Lords Sitting of 17 March 1998

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

Lord Dearing
Sir Ronald Ernest Dearing, Knight, CB, having been created Baron Dearing, of Kingston upon Hull in the County of the East Riding of Yorkshire, for life—Was, in his robes, introduced between the Baroness Dean of Thornton-le-Fylde and the Lord Baker of Dorking.

Bowes Museum
2.46 p.m.
Lord Freyberg Lord Freyberg asked Her Majesty's Government:
In the light of the potential de-accessioning of works of art from the Bowes Museum, what steps they are taking to give statutory protection to publicly funded museum collections.
Lord McIntosh of Haringey: My Lords, despite recent press reports, I understand that the Bowes Museum, and Durham County Council which administers it, have no intention or wish to sell items from the collections. However, the Bowes is facing financial difficulties and I can announce today that my right honourable friend the Secretary of State has asked Richard Foster, the director of the National Museums and Galleries on Merseyside, to carry out a review of the present position and future prospects of the Bowes Museum. The aim will be to identify a stable, long-term financial base for the museum which would avoid the need to restrict access in order to cut costs.
Museums that are registered with the Museums and Galleries Commission, which includes most local authority museums, can dispose of items only in accordance with the guidelines of the registration scheme. My department is currently considering recommendations made by the MGC for strengthening the legal status of museum collections.
Lord Freyberg: My Lords, I thank the noble Lord for that Answer. Do the Government still believe in the guiding principles as set out in Treasures in Trust which was published by the previous government to review museum policy, and in particular with paragraph 3.2 of that review which states:
"a museum's collections are to be held on behalf of the public as inalienable cultural assets"?
Lord McIntosh of Haringey: Yes, my Lords. We have confirmed that we agree with that part of the
568
review. The Museums and Galleries Commission has reported to us on how to implement that and we are considering its report.
Lord Renton: My Lords, if my ignorance may be forgiven, may I ask the noble Lord to tell us what "de-accessioning" is?
Lord McIntosh of Haringey: Sale, my Lords.
Lord Strabolgi: My Lords, while welcoming the news that my noble friend has given us about the inquiry, may I ask him whether it will take into account the fact that the local authority is proposing to cut the grant to the Bowes by £30,000 a year and is telling the museum that it should close between the months of November and March? Will those matters be taken into account by the inquiry?
Lord McIntosh of Haringey: Yes, my Lords. My noble friend may be glad to hear that Durham County Council's intention of requiring the museum to close for five months has been postponed in the hope that we can receive a report from Mr. Foster before any final decision is taken.
Lord Glenamara: My Lords, is my noble friend aware that the reply he has given today will give great pleasure to many people in the north of England? Is he also aware that this is a most excellent and beautiful little museum in a marvellous building and in an attractive part of the country? Will the Government do all that they can to ensure that it has a future?
Lord McIntosh of Haringey: My Lords, I am grateful for my noble friend's comments. Our determination to ensure that the Bowes Museum has a future is evidenced by the invitation to Mr. Foster to conduct a very full inquiry.
Lord Inglewood: My Lords, I associate myself with the remarks of the noble Lord, Lord Glenamara. Will the Government's commitment to the Bowes Museum include putting their hands into their pocket if that was called for by Mr. Foster?
Lord McIntosh of Haringey: My Lords, we shall face that when we come to it. I confirm that the draft terms of reference for Mr. Foster, which have not yet been agreed, include the possibility of national status for the museum.
Baroness Rawlings: My Lords, Labour Party policy used to be to place a statutory responsibility on local authorities to develop an arts and museums policy so that as a result local expenditure on museums would be eligible for revenue support grant. Now that the Labour Party clearly will not help financially either the Bowes Museum or other regional museums, unless we hear something else in the Budget this afternoon, how will the Government help collections so that they will not have to sell treasured works of art?
Lord McIntosh of Haringey: My Lords, the answer to the first part of the noble Baroness's question is that Labour Party policy has not changed. Dealing with the second part of the question, the noble Baroness cannot expect me to anticipate the Budget. I am afraid that I have forgotten the third part of the question—and I am not obliged to answer it anyway.
Lord Jenkins of Putney: My Lords, is my noble friend aware that the fact that the possibility of this museum having national status is not excluded will give great satisfaction to many noble Lords who wondered how the situation would be overcome?
Lord McIntosh of Haringey: My Lords, I hedged my earlier answers with considerable qualifications. Mr. Foster has not yet formally agreed to conduct the inquiry and the terms of reference have not yet been agreed. But I am grateful for my noble friend's thoughts.
The Earl of Carlisle: My Lords, is not the Bowes Museum a prime example of the need to divert money from National Lottery heritage funds if the Foster report so recommends it?
Lord McIntosh of Haringey: My Lords, substantial sums have been diverted—I use the noble Earl's word—from the National Lottery to museums and galleries. I do not believe that that process is at an end.

No. 2 Marsham Street
2.52 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What plans they have for the building in Marsham Street which presently houses the Department of the Environment, Transport and the Regions.
Lord McIntosh of Haringey: My Lords, the Property Advisers to the Civil Estate, known as PACE, plan to let a contract for the demolition of No. 2 Marsham Street in the summer of this year unless its use as decant accommodation for other government departments would provide better value for money to the Exchequer.
Lord Peyton of Yeovil: My Lords, does the Minister realise that the first part of his Answer is wholly satisfactory but that the satisfaction has been quickly dispelled by the threat contained in the second part of his Answer? Why on earth do we have all this mystery? The silence has been going on for a very long time. Is it not time that the Government made up their mind what to do with it instead of using words such as "if', "but" and "whether", which are the kinds of messy answers that are provided?
Lord McIntosh of Haringey: My Lords, I am sorry that the second part of my Answer did not please the noble Lord. It depends upon aesthetic considerations, on which I entirely agree with the noble Lord, and the
570
interests of the public purse. If it appears that its use for decant accommodation provides better value for money to the Exchequer, the Government are duty bound to observe that better value to the Exchequer.
Viscount Ullswater: My Lords, no announcement has been made about the particular site in recent weeks. My noble friend is quite right: there has been a web of silence. If the Government are to use Marsham Street as decant accommodation, when will that announcement be made? Perhaps the noble Lord can confirm two other matters. First, since the site was originally a gas works, is there a lot of contaminated land still to be dealt with before it can be redeveloped? Secondly, will the noble Lord demonstrate the commitment of the Government to improving the environment by ensuring that all the material from the demolition is recycled and not dumped in a landfill site?
Lord McIntosh of Haringey: My Lords, I must resist the suggestion that there has been any web of silence. There has been no announcement because there has been nothing to announce. As soon as a decision has been made about demolition or decanting, that will be announced. There has been no secrecy. As to decontamination, I am advised that, although it was a former gas works site, there is no risk of contamination. As to the environment, the building is constructed of concrete blocks and beams joined together by bolts. Demolition will be carried out probably by cutting the bolts. I rather doubt whether the blocks and beams will have any significant environmental advantage.
Lord Dean of Beswick: My Lords, can my noble friend inform the House of the original cost of this building? To write off a building of this size after such a short lifespan indicates that whoever advised the then government on the construction gave bad advice. Is it not the case that this building was constructed at the same time that the huge local government housing programme was under way when the architects also failed us? Is this not another case? If this building must be written off can that be put down to the same failure of the architects at that time?
Lord McIntosh of Haringey: My Lords, if the original architect is still alive I would not wish to offend his sensibilities. The building was finally occupied in 1971 after a number of delays. I do not know the original cost of the building, but I can say that Arup Associates carried out an investigation for the government in 1990. They took the view that demolition was the best as well as the most aesthetically attractive option.
Lord Ezra: My Lords, the fact that this was an old gas works site prompts me to ask the noble Lord whether he can give an assurance that the heating of the new building will be as up to date as possible. If possible, will combined heat and power be used? I suggest that one feedstock may well be the waste paper from the Palace of Westminster.
Lord McIntosh of Haringey: My Lords, I am sure that PACE will be very interested in the noble Lord's question. The intention is that when the site is redeveloped it will be for offices, retail and residential accommodation with some provision for open space.
Lord Berkeley: My Lords, do the Government really need to demolish the building? Is it not falling down anyway? I have read many reports about bits falling off it. That possibly poses greater danger to public health than to the public purse. Can the Minister give an assurance that the building is still safe?
Lord McIntosh of Haringey: My Lords, there are bits falling off the building. The building is encased in scaffolding at the moment for the protection of the public. As to the need to demolish it, I understand it is likely that the profits from disposal of the site will be greater than the costs of demolition, so it is to the Government's advantage to demolish the building. It is also an advantage to the neighbours that demolition should be carried out in a controlled way.
Lord Peyton of Yeovil: My Lords, will the noble Lord go a little further into the interesting notion that he introduced about decanted accommodation? What is to be decanted: the building or the contents?
Lord McIntosh of Haringey: My Lords, it is neither the building nor the contents but the people. I understand that there are two government departments both of which have accommodation that is badly in need of refurbishment. If this plan proceeded, the staff from those departments would be decanted into Marsham Street while their existing buildings were refurbished.
Baroness Seccombe: My Lords, I thank and congratulate my noble friend Lord Peyton upon tabling the Question. Can the Minister inform the House of the cost of security of the building? Does the noble Lord believe that it is suitable for development perhaps as a greyfield site if not a brownfield site?
Lord McIntosh of Haringey: My Lords, the building is still occupied by staff from the Department of the Environment, Transport and the Regions, and therefore there are no exceptional security costs. If demolition were to take place this summer, security costs would be relatively limited.
Lord Drogheda: My Lords, does the Minister doubt that the demolition of the building would produce anything other than delight in the general public?
Lord McIntosh of Haringey: My Lords, I think that I have made my position on that clear in agreeing with the noble Lord, Lord Peyton, that aesthetically the best option is for the building to be demolished as soon as possible. It is not an efficient building.
Lord Kennet: My Lords, if the building is "disevacuated" will it be occupied by government offices, and, if not, by whom?
Lord McIntosh of Haringey: My Lords, I am not sure that I understand what my noble friend means by "disevacuated". If he is asking whether the building will be replaced by a government building if it is demolished, the answer is, probably not. If he is asking whether it will be held on to for decanting purposes, the answer is that staff from other departments will work there.

Police and Court Appointments: Declaration of Interests
3.1 p.m.
Lord Burnham Lord Burnham asked Her Majesty's Government:
For how many organisations they require members to declare their membership when applying for posts as magistrates, in the police or as judges.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, magistrates are asked to give details of membership of any organisations or clubs as part of listing their general interests. People applying for appointment as police officers are asked to give details of any voluntary and community work which they have undertaken. Those being considered for appointment as judges are not asked about membership of organisations. In the future those being considered for appointment as members of a police force, the magistracy or the judiciary will be asked specifically whether they are freemasons.
Lord Burnham: My Lords, as the Government are keen to enshrine the European Convention on Human Rights into UK law, how does that tie in with the Minister's stated intention to discriminate against freemasons, and freemasons alone?
Lord Williams of Mostyn: My Lords, it is not a case of discriminating against freemasons. I take it that the noble Lord is referring to Article 8 of the European Convention on Human Rights which concerns respect for private and family life, but that is within the corresponding balance of the freedom and rights of others.

Chittagong Hill Tracts: Aid
3.2 p.m.
Lord McNally Lord McNally asked Her Majesty's Government:
What position they took at the meeting held on 23rd February in Dacca of the Aid to Bangladesh Consortium to discuss follow-up to the Chittagong Hill Tracts Peace Accord and what specific commitments were made by the United Kingdom and other major aid donors to underpin and sustain the accord.
Lord Whitty: My Lords, at the meeting on 23rd February British officials welcomed the Chittagong Hill Tracts Peace Accord, and confirmed that Her

573
Majesty's Government would be willing to consider proposals for development assistance in the region. It was agreed at this meeting that a core team of donors, led by the United Nations development programme, should work jointly with the government of Bangladesh to identify priority needs, develop plans for co-ordinating the overall donor effort and identify appropriate implementation arrangements. That would provide a framework for development assistance from donors, including the United Kingdom.
Lord McNally: My Lords, does the Minister agree that the Bangladesh Government and the JSS, representatives of the Chittagong Hill tribes which have been fighting the Bangladesh Government, deserve congratulations on reaching that agreement? Is not that a perfect example of where the international community needs to respond with speed and adaptability so that a fragile peace is underpinned by aid assistance? Does he further agree that the Bangladesh Government, in particular, have considerable difficulties not just in Chittagong but with the Bihari refugees, which needs that kind of specific support for resettlement and, as I said, the underpinning of peace accords when they are reached?
Lord Whitty: My Lords, I am pleased to agree that both sides in the conflict deserve congratulations on reaching the accord at the end of a long period of difficulty in the Chittagong Tract area. Those agreements will need support from the international community. As regards development aid, the DID will be working with the joint donor/government of Bangladesh working team to identify needs and priorities, and to identify appropriate implementation arrangements. As the noble Lord said, it is in everyone's interest that that happens rapidly. On the separate point of the Biharis, that is a different situation. It is not just a matter of Bangladesh and the internal dissidents; it is a matter between the governments of Bangladesh and Pakistan. That has also been running for some time. We were encouraged by the Pakistan Government's statement in January that they were willing to do all they could to bring the Biharis to Pakistan, subject to funding being found. We would be ready to help if there were a constructive framework in which to do so. Bilateral dialogue between Bangladesh and Pakistan is the immediate way forward.
Lord Shore of Stepney: My Lords, I am sure that the whole House will want to join the Minister in expressing its satisfaction at the end of this most difficult and damaging dispute between the government of Bangladesh and the hill tract people. It has not been easy to find a way to solve the dispute. I am sure that congratulations are due to the government of Bangladesh and, in particular, the Prime Minister, as well as the leaders of the rebels, as they were described, in the Chittagong Hill Tract. In considering the contribution that I am glad to hear Her Majesty's Government are willing to make, will the Minister bear in mind that something over 37,000 former refugees have already returned to what is quite a small
574
Chittagong Hill Tract area? Many more will follow. If that peace is now to be cemented permanently, they will need a considerable amount of economic aid to underpin the political solution.
Lord Whitty: My Lords, I accept the view that those who were parties to this difficult peace accord deserve all our congratulations and support. Some subsequent developments have already proved beneficial. As regards financial assistance, we shall need to go through the process of identifying specific projects which are agreed by the government of Bangladesh and the local people. That will take some time to achieve. It is also true that the security situation in the area has not been completely resolved, and that may have an effect on the way that the assistance is delivered.
Lord Avebury: My Lords, will the Minister ask the Bangladesh authorities whether they will permit access to the territory by journalists, human rights observers and the UNHCR so that the circumstances in which the refugees mentioned by the noble Lord, Lord Shore, are repatriated can be monitored properly? Is he aware that the total number of refugees in the Indian state of Tripura was at one time 68,000, and that it is a major task not just to resettle those people in a manner that will enable them to resume their lives and work, but to ensure that they get back the homes and lands that they once occupied? Is it not necessary that the international community should have an observer or observers on the spot to see that those agreements are honoured?
Lord Whitty: My Lords, the accords themselves provide for some access. As regards detailed access by specific officials from UN authorities, I should be grateful if the noble Lord would allow me to write to him on that matter. The UN aid organisations will be in there. When the normalisation of the situation has been achieved, there is no real reason why human rights observers should not be there. Owing to the difficult land-owning and other human rights circumstances, it will be useful to have such input. It must be borne in mind that some of the recent settlers, who may be seen as being put there by the Bangladesh Government, also have their rights in this situation.
Lord Davies of Oldham: My Lords, will my noble friend assure me that, given the fact that some of our poorest fellow citizens send as much as 10 per cent. of their income back to their home country of Bangladesh to help that desperately poor part of the world, the Government, too, will be generous in their support of the Bangladesh Government who are under considerable financial and economic pressures?
Lord Whitty: My Lords, we recognise that Bangladesh is one of the poorest countries in the world. A number of its citizens and people of that origin live in this country and keep alive our interest in Bangladesh. We have always regarded Bangladesh as a priority for aid and in terms of our new poverty strategy it will continue to be prioritised in any allocation of aid by this Government.
Lord Swinfen: My Lords, the Minister will recognise that there is a large number of hill tribesmen still to return to Bangladesh from across the border and that they have little ability to generate income. Will he ensure that in the aid which is given to Bangladesh, training for such people in some form of income generation is made a priority?
Lord Whitty: My Lords, I have no doubt that projects of that nature will be among those needed in the total package which we will be considering.
Lord Paul: My Lords, as this is a great achievement on the part of the Bangladesh Prime Minister, will the Minister convey to her the congratulations of the House? What further help can the Minister provide to encourage the process?
LordWhitty: My Lords, I am certainly willing to pass on those congratulations from my noble friend and the whole House. As regards additional assistance, I have outlined the form of package which will be required. Her Majesty's Government stand by to respond to requests to support the beneficial process which we hope will put an end to the long running conflict in the area.
Lord McNally: My Lords, does the Minister agree that the weakness in his reply is that everything seems post facto; the plans for aid come only after the agreement is in place? The Minister mentioned the Biharis, which pose a problem. Should not the Minister be making contingency plans to the effect that if an agreement between Bangladesh and Pakistan were reached, the British Government, the European Union, and the UN will immediately put into place these aid packages in order to facilitate the agreement? That would be a carrot and would show forward thinking, rather than waiting for the political accord and then considering how we underpin that with aid.
Lord Whitty: My Lords, the Biharis have always been able to integrate into Bangladesh society. However, in many senses they have felt that the politics and the existing situation make it sensible for them to seek access to what was West Pakistan. In such circumstances, one must have an agreement between Pakistan and Bangladesh before making serious and detailed plans about how to support the resettlement. While the Bihari population remains in Bangladesh we should be happy to consider assistance programmes which help them in particular.

Crime and Disorder Bill [H.L.]
3.13 p.m.
Report received.
Clause 1 [Anti-social behaviour orders]:
Lord Henley Lord Henley moved Amendment No. 1:
Page 1, line 13, leave out ("in an anti-social manner, that is to say,").
The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendment No. 3. The House will remember that we devoted a major part of the first day in Committee to antisocial behaviour orders and Clause 1. I trust that we can be considerably briefer in dealing with Clause 1 on this occasion. However, I wish to return to one or two of the amendments which I tabled on that occasion. As regards Amendment No. 2, I am pleased to see the name of the noble Lord, Lord Williams of Mostyn, added to the other distinguished names which follow my undistinguished name. I am grateful for his support and for his acceptance of the amendment. I shall deal with that briefly in due course.
It was right to devote a considerable amount of time to the antisocial behaviour orders because they are a new concept and are important. We believed it important that the Government should explain the thinking behind their clauses and the way in which they would work. I am grateful for the Government's responses and for the responses which we have received in correspondence with the noble Lord, Lord Williams.
We generally support the intention behind Clause 1 and the antisocial behaviour orders. It is important that the wording of such a clause should be as clear as possible. That is why I have tabled Amendments Nos. 1 and 3. They seek, first, to delete from page 1, line 13, the words,
"in an anti-social manner, that is to say",
and, secondly, at page 2, line 3, to leave out "anti-social acts by him" and insert "harassment, alarm or distress". That would leave Clause 1(1)(a) and (b) using the words "harassment, alarm or distress". Following the lengthy debate in Committee, I maintain that those words would be clearer and therefore they would be easier for the courts to understand and interpret. They appear in other Acts of Parliament and the courts have dealt with them for some time. I believe that to add words to "harassment, alarm and distress"—for example,
"in an anti-social manner, that is to say"—
further complicates matters and detracts from the precision which is important in a Bill.
We generally support the intentions behind the antisocial behaviour order but believe that there is a need for improving the wording. That is why I have tabled the amendments today. I beg to move.
Lord Renton: My Lords, I hope that the Government will be able to give favourable consideration to these amendments. The trouble is that antisocial behaviour is of many kinds and here we are dealing with only one particular kind. The Bill should make that clear. We see in subsection (1)(a) that the essence of the matter is causing harassment, alarm or distress. To introduce in addition the concept of antisocial behaviour confuses the issue. Let us stick to the point. I am sure that my noble friend Lord Henley has made a good case. It is a drafting matter, but an important one.
Lord Campbell of Alloway: My Lords, yes, it is a drafting matter and a very important one. I agree with everything that has been said, but how will the proposal

577
marry with subsections (5) to (10)? We are dealing with a new form of disposition called an antisocial behaviour order. Therefore, one must have some substance in the creation of the offence which relates to antisocial behaviour. I am not trying to be technical, but I see more than a difficulty in the drafting.
Lord Williams of Mostyn: My Lords, the noble Lord is quite right. We spent quite a lot of time discussing these matters. We said that we would think carefully and we have. The noble Lord, Lord Renton, said that this was a drafting matter. We believe that it is more fundamental than that. It is perfectly plain in Clause 1(1)(a) that an antisocial order or behaving in an antisocial manner is to behave in a manner,
"that caused or was likely to cause harassment, alarm or distress".
That is a new concept. It is entitled to be new because we believe that this is a significant social evil which at present is unaddressed.
We want to tackle antisocial behaviour. For quite a large number of people who live in this country, their lives are made a misery by it. It is not headline-catching behaviour but it is continuous, persistent misbehaviour which makes people unable to live happily and calmly in their own homes. We believe that it is the Government's duty to address that.
We have addressed it by defining what we believe the mischief is; in other words, behaving in an antisocial manner which is likely to cause harassment, alarm or distress. Nothing could be plainer. We do not dissent from the noble Lord's definition because in the Bill, "harassment, alarm or distress" is included as the definition of antisocial behaviour. We are setting out that that is an offence which we intend to tackle with due seriousness. It is a clear indication that that type of behaviour, which is an affront to the community, will be dealt with. Therefore, the label is there for a purpose; the purpose is important; and I regret to say that on this occasion, although not on other occasions, I am not able to feel persuaded by the argument that has been put.
Lord Henley: My Lords, I obviously agreed with much of what the noble Lord said. That was before he started to address the amendment itself. I accept that there are evils and mischiefs here which need to be addressed. That is why I made it quite clear that, generally speaking, we are content with the thinking behind Clause 1. That is why we accept that there should be antisocial behaviour orders.
As I thought I made clear, and as my noble friend Lord Renton made clearer, we believe that it would be better to have the wording which we have suggested; that is, if we keep to "harassment, alarm or distress" and use those three words in Clause 1(1)(a) and (b).
However, it seems that I have failed to persuade the noble Lord. It matters not much because I accept that we still have the words "harassment, alarm or distress" and, as I understand the noble Lord's explanation, the antisocial behaviour will be limited to that. The antisocial behaviour cannot go beyond "harassment, alarm or distress".
578
I know that this is Report stage but I ask the noble Lord to accept that that is the case. It would probably be possible for me to withdraw the amendment on the basis that the antisocial behaviour is so limited.
Lord Williams of Mostyn: My Lords, bearing in mind that this is Report stage, I am trying to be helpful. I do not believe that the drafting could be clearer than it is in Clause 1(1)(a) which states:
"that the person has acted…in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress".
I do not believe that it could be plainer as a matter of drafting and I am happy to give that assurance.
Lord Henley: My Lords, I thank the noble Lord for that assurance. I am sorry that he is not prepared to accept the amendment, but in the light of his considerable reasonableness on later amendments, it is right that I should withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henleymoved Amendment No. 2:
Page 1, line 15, leave out ("two") and insert ("one").
The noble Lord said: My Lords, as I said, I am grateful that the noble Lord has been able to add his name to the amendment. I always understood that only four noble Lords could add their names to an amendment, but on this occasion I am grateful that a fifth has been permitted so we are quite clear that the noble Lord accepts the amendment that we put forward and has agreed that the amendment should go on the statute book.
I am grateful to the noble Lord for taking the trouble to write to me and other noble Lords in his letter of 4th March in which he set out why, on balance, after considering those matters, he was prepared to accept the amendment.
We had a considerable debate about this in Committee. A number of noble Lords made the case very clearly that there may be occasions when those suffering from the mischief were solitary individuals, rather than two or more persons, and that those persons would not necessarily have the benefit of the protection provided by the Protection From Harassment Act 1997. Therefore, the protection which orders of this sort can provide may also be appropriate for them.
As I said, I am extremely grateful to the noble Lord for accepting our arguments and adding his name to the amendment. I beg to move.
Viscount Tenby: My Lords, as the noble Lord will be only too well aware, it takes a lot to silence a Welshman. However, on this occasion I shall summon enough air into my lungs to give him a very warm "thank you" in eager anticipation of his answer.
Lord Williams of Mostyn: My Lords, I have never heard such an aspersion cast against my fellow countrymen in the past.

579
Amendments Nos. 2 and 26 are grouped together and it may be convenient if I speak to them now. We had a very focused debate on this issue in Committee. We promised that we would think about the matter very carefully. It seemed to those of us on this side who were listening to that debate that there was a good deal of virtue and point in what was being said. All three of us undertook, when we started this Bill, to listen genuinely with an open mind and we said that if the Bill could be improved, consistent with its philosophy and structure, we should accept amendments. Therefore, I am more than happy to do so.
The noble Lord said that I had written to him on occasions and I did so on 11th and 12th March. I was able to say then, so that I shall not return to congratulate us all subsequently, that on 11 separate issues, we have tabled amendments on Report to give effect to points raised in Committee. Therefore, that is not the mark of absolute Neanderthal resistance to all possible suggestions of improvement. In fact, quite the opposite, if I may respectfully say so.
Originally we thought that this should better be cast as two and not one. My noble friend Lord Mishcon gave examples which we thought were important and other noble Lords assisted. It was thought that that remedy might be of general validity if it were cast in the way for which the noble Lord, Lord Henley, contended. I am more than happy to accept his amendment, to which I have attached my name, and also to indicate that in due time, having addressed the issue, I shall formally move Amendment No. 26 which is along the same lines.
Lord Windlesham: My Lords, before we leave this amendment, the moment should not go unrecorded. This is the sixth day in Committee and on Report and I believe it is right to say that this is the first amendment, other than those tabled by the Government, which has been accepted. Therefore, it is an important moment.
I acknowledge what the noble Lord, Lord Williams, has just said; namely, that he gave undertakings on numerous occasions throughout the Committee stage to look again at matters that had been raised. As he has just told us, there are 11 separate matters on which he will be accepting amendments today. I welcome that.
My feeling is that it could have come a little earlier in Committee. I do not say that necessarily in a spirit of censure but, if it is not out of order to make those points about the handling of the Bill, it is better to have repentance now rather than to look forward to it in the future.
On Question, amendment agreed to.
[Amendment No. 3 not moved.]
Lord Goodhart Lord Goodhart moved Amendment No. 4:
Page 2, line 7, at end insert—
("() A person shall not be treated under subsection (1) above as having acted in an anti-social manner if his acts are neither motivated by an intention to harass or cause alarm or distress to other persons nor likely to cause serious and justified alarm or distress to other persons.").
The noble Lord said: My Lords, this is an important amendment; indeed, I suggest that it is a most important one. Like a number of other noble Lords, I expressed a
580
view both on Second Reading and in Committee that the definition in the Bill of acting in "an anti-social manner" in Clause 1 is dangerously wide. An antisocial behaviour order is a very powerful weapon indeed. As it stands, and subject to debate on other amendments on the Marshalled List, it must be imposed for a minimum period of two years during which time it cannot be discharged without the consent of the local council or of the police. A breach of an antisocial behaviour order is a criminal offence and may result in a five-year gaol term. The order may be imposed as a result of conduct which is not at all criminal, or as a result of criminal conduct carrying a maximum penalty of very much less than five years.
I accept that there are some circumstances in which such an order would be justified. Such circumstances could be persistent threatening and abusive behaviour, whether it affects a neighbourhood generally or specific individuals within it. Such conduct needs to be controlled. So, indeed, does seriously disturbing behaviour, even if it is not threatening and abusive, such as frequent, rowdy late-night parties in a block of flats with inadequate sound proofing.
However, an order as powerful as the antisocial behaviour order in the Bill needs a correspondingly serious level of misbehaviour to trigger it. All that is required at present to trigger the order is that the defendant has acted,
"in a manner that caused or was likely to cause harassment, alarm or distress".
There is no test of the seriousness of the alarm or distress and no requirement that the alarm or distress felt by the victim should be objectively justified. We think of neighbours from hell as abusive, drunken, drug-dealing households which play loud music and hold all-night parties. But there is another type of neighbour from hell; namely, the over-sensitive neighbour who objects to the noise of normal children or who complains whenever a television set is switched on, however low the sound may be, after nine o'clock in the evening. The distress of such households may be genuine—indeed, it frequently is—but it cannot justify the making of an antisocial behaviour order.
It is possible to say—and no doubt the Minister will do so—that, in such a case, the council or the police are unlikely to apply for an order and that, if they did so, a court would be unlikely to grant it. However, I believe that there are two answers in that respect. First, harassment by councils or the police in the sense of taking unjustifiable action against local residents is not unknown, especially against people who are unpopular for many reasons, some good and some bad, in the community in which they live. Secondly, if the conduct does not deserve a penalty, then the law should not make it potentially subject to such a penalty. One should not be penalised by law and unpenalised by the exercise of discretion.
I have revised the amendments which I tabled in Committee. I hope that the amendment now before the House is clearer and better expressed, although I accept that it is no doubt capable of further improvement. The proposed new subsection, as set out in the amendment, is in my view reasonably self-explanatory. It would

581
tighten the definition of acting, "in an anti-social manner", and would divide conduct into two classes. The first is where the motive of action is itself to cause the alarm or distress. That might be described as bullying. In that case, I accept that the seriousness of the alarm or distress is irrelevant, so long as at least some is caused or likely to be caused.
However, that probably applies to a relatively small number of cases. Indeed, in most other cases the causing of alarm or distress is not actually the motive for the conduct. In such cases, I believe that the alarm or distress must be serious and justified: that is to say, the conduct of the defendant must be such as would cause alarm or distress to a reasonable person.
I find it very difficult indeed to accept that, if one or other of those tests is not satisfied, an antisocial behaviour order can be justified. Without those tests the order is over-strict, rigid and inflexible. The trouble with the definition—to borrow a phrase from another context—is that it allows no margin of appreciation. I believe that the circumstances which trigger an antisocial behaviour order should be modified in the way proposed in my amendment. That would greatly improve the application of the order as it now stands in the Bill. I beg to move.
3.30 p.m.
Lord Renton: My Lords, I have always had great respect for the learning of the noble Lord, Lord Goodhart, whom I have known as another member of the Bar for many years. However, I have very grave doubts about his proposed amendment. Under the Bill as it stands, we find in subsection (10) that, on indictment—which means that a jury considers the matter—there may be imprisonment for five years. We must consider this in a way that will ensure that the court can enable the jury to understand the matter; in other words, to understand what has happened. Indeed, the matter is positively expressed as it stands in subsection (1), with or without the amendment proposed by my noble friend Lord Henley, for which much can be said. However, if we were to accept Amendment No. 4, we would find that subsection (1) would be paraphrased in a somewhat negative way.
There is the further disadvantage in that in subsection (1) an antisocial manner is defined as,
"a manner that caused or was likely to cause harassment, alarm or distress".
If the noble Lord's amendment were accepted, a subjective test would be introduced; namely, whether the antisocial manner was motivated by an intention to harass or cause alarm or distress. I can imagine a jury becoming most confused when faced with both those options. I believe that members of a jury could become confused if they had to be advised on the exact meaning of both those expressions as regards what underlies the offence.
Lord Thomas of Gresford: My Lords, I fully support my noble friend's amendment. A few moments ago the noble Lord, Lord Renton, said that a jury may
582
have to decide such issues. In fact, there are two stages set out in the clause. The first stage is that it must appear to "the authority," which is either the local authority or the police—not a jury—that the relevant conditions have been met. The amendment is addressed to that first stage. It is proposed that the antisocial manner should be defined in the way outlined by my noble friend.
The second stage is when the jury, or a magistrates' court, may become involved. That arises in subsection (10) of the clause, which says:
"If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable".
to the various penalties set out thereafter. Therefore, when it comes to the imposition of the criminal sanction, there is, presumably, a defence that the defendant has a "reasonable excuse" for what he has done. What my noble friend is suggesting is that one should, as it were, introduce the concept of the reasonable excuse before what he described as this dangerously wide order is imposed in the first place.
What concerns me is that at the stage when the local authority or the police are considering the making of this wide order, the person against whom the order is made may not be guilty of disturbing behaviour but of disturbed behaviour. Let us suppose someone who is mentally ill and is at large in the community is causing alarm and distress through his conduct. Is his mental illness not to be taken into account in the first place in the imposition of the order by the authority, and then can it be taken into account as a reasonable excuse if he should be subsequently charged with a criminal offence under subsection (10) at some later stage after the order is made? I believe there is a conflict between the first stage, the making of the order, and the further criminal stage.
Lord Renton: My Lords, as this is Report stage I may not make another speech. However, will the noble Lord be so good as to bear in mind that although, as he rightly says, under subsection (1) there is the question of the making of an order by "a relevant authority", nevertheless the definition of the antisocial behaviour referred to in subsection (10) is dependent upon what is written into subsection (1) where the definition of antisocial behaviour appears? That is what we are concerned with.
Lord Thomas of Gresford: My Lords, I am grateful to the noble Lord for his comments. I entirely agree with what he says. In a way he is making my point; namely, if you cannot commit the offence of being in breach of an antisocial order if you have a reasonable excuse, why should the order be made in the first place? Why should not the qualifications that my noble friend suggests in his amendment be before the authority who are minded to make the order in the first place? I suggest that the Minister should reconsider the matter.
Lord Campbell of Alloway: My Lords, I do not find any inconsistency here. A relevant authority may apply for the order. However, there is a discretion under subsection (4) as regards the court. It does not have to

