of our draconian libel laws has been another reason for prohibiting the free exchange of information about paedophiles. Sometimes police forces must resort to nods, winks and nudges to inform social workers that perhaps they should look more closely at somebody's background.

Therefore, it is a long-standing problem in relation to the free exchange of information between different organisations. This amendment proposes a way in which, at least under the Data Protection Act, the matter might be dealt with so that information on computers relating to crime prevention can be freely exchanged. But this is intended entirely as a probing amendment. I hope to hear how the Government believe that they can encourage the exchange of information in that field. Common databases could perhaps be set up and formal links established in that way. I hope that the Minister will have some constructive suggestions about how police and local authorities might combine together to set up databases of information to deal with those problems. I beg to move.

Lord Williams of Mostyn

I am grateful to my noble friend for tabling this amendment. As she may know, my honourable friend Alun Michael and I had a lengthy and fruitful discussion with the Local Government Association about the legitimate concerns which local authorities have, and, of course, consequentially, police authorities have, about the duties which will be laid upon them as a result of the Bill.

As the Committee will know, the Data Protection Act 1984 will be superseded by the Data Protection Bill currently before your Lordships' House which the Solicitor-General and I are presently conducting.

I accept that the amendment is probing. It attempts to exempt certain applications for antisocial behaviour orders from the full regime of data protection. It seems to me—and I believe that my noble friend confirmed this—that the key point is to make sure that statutory bodies, for example, police authorities and health authorities, can exchange and use information for purposes envisaged in the Bill without fear of legal attack.

At present we are giving careful consideration to see whether there is sufficient legal protection for those authorities which properly share information where it is necessary for the purposes of the Bill. I can say to my noble friend that we are determined to remove any doubt about the extent of the power of such bodies to do so. That is the fundamental point and I am grateful to my noble friend for raising the issue. I hope that I have given my noble friend sufficient reassurance.

Baroness Hilton of Eggardon

I am grateful for that extremely encouraging response. I feared that this amendment might not fit the bill but I am extremely pleased that the Government are addressing the problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Sex offender orders]:

Lord Henley] moved Amendment No. 28: Page 3. line 6, leave out ("serious").

The noble Lord said: This simple amendment is self-explanatory. At present, before orders can be made under Clause 2, it must be shown, that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him".

We are merely suggesting with this amendment, and Amendment No. 30 which is related to it and to which I also speak, that the word "serious" should be deleted.

I raise the matter partly because I wish to know exactly what "serious" means on this occasion. Secondly, a more substantial point, I wish to question whether the inclusion of the word "serious" is really necessary, bearing in mind the very real danger presented by certain sex offenders to young children. I am thinking of paedophiles in particular. I wonder whether the word "harm" alone would be sufficient. I bear in mind the possibility that certain lawyers may wish to use a considerable amount of court time arguing that although harm might come of whatever was threatened by the individual, it would not be serious harm. I do not believe that we would wish to see that happen. I hope therefore that the Minister who is to respond to the amendment will be able to give me some reassurance on both those points. I beg to move.

9.45 p.m.

Lord Goodhart

In speaking to Clause 1(1) earlier, I sought to persuade the Government to include a reference to alarm or distress being serious. I am sure, therefore, that it will come as no surprise to the Minister that, on this occasion, I wish to support the Government in the retention of the word "serious" and that I cannot support the proposed amendment.

The sex offender order is an extremely powerful one; indeed, it could quite properly be described as draconian. It is therefore an order which should only be introduced and made applicable to a person where there is a real risk of serious harm. The way that the Government have drafted the wording seems to me appropriate on this occasion.

Lord Thomas of Gresford

Can the Minister indicate what sort of conduct is envisaged by this paragraph in the clause which would cause harm or serious harm and which does not amount to an offence in itself? In this particular instance. I find it difficult to understand. For example, stalking is now an offence. So what particular kind of harm is envisaged that this sex offender order will prevent?

Lord Williams of Mostyn

I am bound to say that I have a certain sympathy with the purpose behind these two amendments. The whole purpose of the proposed new sex offender order is to protect the public, especially its most vulnerable members, and it is tempting to see that as the only consideration. I have to tell the Committee that we have looked long and hard at this definition and there has been much anxious discussion about it. We came to the decision that we should not dilute the test of serious harm. If one looks at the order, it will be seen that we start from the presumption that a person is a sex offender. That covers all offences in Schedule I to the Sex Offenders Act 1997 and all disposals. including cautions.

After the commencement of the clause, if an offender acts in such a way as to give cause for concern, that does not necessarily mean a further offence. The behaviour may be unexceptionable if it were not for his past history. I take note of the point made by the noble Lord, Lord Thomas, in that respect. Stalking may be an offence as, indeed, may other forms of harassment. However, the noble Lord and I know perfectly well from a recent notorious case in north Wales, which I shall mention generally only, that one can have the classic example of watching children in a school playground. The activity in itself is, of course, potentially neutral, but with the knowledge of the offender's previous history and activities it no longer remains so. Therefore, what one has here is, I believe, a fair balance. There has to be reasonable cause to believe that an order is necessary to protect the public from serious harm. Of course the paedophile who may be devious, who may have a large number of previous convictions—but, equally dangerous, who may not have a large number of relevant previous convictions—and who is acting in that way, really needs to be caught by such an order. It would be very difficult to categorise that sort of action as a criminal offence at present, but it needs to be caught.

I am happy that the noble Lord posed the question because it is the sort of question with which officials and Ministers have been wrestling for some time. There is no doubt at all about the enormous and well-justified public anger over some recent cases where sometimes the law is powerless, even when children are involved. I believe that that has been a matter of reproach to all of us on all sides of the Committee.

It is indeed a narrow line we are walking and I do not overlook that fact. As the noble Lord, Lord Goodhart, said earlier, we must bear in mind that it is very easy to be benevolent in the human rights context to nice people who are reasonable and as open-mindedly flexible as we all are here. However, it is much more difficult to bear in mind that others also have rights.

Therefore the order sought will be preventive only, but it may prevent an individual from actions which for another individual—as I have indicated—might be neutral. I use the word "neutral" but perhaps a better word is "unremarkable". We must have justification for this measure and we feel that the words "serious harm" constitute the proper level to achieve that. The term "serious harm" is used in the Criminal Justice Act 1991 covering psychological and physical harm. Protecting the public from serious harm under Section 31(3) of the 1991 Act constitutes violent or sexual offences. Although this is not a decision that one can reach with any absolute conviction, we believe that we have the balance about right. It is difficult to achieve a balance here between human rights in their broadest sense and the absolute necessity of protecting, in particular, children. What we have tried to balance is the question of reasonable cause and, on the other hand, serious harm.

We must bear in mind that the police do not have to prove that an order is necessary to protect the public from serious harm; all they have to prove in this regard is that the person has acted in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm. I believe that we have reached a difficult conclusion which is probably the right one. However, I entirely respect what has been said; this is a delicate balance to achieve. We believe that if we take the word "serious" away, that would constitute an undue infringement. We have balanced reasonable cause with the prospect of serious harm. I regret that I cannot accept the amendment. All Members of the Committee who have spoken recognise the problem and are aware of the difficulties. One can only trust that one has achieved the right balance.

The Earl of Mar and Kellie

I support what the Minister has said. I believe that paedophilia is generally untreatable. I also think that any act of paedophilia constitutes serious harm. I question whether there is anything that a paedophile does which is not serious. Therefore I think it would be wrong even to suggest that such an act is just harmful; it is seriously harmful.

Lord Elton

I wonder whether the Minister can enlighten me on a small point as to the definition of a sex offender, which on the face of it is pretty simple. Is it or is it not the case that sex offences are subject to the Rehabilitation of Offenders Act, in which case there may be people in this category who are not known? That seems to me to affect the way the Bill will work when it becomes an Act. I wonder whether the Minister can tell me that.

Lord Williams of Mostyn

The definition of sex offender is someone who has committed any offence covered in Schedule 1 of the Sex Offenders Act 1997. I always shudder at specific questions from so informed a source as the noble Lord, Lord Elton. My recollection is that the Rehabilitation of Offenders Act relates to the Sex Offenders Act. If I may, I shall research further the specific connection which the noble Lord has mentioned. I shall, of course, write to him as soon as I can.

Lord Henley

I am most grateful for the care with which the noble Lord has responded to my amendment. I entirely take his point about the fine balance as to whether one should include the word "serious". I have listened carefully to what he has to say. I accept that he has made a perfectly good and valid case for including "serious" in conjunction with "harm" on this occasion. For that reason I have no hesitation in withdrawing the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Amos] moved Amendment No. 29: Page 3, line 8, at end insert? ("( ) The chief officer shall have regard to any guidance issued by the Secretary of State to provide that as far as is practical he shall consult the council for the area and every probation committee any part of whose area lies within the local government area before applying for an order under this section, and in any case shall consult such bodies as soon as possible afterwards.").

The noble Baroness said: This amendment seeks to ensure that the police consult with the local council and the Probation Service either before applying for a sex offender order or as soon as possible afterwards. Once granted, an order will have implications for the Probation Service, which will be responsible for the supervision of such offenders, and for the local authority, which may have to rehouse the offender or provide other services. We are all aware of recent cases which have shown that the identification of sex offenders in a locality is fraught with difficulty. It is important that all the relevant public agencies are made aware of what is taking place before an order is granted. This would build on the collaborative multi-agency approach which is the consistent theme of the Bill and of the Government's approach to crime prevention. I beg to move.

Lord Falconer of Thoroton

I have real sympathy with the view expressed by my noble friend Lady Amos that wide consultation should take place before, or even shortly after, an application is made for an order, for all the reasons she gave—for example, rehousing, and SO on.

It will be the Government's intention to issue guidance in due course which will cover all aspects of consultation. However, we believe that the cases where applications for orders under this section are made should be dealt with on a case-by-case basis. To impose an obligation, for example, to consult a body which has not been involved in the case in question, could merely hold up the process and might impose an unnecessary and over-bureaucratic obligation to consult. Again, not all of those against whom orders are being considered or have been granted will be on probation. Moreover, focusing on one group to be consulted could lead to others being overlooked.

Although the Government are in sympathy with the idea of consultation with all the appropriate agencies, they do not think that the appropriate way to deal with this is by such an amendment or any provision on the face of the Bill. In the light of what I have said, I hope that my noble friend will consider withdrawing the amendment.

Baroness Amos

I thank my noble and learned friend for his reply. I am reassured by the commitment to consultation and to publishing guidance. I in no way wish to add or create a further layer of bureaucracy. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

Lord Goodhart] moved Amendment No. 31: Page 3, line 18, at end insert— ("( ) No order under subsection (4) above shall deprive the defendant of the right to seek and undertake employment (other than employment of a type which is inappropriate having regard to the nature of the offences in question) or of access to facilities which are reasonably required in the normal course of life.").

The noble Lord said: This is a probing amendment. The powers in subsections (3) and (4) of Clause 2 are extremely wide. But there must be some limit to the nature of the orders which a court can make. What limits do the Government envisage? It surely cannot be right to make an order, for example, which prevents the subject of the order from going into a public place. That would amount to house arrest, which clearly would not be an acceptable application of the power to make an order.

My amendment is intended to ensure that the subject cannot be prevented from obtaining or holding a job unless that job is itself inappropriate because of the nature of the offence—for example, a paedophile obtaining a job in a school. The purpose of the amendment is to ensure that an order cannot prevent the subject of the order from going shopping, going to see the doctor, or doing all the other things that are reasonably necessary in the course of leading an ordinary life.