583
make an order; it may make an order. If there are mitigating circumstances and special considerations, the court retains under subsection (4)—as I see it, and I stand open to correction—a discretion whether or not to make the order. If that rather simple form of construction is correct, what is wrong with the clause?
Lord Northbourne: My Lords, I share the anxieties of the noble Lords, Lord Thomas of Gresford and Lord Goodhart. I do not know the right way to solve this problem. However, I am concerned that the phraseology of Clause 1 leaves open the possibility that an order may be made in circumstances where the alarm or distress caused was not, as it were, reasonable. Surely there should at least be a limitation that the alarm or distress is such as could be caused to a reasonable person and not just to any one person. That provision should be included as a minimum. I support the amendments of the noble Lord, Lord Goodhart.
3.45 p.m.
The Solicitor-General (Lord Falconer of Thoroton): My Lords, what underlies the amendment of the noble Lord, Lord Goodhart, as I understand it, is a concern that there may be conduct which upon analysis does not justify the making of an antisocial behaviour order because it is either reasonable or not sufficiently serious to justify the making of an order. I believe that his concern is misplaced. I believe that insufficient attention has been given to the basic procedure which applies in relation to the making of such an order. Without being wearisome I hope I may indicate briefly what is involved.
The application for an order can be made only after consultation between the local authority and the police authority. There is no obligation on an authority which regards antisocial behaviour as taking place, or arguably taking place, to make such an application. Once it has consulted and decided to make the application, as the noble Lord, Lord Campbell of Alloway, rightly pointed out, there is a discretion on the part of the magistrates' court as to whether or not it makes an order. On the point made by the noble Lord, Lord Northbourne, there is a specific provision in Clause 1(5) which requires the court, upon the application for an order being made, to,
"disregard any act of the defendant which he shows was reasonable in the circumstances".
Therefore there is the obligation to consult; there is the discretion as to whether to apply; there is the discretion on the part of the magistrates as to whether or not to grant the order; and there is the obligation on the part of the magistrates to remove from their consideration any conduct on the part of the defendant—the person against whom the application is made—which they regard as being reasonable in the circumstances.
We believe that that is safeguard enough to ensure that the orders are not made in inappropriate circumstances. Equally, we believe that one needs to deal with this on a case-by-case basis. We need to give magistrates a straightforward and clear test they can apply, which we believe our provision does. We believe that there are more than sufficient safeguards in the Bill as it is. I say with the greatest of respect to the noble
584
Lord, Lord Goodhart, that his amendment is unnecessary, misplaced and simply adds to complication where none is necessary.
I turn to the two elements in the amendment—
Lord Thomas of Gresford: My Lords, before the Minister does that, can he explain what the Government have in mind by the expression "without reasonable excuse?" What kind of excuse would be reasonable for the breach of an antisocial order that had been made by a magistrates' court?
Lord Falconer of Thoroton: My Lords, it would be wrong for me to start to define here what is a reasonable excuse because that quintessentially is a matter that magistrates decide on a day-to-day basis.
Lord Thomas of Gresford: Oh!
Lord Falconer of Thoroton: My Lords, I can give the noble Lord, Lord Thomas of Gresford, an example as he made a strange noise when I said that. If, for example, the nature of the antisocial behaviour was continually to make a noise with a car, or a noise of the kind that the noble Lord, Lord Thomas of Gresford, makes from time to time, a reasonable excuse might be that a medical emergency required the arrival of a loud car at night to drive someone away. There is tremendous danger in someone seeking to indicate in this debate what constitutes reasonable excuse because then it would become defined. I say with the greatest of respect to the noble Lord, Lord Thomas of Gresford, that I should have thought his vast experience in the courts would lead him to the conclusion that magistrates are wise enough and experienced enough to know a reasonable excuse when they see it. As one reads the provisions of the Bill, one can see that there is no conflict whatever between the criminal offence stage—namely, determining whether there is a breach of the order—and the stage at which one is considering whether to make the order.
I shall deal with the two elements of the amendment of the noble Lord, Lord Goodhart. First, on the issue of specific intention, in considering whether to grant an order in the first place the courts will have to consider whether on the balance of probabilities the behaviour of the individual or the individuals was likely to cause harassment, alarm or distress in the future. As I have already stated, the nature of this order is merely prohibitive. That is to say, a person subjected to the terms of an order is merely being asked to behave in a reasonable manner, in a way which is considered to be within the bounds of the law. We are not talking at this first stage about sanction for a criminal offence. Moreover, as I have indicated, a defence of reasonableness has been provided. Surely there can be no need to prove intent merely to seek an order which simply demands that a person acts reasonably. To ask for that would be to cut across one of the main purposes of the provision. We believe that it is the heedless, careless antisocial actions that the order needs to target, not just those with deliberate intent. The orders do not

585
simply duplicate that which is already provided in the Public Order Act 1986 and Protection from Harassment Act 1997.
The prohibitive order is, as noble Lords know, backed by a criminal offence in the event of a breach, and this offers—as the noble Lord, Lord Thomas of Gresford, rightly pointed out, albeit with an air of bafflement—the defence of reasonable excuse. Someone who breaches the order will therefore not be liable to prosecution under the criminal law unless he wilfully breaches the order.
The second issue is whether the behaviour should be such as to cause "serious" or "justified" alarm or distress. For the reasons I have indicated, we do not feel this is necessary. I entirely agree that applications should not be brought where the behaviour at issue is trivial. But I believe that for the reasons I have indicated there are sufficient protections to prevent that happening. Moreover, the amendment makes the clause more difficult to understand and unnecessarily complicated. For those reasons, I ask the noble Lord to withdraw his amendment.
Lord Goodhart: My Lords, perhaps I may reply briefly to the noble Lord, Lord Renton. Whether the making of an antisocial behaviour order is justified by the defendant's behaviour—it is an issue to which my amendment goes—is a matter for the court alone at the first stage of the procedure. If and when the matter comes before members of a jury, they will have to decide what will probably be a simple factual question: whether there has been a breach of the order; and, if so, whether the defendant has a reasonable excuse for it. Therefore the concerns expressed by the noble Lord, Lord Renton, are not justified by my amendment.
The noble and learned Lord, Lord Falconer of Thoroton, gave the answer I expected and foresaw; namely, that one can rely on the discretion of the local authority, the police or the courts to ensure that unjustifiable orders are not made. That is not good enough. As I said earlier, people should not be in danger of having antisocial behaviour orders made against them under the law and then having to rely on the discretion of the local authorities, the police or the courts to avoid having the order made against them. The level of conduct which triggers the order should in itself be high enough not to make it necessary in large numbers of cases to have to rely on the discretion of the courts.
I regret to say that I believe that Clause 1 as it now stands contains a potential—I hope that it will never be more than a potential—for a serious infringement of human rights. In those circumstances, I must seek the opinion of the House.
3.53 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 131.

Division No. 1

CONTENTS

Ackner, L.

Lane, L.

Addington, L.

Linklater of Butterstone, B.

Beaumont of Whitley, L.

Ludford, B.

Bellwin, L.

McNair, L.

Brightman, L.

McNally, L.

Calverley, L.

Maddock, B.

Cochrane of Cults, L.

Mar and Kellie, E.

Coleridge, L.

Monson, L.

Dholakis, L.

Moyne, L.

Ezra, L.

Northboume, L.

Falkland, V.

Redesdale, L.

Gainfotd, L.

Rochester, L.

Rodgers of Quarry Bank, L

Goodhart, L. {Teller]

Russell, E.

Grey, E.

Saltoun of Abemethy, Ly.

Hampton, L.

Shaughnessy, L.

Harlech, L.

Thomas of Gresford, L. [Teller.]

Harris of Greenwich, L.

Thurso, V.

Henderson of Brompton, L.

Tope, L.

Holderness, L.

Tordoff, L.

Hooson, L.

Wallace of Saltaire, L.

Ilchester, E.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Gallacher, L.

Allenby of Megiddo, V.

Gilbert, L.

Alport, L.

Gladwin of Clee, L.

Amos, B.

Glenamara, L.

Ampthill, L.

Gordon of Strathblane, L.

Annan, L.

Gould of Potternewton, B.

Archer of Sandwell, L.

Graham of Edmonton, L.

Balfour of Inchrye, L.

Grenfell, L.

Bassam of Brighton, L.

Hardie, L.

Bath and Wells, Bp.

Hardy of Wath, L.

Berkeley, L.

Haskel, L.

Blackstone, B.

Hayman, B.

Blease, L.

Hilton of Eggardon, B.

Blyth, L.

Hogg of Cumbemauld, L.

Borrie, L.

Howie of Troon, L.

Bruce of Donington, L.

Hoyle, L.

Burlison, L.

Hughes, L.

Campbell of Alloway, L.

Hughes of Woodside, L.

Carmichael of Kelvingrove, L.

Hunt of Kings Heath, L.

Carter, L. [Teller.]

Hylton, L.

Castle of Blackburn, B.

Irvine of Lairg, L. [Lord Chancellor.]

Charteris of Amisfield, L.

Chorley, L.

Islwyn, L.

Cledwyn of Penrhos, L.

Jay of Paddington, B.

Clinton-Davis, L.

Jeger, B.

Cocks of Hartcliffe, L.

Jenkins of Putney, L.

Craig of Radley, L.

Kennedy of The Shaws, B.

Crook, L.

Kennet, L.

David, B.

Kilbracken, L.

Davies of Coity, L.

Kilpatrick of Kincraig, L.

Davies of Oldham, L.

Kintore, E.

Dean of Beswick, L.

Kirkhill, L.

Dean of Thomton-le-Fylde, B.

Lockwood, B.

Desai, L.

Lofthouse of Pontefract, L.

Diamond, L.

Lovell-Davis, L.

Dixon, L.

McCarthy, L.

Dormand of Easington, L.

McIntosh of Haringey, L. [Teller.]

Dubs, L.

Elis-Thomas, L.

Mason of Barnsley, L.

Evans of Parkside, L.

Merlyn-Rees, L.

Swing of Kirkford, L.

Merrivale, L.

Falconer of Thoroton, L.

Milner of Leeds, L.

Farrington of Ribbleton, B.

Milverton, L.

Fitt, L.

Molloy, L.

587

Monkswell, L.

Shore of Stepney, L.

Montague of Oxford, L.

Simon, V.

Montgomery of Alamein, V.

Simon of Glaisdale, L.

Murray of Epping Forest, L.

Simon of Highbury, L.

Nelson, E.

Slim, V.

Nicol, B.

Smith of Gilmorehill, B.

Palmer, L.

Stallard, L.

Peston, L.

Stoddart of Swindon, L.

Pitkeathley, B.

Strabolgi, L.

Plant of Highfield, L.

Strafford, E.

Ponsonby of Shulbrede, L.

Symons of Vernham Dean, B

Prys-Davies, L.

Tenby, V.

Putlnam, L.

Varley, L

Ramsay of Cartvale, B.

Wallace of Coslany, L.

Rea, L.

Weatherill, L.

Rendell of Babergh, B.

Westbury, L.

Renton, L.

Wharton, B.

Richard, L. [Lord Privy Seal]

Whitty, L.

Sainsbury of Turville, L.

Williams of Elvel, L.

St. John of Fawsley, L.

Williams of Mostyn, L.

Sewel, L.

Winston, L.

Shepherd, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.2 p.m.
Lord Henley Lord Henley moved Amendment No. 5:
Page 2, line 23, leave out ("less than two") and insert ("more than five").
The noble Lord said: My Lords, this is a variation on a pair of amendments, of which I moved one and the noble Lord, Lord Goodhart, moved the other at Committee stage.
In Committee, I argued that a total discretion ought to be given to the courts in terms of how long the period specified in the order ought to last. As the Bill is drafted, the antisocial behaviour order,
"shall have effect for a period (not less than two years)",
but no maximum is imposed. We argued that that could be left entirely to the courts and that the courts should be free to choose the length of time that they considered suitable without a minimum—or, for that matter, a maximum. The noble Lord, Lord Goodhart, suggested that it might be more appropriate that there should be a maximum figure. Therefore, I return to the matter with a variation whereby the minimum period, "not less than two years", should be deleted; but I have also specified a period not more than five years to make it clear that there is a maximum beyond which the courts should not go.
These are matters that can be left to the courts. I do not believe it is right that the court should be limited to a period greater than two years, with the possibility of removing the order with the consent of both parties as set out in subsection (9). I should be interested in hearing explanations from the Government as to why they feel that, again, not only should there be no minimum but also that there should be no maximum. I beg to move.
Lord Goodhart: My Lords, this amendment is on the lines of one that I moved in Committee. At that time I proposed a maximum period of two years. However,
588
I said then, and I repeat, that it could well be argued that a longer maximum is justifiable. In the circumstances, I am happy to support the noble Lord's amendment.
Lord Falconer of Thoroton: My Lords, this amendment would change the nature of the antisocial behaviour order and what it is trying to achieve. We discussed this at some length during Committee when similar amendments to the clause were tabled.
We see the order as a tool to deal with a serious and escalating problem of antisocial behaviour in our communities. It is not to be used lightly. I hope that the procedures I set out in relation to the previous amendment made that clear. It is a last resort when other methods have failed. If it is not successful, as the structure of the order makes clear, the next step is the criminal law. We do not see it as a tool to deal with petty irritations, grievances or disputes between neighbours. The minimum two-year duration for an order is a mark of the seriousness with which we expect all those involved to view it. That is an important point. That includes the offender, the police, the local authority and the courts. Behaviour which does not merit a two-year order should not be dealt with in this way.
As regards the proposed five-year maximum duration for an order, I agree that an order going beyond this would only exceptionally be justified. For most cases, particularly young people, five years would be more than sufficient for such prohibitions. But I do not see any reason to limit the discretion of the courts where, exceptionally, an order is justified for a longer period. That is the line adopted for a restraining order in the Protection from Harassment Act 1997, and similar arguments apply.
I appreciate that our approach may seem severe. But we need to deal effectively with such behaviour to stamp it out. We do not underestimate the severity of the effect of such behaviour on people who are adversely affected by it. For those reasons, the Government cannot accept this amendment. I ask the noble Lord to withdraw it.
Lord Henley: My Lords, I have no intention of pressing the amendment today. However, I may wish to return to it at a later stage.
The noble and learned Lord talked in terms of not wishing to restrict the discretion of the court by not setting a maximum; however he does wish to restrict the discretion of the courts in setting a minimum. I should have thought that the courts are the best people to decide whether there might be occasions when a period of less than two years was appropriate. There might be a serious outbreak of antisocial behaviour causing harassment, alarm or distress, but the courts might feel that a period shorter than two years—merely six months or a year—might be appropriate to deal with the mischief and prevent it recurring. It is certainly a matter that ought to be addressed.
Similarly, if the matter is of great seriousness, it is right that there ought to be a maximum period. If it is thought that a period longer than five years is

589
appropriate, then possibly other remedies ought to be pursued; or possibly the criminal law ought to be made use of.
Certainly there are arguments that imposing a limit on the courts indicates to them that they should think very seriously about the degrees of mischief that they are addressing between, say, one year and five years. Anything beyond that is a matter of much greater seriousness. One can envisage examples where the problem would be likely to continue for more than five years. I shall return to that minimum and maximum at a later stage because I believe the point is important. This afternoon I prefer to withdraw the amendment with a view to addressing it later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 6:
Page 2, line 25, leave out ("Subject to subsection (9) below").
The noble Lord said: My Lords, any bruising I may feel after the fairly clear rejection of my previous amendment is modified by my conviction that, if both the Government and the Opposition join forces against us, we must be in the right.
I asked for Amendments Nos. 6, 7, 10, 11, 12 and 14 to be grouped together. They deal with two different subjects but there is a common link between them. Amendments Nos. 6, 7, 11 and 12 deal with the exclusion of any power of the courts to discharge an antisocial behaviour order or a sex offender order without the consent of the applicant. Amendments Nos. 10 and 14 deal with the exclusion of the power to order a conditional discharge. They are two different subjects but they have a common theme, which is what I believe to be the Government's wholly unjustified refusal to trust the courts to act properly.
The Government appear to consider that the courts cannot be trusted to exercise the power to discharge an antisocial behaviour order within two years or a sex offender order within five years or the power to order a conditional discharge. My reaction to that is to ask: why ever not?
Let us look first at the power to order a discharge. The court has a discretion to make the order in the first place. As I said earlier, the antisocial behaviour order is a powerful order which should not be kept in place when it is not required. The Minister, the noble Lord, Lord Williams of Mostyn, accepted in Committee on 3rd February (Hansard, col. 575) that there may be changes which fundamentally affect the basis of the order. He gave as an example the teenager who goes to college where he grows up and matures. The noble Lord said that he would expect no difficulty in discharging an order in such a case. I regret that I am not so confident.
The effect of the provisions covered by Amendments Nos. 6, 7, 11 and 12 is to transfer the power of decision over discharge of an order from the court to the local authority or the chief officer of police. I believe that there are three objections to that. First, this in effect turns the applicant into a judge in his own cause, which I believe is wholly wrong in principle. Secondly, a local
590
authority is the wrong body to take decisions of this kind. It is likely to be influenced by political considerations of the popularity or unpopularity of the individual concerned and to play safe by refusing consent. Thirdly, I believe that it will create problems for the local authority or chief officer of police.
Since the power of decision has effectively been transferred from the court to the local authority or the chief officer, the local authority or the chief officer will have to consider in a judicial manner whether to consent to the discharge of the order. That decision is subject to judicial review. I believe that it is a burden which those bodies would prefer not to have and which it is not appropriate for them to have. It is surely better that a local authority or chief officer of police should put before the court any evidence that the order is still needed when the subject of the order makes the application for discharge and should be able, through their lawyers, to cross-examine the subject of the order on his evidence that the order is not needed.
The second aspect of failure of trust is the refusal to allow the power to order a conditional discharge. I ask again why on earth the court should not have power to order a conditional discharge. The noble Lord, Lord Williams of Mostyn, said in the same debate that a conditional discharge ignores the original order. He said:
"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…It means that he has a pattern of behaviour that he either cannot or will not control".—[Official Report, 3/2/98; col. 605.]
I believe that that analysis totally ignores the reality of the situation. The reality is that many people will commit minor breaches of antisocial behaviour orders in circumstances where they do not have a reasonable excuse but where they equally have no intention of defying the court. Let us assume that an order requires a particular defendant to be in his house from 9 p.m. onwards every Saturday night because he is a troublemaker who has caused rows in the town centre late on Saturday evenings. He goes to the pub in good time, well before nine o'clock. Unfortunately, he fails to look at his watch and loses track of time. He is caught by the police sneaking back into his house at ten minutes past nine in the evening. Does he have a reasonable excuse? Manifestly, he does not. But is he acting in defiance of the court? Equally clearly, he is not. The fact is that there will be many trivial breaches.
The noble Lord, Lord Williams of Mostyn, admitted in Committee when I put the question to him that the court can recognise that a breach is trivial by imposing a £5 fine. Why on earth, then, can the court not order a conditional discharge in circumstances such as I have described? That is surely a much more useful and appropriate remedy than a purely nominal fine. The court would be saying, "We accept that this is a trivial breach and is not deliberate, but you must be more careful. If you do it again, you will be in real and serious trouble." Why not trust the courts with powers of that kind? Why not give powers to the courts to discharge orders that are no longer needed? Why not allow courts to order conditional discharges?
No doubt the Government want to prove their toughness. It is, of course, right that seriously antisocial behaviour should be dealt with toughly. But there is a point at which toughness becomes authoritarianism. In restricting the power of the courts in the way proposed in the Bill, the Government have passed that point. I believe that the noble Lord, Lord Williams of Mostyn, knows that as well as I do. I beg to move.
Lord Renton: My Lords, although I was against the noble Lord, Lord Goodhart, on his previous amendment, on which he was defeated, I hope that the Government will give very sympathetic attention to this amendment. We must bear in mind that defendants may have become deeply ashamed of their antisocial behaviour. It may not take them very long to repent. We should not have orders of this kind in force longer than necessary, especially where young people are concerned. The late Lord Wilson of Rievaulx once said:
"A week is a long time in politics".
I can assure your Lordships, not without some experience, that two years can be a long time in law.
Lord Thomas of Gresford: My Lords, in supporting my noble friend on these amendments, perhaps I may disagree with him on one matter. He says that there is a failure of trust in judges and magistrates on the part of the Government. I do not believe that there is a failure of trust. If there is a failure of trust in judges and magistrates doing their job properly, there is no objective evidence to justify it. Indeed, the evidence is all to the contrary. If the Government want toughness, the gaols are full to overcrowding.
As I see it, there is a continuation of an underlying theme from the last government that there is political capital to be made in castigating the judges as soft and projecting the Government as being tough. That is the theme that has run all the way through from mandatory sentences in the period of the last government to the restrictions on the powers of judges and magistrates as contained in the Bill. There is nothing to support that. For those reasons I ask the Government to think again and leave the discretion to the magistrates and judges to do what is appropriate and right in terms of these orders.
Lord Henley: My Lords, I have a degree of sympathy for the first half of the group of amendments tabled by the noble Lord, Lord Goodhart, where he is seeking to give a discretion to the courts to discharge an order before the end of the period of two years. I have less sympathy with the second half of the group and would therefore be grateful for a degree of clarification from him when he comes to respond to the Minister as to how he intends to proceed. It is unlikely that we can support Amendment No. 6 if it means supporting all the amendments in the group. As he put it, they divide into two distinct categories.
As regards the first half of that group, though it is not grouped with them, Amendment No. 8 in my name and that of my noble friend deals with this issue in a slightly simpler manner. It leaves all the provisions as they are but gives a discretion to the court—where it is of the opinion that there are exceptional circumstances relating
592
to the offender or the offence which justify it in so doing—to discharge an order without the consent of the two parties. However, it makes it absolutely clear that if the court does so, it shall clearly state its reasons.
As I said, I should be grateful for clarification from the noble Lord when he responds to the Minister as to how he intends to proceed with the two categories of amendments.
Lord Falconer of Thoroton: My Lords, as the noble Lord, Lord Goodhart, pointed out, these amendments deal with two different issues: first, they give the court power to discharge antisocial behaviour orders and sex offender orders before they reach the end of their duration as ordered by the court; secondly, they give the court power to order a conditional discharge where there has been a breach of either the antisocial behaviour order or the sex offender order.
Perhaps at the outset I can deal with two completely unfounded points that were made. First, it was suggested that the provisions in the Bill as it is presently drafted indicate that somehow the Government do not trust the judiciary or the magistrates. That is quite wrong. I draw attention specifically to the fact that on the previous amendment the complaint being made was that we were giving too much discretion to the magistrates' court. It would appear therefore that in stage one we are giving too much discretion and in stage two, too little.
I believe that the approach we have taken in relation to both not giving a right to discharge against the consent of the local authority and not saying a conditional discharge is available, is based entirely on matters of practicality, which I hope to make out now. The second point was that we are simply trying to appear to be tough. That is quite wrong; we are simply trying to be practical.
Perhaps I can deal first with the minimum duration of the orders and the issue of discharge before this. The Bill as drafted at present allows for an order to be discharged if both sides agree. Such circumstances for an antisocial behaviour order might include a move to a different area, or a teenager going away to college—the kind of change which fundamentally affects the basis of the order. If there is such a fundamental change, there will be no basis for the local authority or the chief officer of police to refuse to consent to a discharge. As the noble Lord, Lord Goodhart, pointed out, there would be judicial remedies not in the magistrates' court if there was a problem in relation to that. Moreover, even without consent, the orders can be varied to reduce or change their conditions.
We do not believe it would be sensible to go further than that. An order is not a penalty. Antisocial behaviour orders should only prohibit antisocial behaviour, not interfere in the defendant's everday lawful and socially acceptable activities. Such an order carries no criminal record implications. We do not want to open up an area of continued dispute over possible early cessation of the orders, which would be the effect of the amendment. The defendant should be well aware that the kind of activity prohibited is unacceptable to society; he should cease that activity; and the order can run its length without adverse effect.

593
To turn to sex offender orders, we need to take a realistic approach. In reality, where an order has been established as necessary and a court has accepted that, the need for it will not go away. The circumstances may change but, unless something exceptional happens, the risk to the public will remain. We could not support the dilution of that position where a matter as serious as this is concerned.
The antisocial behaviour order should not be seen as banning activity which will become acceptable in time. Antisocial activity is simply not acceptable. That is what the order is about. Nor is the need to control the activities of a sex offender likely to change. For those reasons the Government cannot accept the amendments relating to discharge without the consent of the local authority or the chief officer of police.
To turn now to the issue of conditional discharge for breach of the orders, I understand why noble Lords have tabled these amendments since, at first sight, not to allow a conditional discharge for the breach of an order could be seen as fettering the discretion of the court. Let me explain why I do not feel that to be the case.
For an antisocial behaviour order to be imposed, prior to the order the defendant had acted in an antisocial way. We assume that he had not been prepared to stop those actions voluntarily. Though it is not within the legislation, the guidance will make clear that normally other means short of court action, such as mediation, should have been explored. The antisocial behaviour order, as I made clear in the course of the last debate, stands as a last resort against the individual concerned short of, if an offence is committed, invoking the criminal law.
For a sex offender order the defendant's original behaviour, although it may appear trivial, has been sufficient to convince the police and subsequently the courts that there is reasonable cause to believe that the public are at risk of serious harm from him. The prohibitions are justified as necessary to protect the public from serious harm.
This is a clear message to the defendant. The order is saying, "Continue in this behaviour and you will be in serious trouble. If you breach the order, there will be consequences under the criminal law". But to make a conditional discharge following a breach appears to ignore all that. The prohibition on the behaviour is already present in the original order. It does not need to be repeated. And the flouting by the defendant of the authority of the court is ignored.
Let me take the example of the noble Lord, Lord Thomas of Gresford. The defendant has behaved in a specific way which, after mediation and the exercise of all the considerations to which I referred, led to the court making an order which says, "Do not do this. If you do, you will be in breach of the criminal law". He does it. He is in breach of the criminal law and the noble Lord, Lord Thomas of Gresford, is suggesting that the criminal law should say, "If you do it again, you will then suffer consequences". We do not believe that to be
594
appropriate. As a matter of commonsense it does not seem to us to be the way to stop people behaving in an antisocial manner.
I should perhaps make one final point specifically on the sex offender order. The defendant has been able to show no reasonable excuse for the breach of the order, where he is convicted of a breach. Without such excuse, the breach of the order means that the defendant has continued in the action in defiance of the court, and in the knowledge that his conduct will be viewed in that way. That suggests that this is a pattern of behaviour that he cannot control. This is a serious matter in relation to sex offender orders, especially in the context of behaviour which has been established as needing to be prohibited because of the risk of serious harm to the public.
For those reasons, after careful consideration, the Government cannot accept these amendments.
4.30 p.m.
Lord Goodhart: My Lords, the noble and learned Lord, Lord Falconer of Thoroton, said that we were being inconsistent in saying that the courts had too much discretion in the making of an antisocial behaviour order and too little discretion in the punishment. That difference is because these are two entirely different kinds of discretion. As far as concerns the definition, we are saying that anything that is likely to give rise to a penalty—this is a penalty: it may be a civil penalty at stage one rather than a criminal penalty—must be clearly defined in the Act which creates that penalty. We should not rely on the courts to apply that as a matter of discretion and to use their discretion to prevent the law having an unjust and excessive operation.
When it comes to the question of imposing a penalty, which is what this group of amendments is concerned with, it is right that the courts should be given a very wide discretion. That is a matter not just to do with these orders but of the general principles of law.
As far as concerns the discharge of the order, the noble and learned Lord said that the order is not a penalty. However, if it is not a criminal penalty, it is at least a civil penalty. One of the principles of civil penalties, as with injunctions, is that they are always subject to discharge when the circumstances no longer justify them. That is recognised in principle because there is a power here to discharge. All we are saying is that the appropriate body to decide whether the discharge is justified is the court and not the local authority or the chief officer of police.
On the question of conditional discharges, I accept that the defendant will have acted in an antisocial way before an antisocial behaviour order is made. I certainly hope, though the Bill does not in itself make it clear, that this will be regarded as a last resort for dealing with the problem. But it is wholly contrary to common sense to suggest that there is no such thing as a trivial breach of the order. Clearly, the order cannot just say, "You must not continue to behave in an antisocial manner". It must lay down parameters of what the defendant can or cannot do. Those parameters may be broken. When they are broken, the matter should come before the

595
court. But the breach of the antisocial behaviour order may or may not be a serious one. It is perfectly possible for there to be a trivial one. The courts will have a power to impose a nominal fine. I say again, why on earth should they not have power to order a conditional discharge?
The noble Lord, Lord Henley, asked me how I intended to proceed. My noble friends and I regard this as a serious matter on which we intend to test the opinion of the House. I do not intend to make a habit of that and it will be some time before we proceed to do it again in the course of this debate. However, together with the earlier amendment, we regard this as a very serious matter, indicating, if not distrust of the power of the courts, at least, as my noble friend Lord Thomas of Gresford said, a reluctance to allow them to exercise their powers freely.
I intend to test the opinion of the House on Amendment No. 6, which is in effect a paving amendment. If that is defeated, I will not seek to take the matter further on Amendments Nos. 10 and 14. If it succeeds, we might have to look at that again. I seek to test the opinion of the House on Amendment No. 6.
4.35 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 120.

Division No. 2

CONTENTS

Addington, L.

Lindsey and Abingdon, E.

Beaumont of Whitley, L.

Linklater of Butterstone, B.

Calverley, L.

Ludford, B.

Carlisle, E.

McNair, L.

Cox, B.

McNally, L.

Dholakia, L.

Maddock, B.

Ezra, L.

Mar and Kellie, E.

Falkland, V.

Newby, L.

Geraint, L.

Nicholson of Winterboume, B.

Goodhart, L. [Teller.]

Redesdale, L.

Grey, K.

Renton, L.

Hampton, L.

Rochester, L.

Harris of Greenwich, L.

Rodgers of Quarry Bank, L

Henderson of Brompton, L.

Russell, E.

Hooper, B.

Thomas of Gresford, L. [Teller.]

Hooson, L.