The answer to the problem may be that when the Human Rights Bill comes into force, Clause 2(3) and (4)of the Crime and Disorder Bill will have to be interpreted as being compatible with the right to liberty under Article 5 of the European Convention on Human Rights. If so, it would follow that an order could be made only in so far as it contained restrictions that were themselves compatible with Article 5. Do the Government accept that that is so? If they do, that would satisfy the purpose of the amendment. I beg to move.

10 p.m.

Lord Williams of Mostyn

I entirely accept both propositions put by the noble Lord, Lord Goodhart. The aim of the sex offender orders is to prevent further offences, not to interfere except where absolutely necessary in a defendant's life. I am sure that, in making the orders, the courts will be well aware of that principle. We intend to set out guidance along those lines to accompany the order.

It is very difficult, as the noble Lord implied, to produce definitions on a general basis. For instance, one looks at: employment of a type which is inappropriate having regard to the nature of the offences in question". Some employment is quite easily categorised—for instance, working in childcare services or areas of that sort. I have had these problems in discussion with the NSPCC in the past. What does one say about a taxi driver? His employer may well have a contract for delivering children to the local school, or perhaps disabled children to special residential accommodation; or a bus driver similarly; or perhaps a café proprietor—which may not present a problem in general, but the cafe may be visited by vulnerable small children who hang about there, which may be a problem. We are very much aware of the difficulty.

The second principle put forward by the noble Lord was how the proposal would tie in with the European Convention on Human Rights. We believe that interference with personal rights and individual freedoms without real necessity could easily be struck down as contrary to the European Convention. To divert for a moment, that is going to be one of the significant and glorious effects of incorporation. I have always suggested, and believed, that the simple headline, "Bringing rights home", does not do justice to the concept which I know the noble Lord so fully supports.

I hope that in this very short reply I have been able to satisfy the noble Lord, Lord Goodhart. The officials in the Box provide such service as would shame Rolls-Royce at Crewe and have reminded me that the Rehabilitation of Offenders Act has no application to Clause 2—which will save research and a first-class stamp.

Lord Elton

I thank the noble Lord for that reply. Is any help to be given to the courts to avoid the endless cases that would otherwise flow to test their orders against the Convention when it becomes part of our statute law?

I see from Clause 96 that there is no precise date for this part of the Bill coming into effect. I do not know whether it has been decided yet; it is to be at a date decided by the Minister. It would be interesting to know when the measure is expected to come into effect, and whether there are to be guidelines. The noble Lord's noble friend has already mentioned that some guidance will be brought forward in due time. I presume that that will be before the coming into effect of this Bill as an Act of Parliament. Is there any prospect of any guidance to the courts? I speak as a layman, but magistrates, with due respect, are to some extent laymen themselves. It is important—is it not?—that we should avoid endless referrals of magistrates' decisions eventually to the European authorities.

Lord Williams of Mostyn

The noble Lord raises two questions: one spoken, and one consequential. It has not been decided as to when the commencement date will be, in respect of the noble Lord's specific question. Of course, the commencement date of the Human Rights Act has also not been decided.

My right honourable friend the Home Secretary has said that a large amount of funding is to be put to judicial training. Inevitably there will be queries and questions, significantly we believe in the criminal courts—we believe that the major activity on ECHR is likely to be in the criminal courts. There will obviously be guidance. We work together very happily with the senior judiciary and very productively with the Magistrates' Association. I take the noble Lord's point absolutely. There has to be training; there have to be guidelines and guidance. As I think we have demonstrated, we believe in constructive co-operation and inquiry with those who will have these tasks. We accept that all orders made in this context will have to comply with the European Convention on Human Rights. I happily re-emphasise that nothing in Clause 2 detracts from that proposition.

The Earl of Mar and Kellie

At the beginning of Clause 2 it states: If it appears to a chief officer of police that the following conditions are fulfilled… The conditions laid down are that the person be a sex offender and that he has acted in an unacceptable way. We have talked about guidance. Will the guidance be that the chief officer of police and the police force should be proactive in promoting such an order or will they have to wait until members of the public complain that a person is acting unacceptably?

Lord Williams of Mostyn

First, I suggest that that is much too general a question. The guidance will follow consultation. I believe that, if there is to be consultation, the consultation should take place before the guidance is given. In specific answer to the noble Earl's question, it will depend on the circumstances. For instance, if a well known convicted and potentially dangerous paedophile is lurking around a school yard and the local constable notices that, in a sense—though I am not sure that the label is particularly helpful—the police will be proactive. If the local beat constable does not notice but the head teacher does, the police will be reactive to what the public have told them. However, I believe that that is a distinction without a difference.

Lord Goodhart

In view of the most helpful reply by the noble Lord, Lord Williams of Mostyn, on Amendment No. 31, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart] moved Amendment No. 32: Page 3, line 19, leave out ("(not less than five years)").

The noble Lord said: This amendment is grouped with Amendments Nos. 33 and 34, which raise a slightly different point. Amendment No. 32 raises the question of whether there should he a minimum time limit for sex offender orders. That question was also raised in the debate on the antisocial behaviour order in respect of Clause 1. Unlike the case of the antisocial behaviour order, I do not seek a maximum time limit for a sex offender order. There may well be cases where it is necessary for the order to remain in force for many years because of the unquestionable tendency of paedophiles and other sex offenders to re-offend. There may be some cases where even a five-year order may be excessive. This is so particularly with young people, in whom great changes in behaviour are possible over quite short periods. The court has a discretion as to whether to make an order at all. Why should it not have a discretion as to the length of the order? I would be less concerned about the minimum time limit if the court had independent power under subsection (6) to grant an early discharge from the order where the circumstances justified it.

Amendments Nos. 33 and 34 raise the same point as was raised in connection with the antisocial behaviour order; namely, the restriction on the court's power to discharge an order before the expiration of the five-year period without the consent of the chief officer of police. The effect of this is to transfer the power to grant early discharge from the court to the chief officer. The court cannot give a discharge if the chief officer does not agree. Equally, it is unlikely to refuse to discharge the order if the chief officer of police does agree to a discharge.