Thomas of Walliswood, B.

Hylton-Foster, B.

Thurso.V.

Kenyon, L.

Tope, L.

Kitchener, E.

Wallace of Saltaire, L.

Lester of Herne Hill, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Blease, L.

Allenby of Megiddo, V.

Borrie, L.

Alport, L.

Braine of Wheatley, L.

Amos, B.

Brooke of Alverthorpe, L.

Ampthill, L.

Bruce of Donington, L.

Archer of Sandwell, L.

Burlison, L.

Barnett, L.

Carmichael of Kelvingrove, L.

Bassam of Brighton, L.

Carter, L. [Teller.]

Bath and Wells, Bp.

Castle of Blackburn, B.

Berkeley, L.

Cledwyn of Penrhos, L.

Biffen, L.

Clinton-Davis, L.

Blackstone, B.

Currie of Marylebone, L.

596

David, B.

Longford, E.

Davies of Oldham, L.

Lovell-Davis, L.

Dean of Beswick, L.

McCarthy, L.

Dean of Thomton-le-Fylde, B.

McIntosh of Haringey, L. [Teller.]

Desai, L.

Diamond, L.

Masham of Ilton, B.

Dixon, L.

Merlyn-Rees, L.

Dormand of Easington, L.

Milverton, L.

Dubs, L.

Molloy, L.

Elis-Thomas, L.

Molyneaux of Killead, L.

Ely, Bp.

Monkswell, L.

Evaas of Parkside, L.

Montague of Oxford, L.

Ewing of Kirkford, L.

Murray of Epping Forest, L.

Falconer of Thoroton, L.

Nelson, E.

Farrington of Ribbleton, B.

Nicol, B.

Fitt, L.

Palmer, L.

Gaiasborough, E.

Peston, L.

Gallacher, L.

Pitkeathley, B.

Gilbert, L.

Prys-Davies, L.

Gladwin of Clee, L.

Puttnam, L.

Glenamara, L.

Ramsay of Cartvale, B.

Gordon of Strathblane, L.

Randall of St. Budeaux, L.

Gould of Potternewton, B.

Rea, L.

Graham of Edmonton, L.

Rendell of Babergh, B.

Grenfell, L.

Richard, L. [Lord Privy Seal.]

Hardie, L.

Sainsbury of Turville, L.

Hardy of Wath, L.

St. John of Fawsley, L.

Haskel, L.

Sewel, L.

Hayman, B.

Shepherd, L.

Hilton of Eggardon, B.

Simon, V.

Hogg of Cumbemauld, L.

Simon of Glaisdale, L.

Hollis of Heigham, B.

Simon of Highbury, L.

Howie of Troon, L.

Smith of Gilmorchill, B.

Hoyle, L.

Stoddart of Swindon, L.

Hughes, L.

Strabolgi, L.

Hughes of Woodside, L.

Strafford, E.

Hunt of Kings Heath, L.

Symons of Vernham Dean, B.

Irvine of Lairg, L. [Lord Chancellor.]

Taylor of Blackburn, L.

Tenby, V.

Islwyn, L.

Thomas of Macclesfield, L.

Jay of Paddington, B.

Varley, L.

Jeger, B.

Walker of Doncaster, L.

Jenkins of Putney, L.

Wallace of Coslany, L.

Kennedy of The Shaws, B.

Watson of Invergowrie, L.

Kennet, L.

Whitty, L.

Kilbracken, L.

Williams of Elvel, L.

Kirkhill, L.

Williams of Mostyn, L.

Lockwood, B.

Winston, L.

Lofthouse of Pontefract, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.44 p.m.
[Amendment No. 7 not moved.]
Lord Henley Lord Henley moved Amendment No. 8
Page 2, line 30, at end insert ("unless the court is of the opinion that there are exceptional circumstances relating to the offender or offence which justify its doing so, in which case the court shall state its reasons").
The noble Lord said: My Lords, I intend to speak to this amendment very briefly in order to ask just one question. We have already debated this matter. In the event we decided that we could not offer our support on these matters to noble Lords on the Liberal Benches. The question deals with when the court is able to discharge such orders in under two years without the agreement of the two parties. We have been told that the orders have to last for two years.
Bearing in mind the response that I received from the noble and learned Lord regarding a previous amendment when he said that the two-year limit was there because it indicated the seriousness with which these matters should be viewed, can he inform us why these matters are considered to be very serious in England and Wales where an order must be for two years, but not, as I see from Clause 20(7), in Scotland where no such limit applies? I daresay I shall be told that things are different in Scotland. If these matters are considered to be so serious in England that the order must be for at least two years, I do not see why the same should not apply in Scotland. In addition, if it does not apply in Scotland, I do not see why we need such a limit in England and Wales. I shall be grateful for a response from the noble and learned Lord on that matter. It is probably a matter to which I shall return when I return to something similar to Amendment No. 5. I beg to move.
Lord Falconer of Thoroton: My Lords, the noble Baroness, Lady Anelay of St Johns, advised me on the first occasion that I spoke that one should never get into matters relating to Scotland lest one did now know what one was talking about. I have set out in detail what is the justification for a minimum two-year period in relation to England. I am told that the different criminal procedure in Scotland makes it desirable for there to be no limit of that sort in relation to Scotland. It would not be sensible for me to go further than that.
Lord Henley: My Lords, I am very interested in that response, particularly as the noble and learned Lord has his noble and learned friend the Lord Advocate sitting next to him. As I said, I intend to return to this matter. I try to avoid getting involved in matters relating to Scotland—and I say that as someone who lives very close to it. I accept that the legal system is different there.
When the noble and learned Lord put the arguments in favour of having the two-year minimum period for the sentence, he said it was because the Government wanted to indicate the seriousness of the orders. The same must also apply in Scotland, and therefore similar rules ought to apply there. I do not intend to pursue the matter at this stage particularly as I do not have my noble and learned friend sitting next to me to assist me in arguing these issues with both noble and learned Lords.
I hope that one, if not both, of them can write to me giving some indication as to why Scotland should be treated differently in these matters and why the arguments that the noble and learned Lord, Lord Falconer, put forward were valid for England, but not for Scotland. I hope that they can write to me between now and a later stage. I might come back to the matter at that later stage. I see that the noble and learned Lord wishes to press me before I sit down.
Lord Falconer of Thoroton: My Lords, I would not dream of pressing the noble Lord. Perhaps I may assist slightly further. There has been consultation in both England, Wales and Scotland as regards this issue. The
598
consultation about England and Wales favoured a minimum duration, whereas there was no such feeling in relation to Scotland. So we reflect the difference, quite rightly, between the two.
Lord Henley: My Lords, the noble and learned Lord said that they responded to consultation and that is very good. That consultation indicated a different approach in the two countries. But the arguments he put forward earlier were not the same. They were arguments based on the fact that the orders should be taken so seriously that they should be made only for a period of two years or more.
I shall read carefully in Hansard what the noble and learned Lord has said and I look forward to receiving a letter from both noble and learned Lords in due course setting out their arguments in slightly greater detail. However, I may wish to return to this matter at a later stage, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 9:
Page 2, line 37, leave out ("five") and insert ("two").
The noble Lord said: My Lords, in Committee two alternative amendments were tabled to limit the sentencing powers of the court for breach of an antisocial behaviour order. One of those versions sought to make the breach punishable as a contempt of court under the Contempt of Court Act 1981 rather than as a criminal offence. The other amendment sought to retain such a breach as a criminal offence, but to restrict the maximum sentence under Clause 1 to two years. Both amendments would have had the effect of reducing the maximum sentence to a period of two years, which is the maximum punishment for contempt under the 1981 Act.
There are considerable advantages in using the contempt of court punishment, as my noble friend Lord Thomas of Gresford pointed out in Committee. In particular, a defendant, if punished for contempt of court, can be released on an apology and with adequate assurances of future good behaviour. As a result of the breach, a defendant does not become a criminal and is not technically a convicted person.
However, the Government have made it clear that they intend to treat a breach of an antisocial behaviour order as a criminal offence, and they have said that they regard that as a fundamental aspect of the Bill. In those circumstances, we have not tabled an amendment suggesting that the punishment should be that for contempt of court. We accept that one advantage for the defendant of treating the matter as a criminal offence is that he will have the right to a jury trial.
However, one may ask: why a five-year maximum? A breach of an antisocial behaviour order may, and often will, consist of actions which themselves are crimes. If so, the defendant can be punished for those crimes and can be separately charged with a separate offence of a breach of an antisocial behaviour order, possibly leading to a consecutive sentence. That course might be appropriate to mark a breach of the order, but I cannot see any circumstances in which it would be

599
appropriate to give a consecutive sentence for a period as long as five years. If the breach of the antisocial behaviour order is not itself a criminal offence, I regard it as inconceivable that it would be possible to justify a five-year sentence for that breach.
The noble Lord, Lord Williams of Mostyn, said on 3rd February:
"there may well be extreme circumstances where a five-year sentence would be justified. I can easily conceive of those circumstances".—[Official Report, 3/2/98; co1.605.]
I have great difficulty in doing so.
The noble Lord may have had in mind repeat offences, but, if so, a two-year sentence seems an adequate maximum. If the defendant is released at the end of serving that sentence and breaches an antisocial behaviour order again, back to prison he will go on, no doubt, another two-year sentence. The same is true of the maximum period for breach of a sex offender order (Amendment No. 13). In those circumstances, I ask the Government to reconsider the extraordinarily long five-year sentence for breach of an antisocial behaviour order. I beg to move.
Lord Monson: My Lords, in Committee I suggested that it was somewhat ironic that the Labour Party (which all through the 1980s and the first half of the 1990s constantly castigated the Conservatives for introducing or advocating ever-higher maximum sentences, maintaining instead that what deters criminals is not higher sentences, but the near-certainty of detection) now seems to be donning some of the Conservatives' clothes with regard to sentencing policy. As the noble Lord, Lord Goodhart, said, a five-year maximum seems ridiculously high for someone who contravenes an antisocial behaviour order. I know that we shall be told that a five-year sentence is only a maximum and that in practice that sentence may never be imposed—that is true—but the maximum is nevertheless a marker and, as such, is likely to lead to higher average sentences than would otherwise be the case. For that reason, I warmly support Amendment No. 9.
I was tempted to add my name also to Amendment No. 13—I do not think that the noble Lord, Lord Goodhart, spoke to this amendment although it has been grouped with Amendment No. 9—as, in most cases, a five-year maximum would, in my view, be excessively high for breach of a sex offender order. We must remember that many sex offences consist of nothing much more serious than an "Oval Office-style grope", so to speak. However, as a small proportion of past offenders were convicted of very much more serious offences, it would perhaps be dangerous to lower the maximum, so I am afraid that I cannot support Amendment No. 13.
Lord Henderson of Brompton: My Lords, I support the amendment. Unfortunately, I was not present for Committee stage, but I have read what went on. I think that this reduction is right. It happens to be the same as the two-year sentence for contempt of court. I believe that the amendment before the Committee related to that. It is right to have the same maximum here. Clearly,
600
if a former prisoner misbehaves after release, it is right that he should receive the same penalty as is given for contempt of court.
Apart from anything else, I find the five-year maximum extraordinary. I cannot imagine that any Labour Minister would feel it right to put on the statute book a maximum sentence of five years, especially if that will increase the number of prisoners. I have heard the noble Lord who is going to reply on this amendment saying—no doubt gently but teasing the Opposition—that the Labour Party is pure and clean and has no responsibility for the fact that there are 60,000 prisoners in our prisons; that since this Government have been in office, between 5,000 and 6,000 more have been added to the prison population; and that that is only another 10 per cent.—a mere trifle. However, provisions such as this, which seek to impose five-year sentences for comparatively minor trouble, will bring us up to the 100,000 prisoner mark—and it will be the Government who are responsible for that, not the Opposition.
I believe that the Government owe it to the House to explain why they have specified a high maximum sentence for a comparatively minor offence. I am not saying that it is not an offence, because it is a substantial offence, but it is not the greatest of offences. It is not as serious an offence as, for example, grievous bodily harm.
We were reminded a short time ago that a week is a long time in politics. It certainly can be sometimes. I believe that a week in prison is a long time and that it would do sentencers and Front-Benchers a great deal of good if they spent a week in prison so that they would know how long such a sentence really is. They would find it extremely upsetting. Even an introduction to prison is bad enough. I believe that in the majority of cases prison sentences should be considered in terms of weeks or even months, but not in terms of years. I am very sorry that this Government of all governments should seek to push through this provision. I very much hope that they will think again and indicate that at Third Reading they may relent.
5 p.m.
Lord Thomas of Gresford: My Lords, the noble Lord referred to the maximum sentence for contempt of court, to which I referred at Committee stage. My noble friend Lord Goodhart also referred to it a moment ago. Your Lordships will recall that, in addition to the two-year maximum sentence for contempt of court for breach of a court order, there is a provision in the prison rules that the person who suffers imprisonment as a result of the contempt is kept separate and apart from prisoners who are convicted of ordinary crimes in the criminal courts. I urged the Government to accept that that was the proper way of dealing with this matter. That argument was not accepted and we have not persisted in it. However, we persist in relation to the five-year maximum sentence.
I am grateful to the noble Lord, Lord Williams of Mostyn, for writing to me on 3rd March on this topic. The noble Lord, Lord Northbourne, and I challenged the

601
noble Lord, Lord Williams, to come up with a set of facts that would justify a maximum sentence of five years. In his letter of 3rd March he painted a scenario that was intended to be illustrative only. Grateful to him as I am for taking the trouble to do that, I regret that I cannot accept anything approaching a five-year sentence for the scenario that he has painted.
It is of interest that on Friday last a sentencing conference took place in Cardiff. The nature of that conference will be familiar to the noble Lord, Lord Williams of Mostyn. The morning was spent discussing sentencing. There was discussion of various sentences for serious crimes in the region of two to four years both at first instance and in the Court of Appeal. Following lunch, we were addressed by the Minister in the other place, Mr. Alun Michael. I put to him the question that I put to the noble Lord, Lord Williams. I asked what possible set of circumstances he could envisage to justify anything approaching a five-year sentence for breach of an antisocial behaviour order when another more serious crime had not been committed. Although some explanation was provided, that explanation was not satisfactory either to me or to the professional judges with whom I later conversed. The idea that breach an order of this kind should be placed above various other serious offences was one which the professional judges simply could not accept.
The only justification put forward for the five-year maximum is that that was the maximum sentence imposed in the dying days of the previous government under the Protection from Harassment Act 1997. We opposed the maximum sentence in that Act. It is sad to see a Labour Government repeating the same error.
Lord Williams of Mostyn: My Lords, I do not intend to make a Second Reading or Committee speech. To look at each particular component of this Bill as though it stands entirely alone is perhaps a fallacious approach. We have proposed a regime that is intended to stop young offenders from offending at a very young age. The components of that regime are to assist young offenders and prevent continuing crime. But if in this context a crime has been committed we must look at what the penalty should be.
I do not agree with the noble Lord, Lord Henderson of Brompton, that these are comparatively minor troubles. They are not if one is at the receiving end of them. I understand the concerns of noble Lords in relation to antisocial behaviour. I make two points. First, it is a maximum penalty only and need not be applied by the courts, and it will be subject to appeal in the usual way. Secondly, we believe that it will be used rarely but that its existence is necessary to show how seriously the community regards this kind of behaviour, which often goes unpunished, which means that at the moment the community is unprotected. There may be occasions when it is appropriate: continuing or escalating serious antisocial behaviour, possibly in a racist context or possibly not, in spite of warnings that action will be taken for a breach, or even continuing actions by way of breach while the action for the original breach is before the court.
602
I stress that this is a maximum penalty and it does not have to be used. We believe that it has the virtue of being there to indicate that in the gravest, grossest circumstances that is the penalty which is available. As the noble Lord, Lord Thomas of Gresford, has indicated, it is the maximum penalty—I know that he disagrees with it—for protection against harassment. Perhaps it is difficult for some of us who have not been at the receiving end of continued antisocial conduct to realise how it can grievously wound an individual's entitlement to live a reasonably calm and ordered existence without constant aggressive action by others.
I turn to sex offender orders. As indicated earlier by the noble Lord who spoke to this matter, Amendment No. 13 is grouped with Amendment No. 9. We believe that breach of a sex offender order without reasonable excuse is a serious matter. We all know the dangers of it. We know the concerns of parents and those who have to care for small children. I repeat that five years is the maximum penalty. The courts can impose a lighter sentence, and that is a matter for their discretion. There may be some circumstances in which five years is the right sentence. We do not believe that we should remove the options where they are justified.
I hope that the noble Lord, Lord Henderson of Brompton, will acquit me of discourtesy if I do not respond to his wider views on sentencing generally. With great respect to him, I believe that that may be part of another debate on another occasion. We cannot accept these amendments.
Lord Goodhart: My Lords, nothing that the Minister has said convinces me that there is any need for a sentence of as long as five years or that it is appropriate to retain that in the Bill as it stands. However, I am conscious that we have a lot of business to get through. The reason I do not take the matter further is my belief that a five-year sentence will in practice never be applied. Therefore, we are not talking about something which in practice is likely to be as serious an infringement of rights as some of the other provisions of the Bill may be. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
Clause 2 [Sex offender orders]:
[Amendments Nos. 11 to 14 not moved.]
Clause 3 [Sex offender orders: supplemental]:
Lord Goodhart Lord Goodhart moved Amendment No. 15:
Page 4, line 8, leave out from beginning to ("or") in line 10.
The noble Lord said: My Lords, a sex offender order is, as I described the antisocial behaviour order earlier, an extremely powerful sentence. Of the two it is clearly the more powerful. It lasts for a minimum period of five years and makes the defendant subject to notification regulations under the Sex Offenders Act 1997. A breach carries a five-year penalty. My noble friends and I believe that it is wholly inappropriate to make this order where the triggering offence is one that has been dealt

603
with by a caution. A caution is given where an offence has been admitted but is not so serious as to justify prosecution.
When I raised this matter at Committee stage the noble Lord said that,
"the reason [for the caution] may be that the complainant is simply not up to the trauma of giving evidence in court".—[Official Report, 3/2/98; col. 626.]
I suggest that that is very unlikely to be the reason because the defendant has to admit the offence before the decision can be taken to caution him. If the defendant has committed the offence, if he is not cautioned but taken to trial it must surely be that a guilty plea is virtually inevitable.
The sex offender order seems to be directed, mainly if not entirely, and rightly, at paedophiles. We want to stop the situation that we have seen reported in the newspapers recently of a paedophile, released from prison, who has been discovered hanging around a children's library. I do not believe that paedophile offences are ever likely to be the subject of a caution after there has been an admission of guilt.
Cautions are likely to be imposed for different kinds of offences, in particular, for the unwanted grope at the office party or the 16 year-old boy who is having sex with his 15 year-old girlfriend. Such a case does not lead to the circumstances where a sex offender order is necessary or appropriate. The sex offender order should be confined to cases where the defendant has been duly convicted in a court and not where he has merely been cautioned. I beg to move.
Lord Thomas of Gresford: My Lords, I support the amendment. The Government do not appear to have carried out any analysis of the sex offences for which cautions are administered. I accept entirely what my noble friend said a moment ago: where there is anything approaching a serious sexual offence, a caution would never be administered and the person would appear before the court to be convicted if he is guilty of the offence.
The type of circumstances to which my noble friend referred, where something is much less worthy of opprobrium, are circumstances where cautions would be administered. This is far too serious an order to be imposed in such circumstances.
Lord Falconer of Thoroton: My Lords, the amendment raises the issue of why a sex offender who has only merited a caution would still be caught by the Bill's provision in relation to sex offender orders.
There is a good reason for that, just as there is a good reason why such offenders are covered by the registration provisions in Part I of the Sex Offenders Act 1997. We all know that some sex offenders are likely to repeat their offences and that sex offenders may start with minor offences and progress to more major ones. That is sad but nevertheless true. We may not be able to judge conclusively if that will happen with any individual but we can reach a judgment on the basis of some kind of risk assessment. That is being seen as an ever more crucial part in dealing with sex offenders and in protecting the public from their abuse.
604
But what matters in any such assessment is both the nature of the original offence and the up-to-date assessment of the offender. How the offender was dealt with at the time of the original offence is not a material factor in the subsequent assessment of risk. There may have been particular reasons for the original disposal—trauma of the complainant, the defendant's age, the promise of a supportive environment to help him overcome his problems or other reasons. Those may have since changed. But the offence was still committed—admission of the offence is a necessary element in a caution—and the risk of re-offending still remains.
I doubt very much whether there will be many, if any, orders made in those circumstances, but we cannot afford to rule out the possibility, just as we could not afford to rule it out from registration under the Sex Offenders Act. To do so would jeopardise our aim of protecting the public in a way which we feel is unnecessary and unjustified. We have thought carefully about it. We feel that it is justified. In those circumstances, the Government cannot accept the amendment.
5.15 p.m.
Lord Goodhart: My Lords, the noble and learned Lord said that the Government could reach a judgment on the basis of some kind of risk assessment. It does not appear that any such risk assessment has yet been carried out. I regret that this penalty is being introduced before a risk assessment is looked at. The whole point of a caution is that it is not a penalty, although it may be taken into account if there is a subsequent offence within a certain period of time.
The effect of the legislation is that the person who is cautioned will indeed be exposed to a penalty. The penalty is the possibility that he will be put into the class of people against which a sex offender order can be made. That is a matter which causes me serious concern, but due to the pressure of time I do not propose to press this amendment to a vote this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
Clause 6 [Formulation and implementation of strategies]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 18:
Page 5, line 42, at end insert ("(taking due account of the knowledge and experience of persons in the area)").
The noble and learned Lord said: My Lords, the government amendment changes the basis by which reviews of the levels and patterns of crime and disorder are carried out. That is in relation to the Bill's provisions with regard to the developing of a strategy in relation to crime and disorder. Before the proposed amendment, the onus was on the police and local authorities to review these and carry out some analysis of the review before consulting the public. That approach ran the risk of the results of the review being published before they were verified against public perceptions. The amendment we are proposing will involve the local community from the

605
start of the process. It will be able to express its concerns about both the actuality of crime and disorder and, as importantly, the fear of crime. The crime and disorder strategies will then address both those concerns and will gain credulity in the eyes of the community. The post-legislative guidance we shall be issuing will stress the need to establish the levels of fear of crime and to act to reduce them if necessary.
Amendment No. 18 is grouped with Amendment No. 19. That is an amendment proposed by the noble Lord, Lord Henley, and others, which includes a provision that in preparing a strategy the relevant body should carry out a review of the fear created by crime and disorder in the area. It is inevitable that the levels of the fear of crime would be determined during the consultation with the local community. The practical effect of this second amendment is, to all intents and purposes, the same as the amendment that the Government propose. In view of that, I hope that noble Lords supporting the amendment will be satisfied and will, accordingly, withdraw their amendment.
Lord Henley: My Lords, I shall do even better than that and not bother to move my amendment. It gives me the opportunity to discuss this issue and to raise the question of the fear of crime so that the Government can make their position clear.
It was brought to my attention by bodies representing a number of pensioners and pensioner organisations that fear of crime was as serious a problem as crime itself. That was a matter addressed in Committee by the noble Earl, Lord Mar and Kellie, when he gave the example of his brother, who is a minister in a fairly law-abiding part of west Scotland, who was unable to hold meetings in the evenings because, even though there was relatively little justification for it, many of the elderly residents were frightened of going out due to a fear of crime.
I therefore tabled the amendment merely to rehearse some of those views and seek the Government's response. I am grateful that the Government have taken that point on board and have come forward with Amendment No. 18 which, as the noble and learned Lord put it, addresses our concerns.
I have one other related question which goes back to Clause 5 rather than Clause 6. Clause 5(2) provides for responsible authorities acting in co-operation with the listed persons and bodies. Subsection (2)(c) refers to:
"every person or body of a description which is for the time being prescribed by order of the Secretary of State under this subsection".
I presume that in due course the Secretary of State will issue a circular to the responsible authorities setting out who those persons are. Will the regulations which come before the House be under the affirmative or negative procedure? Will the noble and learned Lord elaborate on that issue and make it clear to the House that among those consulted will be bodies representing the elderly and pensioners as well as many others? Will the noble and learned Lord explain whom he believes the Secretary of State will suggest and what guidance will be given?
606
I am grateful to the noble and learned Lord for bringing forward Amendment No. 18. I give an assurance that once the House has accepted that I shall not move my Amendment No. 19.
Viscount Tenby: My Lords, I, too, thank the noble and learned Lord for his remarks in this connection. I believe that Amendment No. 19 puts the case more frankly, but perhaps the wording is too emotive. In recent days, I have received representations from organisations representing the elderly and pensioners expressing their concern about the fear which those people have of crime. Although many senior police officers will say that many of those fears are exaggerated and stoked up by the media, for whatever purpose, the reality is that in recent years crime has increased substantially, whatever the statistics may show to the contrary. Therefore, it is essential to take into account the feelings of local people in this respect, and I welcome the noble and learned Lord's remarks.
Lord Renton: My Lords, I understand that we are discussing Amendment No. 20 with Amendments Nos. 18 and 19.
Lord Henley: My Lords, we are discussing the Government's Amendment No. 18 and my Amendment No. 19.
Lord Renton: My Lords, I am grateful for that correction. In spite of what was said by the noble Viscount, Lord Tenby, we will come to Amendment No. 20 in a moment.
Baroness David: My Lords, I am pleased that the Government have come forward with the amendment. I have received a number of representations about the matter. Although I wish the amendment were more strongly worded, like that of the noble Lord, Lord Henley, I know that the aim is the same and I thank the Government for bringing it forward.
Lord Dholakia: My Lords, I put my name to Amendment No. 19 and I am delighted that the sentiment will be contained in the Bill. I wish to stress the extent of the fear of crime and to cite an example from a survey carried out by the National Federation of Post Office and BT Pensioners which I received today. It indicates the extent of fear among old people. Of the 300 respondents—they are waiting for the results from 20,000 others-56 per cent. go out less at night due to fear of crime; 45 per cent. feared crime against the person and property; 71 per cent. felt that policing levels in the neighbourhood were inadequate; and 13 per cent. had been the victims of bogus callers. Amendment No. 18 will go a long way to redress that situation. If the aim of the Bill is to adopt the multi-agency approach in dealing with crime and disorder it is right and proper that an audit of the fear of crime is undertaken. Furthermore, old people should have a place at the table during discussions about the fear of crime. I am grateful for the Minister's assurances.
Lord Falconer of Thoroton: My Lords, I am grateful to all noble Lords who have spoken in support of the amendment and I am grateful to the noble Lord, Lord Henley, for indicating that he will not move his Amendment No. 19.
The noble Lord asked a number of questions about Clause 5(2)(c). It refers to:
"every person or body of a description which is for the time being prescribed by order of the Secretary of State under this subsection".
The order will be a statutory instrument by negative resolution. The precise details of how that will be dealt with are set out in Clause 92(2).
We have not yet decided which the prescribed bodies will be and I am grateful to the noble Viscount, Lord Tenby, for his suggestions. They will probably include bodies such as social housing providers, environmental health officers and voluntary organisations. I am sorry that I cannot go further at this stage, but I believe that that answers most of the noble Lord's questions.
On Question, amendment agreed to.
[Amendment No. 19 not moved.]
Lord Henley Lord Henley moved Amendment No. 20:
Page 6, line 3, after ("meetings") insert ("which are easily accessible to the elderly and disabled").
The noble Lord said: My Lords, the amendment continues on the same theme, It addresses directly the risk that the fear of crime may prevent certain sections of the community from attending a public meeting on a crime and disorder strategy. My amendment refers to the elderly and disabled.
It also addresses the more general issue of access, which is important. It is not merely access for elderly or disabled people, important though that is, but access in terms of time. If, for example, as a result of worries about crime at night it was believed that meetings should be held during the day, one would have to make arrangements to allow for those who are at work during the day and can attend meetings only in the evening.
I appreciate that the amendment might be inadequately drafted, but its purpose is to ensure that meetings are held in ways and at times that enable as many people as possible, from as wide a section of the community as possible, at some time or another, and at some place or another, to attend and contribute to the development of the crime and disorder strategies which are set out in Clauses 5 and 6. I beg to move.
Lord Renton: My Lords, I regard this as an important and necessary amendment. The elderly and disabled are most vulnerable to criminal attacks, even in their own homes. Recently, we have seen reports of appalling cases in which people living alone have been assaulted and sometimes killed and anything of value in their home has been stolen. Those people really should be at the meetings which are envisaged. I hope that the Government will give sympathetic consideration to this amendment which is extremely important.
5.30 p.m.
Baroness Masham of Ilton: My Lords, there is one small point which I wish to make. It would be better to insert the word "people" or "persons" so that the amendment reads,
"which are easily accessible to persons who are elderly and disabled".
or,
"accessible to elderly and disabled people".
It is important not to forget that people are people first and foremost, whatever their disability or age.
Lord Falconer of Thoroton: My Lords, it would be difficult to oppose the sentiment underlying this amendment as it is the Government's intention to encourage widely-based consultation during the crime and disorder analysis stage of developing local strategies. I fully accept what the noble Lord, Lord Renton, said. I accept also what the noble Baroness said in relation to ensuring that the elderly and disabled are treated as people rather than as something else.
However, in practical terms, as a matter of legislation, there may be occasions when complying with the legal requirement proposed could result in it being impossible to hold meetings in some communities because an appropriate venue was not available. Therefore, a more appropriate way forward to deal with that important issue is for the non-statutory guidance that will accompany the legislation to urge specifically the use of a venue which will encourage as many people as possible to take part in the process and which will be readily accessible by elderly and disabled people.
I am happy to give an undertaking that the guidance will contain such advice. By doing that, the particular needs of every member of the community, whether from minority groups, the young, elderly people or disabled people, will be recognised but the practical difficulties of making such a specific legal requirement as that proposed will be avoided. The views of such vulnerable groups can be sought by other means apart from public meetings, if necessary. We should bear that in mind in developing our strategies. For those reasons, I hope that the noble Lord will withdraw the amendment.
Lord Henley: My Lords, I start with an apology to the noble Baroness, Lady Masham. I have been a Minister in a number of different departments with responsibility for disability issues. I should have known far better than to use the word "disabled". We have seen a development of the use of language over the years and we have begun to get away from crude terms such as "the disabled". We have moved on to the phrase "disabled people". The noble Baroness may remember that we then moved on to an expression, which was rather a mouthful, which was "people with disabilities". However, we have now moved back to "disabled people" which is a more satisfactory form of words. I deeply regret that I did not think of that when drafting the amendment and should I wish to return to the matter I shall make sure that I get those matters right.
Having said that, I have no plans to return to this matter because I am satisfied with the answer given by the noble and learned Lord, Lord Falconer. He states