I repeat briefly the arguments that I raised before. First, it is contrary to the principle that sentencing should be a matter for the court and not for the parties to the proceedings. Secondly, a decision of the chief officer of police in these circumstances cannot be arbitrary. He will be under a duty to consider whether to give consent to the discharge. Refusal of consent would therefore be subject to judicial review, which I do not believe would be in the interests of the police. I suggest that here again it would be much more appropriate for the court to have a discretion after hearing the arguments placed before it by the parties for and against the discharge of the order. I beg to move.

Lord Williams of Mostyn

I too wish to speak to Amendments Nos. 32, 33 and 34. I accept, as I said a moment ago—not least in the context of the European Convention on Human Rights—that a sex offender order is a serious matter. It should not be sought lightly and can only be justified by the overriding need, which we identify, to protect the public from serious harm. Unfortunately, the reason such orders are necessary—as the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Goodhart, indicated—is the dismal likelihood, of which we are all well aware, that particular offenders in this category of case will re-offend. It is no good pretending otherwise and I am sure that no one will.

That likelihood—again, it is a gloomy assertion that I make confidently—is a near certainty in some cases, as we all know perfectly well. If that is so, and bearing in mind the seriousness of the situation in the context of human rights, we ought to look at a five-year minimum duration for these orders. For the order to be justified at all we should look at a period of at least five years for its continuation. The order should not be sought lightly. It should not be granted where there is not real concern for the protection of the public. The minimum duration ought to be an in-built check that an order is only sought and granted when the situation really demands it. It is therefore intended to be, in part, a safeguard against misuse.

We do not believe that we are fettering the discretion of the courts by setting down such a minimum period. It is a determined acknowledgement of the nature of the orders and the likely victims of continued offending—in other words, the serious harm that they are designed to prevent. I do not pretend that this is an easy decision. It is again a balance and we have tried to get it right.

Lord Goodhart

I hear the Minister's response. We do not wish to press the matter of the minimum period further. However, the fettering of the courts' jurisdiction, without the consent of the chief officer of police, to discharge an order early is one at which we might possibly look again; however, not tonight. I am happy therefore on this occasion to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 and 34 not moved.]

Lord Thomas of Gresford] moved Amendment No. 35: Page 3, line 33, leave out from ("order") to end of line 38 and insert ("his conduct shall be punishable as a contempt of court").

The noble Lord said: We heard from the Minister a short time ago that the Rehabilitation of Offenders Act does not apply to sex offenders. By that I understand—no doubt I shall be corrected if I am wrong—that the convictions for sex offenders cannot be spent so that they remain with the offender for the rest of his life.

There is a grave danger that we forever talk in terms of paedophiles, rapists and so forth, forgetting that sex offenders are involved in a wide range of offences from the most serious to the least serious—the youngster convicted at an early age, for example, of an indecent assault which caused little harm. He carries that conviction and is to be termed "a sex offender".

I do not propose to worry the Committee at this time of night with a repetition of the arguments that I addressed on Amendment No. 21. The Solicitor-General appears to be relieved at that. I do not wish to be hyperbolic twice in one evening. However, I ask that the Minister and those advising him consider the argument that I addressed and the possibility of an alteration in the framework which they have so far envisaged. I plead with them to try to justify their position from first principles and not from the record of the previous government in matters of this sort.

I wish to address only one specific matter. Under subsection (8) there could be a jury trial on indictment. But so far from being a protection for the defendant, it would be the reverse. What would the prosecution set out to prove? They would prove that the defendant was a sex offender and thereby reveal instantly to the jury the whole of his chequered past and the convictions he has for sex offences. Secondly, they would prove the existence of a sex offender order which would have been made for unremarkable conduct and which would not remotely constitute a criminal offence or any offence if the person concerned were not a sex offender in the first place. Then they would have to be satisfied that the defendant had been guilty of further unremarkable conduct; so if, for example, the jury were told that he had been standing outside the school playground looking at the children inside, they would be bound to convict him; the conditions would all be fulfilled and he would thereby be liable to a sentence of imprisonment of up to five years.

That is the result of adopting the hybrid approach of having the equivalent of a civil injunction and then bringing in the criminal law to deal with breaches of that injunction. If, instead of doing that, the Government were prepared to follow the path that I have outlined—despite the minor clashes we may have had on that, I hope that will not prevent the Government from considering the arguments put forward—that would be a far better way of approaching the issue and would satisfy many of the problems that the Bill causes.

10.15 p.m.

The Deputy Chairman of Committees (Baroness Lockwood)

I have to point out that if this amendment is agreed to, I cannot call Amendment No. 36 under the pre-emption rule.

Lord Williams of Mostyn

As the noble Lord indicated, we have gone over the principle of this construction between the prohibitory order, which is not a criminal order, and the criminal sanction for breach. As cocoa time approaches (though I am told by some noble Lords that by the end of the evening they will be looking forward to something a little better than a cup of cocoa) I hope your Lordships will acquit me of discourtesy if I do not rehearse the arguments which, as the noble Lord recognised, we have already gone over.

Perhaps I may deal with his specific question, because it is a legitimate one, about the Rehabilitation of Offenders Act, which derived from the earlier question from the noble Lord, Lord Elton. The 1974 Act does not apply to sex offender orders; but it applies to sex offenders, for instance, in so far as they are applying for employment. If their convictions are spent, they do not need to declare their previous convictions in the employment context. So there is a difference there which I am happy to have elucidated.

Lord Thomas of Gresford

I am sorry to interrupt the noble Lord. Am I right in thinking that if it came to a trial, on indictment the jury would have to be told that the defendant had previously offended in a sexual context?