609
that there will be non-statutory guidance which is obviously the appropriate manner in which to proceed. That guidance will set out how the responsible authorities are to go about the consultation process.
The Bill refers to "public meetings or otherwise". I trust that we shall have an opportunity to see the draft guidance in due course. I hope that the guidance will make it clear that where possible public meetings should be held and that the "or otherwise" is very much an "or otherwise" and should not be used with great frequency. Where public meetings are held, all that can be done should be done to make sure that they are as accessible as possible in relation to both time and place and that as many people as possible can attend. On the basis of such an assurance from the noble and learned Lord, I am more than happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hylton Lord Hylton moved Amendment No. 21:
Before Clause 8, insert the following new clause—
PROSTITUTION BY CHILDREN AND YOUNG PERSONS
(".—(1) Section I of the Street Offences Act 1959 is amended in accordance with subsections (2) and (3).
(2) For subsection (1) substitute—
"(1) It shall be an offence for a woman who has attained the age of 18 to loiter or solicit in a street or public place for the purpose of prostitution."
(3) After subsection (4) insert—
"(5) An authorised person (as defined in section 31 of the Children Act 1989) may apply to the court for an order to be made under section 44 of that Act with respect to a child who loiters or solicits in a street or public place for the purposes of prostitution."
(4) In paragraph 24 of Schedule 2 to the Sexual Offences Act 1956 (penalty for offence committed under section 23 (procuration of girl under twenty-one)), for the words "Two years", in both places in which they occur, substitute "Four years".").
The noble Lord said: My Lords, Amendment No. 21 was printed last Thursday and I apologise for the fact that it appears not to have been available generally until yesterday. However, the Government and some of your Lordships have had much longer notice of it than that.
The amendment follows directly from a long sequence of work which led to legislation penalising the organisers of sex tourism overseas and giving extra-territorial jurisdiction to the British courts in cases involving sexual abuse of people under 18 in countries overseas.
For some years now there has also been concern about child prostitution in this country. The Children's Society, Barnardos, and other voluntary organisations together with the Association of Chief Police Officers, the Association of Directors of Social Services and, in particular, the Magistrates' Association have all asked for better and more consistent inter-agency co-operation plus changes in the law.
This Government claim to be a listening government, and I am glad that that is so. Therefore, I urge them to take heed of the advice from the expert groups which are most directly involved in this matter. What is the extent of the problem? In the seven years to 1996, 4,495 cautions and convictions were recorded against
610
children involved in prostitution. Yet, in a similar six-year period, there were only six convictions of adults for procuring children for prostitution. It appears that those figures gravely understate the scale of the evil.
The evidence from the Children's Society's five streetwork projects in England and Wales shows that each year substantial numbers of children and young people, some of them as young as 10 or 12, run away from their families and from the care of local authorities. They seek to escape physical, emotional and sexual abuse and other acute forms of bullying. Many of those children become homeless and destitute. They have no access to social security. They may be, or may become, addicted to drugs and alcohol. Such addictions are often used by pimps as a means of control.
Voluntarily or otherwise, large numbers of children become trapped each year in prostitution. In my opinion, all those children need protection, education and rehabilitation. Above all, they need loving care from adults whom they can trust.
The purpose of the proposed clause is to try to ensure that young people under the age of 18 receive the protection they need when they are at risk or already involved in prostitution. That approach complies with the United Nations Convention on the Rights of the Child, which this country ratified in 1991. Articles 3, 19, 34 and 35 of the convention are particularly relevant.
Police cautioning of such young people is not a sufficient or satisfactory approach. On the other hand, prosecution may take a considerable time and is not in itself a desirable option unless it means that the young person is quickly moved to a safe environment and is then effectively rehabilitated. Conviction may also become a bar to gaining employment.
For those reasons, the Children Act is the right framework to use. That is why subsection (3) of the amendment refers specifically to that Act in an enabling way. Sections 17, 20 and 47 of the Act already place relevant duties on the local authority. Sections 22, 24 and 31 are also likely to be helpful.
In Subsection (3) of the amendment, "an authorised person" would normally mean a local authority or an approved voluntary organisation. The purpose of subsection (2) is to continue for women over the age of 18 the offence of loitering or soliciting for prostitution. The options of cautioning or prosecution, therefore, remain open for these people. The purpose of subsection (4) is to increase the maximum penalty for acting as a pimp from two years' to four years' imprisonment, although I understand that at present such people cannot be remanded in custody. That may be a weakness which should later be addressed. The existing legislation on the subject is the Sexual Offences Act 1956, Section 23 of which refers specifically to girls under 21—hence the wording of my amendment.
Your Lordships may consider that the penalties for acting as a pimp should be still further increased. Perhaps the fines applicable should be much larger. If the amendment is agreed, I would be happy to accept further amendments imposing stronger penalties. If the Government or Members of this House can devise effective deterrent sanctions to dissuade men, other than

611
pimps, from sexually abusing young people under the age of 18 and, a fortiori, under the age of 16, that could also be most helpful. Such men are indeed serious sexual offenders and yet they are seldom—almost never—prosecuted.
The amendment is the result of ad hoc drafting and I accept that it probably does not come up to the high standards usually set by government experts. Nonetheless, it addresses urgent social problems and reflects the approach of the whole Bill by seeking to prevent serious crime, especially that among and affecting children and young people. I commend the amendment to the House and trust—
Lord Renton: My Lords, I apologise to the noble Lord for interrupting. However, would he be so good as to explain why it is that Section 1 of the Street Offences Act 1959 needs to be altered?
Lord Hylton: My Lords, the short answer to the noble Lord's question is that that section provides for the prosecution and cautioning of girls, women, under the age of 18.
However, perhaps I may continue. I trust that the Government will reflect deeply on the issues involved and learn from the excellent preventive work of a variety of voluntary organisations. If that happens, it seems to me that Her Majesty's Government will be able to offer a better amendment, either in this House or in another place at a subsequent stage. But would a government redraft include boys as well as girls? I ask that question because a small number of boys are sometimes involved. Further, would it provide proper penalties for those who have sexual intercourse with under-aged people? It may be asked whether the amendment, if approved, would cost money. I believe that the answer to that question is yes, it would. But, in my view, it would be money well spent if we believe in social inclusion and in helping the victims of abuse. I beg to move.
Lord Renton: My Lords, I have but one short point to make. It is due to the fact that, 39 years ago, I had the responsibility of piloting the Street Offences Act through its Committee and Report stages in another place. I believe that that legislation has stood the test of time remarkably well. I intervened to ask the noble Lord, Lord Hylton, to explain why there was a need to replace Section 1 of the Act. I do not think that it is necessary to do so. However, that is a relatively small point in relation to his amendment as a whole which, if I may say so, should commend itself to the House.
5.45 p.m.
Baroness Kennedy of The Shaws: My Lords, I support the amendment. I should like to explain to the noble Lord, Lord Renton, why this substitution is sought. The original Act creates an offence which is not age specific. We are seeking to ensure that prosecutions of young persons and children should not take place. We believe that the appropriate way of dealing with
612
young people committing such acts is through welfare and the provisions of the Children Act. That is the rationale behind the amendment.
Research and Home Office figures show that there is an increase in children and young girls found on the streets, most of whom are in that situation because they have been victims of abuse in their own homes or while in care. They are profoundly damaged and often see no value in their own bodies because they have already been exploited by adults. They find this activity to be a way of making money; indeed, it is the only way that they can do so. We want to show that the proper way of proceeding in these cases is to provide assistance to such young people through welfare and not through the criminal courts by way of the criminal process. In recognition of a growing problem, we are seeking to divert from the criminal process towards welfare.
We are also seeking to increase the penalty for those who are arrested in relation to such matters where the young people involved are under age. We believe that the penalties for exploiting young women and children should be greater. One knows from experience that there are adult men who, for particular reasons, seek out girls and children. In our view, that abuse is more serious and should draw down greater penalties than those which exist at present in relation to adults. Those are the bases upon which we are proposing the amendment.
There is, of course, an issue surrounding age. It is possible that some people feel that the age of 18 may be somewhat too old, given the fact that the age of consent is 16. Certainly, the position from these Benches is that we are happy to hear what my noble friend the Minister may say in that respect. I am sure that we could be assuaged if the view were taken that particular concern exists about those under the age of 16 and that it would be problematic in relation to those over 16 but not yet fully adult as defined in the Children Act. We would like the amendment to relate to those who have not yet attained the age of 18. However, we would probably be content if the Government were at least prepared to consider the amendment in relation to girls and young women up to the age of 16 if my noble friend the Minister feels that problems could arise with regard to legal definitions as to age.
I hope that the noble Lord, Lord Renton, can be persuaded on those arguments While it is right that his piece of legislation, which is almost 40 years old, has in many ways stood the test of time, it has not done so in this regard. Indeed, thinking has moved on and social problems, especially those regarding the abuse of children, have been recognised in a way that was perhaps not possible 40 years ago. We believe that the proper process is a welfare process rather than a criminal one.
The Lord Bishop of Bath and Wells: My Lords, I speak as chairman of the Children's Society, much of whose work is reflected in the case now being put forward. In support of the amendment, I should say that we have a growing concern about child prostitution. As the noble Lord, Lord Hylton, has said, the evidence gained from projects is distressing indeed. One reads case histories of young women and girls who sometimes

613
almost from the beginning of their lives enter a downward spiral and end up in prostitution. I have visited projects, including homeless projects, where one often meets youngsters who are totally exposed to these kinds of situations on the streets.
Much of this prostitution derives from the flight from what is impossible, whether that is from residential homes or from abuse in the family home from a parent or other people in that home. Many young people who have found themselves homeless and unprotected have offered sexual favours to pay for a home and what they perceive as security, but they enter a form of entrapment and imprisonment. It may be said that this amendment could undermine the didactic function of the law, but for those who are above the age of childhood the law is clear. We are trying to press home the fact that children need to be considered in a different way. So often in these cases prosecutions focus on the children who have become prostitutes rather than on those who have abused them or who continue to abuse them. We believe that the prostitution of children is in many ways a form of child abuse and should be dealt with as such. I do not believe that if we change the attitude towards children who are prostitutes, that will undermine the seriousness of prostitution as a crime.
It is important to ask whether the law as it now stands achieves its objectives. So far it has not done so. Children still hear the voice of the man who promises to protect them and feel the pain of homelessness. Often they have lived with violence from childhood and that has made them flee into society. They find that experience infinitely more powerful an influence on what they decide to do than what the law may say. We believe that this amendment preserves the recognition of the wrongness of prostitution but at the same time recognises that children are enormously at risk in this area. We have learnt from our projects that we can help them emerge from this provided that they have not been criminalised. By being present and gaining their trust and by offering a place of security that is not bound to prostitution, we can help children rebuild their lives.
As regards the question of age, I believe that in this Bill the age of responsibility is shifting or becoming less clear. Our understanding is that under 18 would be a reasonable age for this purpose. I follow a Lord who regarded the misuse of power over someone who commits adultery in the following way; namely, you say to the person who has committed the sin, "Go and sin no more" but you recognise that the hypocrisy, blame and misuse lie elsewhere and should be pursued as such by the law.
Lord Meston: My Lords, I speak in support of this amendment. I speak with the experience of someone who has had many dealings with local authority care proceedings. It is a sad fact that children who are notionally in local authority care and, as the noble Baroness, Lady Kennedy, said, have already been abused, are particularly vulnerable to organised prostitution and pimps. In my view the noble Lord, Lord Hylton, was absolutely right to say that cautioning is
614
simply not enough. There is much to be said for now using the machinery of the Children Act to deal with this problem.
Lord Northbourne: My Lords, I congratulate the noble Lord, Lord Hylton, and the noble Baroness, Lady Kennedy, on raising this important issue. Child prostitution is a serious problem in our society and one which I regret to say is getting worse. It seems to me that the objects of this amendment are threefold; namely, to decriminalise prostitution for the under-18s; to provide for child prostitutes to he taken into care or rehabilitation; and to increase the penalties for pimping. It seems to me that of those three objectives the last two are the most important; namely, to get child prostitutes into care and rehabilitation, and to ensure that pimps are properly dealt with by the law. In that context I cannot see why they should not be treated simply as child sex offenders.
I see the difficulties of taking into care girls between the ages of 16 and 18 who are consenting to prostitution, or perhaps even initiating the process and are not in the clutches of pimps. I have one further point to make. It is not only girls who are in the clutches of pimps who are prostitutes today. Many teenage girls and, I regret to say, many lone mothers are prostitutes because they have simply run out of money and they see no other possible way of making ends meet. That is an underlying problem that we should also consider in this context. I do not think the amendment is perfect but if the noble Lord were to press it I would certainly support it.
Baroness David: My Lords, I support this amendment. We had a session of the all-party children group to discuss child prostitution. There were spokesmen from Barnardos, the NSPCC and, I believe, the Children's Society. A great many of us present at that meeting were shocked to hear of the extent of the problem. Pimps pick up these children and make them fall in love with them. Then the young children will not give evidence against these men. The children may be kept in the most horrible circumstances shut up in a room for weeks on end. As has been said, these children have probably already been abused or have run away from home. The situation is bad. Whatever we can do to help to get these children into welfare would be a good thing.
Lord Henley: My Lords, I rise only to express one concern about this amendment—the spirit of which I accept—and that is concern about the proposed new subsection (2) which states,
"It shall be an offence for a woman who has attained the age of 18 to loiter or solicit in a street or public place for the purpose of prostitution".
Like the noble Lord, Lord Northbourne, I have some concerns about that age of 18 and wonder whether 16 might be more appropriate, particularly as the Children Act would apply to those below whatever age one put in place. If one puts possibly very street-wise 16 and 17 year-olds into care with younger children that could pose considerable dangers. For that reason I do

615
not wish to support the amendment as it is but I certainly think that it deserves considerable thought from the Government. I look forward to hearing what they have to say.
Baroness Masham of Ilton: My Lords, I strongly support my noble friend's amendment. I think it needs more than thought; it needs action from the Government. Why have the pimps got away with it for so long, because they do horrific things to children? I believe it was the Barnardos report which gave an example of young children running away from care in Leeds and being used as prostitutes in Bradford. As the noble Baroness, Lady David, said, they were locked up and tortured, so they were frightened and did not give away the pimps. Some action is needed here. I include boys. It is an international issue. Boy prostitution is on the increase as well as girl prostitution. Many men will say, "The younger the better".
6 p.m.
Lord Williams of Mostyn: My Lords, I declare a former interest. Until the election I was a trustee of the NSPCC and therefore over the years I have been aware of some of the problems identified tonight.
As the noble Lord, Lord Northbourne, pointed out, there is a threefold consequence from the amendment: decriminalising soliciting for prostitution in the streets for girls under the age of 18; enabling emergency protection orders to be obtained for a child found soliciting; and an increase in the penalty for procuring a girl under 21 from two years to four years.
I entirely agree that it is terrible for any child, boy or girl, to be involved in prostitution. It is our view that there is no doubt that a child involved in prostitution, as my noble friend Lady Kennedy said, is primarily the victim of coercion or abuse and not a consenting participant. Indeed, a girl under 16 cannot consent in law to sexual intercourse, so those who have sexual intercourse with girls under 16 are already committing an offence. We are seriously concerned that to decriminalise child prostitution would increase the numbers of child prostitutes on the streets.
The Children Act 1989 already requires all agencies to make the protection of children at risk of harm a paramount consideration. The police are aware of the problem, an awareness due in no small measure to the efforts of the children's charities to which, among others, the right reverend Prelate referred. We entirely agree that children in prostitution should be treated as victims in need of welfare. I reiterate the point made by my noble friend Lady Kennedy of The Shaws. Between the police, children's charities and others, there has been development of guidelines about how one deals with children in this age group and in this dreadful situation. They are now treated as victims in need of welfare. The guidelines were piloted, I think it is well known, in Wolverhampton and Nottingham. They are being adopted throughout the West Midlands and in other forces. The ACPO spokesman on prostitution issues has confirmed his opposition to any decriminalisation because of the risk that that would lead to an increase in the number of child prostitutes.
616
I do not take nitpicking points but it is right, as the noble Lord indicated, that his amendment deals only with girls, not boys. It would mean that those over 18 who solicited for sexual purposes would be guilty of a criminal offence. We have serious worries, which I put as soberly as I can, that this will create a new market—I am sorry to use that word; but that is what it is—in 16 and 17 year-olds who could legally solicit. There is a serious risk that it will put more not fewer girls at risk from pimps and exploitation.
My noble friend Lady David, and the noble Baroness, Lady Masham, asked why pimps are so rarely successfully prosecuted. In quite a lot of experience of the criminal law I think that I only came across two cases. I believe that the reason is the difficulty of proof for the reasons specified by both noble Baronesses.
It is unfortunate—I have to put it brutally again—that on the advice we have the pressure for younger prostitutes is now increasing. I am sorry to say this but it is partly a function of fashion and partly because of the development of AIDS among older prostitutes. The description I give is not a happy one, but I have to put it before your Lordships, in case we pass an amendment to a law which has consequences entirely opposite to those we want.
There is no doubt that these young girls are victims; that the efforts of the police should be to get girls out of prostitution. But we do not want in any way to indicate that prostitution or soliciting for prostitution by young girls under 18 is not to be unlawful. We think that we should work with the police and other agencies along the lines undertaken at present to see whether we can deal more effectively with the problem.
The Children Act already provides for protection orders for children at risk of prostitution. If a child is at risk or is in commercial sexual exploitation, he or she would be at risk of significant harm, and that is the ground already for the protection order under the Children Act. So the opportunity is there.
There is then the question of the increase in the penalty for the offence from two years to four years. Unfortunately, as I think we all agree and recognise rather gloomily, pimps are rarely successfully prosecuted. We need to look carefully at the overall context of the Bill. We want to deal with children as soon as may be who are at risk of harm or have been harmed. We want to see how reprimands and final warnings will work. It is an issue which needs to be urgently addressed. At present we are looking at the way in which police should deal with young prostitutes when the Bill becomes law. We are discussing it with ACPO. There is no doubt that new guidance is needed. The present circulars were issued immediately after the Street Offences Act 1959 and are thoroughly out of date.
I sympathise with the purpose of the amendment. It is a worthy purpose. We are deeply troubled that if we decriminalise this activity we shall be creating a new market. We believe that the way ahead is to develop the present pilot schemes we have, to which I referred, to make sure that full use is made of the opportunities under the provisions of the Children Act. We believe that we need to look at penalties in terms of sexual

617
exploitation so that we have a coherent regime rather than picking out one sentence from legislation. The noble Lord proposes an increase from two years to four years in the case of procuring a young woman for sexual intercourse when she is under the age of 21 years.
I am sorry if my conclusion is disappointing. But at least if noble Lords do not agree with the reasoning, I hope that they will accept it to be a legitimate view. I know that I am alone in resisting this. But I should be deeply troubled if we were to amend the law to provide that girls under 18 could solicit for prostitution without the ultimate legal sanction. Many people who prey on young girls will think, "Choose them under 18".
Lord Renton: My Lords, before the Minister sits down, he said that he was alone in expressing his view. Perhaps I may say that having heard him, he has converted me.
Lord Meston: My Lords, is the Minister saying that he is satisfied with the existing use of emergency protection orders? Alternatively, is he hopeful that in the future better use might be made of them in order to deal with the problem?
Lord Williams of Mostyn: My Lords, it is undoubtedly the latter. We have been dealing with guidelines which are now 40 years out of date. I believe that the pilot projects to which I referred may be of great value because the problems are not single, individual problems. Each child will suffer a range of problems. I believe that one has to deal with a particular child in an individual way. I think that that is the best way of trying to attack a problem which is cruel and vicious in the extreme. It is exploitation of children, after all.
Lord Hylton: My Lords, I am extremely grateful to all noble Lords who have spoken in this short debate. I found it extremely encouraging that all speakers were prepared to support the amendment even though some may have had reservations on specific aspects of it.
I confess that I found the Government's reply somewhat discouraging. I could have said a good deal more in relation to the amendment. For example, I could have quoted the recommendations of the Council of Europe in 1993–94; or Sir William Utting's report on safeguards for children living away from home, entitled, People Like Us; or the point of view of the National Women's Commission. There is a very great deal of outside opinion and study to support the thrust of the amendment.
The Minister referred to police awareness of the situation. What has been the impact of the guidelines issued, not 40 years ago, but much more recently in the context of the Children Act? I understand that there are only two police pilot projects using the Children Act. That seems a highly insufficient number.
As to the principle of the matter, concerning decriminalisation, again I was not very happy with the Government's reply. If this amendment can be approved, I will undertake to bring forward a new one
618
at the next stage of the Bill which would limit the age to 16 and not 18, and which might incorporate other improvements. On that basis I wish to test the opinion of the House.
6.12 p.m.
The Deputy Speaker (The Viscount of Oxfuird): My Lords, the Question is, That Amendment No. 21 be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Not-Contents" have it. Clear the Bar.
Division called.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, the Question is, That Amendment No. 21 be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". The "Not-Contents" have it.
Amendment negatived.
Clause 9 [Parenting orders: supplemental]:
Baroness David Baroness David moved Amendment No. 22:
Page 8, line 6, leave out subsection (1).
The noble Baroness said: My Lords, we now come to parenting orders, about which there has been a good deal of criticism by a number of children's organisations and indeed by many others. This amendment removes the statutory presumption in favour of courts making a parenting order where the offender is under 16. The Bill as it stands requires the court to make a parenting order if it is satisfied that such an order would help to prevent further offences and to give reasons if it does not make such an order.
Reinforcing parental responsibility is an important part of tackling youth crime. Experience shows that parental skills courses provided on a voluntary basis work well: they can help to improve parenting and reduce family break-up, the taking of children into care and the likelihood of offending, truancy and antisocial behaviour by young people. Funding more such courses on a voluntary basis, as part of family centres and other community projects in disadvantaged areas, would make an important contribution to preventing delinquency. Group work with the parents of young offenders alongside intermediate treatment programmes for young offenders has also been shown to be beneficial in bringing about more effective parental control and leading to improved behaviour and reduced offending by their children.
However, organisations working with young offenders and their families have reservations about the likely efficacy of a compulsory court order. Co-operative parents who are keen to accept help could be involved in parenting skills groups, whether or not it was compulsory. However, as the noble Lord, Lord Northbourne, Chairman of the Parenting Support and Education Forum, said in Committee:
"We must listen to the voice of those who work with parents.
"Counselling and guidance sessions could conceivably, and may sometimes, help. But there are very severe limitations … parents will go into these sessions in a spirit of rebellion and resentment.

619
That will mean that they are not normally receptive. The severity of the sanction in many cases will seem unreasonable".—[Official Report, 10/2/98; col. 1073.]
The order is least likely to work with unco-operative parents—and if they are returned to court and fined for not co-operating, this is very unlikely to help reduce the child's offending. Fines simply increase the degree of pressure and hardship on families, for many of whom life is already a struggle to survive. If parents do not pay the fine, they could be imprisoned for non-payment—the alternative of community service for fine defaulters is currently available in only two pilot areas—which would have devastating effects on children. The parent who faces these sanctions most often will be the child's mother, as it is the mother who most often attends court. These penalties would be particularly harsh on women who already face great difficulties in bringing up and trying to control children who are getting into trouble.
There are also difficulties about fining a parent because of a child's refusal to obey a requirement—for instance, a curfew. To punish a parent for a child's actions could result in injustice. It could also increase resentment on the parent's part, lead to excessive physical punishment and thereby put children more at risk.
Because of the complex considerations involved, it is inappropriate to include in legislation a statutory presumption that courts should make such orders. It would be preferable to leave the use of these orders to the court's discretion.
In Committee on 10th February my noble friend Lord Williams said:
"Some inadequate parents can be assisted. They can sometimes—as the right reverend Prelate said—be assisted on a voluntary basis … We would prefer voluntary counselling and parenting guidance, but for those who do not wish it, who are perhaps afraid of it, in some cases a sanction may he of assistance".—[Official Report, 10/2/98; col. 1077.]
My noble friend Lady Kennedy commented:
"I am concerned that by creating a presumption in favour of the court making such orders they will be made much more often than would be the case if involvement in voluntary schemes were the course taken".—[Official Report, 10/2/98; col. 1079.]
By removing the statutory presumption in favour of courts making parenting orders, the amendment would increase the likelihood that the courts will use these orders only when they are genuinely appropriate and not in circumstances when voluntary help is a preferable and more effective option.
I believe that the argument against the statutory presumption is a very good one. I should be very surprised if I am convinced by what my noble friend says when he replies, unless he is prepared to accept the amendment, which I very much hope he will. I beg to move.
Lord Windlesham: My Lords, perhaps I may support the amendment from this side of the House, if that is agreeable to the noble Baroness, Lady Kennedy of The Shaws, who is one of the sponsors and to whose comments we look forward.
620
We are concerned here with the balance, never easy to strike in formulating public policy, between compulsion and voluntarism. Surely the test should be what is likely to be the outcome in practice. In replying to the previous amendment, the noble Lord, Lord Williams of Mostyn, applied that very test. However good the intentions, the consequences might be different from what the promoter intended. The test should he not what sounds tougher or softer on the public platform, but the likely practical consequences.
I am sure we can all agree with the noble Baroness, Lady David, that parental responsibility is a relevant factor in tackling youth crime. It is right that it should be the focus of attention in the discussion documents, in the White Paper and in the Bill before us. Persuading parents, sometimes inadequate or single parents of unruly children who are more often a source of anxiety or anger than of love, to try to improve their parenting skills must be a desirable aim of public policy. But how is it to be achieved?
In Committee we heard several references to the good work done by voluntary agencies. The right reverend Prelate the Bishop of Bath and Wells spoke about the work of the Children's Society, of which he is chairman: and other examples were given. All those with first-hand knowledge emphasised the importance of voluntary attendance. Expert guidance is important, but attendance should be voluntary rather than compulsory. Compulsory attendance was vividly described by the noble Lord, Lord Northbourne, an extract from whose speech was quoted by the noble Baroness, Lady David. He said that parents taking part in guidance sessions because they had been compelled to do so would attend,
"in a spirit of rebellion and resentment'.—[Official Report, 10/2/98; col. 1073.]
Those struck me as two accurate and well-chosen words. The problem therefore lies with unco-operative parents; not with those who are willing to co-operate. I submit that that is the crucial distinction.
While the Bill stops short of imposing criminal sanctions, the statutory presumption in favour of a court making a parenting order nevertheless takes a significant step in that direction. Failure to co-operate will be punished by fines. In many cases fines will not be paid. Default will lead to criminal penalties. To take this path can only worsen, rather than strengthen, relationships in malfunctioning families which already are subject to many disadvantages. What is likely to be the outcome? More children taken out of their homes, however dysfunctional those homes may be, and into care. The frequency of offending and re-offending by young people in institutional care is so high that it needs no repetition this evening. I strongly support the amendment.
Baroness Kennedy of The Shaws: My Lords, I support the amendment. I have myself been involved in a parenting skills course and I support such courses. When my children were very small I visited our local school and became involved with something called Parent Link. I attended courses dealing with issues such as sibling rivalry, childhood tantrums, and so on.

621
I believe I acquired some skills which I found extremely useful. As my children are approaching adolescence, I may again wish to attend a course.
Courses are not confined to those who have serious social problems or those whose children might appear before the courts. I believe that we should extol their virtues for all parents; we all have things to learn. I remember learning something called "reflective listening with one's children". I found it useful in the courts when dealing with judges. I believe that there are many skills to be learnt. Undoubtedly, the experience of all those involved is that such courses are most successful when the people taking part do so on a voluntary basis. Of course, there may be occasions—as the Minister said on the last occasion—when a sanction may be of some assistance. I accept that that may be the case. I accept that occasionally coercion may be useful. However, the clause introduces a statutory presumption in favour of the courts making such an order. That is what concerns those who have considerable experience in these matters.
Courts can be instrumental in encouraging parents to take part in such programmes and in reminding them that they are not just for people whose children get into trouble or who have problems, but that all parents can benefit from them. My experience is that parents are only too happy to find that such assistance is available. But as soon as we take a stick to people and introduce punishment for non-participation, we move into a different situation in which we may increase problems within families, rather than assist them.
I ask the Minister therefore to consider the anxieties expressed. This is not about being soft; it is about recognising what is most effective. While we are wholly in favour and in fact have been scholars of parenting courses—I suspect that there are not too many other noble Lords on these Benches who have attended courses as I have, admitting that they have something to learn even on parenting—there are other ways of dealing with this issue. I therefore support the amendment of my noble friend and hope that the Minister will give due consideration to it.
6.30 p.m.
Lord Goodhart: My Lords, I agree with those who have spoken. The parenting order made against parents who are unwilling to co-operate is likely to be counterproductive. An order under Clause 9(1) can be made only if the relevant condition under Clause 8(6) is fulfilled; that is, that,
"the parenting order would he desirable in the interests of preventing".
certain types of criminal behaviour. Is the Minister suggesting that under Clause 8(6) the court could take the view that a parenting order is not desirable where the parents are clearly not going to be co-operative? If so, that is certainly not clear and I support the amendment because that makes it clear. If the Minister does not take the view that that is a relevant consideration under Clause 8(6), then I strongly support the amendment because, in those circumstances, it
622
would clearly be necessary and desirable and would substantially improve the effectiveness of a parenting order.
Lady Saltoun of Abernethy: My Lords, I too support the amendment. There is not a great deal that I can add to what the noble Baronesses, Lady David and Lady Kennedy, said or to what the noble Lord, Lord Windlesham, said. However, I should like to emphasise what I said in Committee.
I am extremely concerned about any legislation which may fine an unco-operative mother for not attending a parenting course and then, because she cannot or will not pay the fine, send her to prison with disastrous results to the children who will almost certainly have to be taken into care. We have heard a lot this afternoon about some of the things that are apt to happen when children are taken into care, especially when they run away or leave care.
I am sure that many residential homes are excellent. But no residential home, however good, can replace a child's own home. After many years I am convinced that even a fairly bad home is preferable to no home at all. That is what being taken into care means: that at the end of the day, when the child leaves care, the child has no home.
The Lord Bishop of Bath and Wells: My Lords, perhaps I may make one point. Parenting skills cannot be dissociated from the relationship between the parents. It is sometimes thought that people can simply go on a course in parenting skills; but as soon as they begin, those attending are immediately involved in trying to understand how they relate to each other. In the families where these issues arise, there may well be violent, angry relationships which would be dangerous to bring into the situation.
We cannot simply start a course on parenting skills as though those skills do not depend on the relationship between the parents. We have just heard a reason why single parents may suffer under such a provision. But with regard to the parents themselves, the necessity to face up to the implications of their mutual non-relating may be a further reason for not imposing the order. Also, and more seriously, if parenting skills courses are to tackle the relationship between husband and wife or between partners, the child will be even more exposed because the child will then carry the conflict between the two parents who are refusing together or not refusing together to face up to the implications of what they have become.
It all seems to me to endorse the amendment that says that something may be offered and pressed home. And, while I understand the desire for coercion, in the area of family relationships it is extremely difficult to use.
Viscount Tenby: My Lords, I too rise briefly to express support for the amendments in the name of the noble Baroness, Lady David.
At Second Reading I expressed anxiety about the effect of parenting orders on, say, disordered single mothers and those least able to cope with the provisions.

623
The Minister, in his usual courteous and reasonable way, replied that it was unlikely that any court, having regard to the specific circumstances of a case, would impose a financial penalty for non-compliance where it was unlikely that the terms of the fine would be met. I agree that—thank goodness!—most courts will be guided by such common sense considerations.
But if a financial penalty is deemed to be appropriate and there is failure to comply, what alternatives are possible? Is it the case—this is something to which the noble Baroness referred and if possible I should like the Minister's answer to it—that at present community service orders in relation to fine default can only be imposed in two pilot areas? I believe that to be an important question, not only in this instance, but in the whole area of the lower courts where the imposition of community service orders has been found to be most desirable. I should therefore be grateful for an answer on that point.
As the noble Baroness, Lady David, said, voluntary co-operation by way of counselling groups and such organisations is always to be preferred to coercion. I should like discretion on whether or not to issue a parenting order to be left in the hands of the appropriate court.
Lord Williams of Mostyn: My Lords, grouped with Amendment No. 22 in the name of the noble Baroness, Lady David, are Amendments Nos. 23 and 24 in my name. I shall speak to them together if I may.
Amendment No. 22 is the identical amendment which we discussed in Committee. Clause 9(1) puts a duty on the court to make a parenting order in cases where a child or young person who is under the age of 16 is convicted of a criminal offence and where the court is satisfied that the condition in Clause 8(6)(b) is met; namely, that it would be desirable in the interests of preventing the further commission of an offence by that child or young person.
As has been observed, in the case of 16 and 17 year-olds, the duty is replaced by a power to impose a parenting order. It is worth bearing in mind what a parenting order is. It requires the parent to comply for a period not longer than a year with such requirements as are specified, and to attend for a concurrent period not exceeding three months not more than once in any one week for counselling or guidance sessions. None of these orders under Clause 8(3) can be made unless the court has been notified by the Secretary of State that arrangements for implementation have been made within the relevant area.
We believe that there should be a distinction between 16 and 17 year-olds and those who are younger. It is quite a frequent divide in the criminal justice system. After all, 16 and 17 year-olds may well have left school; they may be living independently, they may even these days have family responsibilities of their own. Some may be in full-time education and fully dependent on their parents. We believe that there should be that distinction.
As the noble Baroness has said, and quite plainly, if her amendment were carried the court would simply have a power rather than a duty to impose a parenting
624
order. We do not think that is the way to go. I agree with what the noble Baroness, Lady Kennedy, said. It is not a case of being soft or effective; it is a case of looking for the best solution in all the circumstances. We think the most effective solution is the one that we have set out in the Bill.
On the point raised by the noble Viscount, Lord Tenby, perhaps I may write to him, having researched that question further, if he is kind enough to allow me to do so. I am grateful to him.
I turn to Amendments Nos. 23 and 24. These are two of the 11 issues on which I indicated earlier we had reflected and decided that the arguments were persuasive and that we ought to respond to them in that way. Clause 9(2) as it stands requires the court, when considering a parenting order resulting from the conviction of a juvenile under 16, to consider information about family circumstances and the likely effect of the proposed order on those circumstances. Subsection (2) parallels the arrangements in some criminal disposals for juveniles. Similar family-related information will be before a family proceedings court when it is dealing with a child safety order under Clause 12(1).
Those arrangements do not exist with the antisocial behaviour order, the sex offender order and convictions stemming from failure to ensure a child's attendance at school. The courts would have to rely on the facts before them. My noble and learned friend the Solicitor-General pointed out that an order can only be made provided the court is satisfied that the relevant conditions are fulfilled; that is, preventing a repetition of the behaviour which led to the order in the first place.
We listened to the arguments and considered them subsequently and we accept that, as the clause stands, there is potential for confusion. We accept, therefore, having listened to the arguments, that it would be better that the requirements in Clause 9(2) extend to all cases involving children under 16 where a parenting order is made. I wrote to the noble Viscount, Lord Colville, on 20th February to explain that we had accepted the arguments and would bring forward an amendment—it is Amendment No. 23—to rectify that position.
Amendment No. 24 responds to concerns which were raised when we discussed a similar amendment at Committee stage tabled by the noble Lord. Lord McNally. He was not present on that occasion but the noble Lord, Lord Thomas of Gresford, was. The Solicitor-General indicated that we would consider the question of reasonable excuse and that we saw the force of the arguments. I wrote to the noble Lord, Lord McNally, on 20th February to say that we would be tabling an amendment to that effect. That is what we have done. It is Amendment No. 24. Therefore, in respect of Amendments Nos. 23 and 24, we have listened to the arguments and have been persuaded. In respect of the first amendment in the name of the noble Baroness, Lady David, we have not been so convinced.
6.45 p.m.
Baroness David: My Lords, I am extremely disappointed. I should like to thank very much all those noble Lords—noble Lords from absolutely every Bench—who have spoken in support of this amendment: and very strong and good support I have had. I wonder whether my noble friend would be willing to take this away and think about it, and think that the power would he adequate in the circumstances. I should be very grateful if he would do that. I hope that when he thinks about the support I have had for this amendment he will agree that that would be a decent thing to do. I very much hope that he might be willing to do that.
Lord Williams of Mostyn: My Lords, I always listen to argument but I do not want to mislead. We have listened to the arguments quite carefully. I have put forward our response to Amendment No. 22 and I have put forward a completely different response to Amendments Nos. 23 and 24, where we thought the arguments were such that we were persuaded. I have not been persuaded so far. I think it is unlikely that any of my colleagues in another place will be persuaded. But obviously everything that is said in your Lordships' House is discussed by the Solicitor-General, the Lord Advocate and myself, and frequently we transmit our views about—I say this carefully—the virtue and merit of arguments in your Lordship' House to our masters above us; and they sometimes listen—in fact they always listen, but they do not always agree.
Baroness David: My Lords, before the noble Lord sits down, if they are going to have this discussion, surely they can have it before the next stage of the Bill. I should like to hear the result of that discussion with the Secretary of State, or whoever it is. Could that not happen please?
Lord Williams of Mostyn: My Lords, there will be a concluded government view before the Bill goes from your Lordships' House. Whether it will be pleasing or displeasing is another question.
Baroness David: My Lords, if there are going to be discussions, I think my best plan is to withdraw the amendment now and come forward with it or something very similar at Third Reading and hope that there will have been discussions—and perhaps more profitable discussions from my point of view than seem to have happened so far. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 23 and 24:
Page 8, line 12, leave out ("where the person convicted of the offence is under the age of I6,") and insert—

("(a) in a case falling within paragraph (a) of subsection (1) of section 8 above;

(b) in a case falling within paragraph (b) or (c) of that subsection, where the person concerned is under the age of 16; or

626

(c) in a case falling within paragraph (d) of that subsection, where the person to whom the offence related is under that age,").

Page 8, line 43, after ("parent") insert ("without reasonable excuse").
The noble Lord said: My Lords, I have already spoken to Amendments Nos. 23 and 24. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 11 [Child safety orders]:
The Deputy Speaker: My Lords, in calling Amendment No. 25 I must advise the House that, should it be agreed to, I cannot call Amendment No. 26 due to pre-emption.
[Amendment No. 25 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 26:
Page 10, line 13. leave out ("two") and insert ("one").
The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 14 [Local child curfew schemes]:
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 27:
Page 12, line 15, at end insert ("or under the effective control of the parent of the child").
The noble Baroness said: My Lords, Clause 14 introduces local child curfew schemes. A local authority will be able to impose a curfew scheme over a specified area and the local authority can further then specify which age groups of children under 10 will be forbidden by that ban from leaving their homes between the hours of 9 p.m. and 6 a.m. or at some period between those two times. What I would call the let out clause is in subsection (2)(b). The only way that children can go out legally in curfew time is by being under the effective control of a responsible person aged 18 or over. My amendment would make it legal for them to go out in curfew time in addition if they were then under the effective control of their own parent, a parent who could be under the age of 18.
That may at first sound a rather odd objective but it is a fact that young people under the age of 18 could be parents of children covered by a curfew order since such schemes can affect children between the ages of nought and 10. I rather suspect that the order itself will he so difficult to implement in the eyes of a local authority if different ages are specified that local authorities will be tempted to impose a blanket ban on all children in an area under the age of 10.
The report issued last Thursday by the Office for National Statistics shows that under-age pregnancies have now hit a 10-year high with almost 9,000 girls becoming pregnant in 1996. It is the third successive annual rise in pregnancies among girls aged between 13 and 15 years. It is estimated that about 48 per cent. of those young girls will not have an abortion and therefore will give birth. Some of the children will be put up for adoption, but it is estimated that the majority will remain with their natural mothers.
As it stands, this Bill would make it an absolute offence for a parent under the age of 18 years to take his or her own child out of the home in an area covered by a curfew scheme. Perhaps the parent wants to take the child to the grandparents or away on holiday travelling on an overnight train or a flight. Is it really what the Government intend that they should fall foul of such an absolute offence? Surely it is not good practice to create offences as a consequence of which innocent parents must rely on the mercy of administrative indulgence in order to escape prosecution.
I note that the Government seem perhaps to agree with that general principle given their support last night for the Criminal Justice (International Co-operation) (Amendment) Bill, which received its Second Reading in this House. Last night the noble Lord, Lord Evans of Parkside, the sponsor of that Bill, said that the purpose of it was to put an end to reliance upon an administrative arrangement which the police and the CPS can use in individual cases to give chemical manufacturers freedom from prosecution when they are assisting the police.
When responding for the Government, the noble Lord, Lord Williams of Mostyn, said,
"It is perfectly true that the Crown Prosecution Service can, by arrangement with the police, give an undertaking that a manufacturer or supplier will not he prosecuted. We believe that that should he on a proper statutory basis".— [Official Report, 16/3/98: col. 548.]
I believe that there is a "read-across" of principle here.
I beg to move.
Lord Goodhart: My Lords, I pointed out this matter myself at Second Reading. I said that, as it stands, if a curfew scheme is in force, a 17 year-old girl carrying her baby through the area in which the scheme operates technically would be in breach of the scheme. Therefore, I naturally support the amendment moved by the noble Baroness, Lady Anelay. It seems to me to be an obvious matter of common sense.
Lord Renton: My Lords, I, too, support this amendment. The basic point is a very simple and short one. Alas, there are now too many parents, especially mothers, under the age of 18. But that does not make them other than loving towards their children and anxious to protect and do all they can for them. Therefore, we should bear that in mind. This amendment is necessary.
Lord Falconer of Thoroton: My Lords, the noble Baroness put her point extremely clearly and well. She had very eloquent support from the two noble Lords. There is plainly potential for a problem. Therefore, I agree in principle with the thrust of the noble Baroness's amendment. If she is prepared to withdraw it, I can give her an undertaking now that I will return at Third Reading with an amendment to the same effect.
Baroness Anelay of St. Johns: My Lords, I am almost speechless, but not quite, because I have further amendments on which I shall try to persuade the Government tonight. I thank the Minister for his
628
courtesy and the offer to look at this matter again, bringing back an amendment in his name on the same subject. On the basis of the undertaking he has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 28:
Page 12, line 17, leave out ("with").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 87 and 106. Amendment No. 28 responds to a concern raised by the noble Lord, Lord Henley, at Committee stage when he pointed out that the use of the word "with" in Clause 14(3) was otiose and inelegant English. My noble friend Lord Williams of Mostyn wrote to him on 20th February to indicate that at Report stage we would table an amendment to remove the word "with" in Clause 14(3). The other two amendments have the same effect in relation to Clauses 30 and 40 respectively. I beg to move.
Lord Henley: My Lords, I accept that this amendment is not as important as the amendment previously moved by my noble friend Lady Anelay. But I am grateful to the noble and learned Lord for meeting my particular requirements. I believe that I moved only one amendment deleting the word "with", and the noble and learned Lord and those who advise him have found the use of the word in two other instances in the Bill. I trust that there are no further ones that need removing, but if there are, that can be done along with the raft of other amendments that no doubt the noble and learned Lord and his friends will be bringing forward at Third Reading to meet other requirements that we may make during the passage of this Bill. I believe that we have something of the order of 221 amendments before us at Report stage, over half of which are government amendments. I am very grateful that a great many of the government amendments such as these are in response to requests made by Members on all sides of the House.
On Question, amendment agreed to.
Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws moved Amendment No. 29:
Page 12, line 23, at end insert—
("() The Secretary of State shall not confirm a local child curfew scheme unless he is satisfied that—

(a) the local authority and police authority have taken all reasonable steps to avoid the need for such a scheme;

(b) the behaviour of the children to whom the scheme would apply has been sufficiently serious to warrant the making of the scheme; and

(c) so far as is practicable, the views of all those who would be affected by the proposed curfew have been ascertained and given due consideration.").

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

629
is suspected neglect or abuse. Local authorities have powers under the Children Act to obtain orders if they feel that a child is beyond parental control.
So I make it clear from the outset that our view is that a local child curfew scheme is unnecessary. However, I anticipate that the curfew provisions are not going to be abandoned and therefore we put forward these amendments. They seek to fetter the Secretary of State's powers within primary legislation.
On a previous occasion the noble Lord, Lord Williams, and the noble and learned Lord, Lord Falconer, made promises as to how the Home Secretary would conduct himself. Promises are not good enough. If that conduct is not specified on the face of the Bill, there is nothing to stop a future Home Secretary behaving in a less responsible manner than the current one. We believe that it is far more satisfactory to have on the face of the Bill a fetter on the powers of the Government in this regard.
The three conditions of this amendment are put before the House on the basis that it is our view that the curfew is likely to be in breach of a family's rights under the European Convention on Human Rights. I raise that now because it should be a matter of concern to this Government, particularly as they have championed a Human Rights Bill through this House and it is about to move to its next stage.
Under the provisions of the European Convention on Human Rights the state can interfere with family life only if it is necessary in a democratic society. In our view it is doubtful that those under 10 years of age could ever be so out of order and behave in such a way that a blanket curfew can be considered acceptable. In the absence of a public emergency it is our view that it is necessary for some degree of parental rights over a named child to be secured by a court order. I raise that point because I believe that the amendment we are putting forward in these three separate propositions would save the Government from falling foul of Article 8.
Paragraph (a) makes it clear that the curfew must be a measure of last resort. When we debated this in Committee, the noble and learned Lord, Lord Falconer, confirmed that the curfew would be used only if the local authority believed that there was no other way of dealing with the problem of unsupervised children. He rejected the wording of our amendment, so we have changed it and what we now propose, as the first "fetter" on the Home Secretary, is less stringent than were our previous provisions, but makes the point that less draconian steps should be considered before a curfew is sought.
Paragraph (b) makes it clear that the curfew must be in response to a "serious" situation. At present, the Bill provides that a curfew may be granted simply for the purpose of maintaining order. That could allow a curfew to be imposed without any evidence of children being out of control.
Paragraph (c) requires that the views of all those who would be affected by the proposed curfew must be ascertained and given due consideration. In Committee the noble Lord, Lord Williams, said that before the order becomes effective there must be consultation with the area affected. He said that it was hoped that it would then be possible to consult those affected—that is, those having a bad time because of the conduct of the under-10 year-olds, as well as the children who may be affected by the order or, as is more likely, their parents. They can say whether it is a good or a bad idea. None of that appears in the Bill and it is our submission that the noble Lord should turn his hope into a requirement. That is why we have tabled this amendment. I beg to move.
7 p.m.
The Lord Bishop of Bath and Wells: My Lords, I recognise the need for action in this area, having received quite a lot of feedback from the sort of places where such difficulties occur. The communities affected sometimes recognise that this is a necessary step for exposed and vulnerable children in what is so often a brutalising situation. It is recognised that we need to increase a parental sense of responsibility. All of those points are important, but I support the amendment because I do not think that the right way to deal with this problem has yet been found.
There are profound difficulties in what the Bill proposes. I keep returning in my own mind to the question of how such provisions will work. We have talked about practicalities with regard to other parts of the Bill. The noble Baroness, Lady Kennedy, has said that legal opinion suggests that these provisions interfere with parents' rights under Article 8 of the European convention. We, too, have received this advice.
I also support those who question whether the threat posed by young children can be so great that it is necessary to have such provisions to deal with it. It is not that I underestimate what they can do in particular places, but I feel that there are other ways of dealing with this, such as taking a multi-disciplinary approach to the problem.
Looking back over long years of such problems, it has often been difficult for communities to take the initiative in this direction. Communities need encouragement to tackle such situations. However, I question whether this is too big a solution to the problem. Would we not do better to mobilise and support community groups and voluntary organisations which are already involved in tackling such problems?
The amendment is also important because it seeks to gain police approval for such a scheme. Community policing is tremendously important, but very often it is not given the support that it deserves. The work of community policemen, in liaison with other organisations, can often help to tackle this blight on some estates.
I wonder whether, unamended, these provisions would not undermine the purpose of the youth justice teams which the Bill is setting up. As we have heard, children are significantly at risk, but, again, as we have

631
just heard in the debate about child prostitution, the Children Act 1989 can tackle the problem of such children. Are we not overdoing our reaction to a problem that can be tackled in the local community by those who are involved in caring for those communities?
Lord Dholakia: My Lords, I rise to support Amendment No. 29 which has been moved by the noble Baroness. Lady Kennedy. We must be careful that we do not get carried away by the idea of imposing a curfew without adequate safeguards. The purpose of this amendment is to introduce those safeguards. It is crucial that our starting point is that "all reasonable steps" have been taken to ensure that such a scheme is needed. Having dealt with that difficulty, we must then be careful to ensure that there is adequate consultation with those who live in the areas concerned.
I raise this matter because we are dealing with a new scheme and the consequences for community relations could be serious. Many of the areas about which we are talking are multi-racial and multi-ethnic. Can your Lordships imagine what would happen if the police, local authorities and others who are responsible for the order were to target such areas? I have given examples earlier of what has happened with the stop-and-search powers. Black communities have been targeted. That could lead to a serious situation. The noble Baroness is saying that we must ensure that safeguards are introduced. I hope that the Minister will take what we have said into account.
Baroness David: My Lords, before the noble Lord, Lord Williams, rises to reply, my name is to this amendment and I should like to add my support. The child curfew order is a cumbersome affair which probably will not work. There was a long discussion on it in Committee when many noble Lords said that it would he difficult to put the order into operation. There are other methods of dealing with young children under the Children Act and it seems a great pity not to use them.
I ask specifically that the Minister replies to the point about the provisions of the Bill breaching the European Convention on Human Rights. There seems to be a real likelihood of that happening and we do not want to be taken to court again for something like that. I very much hope that the Minister will look favourably on this amendment.
Lord Williams of Mostyn: My Lords, we do not believe that these provisions breach Article 8 of the European convention, but bearing in mind what the right reverend Prelate said about the legal advice that he has received and what my noble friend Lady Kennedy said, I undertake to reconsider that point. As I have said, we do not believe that the provisions breach Article 8 but, as the question has been raised, we shall look at this again.
We discussed the matter in detail in Committee and a number of questions have been raised again today.
632
The right reverend Prelate asked about consultation. That is specifically provided for in Clause 14(3) which states:
"Before making a local child curfew scheme, a local authority shall consult with—
(a) every chief officer of police any part of whose police area lies within its area",
so the question of community police liaison is already covered. Furthermore, Clause 14(3)(b) gives the local authority very wide discretion because it must also consult,
"such other persons or bodies as it considers appropriate".
Perhaps it should be remembered that the overarch of the entire scheme is Clause 14(1)(b). The authority can only propose a scheme,
"if, after such consultation as is required by the scheme, the authority considers it necessary to do so for the purpose of maintaining order".
It must be done within a specified time, not exceeding 90 days, and a specified area.
I do not see how this amendment would work. Under the proposed paragraph (b) the order is to be made if
"the behaviour of the children to whom the scheme would apply has been sufficiently serious to warrant the making of the scheme".
I do not see how that could possibly work in practice. One is dealing with children of specified ages whether or not their individual behaviour has been sufficiently serious to warrant the making of the scheme. That is my observation on paragraph (b).
I return to the general point. These powers are not mandatory but entirely permissive. If a local authority considers that there are alternatives, such as those indicated by the right reverend Prelate, it can proceed with them. The provision is entirely permissive: there is no obligation to make use of the scheme. It is for each local authority to decide whether something of this kind is an appropriate response to a particular problem for the purpose of maintaining order.
One is referring to elected representatives of a particular area. I take the point raised by the noble Lord, Lord Dholakia, but this is not a matter of stop and search. I recognise the criticisms made of that. That was police activity whereas this is the preliminary conclusion of a local authority. The local authority is elected by the people within the relevant area and its members, unlike Members of your Lordships' House, are subject to the discipline of re-election periodically. That is step number one.
I come to step number two. On the face of the Bill, having come to its preliminary conclusion, the authority must consult the police and the local community. Such persons or bodies whom it considers appropriate will vary infinitely because communities differ. We trust that local authorities, being democratically elected, are fit to decide what is appropriate by way of consultation within their local communities. It is perfectly plain that without the support of the local community these schemes are unlikely to work.

633
When all that has been done the local authority needs to give the Home Secretary a clear indication of the reported problem or identified nuisance and an indication of what other measures have been taken to solve the problem. It will need to provide details of the consultation arrangements that have already been undertaken. It must indicate to the Secretary of State any views that may have been expressed. It will need to show how it intends further to consult those in the local area where the curfew notice is to be applied. We intend to set out fully all of those issues in the guidance that we shall issue to coincide with the implementation of the legislation.
I am grateful for the way in which my noble friend Lady Kennedy dealt with her concerns. I hope that I have been able to deal with them on the basis of, first, the limited parameters of Clause 14 and, secondly, my undertaking as to the nature of the guidance which the Secretary of State will issue to coincide with the implementation of the legislation.
7.15 p.m.
Baroness Kennedy of The Shaws: My Lords, I am very pleased to hear my noble friend say that he will, with others, give due consideration to Article 8. That is a matter of concern to those who have tabled these amendments. We would be very unhappy to see the Government fall foul of that article, particularly in light of the courageous steps that they have taken to place before Parliament the Human Rights Bill.
Having taken account of the matters raised by my noble friend, it may well be that the wording of these amendments can be drafted in a more felicitous way. If consideration is to be given to Article 8 it may well be that the safeguard here will allow the Government to proceed with a curfew scheme but in the limited circumstances that we seek to impose. I am content that the Government should look again at the particular article. It may well be that they will be able to draft better safeguards than those that we have proposed.
In tabling this amendment we are concerned that the threshold should be high before any local authority or any persons in authority take steps to introduce curfews. For all its faults, the antisocial behaviour order can be obtained only through the courts for children over 10 years of age who have been shown to have done something wrong. On the other hand, this curfew involves no due process and does not apply to named children. It may result in a parent who has done nothing wrong and whose child has done nothing wrong being punished by the criminal courts. That is our concern. Although the description of the steps to be taken by a local authority to obtain a curfew sounds almost Byzantine, there are concerns which it is right to raise and which we would like the Government to consider again in the context of the possibility of the Government falling foul of the European Convention on Human Rights. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 30:
Leave out Clause 14 and insert the following new clause—
CHILD CURFEW ORDERS
(" .—(1) A child curfew order is an order which applies a ban on children of specified ages (under 10) being in a public place within a specified area and for a specified period (not exceeding 90 days)—

(a) during specified hours (between 9 pm and 6 am): and

(b) otherwise than under the effective control of a responsible person aged 18 or over.

An order may specify different hours in relation to children of different ages.
(2) An application for a child curfew order under this section may be made by a local authority if it appears to the authority that the relevant condition is fulfilled, namely, that it is necessary for the purposes of maintaining order.
(3) Such an application shall be made to the magistrates' court whose commission area includes the specified area.
(4) Notice of the application shall be given—

(a) by posting the notice in some conspicuous place or places within the specified area;

(b) in such other manner, if any, as appears to the local authority to be desirable for giving publicity to the application.

(5) Notice of the application shall be served upon—

(a) the chief officer of police;

(b) the probation officer appointed for or assigned to the magistrates' court.

(6) Any person or body of persons interested may make representations in writing or may be heard orally on the hearing of the application.
(7) The magistrates' court if it is satisfied that the relevant condition is fulfilled, may make a child curfew order.
(8) Notice of the order shall he given in like manner as in subsections (4) and (5) above.
(9) If while a child curfew order is in force it appears to the court which made it, on the application of any person or body of persons interested, that it is appropriate to make an order under this subsection, the court may make an order discharging the child curfew order.
(10) In this section—
"local authority" means—

(a) in relation to England, the council of a district or London borough, the Common Council of the City of London, the Council of the Isle of Wight and the Council of the Isles of Scilly;

(b) in relation to Wales, the council of a county or county borough;

"public place" has the same meaning as in Part II of the Public Order Act 1986.").
The noble Lord said: My Lords, Amendment No. 30 is grouped with Amendment No. 31. Perhaps I may first address some remarks to the latter. That opposes the whole principle of the child curfew order. I entirely agree with the comments of the noble Baroness, Lady Kennedy, on the previous amendment that it is unnecessary to have child curfew orders and there are already powers under the Children Act to deal with individuals. The objection in principle to curfews is that they attack whole groups rather than difficult and problematic individuals.
While the noble Lord is considering Article 8 perhaps he will consider also Article 5, which deals with liberty. These proposals involve the issue of liberty and family

635
life. I urge the Government to consider the alternative approach favoured by the National Association of Probation Officers, which is to look at ways of introducing crime prevention strategies on difficult estates and revitalising urban areas—to cut the jargon, to give children something to do or, as the right reverend Prelate said a moment ago, to mobilise the community, parents and others, in order to do something about the difficulties that they face.
I received a letter from a Mr. King of Bristol. He listed various activities that would be outlawed by a blanket curfew order. His first suggested activity was seeing granny round the corner. He went on to list: riding bikes with friends; football; stick in the mud; going to the shops; posting a letter; carol-singing; bob-a-job and matters of that kind. Child curfew orders involve the essential principle of liberty.
If there is to be a child curfew order—the Government appear to be pretty determined on such a course—is this the right way? The proposed system in Clause 14 is cumbersome. When all that has been done, as the noble Lord, Lord Williams of Mostyn, said a moment ago, something else must be done. This is a cumbersome machinery which, as the noble Baroness, Lady Anelay of St. Johns, pointed out in Committee, is unlikely to be put into practice very often.
I was pleased to receive a letter from the Minister on 20th February in which he said:
"The Home Secretary has no role in terms of varying a scheme once it is submitted. His role is confined to the area of satisfying himself that the consultation which the authority has undertaken is adequate and reflects local views to a sufficient degree. He cannot be expected to second guess a local authority on detailed points which are of a local nature".
What, then, is the role of the Home Secretary that is envisaged? It is not to make a decision upon the merits of the scheme that is being put forward. It is merely to exercise a supervisory role to see that there has been consultation. Presumably some official in the Home Office will be given a check list to tick off that the right organisations have been circulated and have made some representations. That leaves the Home Secretary with no supervisory role with local knowledge of what the problem is.
In a further letter of 12th March the Minister wrote:
"One of the principle features of our proposals is the measure of support which the local community itself expresses towards a local child curfew scheme. It is crucial to its success".
The proposals that I have set out in Amendment No. 30 are criticised because the application would be made by the local authority direct to the magistrates' court without first seeking the views of the local community.
If noble Lords look at the detail in Amendment No. 30, they will notice some important points. First, it is suggested that the local authority make the application to the magistrates' court. As the Minister said a moment ago—he has made the point for me—a local authority consists of elected members who are responsive to the needs of the people who have elected them to the position that they hold upon that local authority. So, first, the community is reflected in the local authority that brings forward the proposal.
Secondly, the amendment makes it clear that public notice should be given of an application to the magistrates' court for a child curfew order by the affixing of a notice in appropriate places and by advertising in the press or on the radio, as needs be. Thirdly, the local community, on the proposal that I put forward which does not involve going to the Home Secretary and producing a scheme, can have a direct input by oral and written representations to the decision makers; namely, the magistrates. Under the government scheme as drafted in Clause 14, the local community cannot appear in front of the local authority or the Home Secretary and make representations of the sort that can be made to a magistrates' court.
Crucially, under the scheme that I put forward in the amendment the local community can apply for the discharge of the order if it thinks that it is no longer necessary for that order to continue. The community is involved through the bringing of the scheme by way of local authority representatives; it has the right to make representations in person to the decision makers—the magistrates—and it can apply for the discharge of the order. There cannot be greater community involvement than the scheme put forward in Amendment No. 30.
Further, the magistrates' court—unlike the Home Secretary—will be fully apprised of the local issues because the magistrates will be from that area. They will understand the difficulties in the estate from which all their customers come. They will know the area. They can ensure that proper evidence is brought before them by the police and other interested persons. If there is a dispute about the making of an order, that can be tested before the magistrates by evidence and cross examination.
So I reject the suggestion that may be made again that these proposals do not go far enough on consultation and public involvement. My proposals involve the public to a far greater degree. The decision makers will have knowledge of the issues, as opposed to what is proposed in Clause 14.
Furthermore, my proposed clause has the advantage that it retains the character of a judicial process. As the noble Baroness, Lady Kennedy, said, it maintains due process. It cannot smack of a political decision, whether it is a local political decision or a national one, if it is a court that takes that decision.
Secondly, the decision of magistrates is made in public, not in the Home Office or in the confines of the local authority committee room where the public may have no right of access, and certainly no right to speak. Any issues that may arise in relation to the curfew order can be aired in the presence of the press and the public and add to the publicity that would surround the making of the order. More important, instead of going through the machinery envisaged in Clause 14—consultations followed by a trip to the Home Secretary, followed by the Home Secretary's decision and then further consultation for an order that lasts for 90 days only—a decision by magistrates can be obtained, implemented and removed quickly.
In today's debates on the various issues that have arisen in relation to the Bill, the Minister talked of magistrates being wise enough and reasonable enough

637
to know a reasonable excuse when they see one. That was in answer to Amendment No. 4. The noble and learned Lord, Lord Falconer, refuted the suggestion that I made that the Government no longer trust the judges and the magistrates. Later, he said that they rely upon the discretion of the local authority and magistrates' courts to do the right thing.
So when it comes to other clauses of the Bill the Government are the first to rush to the courts saying, "We rely upon them. They know what they are talking about. They know their own area". But when it comes to this proposal we are faced with machinery that is so cumbersome that it will never operate. It is decision making at a distance from the people whom it affects. I beg to move.
Lord Goodhart: My Lords, I support my noble friend. This is a bureaucratic sledgehammer. There is a bunch of young children roaming around, gathering on a street, a public garden or public path and making a bloody nuisance of themselves. What happens then? The local authority has to consult, has to draw up the order, have it approved by the Home Secretary and publicise it. When it has the order, it turns out to be totally useless because most of the children are 10 or 11, or the ringleaders are 10 or 11, and there is nothing that the curfew scheme enables the local authority to do.
By the time the order is obtained, it has taken so long that winter has set in and the evenings are too cold for the children to be mucking about anyway. Why not, for heavens sake, use the Children Act power for the police to pick up the children, take them home and, if necessary, report them to the social services, and drop this extraordinary scheme?
Lord Hylton: My Lords, I am strongly in favour of local control in matters like this, which is why I support the amendment. I like subsection (6) especially enabling local affected people to make representations or be heard before the magistrates. I strongly approve also of the 90-day period. I hope that the Government will feel able to accept the amendment.
7.30 p.m.
Baroness Anelay of St. Johns: My Lords. I shall address my remarks to Amendment No. 30 only. I am sure that noble Lords will recognise that I am the first to praise the value of magistrates and to resist the erosion of their judicial activities. I hope that I shall be able to speak about that on Thursday when we reach Clause 40. So one might expect that I would welcome the extension of their sphere of action, as proposed in Amendment No. 30. However, on this occasion I question whether it would be appropriate for the magistrates' courts to be used in the manner prescribed in the amendment. It provides that curfew order applications would be made directly to a magistrates' court either by the local authority or the police and that there would not be the requirement first to obtain the views of the local community who would be affected by the order. Of course, I note that under the existing subsection (3)(b) the local authority should consult such other persons or bodies as it considers appropriate.
638
Of course magistrates could take evidence. That is their job when they sit daily either in the family proceedings court, the adult court or the youth court. It is not beyond their competence so to do. But I wonder whether the court is a proper forum for holding what would need to be much in the nature of a public inquiry about the potential impact of a curfew order on a category of the local population and the requirement to take into account the needs and conditions of the locality. Magistrates' courts take evidence about individuals and they adjudicate upon their actions. Whether they are hearing issues of breach of the peace or affray, they are, in practice, tackling issues from the viewpoint of assessing actions of the individual within the framework provided mostly by the criminal justice system or within the matters governed by the family proceedings court.
I have great sympathy for what the noble Lord seeks to achieve and I share some of his concerns about the cumbersome machinery contained in the Bill. However, I have reservations about whether the magistrates' court could provide the right venue as enshrined in Amendment No. 30.
7.30 p.m.
Lord Williams of Mostyn: My Lords, I am not sure that I understood entirely the observations of the noble Lord, Lord Hylton, about the 90-day period. A period not exceeding 90 days is contained in Amendment No. 30 and in the Bill at Clause 14(1). Therefore, there is no difference.
The noble Lord, Lord Thomas of Gresford, asked us to put our minds to Article 5. We do not believe that we are in danger of breach, but as he has raised the issue we shall look at it in exactly the same way as I undertook at look at Article 8. We do not believe that there is a problem.
Local child curfews are intended to be a response to a particular problem for the purpose of maintaining order. Amendment No. 30 recognises that, because it takes the phrase from the Bill. We believe it to be self-evident that the role and support of the police are crucial. They are likely to be the primary source of advice and they will undoubtedly have a primary duty for enforcing the curfew. We find it strange that in the amendment there is no requirement for prior consultation with the police. Indeed, the police are served with notice only once an application is made to the magistrates' court. The views of the police would not be sought. Taking up a point made by the noble Lord, Lord Dholakia, the local community would not be asked its view before the application was made. The probation service and the voluntary agencies would not be consulted by the local authority before it went directly to the magistrates' court. Indeed, the notice of re-application is only then to be served on the chief officer of police and the appointed or assigned probation officer. That strikes us as putting the cart vigorously before the horse.
We believe that our scheme is perfectly workable. It consults as appropriate; that is, before the scheme is put to the Home Secretary. Everyone who has a view can put it forward. The local authority is given abundant

639
discretion. We believe our scheme to be substantially and significantly better than the scheme put forward in the amendments. For those reasons, which I have briefly outlined, I do not believe that your Lordships should accept the amendment.
Lord Thomas of Gresford: My Lords, I listened to the Minister's reply and I regret to say that I do not accept his premise that there is no consultation. Where under-10s are running riot it is not enough to spend weeks and months in prior consultation before action is taken. What is needed is quick action which will involve the community in the sense that it can make representations directly to the decision makers and then leave it to the magistrates, who have local knowledge, to take the appropriate decision in the interests of the community.
I am disappointed at the way in which the Government stick to their cumbersome machinery. I do not propose to divide the House on this amendment, but when Amendment No. 31 is called I may have a different view. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 31:
Leave out Clause 14.
The noble Lord said: My Lords, I beg to move.
7.35 p.m.
On Question, Whether the said amendment (No. 31) shall be agreed to?
Their Lordships divided: Contents, 20; Not-Contents, 89.