Lord Williams of Mostyn

It would be a case of adopting a formula between Crown and defence, approved by the judge, a formula with which the noble Lord and I will be familiar in our previous incarnations. The same difficulties arise with the specific offence of being in possession of a firearm within five years of discharge from prison. Notoriously, the courts—prosecution, defence and certainly the judges—bend over backwards to try to have a neutral formula to draw the sting so far as possible. I imagine that that is how this would be dealt with. It is possible to attend to the problem but I do not think one could have a perfect solution in those circumstances. There are many other offences one could think of, though I shall not elaborate them, where similar problems arise.

There is a difference between the position of the noble Lord, Lord Thomas of Gresford, and my position. One of us—I shall not say which—believes the world is flat; the other believes it is round; and I do not think we are going to convince each other.

Lord Thomas of Gresford

Standing as I do on this circular globe, it would be churlish of me to waste the time of the Committee any further because I hope that the sun is going to rise sometime. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 to 38 not moved.]

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Hylton

I have listened as carefully as I could to the various debates on this clause. I am still not entirely clear or necessarily happy about some of the wording. The very beginning of the clause reads, If it appears to a chief officer of police". I have the feeling that that really means that the chief officer has a reasonable suspicion. I am reinforced in that surmise because of what is said in line 5, give reasonable cause to believe". I am not sure whether "appears" is the right word. That is my first worry.

My second worry arises because, if I heard him rightly, at one point the noble Lord, Lord Williams of Mostyn, said—describing the person who would be subject to such an order—that, "He has committed a sexual offence". On another occasion I believe I heard him say, "With or without previous convictions". That opens up a certain area of doubt.

Thirdly, I shall be most grateful if the noble Lord can explain because I have not got a copy of the Sex Offenders Act 1997 here. Perhaps he can explain the meaning of "the relevant date".

The Earl of Mar and Kellie

Since the noble Lord, Lord Hylton, has raised the issue of whether Clause 2 shall stand part of the Bill, perhaps I may express my one concern with this type of order. Nobody in the Committee disagrees that we are dealing with very serious misbehaviour. I am concerned that this remains an unsupervised order. Is that really sustainable?

Lord Williams of Mostyn

I do not think there is any real difficulty about the words, If it appears to a chief officer of police". That implies that he has made appropriate inquiries or material has been brought to his attention. He therefore comes to the conclusion that the following conditions are fulfilled. When I spoke of a sex offender, I defined that as someone who has committed an offence within Schedule 1 of the Sex Offenders Act. I did not say, "With or without previous convictions". I said that he might have been cautioned. I am happy to repeat the definition of a sex offender. He is someone who has committed one of the offences in Schedule 1.

As regards "relevant dates", I believe that the noble Lord, Lord Hylton, will find that in Clause 3(2) on page 4 of the Bill. It states, the relevant date, in relation to a sex offender, means"— and then the words are set out there. I am happy to read them, but they are on the face of Clause 3. I hope that that deals with the three specific questions that the noble Lord, Lord Hylton, raised.

Clause 2 agreed to.

Clause 3 [Sex offender orders: supplemental]:

Lord Goodhart] moved Amendment No, 39: Page 3, line 46, at end insert ("(the conviction for such offence not being a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974)").

The noble Lord said: Members of the Committee may well be pleased to know that apart from this amendment and the two amendments with which it is grouped, the next amendment to which my name has been appended comes in at No. 122, so the Committee will be spared hearing any more from me this evening and perhaps for some time to come—

Noble Lords

Ah!

Lord Goodhart

Amendment No. 39 was intended as a probing amendment to see whether the Government took the view that the Rehabilitation of Offenders Act applied to sex offender orders. The noble Lord, Lord Williams of Mostyn, has told us on information provided from the official Box that the Rehabilitation of Offenders Act has no application to the sex offender order, but I wonder whether that is correct. An application for a sex offender order is not itself a criminal proceeding. Therefore, it appears to me that Section 7(2) of the Rehabilitation of Offenders Act does not apply so as to exclude the operation of that Act. If that is so, a spent conviction cannot be used as the basis for a sex offender order although it might have to be taken into account in a criminal prosecution for breach of such an order.

Whatever the answer to that might be—I hope that the noble Lord will be able to reply to me by correspondence—I hope that the Rehabilitation of Offenders Act does apply to the making of a sex offender order because that Act never applies to a sentence of imprisonment of more than 30 months, which excludes most convictions for serious sex offences. For shorter terms of imprisonment, the Act will come into operation only after seven to 10 years from the date of imprisonment. It seems wrong that an offender who has not reoffended for a substantial period and whose crime did not justify a sentence of more than 30 months should have the possibility of a sex offender order hanging over his head for the rest of his life.

I turn to Amendments Nos. 40 and 41, which are grouped with Amendment No. 39, but which raise the entirely different point of whether a sex offender order should be capable of being triggered by a caution. Amendment No. 41 is merely consequential, striking out a definition of what constitutes a caution. It would not be appropriate for an order to be triggered in that way because cautioning applies only where an offence is regarded by the police as insufficiently serious to justify a prosecution. There would have been no trial and no conviction. I suggest that it is inappropriate that anything short of conviction by a court should trigger potential liability to a sex offender order, which is a draconian order (although in many circumstances it can, indeed, be justified), but the very strength of the order means that the threshold must be high enough to justify the application of that order. Where an offence has been dealt with by a caution, I do not believe that that threshold has been passed. I beg to move.

Lord Henley

I have my name down to Amendment No. 40 but the Committee will be pleased to hear that although my name is appended to a considerable number of amendments between now and Amendments Nos. 99 and 100, when the noble Lord, Lord Goodhart, and I start again, I shall be exercising a self-denying ordinance for the next few clauses and leaving the next amendments to my noble and learned friend Lord Mackay of Drumadoon.

I put down my name to Amendment No. 40 originally as a result of misreading Clause 3(1)(c) regarding the cautioning of an offender. I thought it somewhat severe that someone who had only been cautioned should be considered to be a sex offender. Having studied the clause, I see that it relates to a person who has been cautioned by a constable, in respect of such an offence which, at the time when the caution was given, he had admitted". Having noted the words "he had admitted", I am perfectly content with the clause as it reads and have no intention of pressing Amendment No. 40 any further.