Division No. 3

CONTENTS

Addington, L.

Linklater of Butterstone, B.

Avebury, L.

MarandKellie, E. [Teller.l

Bath and Wells, Bp.

Meston, L.

Carlisle, E.

Nicholson of Winterboume, B

Dholakia,L. [Teller.]

Ripon, Bp.

Dundonald, E.

Rochester, L.

Goodhart, L.

Rodgers of Quarry Bank, L.

Hooson, L.

Thomas of Gresford, L.

Hylton, L.

Tordoff, L.

Kennedy of The Shaws, B.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Davies of Oldham, L.

Amos, B.

Dean of Beswick, L.

Archer of Sandwell, L.

Dean of Thornton-le-Fylde, B

Blackstone, B.

Desai, L.

Blease, L.

Dixon, L.

Borrie, L.

Dormand of Easington, L.

Brooke of Alverthorpe, L.

Dubs, L.

Burlison, L.

Elis-Thomas, L.

Carmichael of Kelvingrove, L.

Evans of Parkside, L.

Carter. L.[Teller.]

Falconer of Thoroton, L.

Clinton-Davis, L.

Farrington of Ribbleton, B.

Cocks of Hartcliffe, L.

Gallacher, L.

Colville of Culross. V.

Gilbert, L.

Darcy de Knayth. B.

Gordon of Strathblane, L.

Davies of Coity. L.

Gould of Potternewton, B.

640

Graham of Edmonton, L.

Montague of Oxford, L.

Grenfell, L.

Murray of Epping Forest, L.

Hardie, L.

Napier and Ettrick. L.

Hardy of Wath,L.

Nicol, B.

Haskel, L.

Palmer, L.

Hattersley, L.

Pitkeathley, B.

Hayman. B.

Prys-Davies, L.

Hilton of Eggardon, B.

Puttnam, L.

Hogg of Cumbemauld. L.

Ramsay of Cartvalc. B.

Hollis of Heigham, B.

Randall of St, Budeaux, L.

Howie of Troon.L.

Rendell of Babergh, B.

Hoyle, L.

Renwick of Clifton, L.

Hughes of Woodside, L.

Richard, L. [Lord Privy Seal.]

Hunt of Kings Heath, L.

Sewel, L.

Irvine of Lairg, L. [Lord Chancellor ]

Shepherd, L.

Simon, V.

Islwyn, L.

Simon of Highbury, L.

Smith of Gilmorehill, B.

Janner of Braunstone, L.

Stoddart of Swindon, L.

Jay of Paddington, B.

Stone of Blackheath, L.

Jenkins of Putney, L.

Symons of Vemham Dean. B

Kilbracken, L.

Taylor of Blackburn, L.

Kilmarnock, L.

Tenby, V.

Lockwood, B.

Thomas of Macclesfield, L.

Lofthouse of Pontefract, L.

Walker of Doncaster. L.

McIntosh of Haringey, L. [Teller.]

Watson of Invergowrie, L,.

Wharton, B.

Masham of Ilton, B.

Whitty, L.

Merlyn-Rees, L.

Williams of Moslyn. L.

Molloy, L.

Winston. L.

Monkswell. L.

Young of Old Scone. B.

Resolved in the negative, and amendment disagreed to accordingly.
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again not before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.

UN Human Rights Commission
7.43 p.m.
Lord Avebury Lord Avebury rose to ask Her Majesty's Government what is their programme of work for the UN Human Rights Commission.
The noble Lord said: My Lords, I am most grateful to the House for this opportunity of reviewing the Government's proposals for this session of the United Nations Human Rights Commission which began yesterday in Geneva.
This year, occupying the presidency of the European Union, we have a particularly heavy responsibility, having to co-ordinate and, where possible, harmonise the views of the 15 on the initiatives that we shall be taking on their behalf and agreeing the drafts of the statements which are to be made. We are all extremely grateful to the officials of the Foreign and Commonwealth Office who have been working so hard in the run-up period to achieve the necessary agreements on the resolutions which we shall be sponsoring, the presidential statements that we hope to negotiate, and on issues to do with the reorganisation of the Centre for Human Rights under the leadership of Mrs. Mary Robinson to whom I am sure your Lordships would

641
wish to extend best wishes for a successful and effective term of office and also best wishes in relation to her visit to China, which I believe has now been agreed. Perhaps the noble Baroness will confirm that.
I do not propose to talk about individual country issues but about the way in which the commission carries out its work and how it could be improved. First, unfortunately, the work of the Human Rights Commission and its special procedures—the rapporteurs and the working groups that it appoints—are not well known in member states. One of our priorities should be to put that right. Those procedures should be able to rely on the support and active encouragement of an informed public and there should be regular discussion of the issues arising in the legislatures of member states. I hope that the promised annual report of the Foreign and Commonwealth Office will make a start, but more is needed.
Debates in government time before every session of the commission on the main questions that were due to arise would be useful. But by far the best solution would be a Select Committee on human rights, as was proposed again last week by Mr. Jeremy Corbyn in another place. It was good to see that the Leader of the House then reaffirmed the Government's commitment to establish a parliamentary committee with human rights functions and that in answer to a supplementary question put by my honourable friend Mr. Simon Hughes, she did not rule out the idea of a joint committee of both Houses. I hope that the Government will settle on such a joint committee because the expertise and experience of your Lordships in human rights matters could make a significant contribution to the work of such a body.
Another reason why the commission's work is not as widely publicised as we should like is that it has never been properly funded. For example, it took the commission much longer than the UN headquarters in New York to get its website under way because of budgetary constraints. Rapporteurs have sometimes had to postpone missions because there is no money left in the kitty to pay for air fares and accommodation.
I know that the United Kingdom has helped to establish the centre on a proper footing from a budgetary and accounting point of view. That is important. I hope that, as a result of that work, it will be possible, ultimately, for us to see how much is being spent on each of the special procedures—how much on administration, how much on the meetings of the commission and sub-commission and so on. Last time I looked at the figures, it was not possible to split up the expenditure into useful functional headings. I ask the noble Baroness whether that work on budgetary reorganisation has been completed and where one can see the results. The accounts of the centre are not readily available and certainly I could not find them on any of the occasions when I have looked for them on the commission's website.
However good the accounting is, there is still a problem if the centre has inefficient funding to do the jobs assigned to it. Growth in demand may be assessed roughly from the number of reports submitted to the
642
commission year by year. I looked at the years 1994 and 1997. I found that in 1994 there were 110 reports and in 1997, there were 150. Therefore, the tasks are increasing inexorably year on year but the money allocated to the centre is not being increased in proportion to the workload. Are the Government, and the European Union, for which Britain will be speaking, determined to see that human rights receive a proper share of UN resources? What proposals do we have to make to the commission in Geneva in that regard?
The commission appoints country rapporteurs to look at states where there are exceptionally serious human rights problems; for example, Myanmar, Iraq, Yugoslavia, Cuba or Sudan. It appoints thematic rapporteurs to examine phenomena such as torture, extra-judicial executions, religious intolerance, freedom of expression and so on. In previous years, all these rapporteurs on thematic issues have reported well in advance of the commission's annual session so that delegates have been able to consider their findings when they prepare their speeches and decide what measures by the commission they will support.
This year, not a single report has appeared. I believe that this is due to an edict of the General Assembly providing that no report shall be published until it has been translated into all the working languages of the UN. When I asked the noble Baroness about this recently, she said that changes in procedures involving the UN's official languages would be resisted by member states, but what has happened is that a change has been made which disadvantages everybody. If the General Assembly's decision must stand, then either the rapporteurs must complete their work roughly four weeks earlier, or the commission's meeting should be deferred until mid-April, so that all the reports of the rapporteurs and the working groups will be available before the session begins.
All the statements that we make on behalf of the EU will already have been drafted, and this has been done without the benefit of advice from any of the special rapporteurs or working groups. I hope that the Minister will agree that this must severely impair the credibility of the process and must never be allowed to happen again in future years.
If the reports had been available, I was going to suggest that the commission be asked to prepare a summary of the instances where a rapporteur had requested an invitation and the state concerned had refused, failed to reply, or prevaricated. Then it would be possible for other member states, NGOs and journalists to identify at a glance which states were being unto-operative. I asked the Government by way of a Question for such a summary but was referred to the Library of the House on the grounds that there was too much work involved in the preparation of such a study. However, the Library staff also found the task beyond them. If the commission knew that it was required to produce that list, it would be a simple matter of copying the relevant paragraphs from the reports of each of the rapporteurs and working groups as they were being keyed in. Then, at the beginning of the session,

643
we would have a full summary of the states which were not being co-operative with the procedures of the commission.
In the 53rd session of the commission last year, there was only one report by thematic rapporteurs on a country which had refused to invite them, and that was the study on Nigeria conducted by the rapporteurs on extrajudicial execution and on the independence of judges and lawyers. This means that the consent of a state is not a sine qua non for these investigations, but that the power is very rarely used. I did suggest to Mrs. Robinson, when she was here last November, that it should be the normal practice to go ahead with planned investigations, whether or not the state concerned issues an invitation. Otherwise, there is an incentive for a state which does violate human rights to withhold invitations in the expectation that, by doing so, it will avoid the detailed scrutiny that accompanies any mission. If, on the other hand, the states concerned knew that the rapporteur would report anyway, relying on the evidence which he or she could obtain from journalists, local NGOs, from international human rights organisations, from exiles or lawyers, they would have nothing to gain by refusing to issue the invitation. Indeed, that is the procedure which is followed by the country rapporteurs such as the distinguished rapporteur on Iraq, Mr. Max van der Stoel. I suggest that we encourage the Human Rights Centre to follow the same procedure with regard to the thematic rapporteurs.
I want to mention briefly the work of the Secretary-General's representative on internally displaced persons, Dr. Francis Deng. I do so because internally displaced people are a phenomenon which accompanies many of the conflict situations we see around the world today. Almost certainly those people are internally displaced because of the human rights violations which are occurring in their countries. In his 1997 report, Dr. Deng pointed out that the problem,
"is of great magnitude and global dimension, involving some 35 to 40 countries".
One could add that, in every one of those countries, the displacements have been accompanied by gross human rights violations.
Dr. Deng wrote to me in June 1994 saying that he was,
"confronting a monumental task with minimal capacity".
In his 1997 report he still says that,
"there is a serious lack of resources at the Centre to meet this challenge".
Dr. Deng is a part-time volunteer and has no senior staff member to assist him in managing his mandate; nor does he have, as he would like, a co-ordinator to promote collaboration on issues of internal displacement with intergovernmental agencies and NGOs. Regrettably, the scale of internal displacements has increased since the mandate was created, and the trend seems likely to continue.
The Foreign Secretary told me that the Government welcomed the initiative of Dr. Deng to develop a strategy for dealing with such problems and assured me that the Government would carefully consider his recommendations, which are presumably to be laid before
644
the commission this year. Humanitarian aspects are dealt with by the UN Office for the Co-ordination of Humanitarian Affairs, formerly the DHA, which incidentally operates an extremely useful web site offering regular updates on 15 "complex emergencies", as they are termed. The commission's task is to develop a normative framework for addressing the needs of the internally displaced and for preventing internal displacements and the promotion of effective institutional arrangements for protection and help. I hope that the Government will continue to take a close interest in this work and will see to it that Dr. Deng is provided with the resources he needs, minute as they are in relation to the size of the problem.
Finally, I want to mention a subject which has not been tackled at all by the commission and to suggest that it is important enough to justify the creation of a new mandate. This is the human rights effect of large projects by first world companies in the third world. The World Bank already recognises that the projects it finances could have an adverse effect on the lives of people living at or near the sites concerned and has developed a set of guidelines which are to be applied particularly when there is compulsory displacement of people in the neighbourhood of those sites. That is one aspect of the problem. Another is that when resource developers undertake operations in third world countries, the host state often provides them with protective forces which then commit human rights violations. Indeed, one has the examples of Shell in Ogoniland, BP in Casanare, Total in Burma with the Yadana pipeline or RTZ in Indonesia. In none of those cases has it been suggested—and I am not so suggesting this evening—that the companies either violate the rights of the indigenous people or encourage the state to commit abuses on their behalf. Yet there is a cause and effect relationship between the presence of large resource developers and human rights abuses. Several companies, including Shell and now RTZ, have recognised that implicitly by developing their own codes of practice.
A third strand of the problem is the purchase by western companies of goods manufactured in the third world under conditions which may constitute an abuse of the human rights of the workers. Here, again, some initiatives have been taken by the companies to develop codes of conduct; for example, prohibiting the employment of young children by their suppliers. I should like to mention the initiative of the British Toy and Hobby Makers Federation, announced some time ago, in adopting a code which it is hoped the suppliers of goods from south China will observe.
I suggest that the commission needs to monitor those developments with a view to identifying best practice and perhaps helping to draft model codes. A rapporteur could be assigned the task of collecting and analysing the measures taken by companies, trade associations and lenders to ensure that their operations overseas were conducted so as to avoid the risk of human rights violations. He or she might also explore the possibility of collectively monitoring the codes of practice—always a problematic area for commercial firms which have no locus to ask for rights of inspection.
The commission will only be effective if it has the support and respect of all member states and of their parliaments as well. It can become even more effective if, with the approval of an informed public, it is properly resourced, if states co-operate fully with its procedures, and if, where they are unhelpful, the spotlight on their activities is turned up. I hope that while Britain occupies the presidency of the European Union, and particularly during the session of the commission which is just beginning, we shall do as much as possible to achieve those objectives.
7.59 p.m.
Baroness Nicholson of Winterbourne: My Lords, it is an honour to follow the noble Lord, Lord Avebury, whose work on human rights is known internationally and whose leadership of the all-party parliamentary group on human rights was for a long time the dominating feature of its intensive investigations into global-wide breaches of human rights. I am particularly fortunate to sit on the same Benches as the noble Lord and to learn from much of his work.
Indeed at the far end of Westminster Hall this evening in the Grand Committee room a group is meeting with which he is involved. He is the honorary president of a new group, the Kurdish Human Rights Project. That is just one small example of the unremitting work that the noble Lord does on behalf of people in many parts of the world. The Kurdish Human Rights Project is one of many organisations which exist in such profusion in the United Kingdom, which has a longstanding commitment to human rights. People of many backgrounds who have suffered many miseries are free to express their unhappinesses and their views and to work to try to free their peoples. I commend the Kurdish Human Rights Project to your Lordships.
It is typical of the noble Lord, Lord Avebury, to have chosen this opportunity to mention the work of the United Nations High Commissioner for Human Rights, Mary Robinson, and to call attention to the important role of Her Majesty's Government in bringing forward a programme of action for Mary Robinson to examine. About 10 days ago I heard Mary Robinson speak at the Africa Centre in London. In that speech she concentrated upon human rights in Africa. She gave the hopeful message that,
"new changes are taking place in Africa, fuelled by Africans, led by Africans and aimed at securing lasting peace, based on democracy, human rights and sustainable development".
She reminded us that Secretary-General Kofi Annan called this "Africa's third wave" in his statement to the Heads of State and Government of Africa in Harare last June. That was a challenging speech by Mary Robinson on the tremendous progress that is being made in Africa on matters affecting human rights.
I wish to raise a particular concern of mine which centres on prisoners held without trial. Somehow that has always seemed to me to be the bleakest of all situations. Those prisoners have not had an opportunity to prove their point or had a chance to say whether or not they have done the things of which they are accused.
646
They have been flung in gaol with no opportunity at all to speak to their peer group or to put their point of view. It is a case of summary and inhuman justice. Frequently those who suffer from it in many parts of the world are subject to torture.
In recent weeks the Minister has told us a great deal about the current situation in Iraq and has conveyed to us much knowledge. Tonight I remind the House of a small group of people imprisoned in Iraq who I believe suffer gravely and who need our care and attention, even though we are at present unable to release them. I speak of the Kuwaiti prisoners of war. I remind your Lordships that in 1991 Iraq released 5,772 Kuwaiti prisoners of war as a result of the tripartite allied committee's pressure with the backing of the United Nations Commission on Human Rights. However, Kuwait knows that Iraq still holds a large number of Kuwaitis in prison and—as the Kuwaitis themselves say—a large number of non-Kuwaitis too. I know of several thousand Iranian prisoners of war who were imprisoned 15 years earlier. When I visited Kuwait I saw the paperwork that the Kuwaiti Government had supplied to the international committee. It contained a list of names and the complete files of the 605 prisoners still held in Iraq. Kuwait has demanded, and continues to demand, that Iraq should release them all now if they are still alive—as we hope and pray they are—or should return their bodies if they are dead. I have had the opportunity to meet some of the families of those missing prisoners. Some were soldiers but others were civilians. Young people, older people, men and women were all scooped up and taken. I am sad to say that Iraq has misled the international committee, the United Nations High Commission for Refugees and the United Nations High Commissioner for Human Rights. It has deliberately misled Kuwaiti families and the Kuwaiti Government, the Amir and his Ministers. Iraq has suggested that 126 files could be found out of 605. I believe that that is incorrect. I think that Iraq was merely dangling a hope in front of the Kuwaiti families. A paucity of information was provided that was far too insignificant to be able to identify where any prisoner was held.
The Iraqi Government admitted arresting 119 Kuwaitis but they suggest that, as a result of the uprising in 1991 after the allies had departed, they cannot locate them. Iraq has admitted that seven are dead and it has returned only one body, that of a Mr. Al Mutairi. Iraq has refused to give any information on the burial site of the other six whom it admits it has killed. Iraq has said nothing about the remainder. This is a deeply tragic situation. In the weeks and months ahead, when I fear we shall continue to wonder about these prisoners, I beg noble Lords to remember them and pity them in their trouble because it does not seem possible at the moment to get them released.
That is just one most miserable example of prisoners kept without trial. When the Minister reports to the United Nations and whenever Britain speaks on these important matters in which we have the high moral ground, I believe it is important that we should also consider the European Union in particular and make absolutely sure that in our countries we are doing all we

647
can to conquer any human rights deficiencies that we have either inherited as a government or have not perhaps had time completely to analyse and to sort out. Although we examine other countries, the United Nations Commission on Human Rights is responsible for the human rights situation in each and every country in the world. The main function of its committees is to monitor the implementation of various treaties under which reviewing state reports are submitted. Those treaties are broad and deep. I have no doubt at all that the United Kingdom has been instrumental in much of the drafting.
However, Britain and Europe should perhaps examine more closely our own record in son-le respects. I am concerned, for example, about the position of children in Greece who at an early age experience truly devastating working conditions. In the other place I was a member of the Select Committee on Employment and I was sorry indeed that that committee was unable to adopt part of an EU directive which I believe would have lightened those children's burdens. Under the previous government the committee was unable to accept that provision because it did not wish to limit the hours of work of school-age children delivering newspapers and other things during the school week. Therefore the Greek children who are much younger, some of whom work in had conditions, suffer. When considering directives, it is important to understand the beneficial impact for the poorer parts of the European Union. We should consider how we as a strong, powerful, integral member of the European Union can help them.
It may not be improper for us to consider that some issues in the United Kingdom breach human rights. I am concerned about the situation inherited by the Government from the previous government. I refer to asylum seekers. Like other prisoners to whom I have referred, they are imprisoned without trial. I raise a difficult point here. Of course it is true that the physical detention in which those asylum seekers find themselves in the United Kingdom is completely different from that of most prisoners in many parts of the world. Nonetheless, the principle is there. If one criticises other nations for breaches of human rights, it is surely right that we should be prepared to examine our own record.
In that context, I welcome the report, which I believe the Government will soon publish, by Her Majesty's Chief Inspector of Prisons, Sir David Ramsbotham, on the imprisonment of those asylum seekers in the United Kingdom in places such as Campsfield. I know that Her Majesty's Government will wish to give the report the fullest possible attention. I applaud them in that attitude. I speak as a former Member of Parliament who was forbidden access to any prison in the United Kingdom after I visited the detention centre and felt concerned about the plight of those inside. Although I made no public statement, the Minister for Prisons forbade me to visit any prison, even the prison at Dartmoor, then within my constituency. Transparency and the capacity for parliamentarians to look at these matters is vital. I know that the new Government regard these matters with a proper sense of respect for the individuals; namely, the asylum seekers.
648
I speak with partiality as a British citizen and as a European Union citizen. I do not believe that throughout the EU any situation reflects even partially the horrors about which we speak with regard to Kuwaiti prisoners of war, and the many devastating places that my noble friend Lord Avebury has visited and knows, and for whose people he fights tirelessly. Nonetheless, I ask that the universality of human rights should always remain in our minds. We should address our own problems with as much celerity as we address the problems of others.
Finally, I quote the wise words of someone who must today be the most famous ex-prisoner of all, President Nelson Mandela. He said:
"When I walked out of prison, that was my mission, to liberate the oppressed and the oppressor both. Some say that has now been achieved. But I know that that is not the case. The truth is that we are not yet free; we have merely achieved the freedom to be tree, the rights not to he oppressed … The true test of our devotion to freedom is just beginning".
Although Mary Robinson has a small budget, I know that Her Majesty's Government will wish her work well and will do everything they possibly can to assist her in that high task.
8.13 p.m.
Lord Moynihan: My Lords, I add my congratulations to the noble Lord, Lord Avebury, on securing this timely opportunity to raise some pressing issues and to seek some satisfactory answers from the Minister on the question of the Government's human rights policy and the work of the UN Human Rights Commission. Today is only the second day of the annual session of the commission. During the next six weeks, it will endeavour to review the state of human rights around the world as part of the UN's founding mandate to promote respect for human rights and human dignity as the,
"foundation for freedom, justice and peace in the world".
The 53 member countries of the commission have a delicate and difficult task ahead. They have attracted criticism for their failure both to press a resolution criticising China this year and to investigate the massacres in Algeria. The commission must confound those allegations of politicisation if the UN is to retain its international gold standard of human rights advocacy.
I intend to concentrate on the Government's approach to the cases of Algeria and China in this session of the commission. It is an approach which goes right to the heart of the Government's ethical foreign policy, a policy that has been tested in recent months by the tragedy of Algeria and in recent days by the question of China's human rights record and a policy that is increasingly infused by the scent of creeping hypocrisy.
I start with Algeria whose people continue to dwell in the shadow of the evil face of terrorism. The world has been shocked and revolted by the scale of savagery and the crude brutality witnessed there. An estimated 65,000 to 100,000 people have been killed since the conflict began six years ago. Over 1,000 men, women and children have been killed this year alone.

649
The situation in Algeria demands a concerted and immediate international response. Yet so far that response has comprised a show of hand wringing and verbal condemnation by the Foreign Secretary and a brief and bungled diplomatic troika mission. I should be grateful if the Minister will update the House on the outcome of that mission which apparently succeeded in,
"[opening] up the current political dialogue between the EU and the Algerian Government".
Has a date been set for the Algerian Foreign Minister, Ahmed Attaf, to visit London to continue that dialogue?
The Minister of State for Foreign and Commonwealth Affairs has stated that the scope for international action is limited and that this is an internal problem. Given the Government's ethical foreign policy, I should therefore like to ask the Minister whether she agrees with Mary Robinson when she said,
"I cannot and do not consider [the situation in Algeria] to be an internal situation",
and that human rights have "no borders" when such violations occur and that the international community has a "responsibility to end such violence."
Amnesty International reports that not a single allegation of torture, "disappearance" or extra-judicial execution has been the subject of a thorough, independent and public investigation since the conflict began. Yet the Algerian Government have refused to set a date to allow the UN special rapporteur into the country, insisting that this is a question which can only be resolved at the current session of the UN Commission on Human Rights.
I ask the Minister what the Government are doing to encourage the Algerian Government to accept the special rapporteur and, as EU president, what initiative they have taken to ensure that other governments do the same in Geneva? Furthermore, what lead will the Government take during the UK presidency if, over the next few weeks, Algeria continues to rebuff UN suggestions that the Commission on Human Rights has a role and continues to refuse to admit the UN rapporteur on extra-judicial, arbitrary and summary executions even after the current session of the UN Commission on Human Rights?
Given their ethical foreign policy, have the Government made any contingency plans to consider conditionality in the context of their economic and social relationships with Algeria to encourage the Algerian Government to be more forthcoming in their co-operation should no progress be made at the UN commission?
I now turn to China where the Government's new policy has caused amazement, disbelief and increasing cynicism among human rights campaigners and politicians of all hues because, for the first time in the nine years since the censure motion was introduced after the Tiananmen Square massacre in 1989, the United Kingdom will not support the annual resolution at the United Nations Commission on Human Rights to draw
650
attention to China's record on human rights. Given the Government's previous much publicised commitment to a so-called ethical foreign policy, and the importance they have attached to UN resolutions pertaining to Iraq, it is not surprising that many have concluded that the Government have bowed to the politics of expedience and as a result have reneged on their loudly proclaimed ethical promises and gone soft on human rights violations.
It is even less surprising that the Government have given two very different reasons for that decision: first, that the resolutions did not work. We have been told that over eight years the attempts to secure resolutions repeatedly failed to work and, as a result, in practical terms very little was achieved for human rights in China. In contrast, the Government's policy of constructive dialogue, supported by practical assistance, is already bearing fruits and is more likely to continue to do so than the censure approach.
It is true, as the noble Baroness pointed out last week, that there have been some improvements in China's human rights record. Yet Amnesty International, to which I pay tribute for its work in China, has said:
"1997 was yet again a year in which many people in China suffered gross human rights violations, despite some high profile human rights initiatives by the Government. The past year saw the arbitrary detention of possibly thousands of protesters and suspected government opponents, the continued imprisonment of thousands of political prisoners, grossly unfair trials, widespread torture and ill-treatment in police cells, prisons and labour camps and the extensive use of the death penalty",
and although,
"the Chinese authorities have responded to international criticism [and] while these steps are welcome, little has changed in practice. There is no reason for complacency on the part of the international community and no excuse for relaxing pressure on the Chinese authorities".
By failing to support the resolution at the UN Commission on Human Rights, that is precisely what the Government have done. The Government's decision is no timely defeat for hollow symbolism. The resolution ensured that, despite efforts on China's part to suppress such debate, China's human rights record was discussed in a very public forum, and there is no doubt that the widespread international criticism of a permanent member of the UN Security Council caused its leaders embarrassment.
Nor was the resolution subject to the vicissitudes and expediency of the "human rights democracy" sometimes practised by China's leaders; that is, concessions on human rights, which, far from being sincere attempts to entrench democracy in China, in fact reflect tactical manoeuvring when the issue of human rights threatens to become an obstacle in China's conduct of diplomacy with the West. Instead, the resolution reflected an absolute international standard of respect for human rights and democracy which could not be compromised. That is what the Government have failed to support.
The second reason the Government have given for failing to support the resolution is because it is essential for the European Union to speak with a single voice on human rights and not to appear "deeply divided" in its

651
efforts to press China to improve its record. Indeed, the Foreign Secretary, in his capacity as President of the Council of Ministers General Affairs Council, said:
"there is a broad recognition within the European Union that at last year's meeting of the Commission on Human Rights we did not do the best possible service to human rights in China by showing a European Union that was deeply divided. We have therefore resolved on a new approach on which we are going to put our priority and pressure on human rights in China through dialogue with China".
However, there is also broad recognition that France's intransigence in 1997, far from being the result of a sudden conversion to the carrot-and-stick school of diplomacy as opposed to the censure approach, was rooted in the irresistible draw of commercial realpolitik, given that France was on the verge of signing a £1.25 billion Airbus Industrie deal with Beijing.
What is the Government's answer to critics who fear that Britain's,
"fresh start down a broad road … wide enough to develop relations on the many matters of common interest",
promised by the Foreign Secretary, refers only to the protection of our trade interests rather than to our principled beliefs, and that the sole purpose of that "broad road", as he terms it, is to accommodate the inevitable traffic jams in the dash for a slice of China's lucrative markets?
Such critics include the prominent and highly respected dissident, Wei Jingsheng. He has said:
"what I am worried about is that the human rights movement will be sacrificed for the businessmen … feel pain knowing that western democracies are caught by the Chinese market economy's fishing hook".
During his recent visit to London, he was outspoken and uncompromising in his criticism of the Foreign Secretary, whom he called a "coward" whose "soft pedalling" on human rights violations in China for the sake of commercial contracts he described as a "large and wrong-headed gamble". What weight do the Government give to criticisms emanating from such a quarter?
This new policy, entitled "zero tolerance of division in Europe", is indeed radical, with far-reaching and critical ramifications for the work of the Foreign Office. Clearly, it must have implications for the Government's policy towards Iraq, given the divisions that exist in Europe over the need to keep the military option open. The Government seem to have developed a little schizophrenia in the application and importance attached to UN resolutions. I should like the Minister to clarify why a UN resolution was so necessary in the case of Iraq, when there were clearly potentially damaging divisions within the Security Council, yet in the case of China a resolution is proscribed by the slightest hint of European divisions.
Does that mean that in future, British principles and policies must be sacrificed on the altar of pragmatism in a bid to avoid a divided Europe? Perhaps it is this, and not human rights, which is at the centre of the Government's foreign policy.
The Government have listed a number of benchmarks by which their new policy towards China will be judged. The Chinese leadership will have to honour its promise
652
to "take seriously" a future visit by Mary Robinson; it will have to allow the Red Cross to resume prison visits; it will have to allow the release of dissidents on a joint EU-American list; and it will have to permit a totally independent European Union troika visit to Tibet. Could the Minister give the House some details as to how the Government intend to ensure that those criteria are honoured? Furthermore, what is the Government's minimum requirement for what must be agreed and achieved during that visit in order that it is deemed to have been "taken seriously"?
Yet it seems that, in the key litmus test of China, a paradox has been uncovered in the Government's ethical foreign policy. On the one hand, we have a Foreign Secretary who poses as "ethics man", yet on the other hand he could not find time to meet China's most eloquent defendant of democracy, Wei Jingsheng, during his visit to the UK in January, even though he was about to leave on a trip to Beijing. The result of that trip was a "warm, constructive and expansive" meeting with President Jiang Zemin, in which it is not clear that the Foreign Secretary raised the issue of the release of further dissidents at all. By contrast, Mr. Cook's subsequent meeting with Mr. Wei, who suffered almost two decades of imprisonment, torture and deprivation and attempts at "thought reform", was simply described as "friendly". The Foreign Office code is not hard to decipher.
On the one hand, we have a Government who claim to have put human rights at the heart of their foreign policy; yet, unlike the previous government, who insisted on a UN resolution as an absolute prerequisite to focus international attention "on the need for improvement in China's human rights situation", they have failed to sponsor the same UN resolution. On the one hand we have a government who claim to have taken "the lead in dialogue with China on human rights", yet human rights groups and dissidents alike have united to condemn the Government's policy while praising that of their predecessors.
When the Government announced their ethical foreign policy, amid much fanfare and ostentation, from these Benches I sought to elicit from the Government what exactly the "new" policy would mean and how it would differ from that of the previous government. Initially, there was no discernible change; no examples of stronger action towards perpetrators of human rights abuses, no case of greater penalties imposed on the countries concerned. In fact, there seemed to be a seamless transition of policy, indicating that the Government's "new" ethical credentials were no more than superficial rhetoric dressed up as policy.
But now, in their failure to renew sponsorship of the United Nations resolution on China, the Government have actually breached the ethical foreign policy established by the previous government. The Foreign Secretary's rhetoric of high principle has been uncovered as a sham and inevitable accusations of low comprise and double standards have followed. China is the litmus test for the Government, the litmus test that a true ethical foreign policy is judged by deeds, not words, by actions not rhetoric, and that a policy of true