Lord Northbourne

I am inclined to support these three amendments in so far as I understand them. While being rightly anxious to protect young people from sex offenders and having a degree of righteous indignation about sexual offences we must be just to people who have made this mistake in their lives. Earlier this evening reference was made to Lady Faithfull. One of her concerns in your Lordships' House was the rehabilitation of sex offenders. It is wrong that any one particular crime in the whole plethora of possible crimes should be unforgivable, unredeemable and never removed from the records. We must balance the protection of young people with the need to be just to those who have committed offences but have reformed their lives. I urge the noble Lord to ponder these matters.

Lord Monson

Unlike the noble Lord, Lord Henley, and his noble friends on the Front Bench who appear to have had second thoughts, I strongly support Amendment No. 40, in part for the reasons given by the noble Lord, Lord Thomas of Gresford, in moving Amendment No. 35. As he pointed out, sexual offences vary enormously in heinousness. Take indecent assault as an example. It may range from an act that is almost as bad as rape—perhaps even worse than that in one or two instances—to something as trivial as planting an unwanted kiss on the cheek of a 17 year-old girl. It is the latter type of indecent assault that is likely to be dealt with by a caution rather than prosecution. I believe that it would be quite inappropriate for people to be caught for something as trivial as that. I strongly support the principle of Amendment No. 40.

Lord Thomas of Gresford

I strongly support my noble friend's amendments. If those in authority, the police, thought it sufficient to caution a person for a sexual offence, whether or not admitted, that should be the end of it, unless the person committed a further offence. For him to have to carry the stigma of being a sex offender for the rest of his life, or a substantial number of years, is not fair and may lead to fewer cautions being accepted.

Lord Williams of Mostyn

Perhaps I may start usefully with Amendment No. 40 bearing in mind that the recent contributions have dealt with that amendment. One must look at how cautions work in practice. There may be many reasons for an original disposal by way of caution: the age of the offender, the promise of a supportive environment to help him overcome problems or other matters. Typically, the reason may be that the complainant is simply not up to the trauma of giving evidence in court. In this connection one thinks of quite small children. I believe it is the commonplace experience of those who practise in this area that the mere fact of caution does not always mean that the offence is simply one of giving the blushing 17 year-old a kiss at Christmas. There is quite a wide spectrum of cautions.

We believe that what really matters in the assessment to be made in this context is the nature of the original offence and the up-to-date assessment of the offender. The original disposal is not something that necessarily matters. If on the spiral of sexual offences, which everyone who has spoken tonight recognises, there was a time when someone was sentenced to 20 months, if quite young for a first offence, it might, nevertheless, have been serious. Therefore, I am not persuaded by the arguments on Amendment No. 40, because disposition is not the point; it is the nature of the offence, and the present nature of the offender.

On Amendment No. 39, no order is capable of being granted unless the behaviour of the individual concerned, at the time the order is applied for, gives reasonable cause to believe that the order is necessary to protect the public from serious harm. So the proposal hears no element of being retrospective, because it is behaviour which decides whether the order is appropriate, not the previous offence.

The order is not a sentence; it is not a conviction. To deal with the philosophic point of the noble Lord, Lord Thomas of Gresford, about rehabilitation, the previous conviction merely serves as evidence that the defendant has a history of offending in this particular way. I readily accept that to use the words "sex offence" is sometimes prejudicial. There are many sex offenders who will never re-offend. The boy of 17 who has sexual intercourse with his girlfriend of 15 years and 11 months is different from the sort of dangerous sex offender upon whom we are focusing in our discussion this evening and whom the Bill is intended to catch.

The fact that the conviction is spent is just a fact; it does not mean that he may not re-offend. We believe that we have the balance right again: duty to protect the public; duty to have due regard to individual rights and liberties.

We have difficulties with Amendment No. 41. I have reached the last ignoble refuge of thinking that this is technically misconceived. I have treated myself to that.

Lord Goodhart

Amendment No. 41 is purely consequential upon Amendment No. 40. It merely removes something that would become irrelevant were cautioning no longer the basis for a sex offender order.

Lord Williams of Mostyn

I accept that. We believe that there are technical deficiencies, but I am sure that the Committee is not panting for a description of the deficiencies.

Lord Goodhart

I am grateful to the Minister for his answer. I remain not wholly persuaded by it. One of the problems with using the caution as a basis for a sex offender order is the fact that there has been no conviction in a court. That would be the necessary prior basis for the making of any sex offender order.

On retrospectivity—to refer to an amendment which is not here—on Second Reading I raised the point about whether there was an element of retrospective punishment, where the original conviction occurred before the Bill is enacted. I have seen a copy of the letter from the noble and learned Lord, Lord Falconer, on that subject. There is an arguable point here. The appropriate place at which to decide that point is in the courts, and I have not tabled an amendment to raise the specific point of retrospectivity.

The question of whether a caution is an appropriate basis for a sex offender order is one which we will consider. We may return to it. For this evening, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 40 and 41 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

Clause 18 [Anti-social behaviour orders]:

Lord Mackay of Drumadoon] moved Amendment No. 42: Page 14, line 29, after ("authority") insert ("on credible evidence, from two or more witnesses,").

The noble and learned Lord said: In moving Amendment No. 42, 1 shall speak also to Amendments Nos. 51, 52 and 69. In turning to the provisions of Chapter II, which deal with the introduction of antisocial behaviour orders and sex offender orders into the law of Scotland, I am reminded of the old Scots expression of something tasting like cold kale. Another expression which might be more fully understood is: "reading yesterday's newspapers". Undoubtedly, a number of the issues which are to be addressed in Amendments Nos. 42 to 97, which I suspect we shall not complete in the next 20 minutes, were addressed in particular in Clauses 1 and 2.

As the Minister indicated, there are differences between the procedure in England and that in Scotland. I listened with interest to the full and reasoned—and to himself convincing—arguments he advanced in defending the English provisions from criticism or attack from the noble Lord, Lord Thomas, on the role of the police during the minimum period for which the orders are to exist and the existence or otherwise of the penalty of conditional discharge. Members of the Committee who have read the Scottish provisions will note that in all three respects a different approach is followed in Scotland. Ministers might do well to reflect between now and the Report stage on whether the differences can be as fully justified as they suggest.

It might assist the Committee if I indicate my approach to Clause 18. Those Members who were present on Second Reading will recall that, although warmly and without qualification I welcomed certain parts of the Bill as they apply to Scotland, I expressed a measure of reservation about these orders, in particular the antisocial behaviour order. Since then, I have been able to carry out further research and have been much assisted by two fellow members of faculty; they are, Jonathan Mitchell QC and Simon Collins. Mr. Collins has written a book entitled Anti-social Behaviour and Housing Law, published last year. Much to my surprise, both colleagues, although they are considerable experts in housing law, do not support the proposal to introduce antisocial behaviour orders. Even more to my surprise, I discovered something I should have been aware of: that the Scottish Affairs Committee of another place, in a report prepared during the previous Session, reported to the other place on housing and antisocial behaviour. That is a cross-party committee which took evidence from a considerable number of witnesses. Although it made a large number of recommendations about how the law in this area might be improved, and although it considered the possibility of introducing antisocial behaviour orders into Scotland, it did not support that.

Among its recommendations which are set out towards the end of the report, it invited the then government to consider whether the law on interdict ought to be altered; whether a power of arrest should be added to interdicts pronounced by the civil courts so that as soon as an alleged breach occurred the person who was interdicted could be arrested by the police; and it recommended speeding up the procedures.

Unfortunately, the consultation paper on that topic which was issued in Scotland in September, with a four week period for responses, failed to mention the existence of the Scottish Affairs Committee report and the fact that it had not supported antisocial behaviour orders, and failed to mention the recommendations which it had made and which the government of which I was a member had accepted.

Therefore, while I accept readily that in response to the consultation paper, the majority of those consulted supported the introduction of antisocial behaviour orders, I suggest that they did so without being fully informed by the Government of what many might think were relevant considerations.

In moving and speaking to these amendments, I pose a number of questions to which I hope the noble and learned Lord the Lord Advocate will respond either this evening or when we return to the matter a week today. First, do the Government intend that an antisocial behaviour order could be justified by conduct which would not found a criminal prosecution; in other words, whether the behaviour which would satisfy the first hurdle to be found in Clause 18(1)(a) which would not at the same time justify a conviction for breach of the peace, assault or other offences relating to the question of antisocial behaviour?

Secondly, could such an order be justified by conduct which would not be sufficient to justify the granting of an interdict at the instance of the person against whom the conduct was directed? In other words, putting it in shorthand form, could an order be pronounced when no crime had been committed and no civil wrong had occurred?

It is important that those issues should be addressed and answered by the Government before the Committee can be satisfied that this idea, which has been discussed fully in relation to England, is appropriate for Scotland. When one reads the report of the Scottish Affairs Committee, one sees that it was unable to find any clear evidence of an increase of antisocial behaviour. Furthermore, I understand that the Scottish Office is currently commissioning research as to the best way to deal with such behaviour. In particular, it has instructed and funded Glasgow University to carry out research as to the cost efficiency of legal solutions to antisocial behaviour compared with non-legal solutions. It has funded other research as to the actual workings of the court process when dealing with antisocial cases in relation to housing tenancies.

The more research I have undertaken since Second Reading—and I apologise to Members of the Committee for not having done it before—the more concerned I am that the case may not have been made out. It may well be that the noble and learned Lord the Lord Advocate will be able to provide answers to the questions that I pose but, as I say, research has failed to convince me any more than I was convinced on Second Reading that this is a sensible way forward.

It is against that background that I turn briefly to the detail of the first group of amendments. In the debate which took place today issues were raised about whether it is right to mix criminal standards of proof or criminal requirements of sufficiency of evidence with what is undoubtedly a civil proceedings. But if there is to be no requirement for corroboration, if the rules of hearsay will not exclude hearsay evidence and if professional witnesses employed by a local authority will be sufficient, there is concern, both at the stage of deciding to bring an application and at the stage of placing it before the sheriff, regarding the risk that the latter could be satisfied on the evidence of one witness that it is appropriate to impose an order of a very serious nature.

I listened earlier to the noble Lord, Lord Williams, when he said that this was a last resort before prosecution or a last warning before that stage was reached and that, once the order was pronounced, then, provided that the defender—as we would call him in Scotland—behaved himself, he would have no need to worry. I find that difficult to reconcile with what the noble and learned Lord the Solicitor-General said on the last occasion; namely, that in terms of an order pronounced under Clause 18 it would be possible to exclude a man from a house indefinitely even though he was the tenant of the house or the owner of the house. So undoubtedly in appropriate cases an order could have very serious ramifications. That is why I pose the question whether, as an additional safeguard, it might be sensible to require a local authority to look for evidence from two sources before it decides to go forward, and to place a similar requirement on the sheriff.

I have a further problem with the Bill as drafted. How precisely is the local authority going to deal with the matter? That point was made by my noble friend Lord Windlesham earlier today. Is it to be dealt with by the social work committee? Is it to be dealt with by the environmental health committee or by the housing committee? How do the Government envisage this happening? Will it be dealt with by officials, or will it be the decision of councillors? These are practical matters. They may, no doubt, be dealt with in guidance, but we have not as yet seen anything in the nature of draft guidance or in the form of a consultation paper about guidance. Those are the matters of unease that I have and which I very much hope the noble and learned Lord the Lord Advocate will answer either tonight or when we resume proceedings on the Bill next Tuesday. I beg to move.