653
statesmanship will be judged by its results, not by the presentations used to launch it, not by the impressive but ultimately hollow rhetoric used to describe it.
8.29 p.m.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, I thank the noble Lord, Lord Avebury, for initiating this timely debate as the commission opens its annual sessions. The noble Lord's exemplary record on human rights is well known not only in your Lordships' House and throughout this country but also, I venture to suggest, elsewhere in the world. We thank him for the very valuable work that he does.
The Government are fully committed to the promotion of human rights. It is a centrepiece of our foreign, as well as our domestic, policy. We are committed to the principle of universality of human rights. All human rights, economic, social, cultural, civil and political, are for all people regardless of sex, age, ethnic origin or where they live. And all human rights are interrelated and interdependent. People cannot fully realise their economic rights in countries where their civil rights are consistently violated. The right to vote is meaningless when people are starving.
We are strongly committed to the United Nations Commission on Human Rights as a vital forum for promoting human rights. We are major supporters of the UN's human rights machinery. So far this year, we have already contributed over £4 million to the UN's human rights voluntary funds for field operations, technical co-operation and victims of torture.
The noble Lord, Lord Avebury, is right. As EU presidency this year, we have a special role to play at the commission. We are using it to make our views clear about human rights situations around the world. This year we shall be particularly working to ensure that the special concerns of women and of children are taken into account through all the work of the commission.
The UK will, throughout the commission, make a series of formal interventions on thematic and country issues. These will include interventions on children, democracy and development, women, racism, rule of law issues, advisory services, human rights defenders, and detention and advisory services. We shall also deliver a statement setting out our human rights concerns in countries around the world. We are still discussing with our partners the exact formulation of these interventions.
Her Majesty's Government are concerned at the increasing divisions in recent years within the commission between the EU and like-minded western countries and some G77 countries. We shall seek to use our presidency to reduce those divisions. When we can, we shall seek to engage countries in a constructive approach. But we shall not be deflected from highlighting human rights violations and refusal by countries to allow access to the commission's independent experts.
654
As noble Lords would expect, I have listened to the speakers this evening with considerable interest as they have dealt with not only the thematic issues around the world but also some of the country issues. I shall now try to address some of the specific points raised by noble Lords. If I am not able to cover them all, I shall do so by letter later.
The noble Lord, Lord Moynihan, was nothing if not trenchant in his criticisms of the Government in relation to China. He used very strong words, such as "hypocrisy", "sham", "double standards" and "expediency". Let me be clear with the noble Lord and other Members of your Lordships' House. We have raised at all levels with the Chinese Government our concerns over the continuing human rights violations within China. The Foreign Secretary made the Government's views clear during his visit to China in January. We shall continue to press the Chinese Government—as the Foreign Secretary, the Deputy Prime Minister and my honourable friend Mr. Fatchett have done—to live up to these international standards.
However, we do not believe that yet another failed resolution on China at this year's commission is the best way to bring about real changes on the ground. EU Foreign Ministers therefore decided on 23rd February that neither the presidency nor member states should table or co-sponsor a draft resolution on China at the commission. We believe that the EU's dialogue-based policy, supported by practical assistance, is more likely to bring about real improvements to human rights on the ground in China than repeated failed resolutions.
Let us be clear. I do not doubt the sincerity of the noble Lord, Lord Moynihan, in supporting human rights in China, and I hope that he does not doubt mine or that of the rest of the Government. Where we differ is on the best means to pursue human rights in China. The noble Lord advocates a means used in the past eight years: to achieve a vote against China. In seven of the past eight years that resolution was not even voted upon. It is not, as the noble Lord said, that it did not work; it did not even get as far as a vote being taken. However, since October last year we have attempted to engage in dialogue with China. I can cite eight positive results of that dialogue: first, the signature of the International Covenant on Economic, Social and Cultural Rights; secondly, the release of Wei Jingsheng; thirdly, agreement to transmit Hong Kong reports under the UN covenants, which was one of our major goals; fourthly, an agreement of the EU technical co-operation package covering civil and political rights, as well as economic and social rights; fifthly, an invitation to the UN High Commissioner for Human Rights. Mrs. Robinson, to visit China; sixthly, a visit to China by the UN group on arbitrary detention; seventhly, an agreement to visit Tibet by EU troika embassies; eighthly, the EU-China legal affairs seminar, attended by legal experts, academics and government officials from both sides held on 23rd and 24th February.
The noble Lord again cites Mr. Wei. There is no doubt that Mr. Wei is a very brave man. But Her Majesty's Government have to do what they believe to be right in the sense of what can be achieved on the ground and in the sense of pursuing those eight

655
improvements which we have seen since we began our dialogue with China. When Mr. Wei met the Foreign Secretary there was, of course, an exchange of views. There was not agreement on every point; no one would suggest that. But Mr. Wei recognised not only what had been done before 1st May last year but also what has been done since then. He recognised the continuing commitment of Her Majesty's Government to human rights in China and thanked my right honourable friend for everything he had done in order to secure his release.
Noble Lords will have noted the United States' announcement that, in the light of China's recent decision to sign the International Covenant on Civil and Political Rights, the United States too has decided not to table or co-sponsor a resolution on China.
The noble Lord also raised the question of Algeria. We continue to be deeply concerned about the appalling massacres and the reports of widespread torture in Algeria. We are seeking to bring about improvements in the situation there through dialogue. We believe that that approach stands the best chance of achieving real improvements on the ground. That, after all, is what Her Majesty's Government's foreign policy on these issues is about—real achievements, not just clever exchanges over the Dispatch Box.
The Minister of State for Foreign and Commonwealth Affairs, Derek Fatchett, led an EU mission to Algeria in January to continue the political dialogue established during the visit to Luxembourg in 1997 of the Algerian Foreign Minister, Mr. Attaf. We are in discussion with the Algerians about access for UN special rapporteurs, including on torture and extra-judicial killings.
I now turn to the some of the important points raised by the noble Lord, Lord Avebury. The noble Lord raised the question of the High Commissioner's office. The Government fully support the Secretary-General's track-two reform proposals, which Her Majesty's Government believe will significantly enhance the role of the UN human rights machinery. We particularly support the strengthening of the High Commissioner's office in New York because we believe that this will play a key role in ensuring that human rights feature across the full range of the work of the United Nations.
The British Government funded a review by Price Waterhouse of the office of the High Commissioner. The review advised the High Commissioner on ways in which the office could be more effective. The review played an important role in the reorganisation of the office now being completed by the High Commissioner. The noble Lord is right; it is important that the High Commissioner's office is properly funded, both through the UN regular budget and through voluntary contributions. We are working to ensure that there is sufficient focus within the UN on that kind of regular budget.
The noble Lord also raised the question of thematic rapporteurs. Thematic rapporteurs of the Commission on Human Rights are independent experts and we strongly believe that they have to decide their own methods of work. But there is no reason why thematic rapporteurs cannot produce detailed reports of countries that they have not been allowed to visit. After all, it would be
656
quite wrong if countries were to escape scrutiny by refusing access to those special rapporteurs. Many rapporteurs' reports contain reporting and analysis on countries which they have not been allowed to visit.
The noble Lord raised questions in relation to delays in the translation of UN documents. It would not be acceptable to many UN member states if documents were made available in some languages before others. For example, we could expect legitimate objections from Arab states if documents relating to them were in the public domain in English before they were made available in Arabic. Many reports to the Commission on Human Rights are available only once the commission has started. That often reflects the desire of the rapporteur to produce absolutely up-to-date work when producing the reports.
The noble Lord raised the question of internally displaced persons. Of course human rights apply as much to internally displaced persons as to anyone else. It is vital to tackle the root causes of internal displacement and we are therefore looking forward to Mr. Deng's special report to the current session of the Commission on Human Rights. We will study his proposals carefully before developing the framework in the protection of internally displaced persons, including the important resource issues which the noble Lord raised.
The noble Baroness, Lady Nicholson of Winterbourne, raised questions about Kuwaiti prisoners of war in Iraq. It is deplorable that there are still Kuwaiti prisoners of war in Iraq. We will be pushing for that to be a focus of our EU base resolution on Iraq at the Commission on Human Rights. The noble Baroness raised the issue of a number of other nationals who are also imprisoned in Iraq without trial. Those persons will also be the subject of our discussions.
The noble Baroness raised questions over the rights of the child. We will use the commission to emphasise the need for universal ratification of the Convention on the Rights of the Child and EU support for a new ILO declaration on the most intolerable forms of child labour.
The noble Baroness raised questions about UK asylum procedures. We know that the system for dealing with asylum seekers has been expensive; it has been too slow. As she rightly said, it was a system that we inherited. But we are looking critically at all aspects of asylum law and procedures, including the Asylum and Immigration Act 1996 to ensure that decisions are not only fair, but that they are swift.
I wish to return to some of what I felt were the most extraordinary criticisms from the noble Lord, Lord Moynihan, in relation to the attitude of Her Majesty's Government on human rights. I should like to run though some of the important points that have been secured by Her Majesty's Government since 1st May last year.
The noble Lord raised issues in relation to China on questions of the death penalty. The Government decided that the death penalty will now be challenged. We, with our EU partners, have made a series of démarches already on the use of the death penalty in countries

657
where it is used. We are discussing with Italy the prospects of, in this year's session, calling for the abolition of the death penalty.
We have been engaged with the ILO in working for a new convention on unacceptable forms of child labour. We have a new policy for new and tougher criteria on the sales of arms. We are working for an EU code of conduct on arms sales. We will be barring and have barred the export of torture equipment. We have launched the human rights projects fund so that missions can back up the dialogue with real assistance on the ground. We are replacing the old military training programme by redirecting funds to the new ASSIST fund. We have close co-operation between the DfID and the FCO on a human rights-based approach to development. On many other issues of engagement the Government, in the past 10 months, have made considerable inroads on human rights issues.
I hope that I have been able to demonstrate that the Government take concerns over human rights seriously. The 50th anniversary of the Universal Declaration of Human Rights is a time for all countries to implement universal, international human rights standards. We wish the commission well and we wish Mrs. Robinson well with her work.

Crime and Disorder Bill [H.L.]
8.45 p.m.
Consideration of amendments on Report resumed.
Clause 15 [Contravention of curfew notices]:
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 32:
Page 13, line 10, at end insert—
("() A constable who, acting in accordance with the provisions of subsection (3) above, removes the child to the child's place of residence and discovers that there is no responsible adult at that address, shall then inform the relevant local authority.").
The noble Baroness said: My Lords, Amendment No. 32 seeks to plug a perceived gap in the process by which the police deal with children under 10 who have broken the curfew ban.
Clause 15 sets out what happens when the curfew ban is broken. The constable must first tell the local authority that the child has contravened the ban and then he must decide whether or not to take the child home. In making that decision, he must first take the decision as to whether or not, by taking the child home, that child will be likely to suffer significant harm—as in the threshold criteria with which we are used to dealing in the Children Act.
The constable must therefore consider whether, by taking the child home, the child is being put in a position where it may suffer significant harm. After all, as a local police officer he may have some knowledge of the area; he may know the history of abuse or neglect in a family and, if so, if he comes to a decision that the child would suffer significant harm, at that stage he has powers to take the child into police protection under Section 46 of the Children Act 1989.
That much is clear. But what is unclear is what happens when the constable decides to take the child home on the basis that he or she is not likely to suffer significant harm, but when he rings the doorbell of the home there is no reply. It may simply be that the parents or guardians are not at home. At that stage the Bill does not help with what the constable should do next. It jumps to the stage after that and gives details as to how the local authority shall investigate the incident as soon as practicable; in any event, within 48 hours. That is of course a proper direction. But what happens in the meantime?
Amendment No. 32 seeks to fill the gap so that, when a constable is on the doorstep and there is no reply, he or she shall then inform the local authority. I realise that the Government may feel that the amendment is defective in its wording because I have not specified where the constable should take the child, having notified the local authority. It will be apparent to noble Lords therefore that this is a probing amendment. I genuinely seek to find out whether or not there are existing powers to cover that eventuality which are not to be found within the Bill. If so, perhaps the Government can say where they are to be found. I beg to move.
Viscount Tenby: My Lords, I rise to speak in support of Amendment No. 32. It may seem to be a case of dotting the "i's" and crossing the "t's"; it may seem obvious and appear to be one of those byways in a Bill which does not have to be on its face. But it presents a real problem.
If a policeman turns up to a child's home with a child and there is no one in, he will of course take the child back to the police station. But what happens then? Some sort of provision should be made. If not, all kinds of difficulties may ensue and the whole process may be put in jeopardy. I congratulate the noble Baroness on finding this apparent loophole in the Bill.
Lord Williams of Mostyn: My Lords, I am genuinely grateful for the way in which the noble Baroness has put the matter and for the way the noble Viscount came to her assistance in questioning whether there is a gap. These are perfectly reasonable questions to ask and I hope that I can offer a satisfactory answer.
In subsection (3) of Clause 15 the Bill provides that the constable may remove the child to the child's place of residence. That is the proper first step. If the constable believes that such a step would place the child—one is dealing with children under the age of 10—at risk of significant harm, he would be expected to make use of existing powers under Section 46 of the Children Act 1989 to remove the child to suitable accommodation. That suitable accommodation has to be a matter for discussion between the relevant local agencies prior to the imposition of a curfew notice so that appropriate arrangements will be in place during the period of the curfew. That is a matter which we will cover in guidance, which I mentioned earlier, but not this specific topic.
The amendment would place a requirement on the constable to inform the local authority if no one responsible is at home—I think I paraphrase fairly.

659
The answer is to be found in subsection (3)(a) of Section 46 of the 1989 Act, which provides that when a child is taken into police protection, which would be the result of there being no one responsible at home, the constable shall, as soon as is reasonably practicable after taking the child into such protection, inform the local authority about the situation surrounding the child. Therefore, I am happy to be able to say, I think confidently, that the Children Act covers the possible lacuna which was identified by the noble Baroness and by the noble Viscount. I hope that I have been of assistance to them both as well as to your Lordships.
Baroness Anelay of St. Johns: My Lords, I thank the Minister for that explanation. Provided the clause fills the lacuna, I will not bring this back. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Interpretation etc. of Chapter I]:
[Amendment No. 33 not moved.]
Clause 18 [Anti-social behaviour orders]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 34:
Page 14, line 40, leave out from beginning to ("pursued") in line 42.
The noble Earl said: My Lords, this fairly large group of amendments, starting with Amendment No. 34, is aimed at ensuring that antisocial behaviour orders are sought by a local authority only in circumstances of persistent reported nuisance. I do not believe that there are circumstances where a single event would occur which was serious enough for an antisocial behaviour order without it also being an offence.
I acknowledge that there are people who behave in a consistently antisocial manner towards their neighbours. The key to this amendment is that they are building up a dossier of evidence against themselves. I am sure that it would be a mistake to allow a local authority to believe that it could proceed with an antisocial behaviour order on evidence of a single noisy late-night party. It is important that these new orders are not brought into disrepute. The adoption of these amendments would ensure that ending continuously unacceptable and positively interfering behaviour was the target of the Bill. I beg to move.
Lord Mackay of Drumadoon: My Lords, I rise to offer support to the noble Earl for the amendment and also for the other amendments which are grouped with it. As I believe the Minister who is to reply will be well aware, these amendments have been suggested by the Law Society of Scotland, which is concerned to guard against any possibility that an antisocial behaviour order could be granted on the basis that the person who is to be made the subject of the order has committed a single act which could be described as being an antisocial act. What this group of amendments seeks to suggest is that a similar approach should be adopted in this clause as has been adopted in the Protection from Harassment Act 1997; namely, proceeding on a course of conduct.
Arguably, the need for this amendment may be fortified by the next couple of amendments, to which we shall turn in a moment, whereby the conduct that could justify an antisocial behaviour order can be directed at one person alone. Therefore, there must be a possibility that, unless this clause remains unamended, one act against one person could justify a sheriff pronouncing an order sought by a local authority.
It is my suggestion that this amendment and the other amendments fit in with the whole philosophy of antisocial behaviour orders as has been explained by government Ministers when dealing not only with the Scottish provisions but also with the English provisions which have detained us for a few hours again today. The whole philosophy is that this order is to be sought as a last resort after the neighbours themselves have failed to sort out their differences, after any police involvement has achieved nothing, after any warnings from the local authority, whether by visit or warning letter, have failed to bring about a change, and after mediation has failed. The suggestion is that it is then and only then that the Government would consider it appropriate that a local authority should act by raising the appropriate proceedings in the sheriff court and seeking an antisocial behaviour order.
In those circumstances, it is very difficult to imagine how one act by one individual directed against another individual could justify such action being taken. It is against that background that I hope that this series of amendments will receive sympathetic consideration by the Government.
The Lord Advocate (Lord Hardie): My Lords, this group of amendments, as any amendment, receives sympathetic consideration by the Government. However, it is our position that these amendments are fundamentally mistaken. They are designed to ensure that an application can be made and an order can be granted only if there has been persistent antisocial conduct and that further persistent conduct is feared. I have no difficulty whatever with the point made by the noble Earl and repeated by the noble and learned Lord, Lord Mackay of Drumadoon, that applications should not be a response to one-off acts. They should be a last and not a first resort, as the noble and learned Lord has observed. As the consultation paper issued at the end of last year said, they should be a response to repeated unreasonable behaviour. I would hope to allay the fears of the noble Earl and the noble and learned Lord by referring to Clause 18(6) where "conduct" is defined as including speech and a course of conduct which involves conduct on at least two occasions. So the single act theory cannot apply in terms of the Bill as framed.
Having said that, we would not wish to remove the possibility of the sheriff making an order after one antisocial act if it was sufficiently serious and if there was obvious evidence that there was a likelihood of repetition. There is also a difference between the behaviour that prompts an application and what has to be proved in court.

661
If the amendments were accepted, the benefits of these provisions for vulnerable and intimidated witnesses would be substantially reduced. I deal with a point raised by the noble and learned Lord, Lord Mackay of Drumadoon. Of course, neighbours may seek to sort out differences and the police may be involved. But the whole point of these orders is to provide a remedy where neighbours are frightened to involve the police and they go through the anonymity of the local authority.
I postulate a situation of a group of elderly residents of a street whose lives are made miserable by the behaviour of a gang of youths. It is likely that there will be several occasions when they suffer alarm and distress before they even contact the local authority. But they may be too frightened to speak to any of these incidents in court. In that situation the local authority would arrange for the behaviour to be witnessed by one of their officers so that the witness can give evidence of behaviour likely to cause alarm or distress.
However, if these amendments were made, the witness would have to witness at least two incidents. He would have to wait and see a second occurrence and we believe that that would be unreasonable. Furthermore, the addition of the word "persistent" to the provisions which are sought to be amended would be likely to mean that even more incidents would require to be proved. That would clearly prolong the evidence-gathering period and therefore the period before the local authority could act on behalf of the residents.
There is a further difficulty that the sheriff could only make an order if he were satisfied that one was necessary to protect the public from further persistent conduct rather than from further conduct. So even if he were satisfied that the behaviour was likely to take place again, that would not be sufficient if these amendments were given effect. I do not know how the courts would interpret "persistent" in the context of future events. One can easily envisage a defence solicitor arguing that the applicant had not proved that further persistent conduct was likely although there was a likelihood of further conduct. In that situation I invite the noble Earl to withdraw the amendment.
9 p.m.
The Earl of Mar and Kellie: My Lords, I am most grateful to the noble and learned Lord the Lord Advocate for so patiently explaining the position. I had anticipated a great deal of what he said. I can see that as regards the word "persistent" one needs to look for a word that implies two, three or four, rather than a never-ending stream, of events, which is what I believe "persistent" means.
I take the point about the single incident which has been reported to the sheriff and that that will in fact be the result of some fairly persistent misbehaviour. If I were initially worried that it was going to be a genuine one-off incident leading to an antisocial behaviour order, I believe that it has been quite clearly established that such an incident cannot exist and not just because of the
662
reference to two or more occasions. In order to build up the dossier to which I referred to earlier, a frequent course of unsatisfactory behaviour will have to be displayed in order to gain the interest of the local authority in the situation. Having said that, I am happy with the answer that I have received. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
The Deputy Speaker (Lord Dean of Harptree): My Lords, if Amendment No. 36 is agreed to, I cannot call Amendment No. 37.
Lord Hardie Lord Hardie moved Amendment No. 36:
Page 14, line 45, leave out ("two or more persons who are not members") and insert ("one or more persons not").
The noble and learned Lord said: My Lords, we have already discussed Amendment No. 2 to the English provisions which reduced from two to one the number of people who have to be affected by antisocial behaviour before an application for an order can be made. This amendment does the same for Scotland.
In Committee I agreed—like my noble friend Lord Williams of Mostyn—that I would reconsider the case in favour of such a change. I have now done so. I recognise the strength of the arguments put at that time by the noble Earl, Lord Mar and Kellie, and by the noble and learned Lord, Lord Mackay of Drumadoon, supported by the noble Lord, Lord Renton. I beg to move.
Lord Mackay of Drumadoon: My Lords, perhaps I may say at the outset how much I welcome the change of mind by the Government in bringing forward Amendment No. 36. The noble and learned Lord the Lord Advocate had a slight dilemma as to the choice of the way forward—either Amendment No. 36 or Amendment No. 37. The latter amendment is in identical terms to one which commended itself to the noble Lord, Lord Williams of Mostyn, earlier. Amendment No. 36 is a different way of achieving the same result.
I am anxious to discover whether the noble and learned Lord the Lord Advocate intends to insist on his amendment or perhaps prefers Amendment No. 37, which obviously had certain attractions for the noble Lord, Lord Williams. I was interested in what the noble Baroness, Lady Kennedy of The Shaws, said earlier about "reflective listening" which, I venture to suggest, is not only of benefit to parents, but also of benefit to those who sit on the Government Front Bench. Therefore, while I fully support what lies behind Amendment No. 36, I would prefer Amendment No. 37, if for no other reason than to have one opportunity to agree with the noble Lord, Lord Williams.
On Question, amendment agreed to.
[Amendment No. 37 not moved.]
[Amendment No. 38 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 39:
Page 15, line 3, after ("accordingly);") insert—
("() that, whenever possible, an attempt to resolve the situation by mediation has been tried and has failed or that the persons involved are not willing to seek resolution through mediation or other voluntary means;").
The noble Earl said: My Lords, I believe that this amendment is an improvement on the amendment which I withdrew at Committee stage. Its purpose is to establish on the face of the Bill the steps which a local authority shall take in its approach to seeking an antisocial behaviour order. The amendment includes the ideas of the noble and learned Lord the Lord Advocate from our discussion in Committee.
I acknowledge that it was promised that the issue of mediation would be included in guidance. However, I do not think that it is reasonable to leave that important stage in the process of building a case for an antisocial behaviour order to administrative guidance notes, particularly when the requirement to consult the chief constable is on the face of the Bill in Clause 20. Furthermore, there is a government amendment, Amendment No. 47, to which we have yet to come, which confirms that a local authority may proceed with other measures simultaneously while seeking an antisocial behaviour order.
Consistency demands that the main elements of the process should be given equal weight. I believe that sheriffs will find it reassuring if they are able to read a report based on an assessment of a mediation intervention or a report on why mediation cannot be attempted. Ultimately, a sheriff should have the power to reject as incomplete an application for an antisocial behaviour order without evidence of a local authority's intervention considerations. The Bill is not distorted by the amendment: it is most definitely enhanced by the clarification which it brings. I beg to move.
Lord Hardie: My Lords, as I indicated at Committee stage, I entirely agree with the principle behind this amendment that antisocial behaviour orders should be a last rather than a first resort. I also indicated that I am a firm supporter of mediation projects, including those managed by SACRO.
I remain of the view, however, that such matters as the need to consider mediation before making an application for such an order are administrative and should properly be dealt with in the guidance rather than the primary legislation itself. As I said earlier, this will be issued in draft to a wide range of bodies, including the local authorities, for full consultation. I am sure that SACRO and other similar bodies will have meaningful input into that guidance, but I do not think that it would be appropriate to impose a requirement for mediation on the face of the Bill in every case. Obviously, there will be some cases in which it will not be appropriate. On the understanding that the importance of mediation will be fully dealt with in the guidance, I ask the noble Earl to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I take the noble and learned Lord's point that this can be dealt
664
with in guidance. However, I am interested in knowing the minimum amount of effort to which a local authority must go before approaching the sheriff clerk to set a date to apply for the order. Irrespective of the amendment having come from SACRO, it is important that a local authority must have tried to do something to engage with the people who are causing the nuisance rather than simply receiving evidence from neighbours who are being driven to distraction. I wonder whether the guidance will insist on a report of the intervention which the local authority has made or whether it will be sufficient for a local authority simply to report that it has had such evidence laid before it and that on one occasion one of its officers has witnessed the nuisance. Can the noble and learned Lord say something about that?
Lord Hardie: My Lords, I hope that in any complaint the local authority will first approach the offending neighbour, individual or individuals and seek to persuade them of the error of their ways and to dissuade them from the activities in which they have been indulging. One would expect that to be the first stage.
I should have thought that the guidance would lay down the principles which the local authorities should follow. As I have said, interested bodies and individuals can have an input into that. However, guidance is precisely that: it is there to guide the local authorities. It does not impose a requirement to do anything. So, I do not think that the guidance could possibly require local authorities in every case to prepare a report of what they have done. Indeed, mediation would be neither possible nor appropriate in every case. For example, if the antisocial behaviour affected an entire community and it was apparent from the history that the individuals were unlikely to be dissuaded from pursuing those activities, it would be appropriate for the local authority in an extreme case to go straight to the court rather than enter into mediation. I hope that what I have said assists the noble Earl in seeking to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I am assisted by the response of the noble and learned Lord. I remain a little frightened by the idea that a local authority may make virtually no effort to become involved. I had come here intending to test the opinion of the House. I have decided not to do so because I may wish to return to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
[Amendments Nos. 40 and 41 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 42:
Page 15, line 10, leave out ("fulfilled,") and insert ("proved beyond a reasonable doubt,").
The noble Earl said: My Lords, I beg to move Amendment No. 42. The purpose of this amendment and Amendment No. 51, which is grouped with it, is to define the standard of proof required when an antisocial

665
behaviour order or sex offender order is to be made by the sheriff. I fully understand the desirability of both orders being made under the civil law. However, in view of the criminal prosecution which follows a proven breach of an order I believe that it is sensible to maintain one standard of proof rather than switch between two standards. Even so, an unbreached order will remain within the civil law. As the previous amendments stressed the need to avoid one-off incidents being the sole evidence, particularly for the making of antisocial behaviour orders, and stressed the need to concentrate on persistent misbehaviour, I do not see why the standard of proof cannot be beyond reasonable doubt. A series of reports to establish persistence (for want of a better word) should be quite sufficient to meet that standard of proof. It is a pity that no opportunity is given to cross-examine the evidence and adduce counter-evidence. I believe that that denies the citizen of an automatic opportunity to explain why his behaviour may have been reasonable. I beg to move.
Lord Hardie: My Lords, these amendments would increase the standard of proof for antisocial behaviour and sex offender orders from the civil standard to the criminal standard. As discussed in detail at Committee stage, however, these orders are prohibitory and are neither convictions nor punishments. In these circumstances, it is right that the laws of civil evidence should apply and that an order should be granted if the need for it is proved on the balance of probabilities. This is no different from the situation in interdict cases where often one is dealing with similar types of behaviour or with applications to the civil courts for non-harassment orders. As to the ability to adduce counter evidence, the Bill does not preclude anyone from doing so in an application before the sheriff. I invite the noble Earl to seek leave to withdraw the amendment.
The Earl of Mar and Kellie: My Lords, I am interested to learn that the opportunity to cross-examine the evidence and adduce counter-evidence is available if the person concerned wishes to avail himself of it. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 45:
Page 15, line 14, leave out ("doing anything described in the order") and insert ("continuing the course of conduct which gave rise to the summary application").
The noble Earl said: My Lords, I beg to move Amendment No. 45 whose purpose is to narrow the possible scope of the order. It also places limits on what the order should proscribe. I believe that it should be restricted to the behaviour that is reported to the court. At present the scope of the order appears to be too wide. A citizen who is subject to an antisocial behaviour order must know what he is forbidden to do. In the civil court an interdict prohibits the continuation of the conduct that gave rise to the application for the interdict. As an
666
antisocial behaviour order and a sex offender order are both civil law measures the same approach should be adopted. Without such an approach, there is a danger that behaviour which has not yet been complained about may be banned in anticipation. I have always praised these orders for being forward-looking, but I do not believe that the order should second guess the citizen's future misbehaviour. I beg to move.
Lord Hardie: My Lords, the amendment would restrict the sheriff to making an order prohibiting the person from doing the same act that it had been established he had done before. That does not necessarily mirror the situation in interdict proceedings. Although interdict frequently stops someone from doing the same act that he or she has been doing before, it can also be used to preserve rights. If there is an apprehension that someone is going to dispose of an asset, the ownership of which might be in dispute, the interdict might be used to preserve it. It might also be used to protect an individual from harm if he or she thought that he or she was going to be assaulted. It would need to specify that the assault had to be in the same manner as any previous assault.
So if, for example, the amendment were agreed to, and if an application for an order related to youths who had been knocking or banging on the doors of three houses in a particular street between midnight and 2 a.m., the order would prohibit them from doing only that. It would not prohibit them from banging on the door of another house in the same street, or perhaps from banging on the same doors at different times, although that may be more doubtful.
The effect of the amendment would be to limit the order too much. In the circumstances it would be too easy for individuals to continue their antisocial careers while avoiding breaching the order. It is clear that the provisions as drafted enable the sheriff to impose any prohibitions that he considers necessary to protect the community from any antisocial acts or conduct. It is not limitless. It is limited to what measures he considers necessary to protect the community from antisocial acts or conduct.
The person against whom an order is made will have a clear indication of what he or she is prohibited from doing, because he or she will be served with an order which will spell out the behaviour which is prohibited. So the interests of those against whom orders are made are protected. It is our view that the sheriff must have discretion to impose whatever prohibitions he considers necessary to protect the public. In those circumstances, I ask the noble Earl to withdraw the amendment.
The Earl of Mar and Kellie: My Lords, the amendment was suggested by the Law Society of Scotland. It was inspired by the thought that the sheriff could produce an order which said something to the tune of, "not to indulge in antisocial behaviour". The noble and learned Lord has made it clear that it will be a much tighter range of behaviour, but at the same time it will not be a fishing trip or catch-all which would surprise the offender who did not know that he was thinking of doing certain things in the future. Understandably, a