The Earl of Mar and Kellie

I should like briefly to add the same type of start to this discussion on antisocial behaviour orders in Scotland. I have four brief points to make. The first is that I believe an antisocial behaviour order will meet real need. As long as we get the legal side of it right, it will be a useful addition to the armoury of social policy in Scotland.

Secondly, as a former criminal justice social worker, I approve of these forward-looking orders because they attempt to control future behaviour or ask the person who is the subject of such an order to control his behaviour in the future. That is a dramatic improvement on the effect of, say, a charge of breach of the peace which looks back at past behaviour.

Thirdly, if I was unhappy about these orders being unsupervised in England and Wales, I am unhappy about them being unsupervised in Scotland. Normally speaking, when an order is made the person who is the subject of that order goes to the social work department where it is explained to him. The probation order, the community service order, or whatever it is, is discussed and the social workers ensure that the person fully understands what is required of him. After all, there are distinct consequences involved. I wonder how that will happen. The noble and learned Lord, Lord Mackay of Drumadoon, asked whether the provision would be the responsibility of social services, housing departments or environmental health departments. Those are valid questions.

My fourth and final point is that this is a new task for local authorities and they already have many tasks imposed on them. They will be required to re-organise their schedules because although some extra money has been provided it will not go very far, particularly if it is to be divided 32 ways, and no doubt Clackmannanshire will not get its pro rata share being one of the smaller authorities.

The Lord Advocate (Lord Hardie)

I am grateful to the noble and learned Lord, Lord Mackay of Drumadoon, for setting out his stall, as it were, against a fairly simple group of amendments which did not need much said about them. However, it is useful to know what his position is. As regards the noble Earl's point about funding, as he has already noted, additional funding is being provided. As a fellow native of Clackmannanshire I doubt whether anyone there will be subject to an anti-social behaviour order of this kind because there is no such behaviour in Clackmannanshire.

I shall deal with one or two of the points raised by the noble and learned Lord, Lord Mackay of Drumadoon. First, as regards the arrangements of local authorities concerning which committee will deal with this matter, those are essentially matters for local authorities themselves, but guidance will be provided to them. There will be full consultation and no doubt different authorities may make different arrangements according to their funding allocations.

As regards whether an interdict would be appropriate, as the noble and learned Lord will appreciate, this order will be made at the instance of the local authority and not the victim who would normally be the pursuer in an interdict. There may be some question as to the title and interest of a local authority to raise a petition of interdict in relation to behaviour. It is for that reason that this order provides an additional safeguard.

Lord Mackay of Drumadoon

I hope the noble and learned Lord will forgive my intervening. I am well aware of the fact that at the present time in Scotland a Scottish local authority would not have such a title. One other criticism of the consultation paper that has been suggested to me is that it omitted to draw attention to the fact that English local authorities have such a power. The view was expressed—in my submission it seems to have some force to it—that that is a relevant consideration which ought to have been placed before those who were consulted, if for no other reason than it touches on the point raised by the noble Lord, Lord Thomas of Gresford, as to whether that is a preferable way forward; that is, to do it by way of interdict, the Scottish injunction, or to have a new statutory procedure.

I am willing to be convinced but I invite—it may be unnecessary to do so—the noble and learned Lord the Lord Advocate to consider in detail the concerns that have been expressed today, which I share and which I now raise, because in my submission it is necessary fully to demonstrate that this new procedure is necessary before many can be convinced that it will work and before it will command respect. If it leads to false promises that it will somehow solve the problem of dealing with anti-social behaviour which has not been solved by existing procedures, at the end of the day it may do more harm than good.

11 p.m.

Lord Hardie

I do not wish to rehearse what my noble friend Lord Williams of Mostyn said in his comments about the justification for the similar English provision. The reason underlying the policy is the same; it is to afford an added remedy to local authorities in situations where we are dealing with members of that community who are behaving in a certain way to ensure, as far as possible, that they cease to do so. It is an added protection for the public at large; it is an added weapon for the local authority to use.

I welcome the comments by the noble Earl, Lord Mar and Kellie, supporting the principle behind the orders. If the noble and learned Lord seeks some indication of the justification for such orders and the approach adopted by the Government, he might do well to listen to the noble Earl who has considerable experience in social work in Scotland and has dealt with such matters at first hand.

The amendments would increase the standard of proof for antisocial behaviour orders from the test in civil cases to that which prevails in criminal cases either by introducing the requirement for corroboration or by imposing the standard of proof beyond reasonable doubt. I do not wish to rehearse what my noble friend Lord Williams said in relation to Amendment No. 11, but, as he explained, antisocial behaviour orders are prohibitory. They are neither convictions nor punishments. In these circumstances, it is right that the laws of civil evidence should apply and corroboration should not be required. I ask the noble and learned Lord, Lord Mackay of Drumadoon, to consider this. Why should a higher standard be placed upon a local authority than upon any other litigant when the local authority is engaged in civil litigation, which this will be?

An order should be able to be granted if the need for it is proved on the balance of probabilities. This is what happens with interdicts, as the noble and learned Lord is well aware, and with applications to the civil court for non-harassment orders. Antisocial behaviour orders will be similar in effect. I invite the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord the Lord Advocate for dealing with many of the questions I raised. He posed the question as to why there should be a higher standard on local authorities and other litigants. If the Government were following the interdict route I would fully appreciate that. But this is a new procedure. It has been said numerous times today that it is only a prohibitory order. It is not a punishment; it is not a sanction; it will not carry any criminal convictions, and so on.

My concern is that the order will be perceived by those upon whom it is imposed as a punishment. If the individual is prohibited from staying in the house that he has bought or tenanted and is separated from other members of his family as a result, that will be as much a punishment in the eyes of the recipient as other orders pronounced by the criminal courts of a non-custodial nature.

However, I do not intend to press the amendments to a vote. I might be tempted to do so to see whether it might be possible to count the Committee out. But as we are all going home early, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter

I beg to move that the House do now resume.

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

House resumed.

House adjourned at four minutes past eleven o'clock.