667
limited and realistic range of activities will be banned; those which the person might be about to undertake. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 46:
Page 15, line 14, at end insert—
("() On an application under subsection (1) above, the sheriff may make such interim order in terms set out in subsection (3) above as he considers appropriate.").
The noble and learned Lord said: My Lords, this is an important amendment which seeks to introduce into Clause 18 a power to allow the sheriff to make an interim antisocial behaviour order in the same way that Clause 19(4) allows him to make an interim sex offender order.
Your Lordships will recall that the matter was discussed at Committee stage following which I was pleased to receive from the noble and learned Lord the Lord Advocate one of a number of letters dealing with the issues discussed. He stated that while agreeing with certain of our suggestions he did not propose to introduce provisions for interim antisocial behaviour orders because, among other reasons, he did not wish to skew civil business unnecessarily in that way. He added:
"Cases where there is a need for urgency should be rare, given that conduct which is clearly criminal will be addressed by other means. If exceptionally there is a need for particular speed the local authority applicant can ask the sheriff to hear the application quickly".
With the greatest respect to the noble and learned Lord, I am not clear what he means by the expression "skew civil business unnecessarily". Daily, sheriffs throughout Scotland have to deal with a variety of applications for interim orders, including interim interdicts. I do not understand how that skews civil business unnecessarily. Sheriffs are well accustomed to dealing with them on the basis of ex parte submissions by solicitors or counsel. Therefore, I do not feel persuaded by that argument.
Undoubtedly, the noble and learned Lord the Lord Advocate accepts that there will be cases of urgency, albeit rare, and the amendment is designed to take account of them. As regards his statement that:
"If there is a need for particular speed the local authority can ask the sheriff to hear the application quickly",
as I suggested on the last occasion, that may be easier said than done. If the person against whom the application for an order is directed seeks to apply for legal aid, even standing the availability of emergency legal aid certificates, that may take some time. If he then lodges answers or defences disputing the factual allegations and averments made against him the case will require to be set down for the hearing of evidence of proof. It may take some time to fix a suitable date and the hearing may last one day or two or, in a complicated case, several days. The sheriff will then have to consider his decision and in some instances that may involve a delay in issuing the judgment.
Therefore, there is a distinct possibility that, in a case of urgency where there is a stateable and colourable argument that an interim order is appropriate, in the
668
absence of a power making it competent for the sheriff to grant such an order it may he weeks if not longer before it would be possible for him to do so. That is a sound reason why the sheriff should he given such a power.
However, there is a further reason which I mentioned in Committee. I am concerned that if a defender hears that the local authority is to seek such an order against him, that may seek to inflame the situation and provoke him into further antisocial behaviour in which he might otherwise not have engaged. No doubt from time to time when someone who has misbehaved as a bad neighbour is warned, whether by the police or by a friendly representative of the local authority, that he ought to mend his ways, he will do so.
However, my experience as a solicitor and counsel suggests that there will be others who will be aggravated by such a threat and, far from improving their behaviour, they will go from bad to worse. If they offend against the criminal law and there is sufficient evidence to justify a prosecution, no doubt the police and the procurator fiscal will deal with them. But if they are sly and cunning individuals, they may act when there are no witnesses available, apart from the particular individual against whom their behaviour is directed. In such circumstances, the police may be powerless to act.
One of the benefits of this provision, if it is to be enacted, is that there will be no requirement for corroboration and no requirement to meet the criminal standard of proof. And yet, if there is no power to grant an interim order, it may be some weeks before the victim of the bad neighbour can be protected.
I have considered carefully what was said by the noble and learned Lord the Lord Advocate on the last occasion. I have thought about the matter and discussed it with the Law Society, which has an interest in this matter. I remain to be persuaded by the argument against including such a power which it is acknowledged will be of value in Clause 19 but which it is disputed will be of value in Clause 18. This does not require the sheriff to grant such an order. It merely affords him the power to do so. On that basis, I beg to move the amendment.
9.30 p.m.
Lord Hardie: My Lords, as I indicated in Committee, I have considered carefully whether we should make provision for interim antisocial behaviour orders. As the noble and learned Lord remarked, I wrote to him on 10th March indicating that I had considered the matter and I remain of the view that I do not support the amendment.
As I indicated in my letter, I should not wish to skew civil business in that way. Perhaps I may explain what I had in mind. As the noble and learned Lord will be aware, this will be a summary application. In such applications, the sheriff determines the procedures so that he can make the procedure as quick or as lengthy as he wishes.
My concern is that if interim orders were permitted in summary applications in the context of antisocial behaviour orders, it would place an undue burden on the court. The noble and learned Lord will know that,

669
although only those which were truly urgent and true emergencies would justify interim orders, if there were provision for interim orders, the availability of that remedy would result in people making applications for them as a matter of course.
Equally, the noble and learned Lord will be aware that many interim orders are sought, whether it is interim interdict or any other interim order, which are not granted. The burden on the courts would be unreasonable.
In my respectful submission, it would not be appropriate to have interim orders. If the complainant or the people who were suffering as a result of the behaviour wished, they could apply for interdict and obtain an interim interdict. But the whole point about the orders is that they seek to take the neighbours or victims out of the situation and to enable the local authority to take the initiative.
I take the noble and learned Lord's example of the sly person who was victimising neighbours and so on and was committing acts which were not witnessed by anyone other than the victims themselves. In the context of this legislation, it is unlikely that the local authority would be able to come forward with an order unless the neighbours or victims came forward as witnesses. That is one thing that we are trying to avoid.
However, having said that, truly urgent cases—that is to say, urgent compared with the rest of civil business—should indeed be rare. Given the fact that this is a summary form of application, the sheriff could be encouraged by a local authority to hear the application quickly. The local authority would make an application to the sheriff to have an early diet. Further, in those urgent cases, the probability is that the conduct complained of would almost certainly be criminal and, as the noble and learned Lord observed, there are other remedies in that respect. The police would be involved and could take swift action.
During our earlier discussions, the noble and learned Lord drew. a comparison with interim interdict in Scotland. It may be necessary to obtain an interim interdict in a very short space of time because of the urgency or imminence of the threat, whether it be of violence or of removal of property. However, that is not the situation where antisocial behaviour orders are concerned; indeed, they are not intended to address such immediacy and immediacy will not normally apply. There is also the question of title interest of local authorities to raise interdict proceedings in respect of someone who is not their tenant. The noble and learned Lord will be aware of the case of Dundee City Council against Cook in 1995.
The noble and learned Lord also suggested that the application for an antisocial behaviour order might inflame the situation and exacerbate the antisocial behaviour. In our view, the reverse is more likely. The local authority will inform those responsible for the behaviour that an order is contemplated. That, in itself, might, as the noble and learned Lord accepted, induce some of the recalcitrants to mend their ways so that an order would no longer be necessary. However, if it does
670
not, and the behaviour is exacerbated or the complainants threatened, as the noble and learned Lord fears, then it is more than likely that a criminal offence, such as a breach of the peace, will have occurred. In that situation, the police—who will of course have been consulted on the case beforehand—could quickly intervene. In those circumstances, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, I am obviously not surprised at the burden of the noble and learned Lord's reply in the light of the letter which he helpfully sent to me. However, I regret to say that I remain unpersuaded by his argument. The noble and learned Lord said at one stage that, if interim orders were permitted, it might lead to an undue burden being placed on the courts. I have two observations to make in that respect.
First, as I have sat here for several hours listening to discussion about these orders, both in the English and the Scottish context, my clear understanding of the Government's policy is that such orders should only be resorted to by a local authority as a last resort. Indeed, they should only be resorted to after careful examination of the factual situation and after the efforts of police and local authority representatives to try to reach an accommodation between neighbours or individuals who are upsetting or offending each other have failed. It is only as a last resort, before criminal action is resorted to, that such an application should be brought.
If my assumption is correct, I would be most surprised if local authorities in Scotland were to bring a long succession of interim orders which had no prospect of success. On the contrary, one would expect—if the procedure is followed in the way the Government wish—that they would do so only if there was a strong argument for an interim order to be pronounced.
My second observation is that if the Government bring legislation onto the statute book, it is incumbent upon them to provide the courts with the resources to deal with the extra litigation to which such legislation may give rise. I feel strongly about this matter. I do not wish to allow this measure to pass without testing the opinion of the House on my amendment.
9.40 p.m.
On Question, Whether the said amendment (No. 46) shall be agreed to?
Their Lordships divided: Contents, 20; Not-Contents, 76.

Division No. 4

CONTENTS

Anelay of St. Johns, B. [Teller.]

Henley, L.

Blatch, B.

HolmPatrick, L.

Brougham and Vaux, L.

Lucas of Chilworth, L.

Byford, B. [Teller.]

Mackay of Ardbrecknish, L

Cochrane of Cults, L.

Mackay of Drumadoon, L.

Crathome, L.

Mountevans, L.

Dean of Harptree, L.

Northesk, E.

Elliott of Morpeth, L.

Perry of Southwark, B.

Harmar-Nicholls, L.

Renton of Mount Harry, L.

671

Soulsby of Swaffham Prior, L.

Stodart of Leaston, L.

NOT-CONTENTS

Acton, L.

Hughes of Woodside, L.

Amos, B.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Islwyn, L.

Blackstone, B.

Janner of Braunstone, L.

Blease, L.

Jay of Paddington, B.

Borre, L.

Judd, L.

Brooke of Alverthorpe, L.

Kennedy of The Shaws, B.

Brooks of Tremorfa, L.

Kilbracken, L.

Burlison, L.

Lofthouse of Pontefract, L.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L. [Teller.]

Carter, L. [Teller.]

Clinton-Davis, L.

Merlyn-Rees, L.

Cocks of Hartcliffe, L.

Molloy, L.

David, B.

Monkswell, L.

Davies of Coity, L.

Montague of Oxford, L.

Davies of Oldham, L.

Murray of Epping Forest, L.

Desai, L.

Nicol, B.

Dixon, L.

Pitkeathley, B.

Dormand of Easington, L.

Prys-Davies, L.

Dubs, L.

Ramsay of Cartvale, B.

Evans of Parkside, L

Randall of St. Budeaux, L

Falconer of Thoroton, L.

Rea, L.

Farrington of Ribbleton, B.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Renwick of Clifton, L.

Gallacher, L.

Richard, L. [Lord Privy Seal.]

Gilbert, L.

Sewel, L

Gordon of Strathblane, L.

Simon, V.

Gould of Potternewton, B.

Simon of Highbury, L.

Graham of Edmonton, L.

Smith of Gilmorehill, B.

Grenfell, L.

Stone of Blackheath, L.

Hardie, L.

Symons of Vemham Dean, B

Hardy of Wath, L.

Taylor of Blackburn, L.

Haskel, L.

Thomas of Macclesfield, L.

Hayman, B.

Varley, L.

Hilton of Eggardon, B.

Watson of Invergowrie, L.

Hogg of Cumbemauld, L

Whitty, L.

Hollis of Heigham, B.

Williams of Mostyn, L.

Howie of Troon, L.

Winston, L.

Hoyle, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
9.47 p.m.
Lord Hardie Lord Hardie moved Amendment No. 47:
Page 15, line 20, at end insert—
("() Nothing in this section shall prevent a local authority from instituting any legal proceedings otherwise than under this section against any person in relation to any anti-social act or conduct.").
The noble and learned Lord said: My Lords, this amendment makes it clear that the existence of the antisocial behaviour order mechanism does not affect the power of local authorities to make use of other remedies available to them to tackle antisocial behaviour.
I understand, for example, that Dundee City Council has successfully used interdict against some of its own tenants. The council will no doubt find the antisocial behaviour order mechanism useful where the behaviour of owner occupiers or of tenants of other landlords is in question. It may also find it helpful in circumstances where the court may not accept that the authority has the necessary right and interest to seek interdict.
But we do not intend that the existence of such orders should prevent or cast any doubt on a council's power to use existing common law remedies in cases where these are appropriate.
This amendment puts the matter beyond any doubt. I beg to move.
Lord Mackay of Drumadoon: My Lords, I am happy to indicate from these Benches that we support the amendment. The last thing anyone would wish is that the provisions relating to antisocial behaviour orders should in any way inhibit local authorities or anyone else from prosecuting legal remedies that are available to them. I therefore support Amendment No. 47.
On Question, amendment agreed to.
[Amendment No. 48 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved manuscript Amendment No. 48A:
Page 15, line 27, at end insert—
("() A constable may arrest without warrant a person whom he reasonably suspects of doing, or having done, anything prohibited by an anti-social behaviour order.").
The noble and learned Lord said: My Lords, perhaps I should explain how this manuscript amendment comes to exist. It is a replacement for Amendment No. 53, which, as the result of an error that I made in intimating the amendment to the Public Bill Office, was tabled against Clause 19 as opposed to Clause 18.
The purpose of the amendment is to give to police officers (to "a constable") power to arrest without warrant a person whom he reasonably suspects of doing or having done anything prohibited by an antisocial behaviour order. This issue was discussed in Committee. On further consideration, I have again brought forward an amendment.
My concern is along these lines. If a person who is the subject of an antisocial behaviour order commits a criminal offence, and there is corroborative evidence of such an offence, he can be arrested, reported to the procurator fiscal and placed before the court for prosecution. However, there may be other situations where that course of action is not possible. On the one hand, the act that he may do may not constitute a criminal offence on its own, whether at common law or under any statute. In such circumstances there is obviously no possibility of a police officer being able to arrest or detain the offender against whom the antisocial behaviour order has been pronounced. Another alternative is where it is obvious to the police officer when he arrives on the scene that there is no possible source of corroboration for the complaint from the person who has been the victim of antisocial behaviour by the defender who is the subject of the antisocial behaviour order.
It is in the public interest that in either of those situations a power of arrest should exist and be available to a police officer to use if he deems it appropriate, confronted as he may be in the middle of the night or early in the morning by a very tense, unpleasant and difficult situation.
In Clause 19 the Government acknowledge that there may be scope for arresting someone who has apparently acted in breach of a sex offender order in such circumstances. In the Matrimonial Homes (Family

673
Protection) (Scotland) Act 1981 Parliament recognised that it was appropriate to give such powers of arrest to police officers to deal with those subject to matrimonial interdicts, as they are sometimes referred to. When the Scottish Affairs Committee of another place reported in July last year on an investigation which it carried out into housing and antisocial behaviour, it made a number of recommendations, including one that powers of arrest should be available in interdict cases where there was violence, or a threat of violence, or a significant risk of harm, to persons who had sought or were protected by an interdict.
The previous government accepted the recommendations of that all-party committee which, by the very nature of the political composition of the other place as regards Scotland, even in the previous parliament had more Labour members than members of any other party. The government response stated:
"The Government note the Committee's recommendation that legislation should be introduced to empower the courts to attach a power of arrest to interdicts directed against persons who use or threaten violence against their neighbours. The Government accept the case for attaching a power of arrest to interdicts in the circumstances outlined and will consult interested parties on how this should be done".
Therefore the principle of having such power of arrest was acknowledged. I suggest that the principle applies to the subject matter of Clause 18. It is for that reason that I beg to move manuscript Amendment No. 48A.
Lord Hardie: My Lords, as I indicated when we discussed this matter in Committee, there is no need for a power of arrest without warrant for breach of such an order. Where the behaviour is serious enough to justify arrest, it will almost certainly constitute a criminal offence in its own right and the powers of arrest relevant to that offence would apply, although any arrest for such an offence without warrant would require to be justified in the particular circumstances.
In Committee, the noble and learned Lord, Lord Mackay of Drumadoon, referred, as he did this evening, to the recommendation of the Scottish Affairs Committee of another place that interdicts involving violence should have powers of arrest attached to them and suggested that a similar argument could be made for antisocial behaviour orders. But breach of an interdict is a form of contempt of court which would result in separate proceedings for the breach. The police are not involved until the breach has been established. Breach of an antisocial behaviour order, on the other hand, is in itself a criminal offence and the normal powers of the police apply. The interests of justice might well justify the police arresting without warrant an individual for breach of an antisocial behaviour order where the breach involved violence or another criminal offence, just as the police would be justified in arresting an individual for breach of the peace or assault.
The noble and learned Lord gave two examples this evening of when the police might not be able, without such a power, to arrest an individual. As I understood it, the first was that the act itself may not constitute a criminal offence. In that situation, I would be reluctant to confer on the police a power of arrest for acts which
674
do not in themselves constitute a criminal offence. The other situation was where it may be obvious to the police officers that there is no corroboration of the breach. As the breach of an order is a criminal offence, it would require to be proved to the criminal standard and would require corroboration. If there were no corroboration, I would be concerned that the police had powers of arrest in respect of a charge that they could not prove. Accordingly, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, again I regret to say that I am not entirely persuaded by the noble and learned Lord's reply. As regards my first example of where the activity is not a criminal offence, the noble and learned Lord said that he would be reluctant for a power of arrest to exist in that situation. That may well be the position under Clause 19. As I understand it, it is acknowledged in relation to that clause that, while going to a particular place may not be evidence of a criminal offence, it is a clear breach of the order, for which the public interest warrants having a power of arrest.
My second point in relation to the lack of corrobation was a matter which was considered by the Committee of another place and clearly must have been before Parliament when the provisions for the Matrimonial Homes (Family Protection) (Scotland) Act was passed. Again, therefore, I feel it appropriate to test the opinion of the House.
10 p.m.
On Question, Whether the said manuscript amendment (No. 48A) shall be agreed to?
Their Lordships divided: Contents, 18: Not-Contents, 70.

Division No. 5

CONTENTS

Anelay of St. Johns, B. [Teller.]

HolmPatrick, L.

Blatch, B.

Kimball, L.

Brougham and Vaux, L.

Lucas of Chilworth, L.

Byford, B. [Teller.]

Mackay of Ardbrecknish, L.

Cochrane of Cults, L.

Mackay of Drumadoon, L.

Dean of Harptree, L.

Mountevans, L.

Elliott of Morpeth, L.

Renton of Mount Harry, L.

Harmar-Nicholls, L.

Soulsby of Swaffham Prior, L.

Henley, L.

Wise, L.

NOT-CONTENTS

Acton, L.

Dholakia, L.

Amos, B.

Dixon, L.

Blackstone, B.

Dormand of Easington, L.

Blease, L.

Evans of Parkside, L.

Brooke of Alverthorpe, L.

Falconer of Thoroton, L.

Brooks of Tremorfa, L.

Farrington of Ribbleton, B.

Burlison, L.

Gallacher, L.

Carlisle, E.

Gilbert, L.

Carmichael of Kelvingrove, L.

Goodhart, L.

Carter, L. [Teller.]

Gordon of Strathblane, L.

Clinton-Davis, L.

Graham of Edmonton, L.

Cocks of Hartcliffe, L.

Grenfell, L.

David, B.

Hardie, L.

Davies of Oldham, L.

Hardy of Wath, L.

Dean of Beswick, L.

Haskel, L.

675

Hilton of Eggardon, B.

Pitkeathley, B.

Hogg of Cumbernauld, L.

Prys-Davies, L.

Hollis of Heigham, B.

Ramsay of Cartvale, B.

Howie of Troon, L.

Randall of St. Budeaux, L.

Hughes of Woodside, L.

Rea, L.

Hunt of Kings Heath, L.

Rendell of Babergh, B.

Islwyn, L.

Renwick of Clifton, L.

Kennedy of The Shaws, B.

Richard, L. [Lord Privy Seal.]

Kilbracken, L.

Sewel, L.

Linklater of Butterstone, B.

Simon of Highbury, L.

Lockwood, B.

Smith of Gilmorehill, B.

Lofthouse of Pontefract, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

McIntosh of Haringey, L. [Teller.]

Taylor of Blackburn, L.

Thomas of Gresford, L.

Mar and Kellie, E.

Thomas of Macclesfield, L.

Merlyn-Rees, L.

Varley, L.

Monkswell, L.

Watson of Invergowrie, L.

Montague of Oxford, L.

Whitty, L.

Nicholson of Winterbourne, B.

Williams of Mostyn, L.

Nicol, B.

Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.7 p.m.
Clause 19 [Sex offender orders]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 49:
Page 15, line 45, leave out ("appropriate") and insert ("necessary for public safety").
The noble Earl said: My Lords, this amendment spells out what is probably implicit in the Bill and sets slightly higher standards for the making of sex offender orders. The inclusion of the words "necessary for public safety" is much clearer than the word "appropriate" when it comes to describing why a sex offender order should be made. This will ensure that sex offender orders are used only for convicted sex offenders who are intending to reoffend or whose actions suggest that they are very likely to do so. That is typical of a paedophile who does not accept that what he wants to do is utterly wrong.
I do not believe that sex offender orders are intended for all convicted sex offenders. The use of "proved beyond reasonable doubt" clarifies that sex offender orders should be used only when the individual is continuing to behave in an offending manner. It would be wrong to place convicted sex offenders on sex offender orders on the basis that they might continue their offending behaviour. They are already subject to official monitoring in various ways—for example, by the need to register with the police, or by being subject to extended post-imprisonment supervision, or indeed by participation in treatment programmes within a probation order. This amendment makes all these points admirably clear and will establish what is really intended. I beg to move.
Lord Mackay of Drumadoon: My Lords, Amendment No. 49 is grouped with Amendment No. 50 in the names of myself and my noble friends. My amendment seeks to put in very similar, but not identical, terms the point made by the noble Earl in Amendment No. 49. We seek to provide that when the sheriff makes an interim sex offender order the same legal test should be applied as that which he is required
676
to apply when he makes a permanent order. The amendment seeks to ensure that at least part of subsection (2)(b) is satisfied; namely, that there has to be,
"reasonable cause to believe that an order … is necessary to protect the public from serious harm from him"
and that it is the same high test which is necessary before an interim order is pronounced.
When this matter was debated in Committee, as I recollect it the noble and learned Lord the Lord Advocate said that he would not wish to unnecessarily fetter the sheriff's discretion when dealing with interim orders. But the same legal test ought to apply because once the order is pronounced the same criminal sanctions will apply if the offender breaches it. I believe that it would be wrong to have a lesser or more discretionary test available at the interim stage than that which requires to be followed when a permanent order is pronounced. For that reason I support the amendment moved by the noble Earl.
Lord Hardie: My Lords, these amendments would reduce the sheriff's discretion over when he could make an interim order under Clause 19. Instead of being able to make such an order when he considered it appropriate, he would only be able to do so if he considered one necessary in the interests of public safety or to protect the public from serious harm.
As I indicated during our discussions of the identical or very similar amendments in Committee, I would not wish to restrict the sheriff's discretion over interim orders in this way. The noble and learned Lord, Lord Mackay of Drumadoon, has referred to that tonight. It is of course our intention that the sheriff would look to the purpose of the provisions of the clause, namely, public safety grounds, to enable him to reach a decision on whether an interim order was appropriate. It is important to remember the distinction between an interim order and a final order and what information is available to the sheriff at that stage.
We would be concerned that a requirement for the sheriff to be satisfied as to the "necessity" of the interim order would impose too high a burden on the applicant at the interim stage when it is not possible to have a full hearing of evidence. What information would the sheriff need to have before he could be satisfied as to the necessity of the order?
As the noble and learned Lord, Lord Mackay of Drumadoon, will be aware, interim orders such as interim interdicts and other interim orders are usually given on ex parte statements. Would the applicant have to lead evidence before the sheriff could be so satisfied? In view of the nature of the behaviour that the orders are intended to address, we consider that the test of appropriateness at the interim stage strikes the right balance between the applicant's position and the rights of the person who will be subject to the interim order. I do not accept the point made by the noble and learned Lord, Lord Mackay of Drumadoon, that the same requirements ought to be imposed on the sheriff at the interim stage as at the completed stage.

677
We have to bear in mind the protection of the public in the context of someone who has a conviction for a sex offence. Where a responsible authority has a reasonable apprehension that an order is required, it is appropriate that an interim order should be given on the standard indicated in the Bill. I ask the noble Earl to withdraw his amendment.
10.15 p.m.
The Earl of Mar and Kellie: My Lords, I think that I follow the noble and learned Lord's argument, but it is interesting that we have had two debates to try to define what "appropriate" means. I find it difficult to accept that the sheriff might make an interim order if he does not think it necessary for public safety. I should have thought that the point of the orders was that they were necessary. However, perhaps I am expecting the interim proceedings to have more information before them and to be less of an emergency measure. If they really are an emergency measure, I can probably accept what the noble and learned Lord has said about them. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 50 and 51 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 52:
Page 16, line 25, after ("by") insert ("an order under subsection (4)(a) above or").
The noble and learned Lord said: My Lords, in moving Amendment No. 52, I should like to speak also to Amendment No. 57. In Committee, the noble and learned Lord, Lord Mackay of Drumadoon, expressed concern that breach of an interim sex offender order had not been made a criminal offence. That would mean that a breach would have to be pursued as a civil contempt of court and that the police would not be able to make an arrest, no matter how serious the circumstances. I entirely agree that that would be anomalous and undesirable. Our overriding concern is to take public safety into account in framing the provisions. There would also be merit in having an internally coherent system to deal with breaches.
The amendments therefore provide that breaching an interim order is a criminal offence, that the provisions relating to breach in Clause 21 will apply to interim orders as to sex offender orders, and that the power of the police to arrest those who breach orders, which the Committee supported, should extend to breach of interim orders. These amendments will ensure that breach of interim orders (which will, after all, be made only in the most serious and pressing cases) can be treated appropriately by the police. I beg to move.
Lord Mackay of Drumadoon: My Lords, I welcome the fact that these amendments have been tabled, because they fully address one of the issues that I raised in Committee. Unfortunately, I no longer have before me the letter which the noble and learned Lord wrote. I wonder whether it dealt also with another issue on which I believe that I touched in Committee, which was whether the power of arrest, referred to in Clause 19(8)
678
should also apply to interim sex offender orders. Perhaps I may invite the noble and learned Lord to consider that matter further before the Bill returns to the House on Third Reading. In the mean time, I fully support Amendments Nos. 52 and 57 and am grateful to the noble and learned Lord for tabling them.
On Question, amendment agreed to.
[Amendment No. 53 not moved.]
Clause 20 [Procedural provisions with respect to orders]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 54:
Page 17, line 2, leave out ("or indefinitely").
The noble Earl said: My Lords, this amendment seeks to remove the possibility of an antisocial behaviour or sex offender order being indefinite. That is not to say that I believe that antisocial behaviour is antisocial only when it is proscribed by an order. Clearly, it is always unacceptable.
What I do not believe to be right is the idea that a citizen should have a punishable order hanging over him in perpetuity when he may not have committed any offence to warrant the imposition of such an order. It is the burden of punishment in perpetuity that concerns me. If a citizen on an order has not breached the terms of the order during a period of, say, five years, I believe that the pattern of behaviour with which the order aimed to deal has successfully changed. I beg to move.
Lord Hardie: My Lords, this amendment would mean that the sheriff would have to impose a specific duration for every order at the outset to prevent the orders being of indefinite length. As I indicated in Committee, it is not normal practice to restrict the judiciary's discretion over the terms of civil orders such as these, at least in Scotland. The sheriff should be able to determine in each case whether he wishes to specify a particular period of the order or leave it to run indefinitely. One of the factors that he will take into account is the nature of the conduct complained of and the duration of it. However, the person against whom the order is made is free to apply to the sheriff at any time to have it revoked. That is a system of review. He or she can bring the matter back before the sheriff at any time he or she thinks is appropriate.
In addition, the planned guidance will make clear that the applicant should periodically review the continuing need for all orders, particularly those of indefinite duration. Not only does the person who is subject to the order have the right to come back to the sheriff as and when he or she wishes but the guidance will recommend that the applicant should review such orders on a regular basis and seek to have them revoked when that becomes appropriate. I do not necessarily accept that the failure to breach an order over a period of time means that the order should not remain in place. It may be that the fact that the order is there has prevented conduct of that type. Obviously, that factor would have to be considered. I should like to deal with one point raised by the noble

679
and learned Lord, Lord Mackay of Drumadoon. Amendment No. 52 provides a power of arrest for interim orders.
The Earl of Mar and Kellie: My Lords, I liked this amendment because it provided an incentive for the individual. Normally only the most serious offences merited indeterminate sentences. Perhaps that analogy is not strictly true because this is a civil law order. I still believe that if someone has refrained from unacceptable behaviour for five years, the habit has been broken. However, I should like to consider what the noble and learned Lord has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 55:
Page 17, line 21, leave out ("shall continue to have effect") and insert ("may be suspended").
The noble Earl said: My Lords, I beg to move Amendment No. 55 whose purpose is to give the court the opportunity to suspend the order while an appeal is being considered. This will bring the orders into line with the criminal law. Often prisoners are released on the basis of interim liberation, or, as they call it, "interim lib". This amendment seeks to resolve that anomaly. It is unfair that a citizen should be charged with breaching an order when it is not certain that the order is valid. However, I concede that a further reported incident during an appeal would tend to confirm the need for such an order. I believe that the sheriff should have the opportunity to suspend the order during the appeal process.
Lord Mackay of Drumadoon: My Lords, I support Amendment No. 55, and am speaking to Amendment No. 56 which seeks to achieve the same objective. The purpose of the two amendments is to enable an appeal court, whether it be the Sheriff Principal or the Court of Session, to suspend an order pending the full hearing of the appeal. That was a matter that was debated on the second day of Committee (Official Report, 10/2/98; cols. 1050–51). On that occasion, the noble and learned Lord the Lord Advocate made a number of points in response to the arguments which were advanced.
As the noble and learned Lord said, an antisocial behaviour order should have effect immediately. I agree with that. Nothing in the amendments would automatically have a contrary effect. Secondly, he suggested that such orders should remain effective until revoked. I also agree with that, because there is nothing in either of the amendments which would bring about an automatic recall or revocation of an order pending the decision on appeal.
Thirdly, the noble and learned Lord stressed, as other Ministers have stressed, that the order is of a prohibitory nature only, and does not impose any requirements upon those against whom it is made. While, on one view that is strictly true, there can be no doubt that if an order prevents someone from going to his or her own house, that person will perceive that as being a requirement placed upon him, and, further than that, perceive it as a
680
punishment imposed upon him or her. Therefore that person will be anxious to have it recalled if there are grounds to do so.
Finally, the noble and learned Lord suggested that there was no need for such orders to be suspended. I do not argue that in every case which is appealed there is a need for such orders to be suspended, but there is a need for there to be a power for the appeal court, in its discretion, to grant an interim recall of the order, pending a full hearing of the appeal, which may, because of the need to apply for legal aid or the need to find court time, take a few weeks or months before it can be heard.
As the noble and learned Lord will be aware, when actions of interdict are appealed, whether to the Sheriff Principal or the Court of Session, similar issues arise. If the orders appealed against are interim orders, they remain effective unless they are recalled by the appeal court pending the full hearing of the appeal. If, on the other hand, they are permanent interdicts, they are not effective until the appeal court has adjudicated upon the issue.
It is accepted—it was mentioned earlier this evening by the noble and learned Lord—that there may be instances where, if the local authority is not minded or prepared to act in a particular case, an individual who has been upset, distressed or annoyed by antisocial behaviour can raise interdict proceedings in his own name. In that event, if the court finds in his favour, and the decree is appealed, the decree or the interdict, will be suspended pending the hearing of the appeal.
It seems equitable that the appeal court should have a similar discretion with these orders. If it does not, there is a risk, in some cases at least, of injustice which will not merely adversely affect the defenders who are the subject of such orders, but will bring this remedy into a measure of disrepute. I therefore hope that it will be possible for the Government to find a way to meet the argument which the noble Earl and I have advanced.
Lord Hardie: My Lords, as has been observed, the amendments are intended to allow orders to be suspended while appeals are considered. As the noble and learned Lord, Lord Mackay of Drumadoon, has said, the present position in relation to summary appeals is that there is automatic suspension of the order pending the appeal. That was the reason for inclusion in the Bill of Clause 20(10) which specifically keeps the order in effect pending disposal of the appeal. There is no need for any exceptions to Clause 20(10) because if the subject of the order wishes to complain about its effect he may at any time return to the sheriff on a summary application under Clause 20(7)(b), even when the case is subject to appeal. That would be quicker, if he were able to satisfy the sheriff that the order ought to be revoked or varied.
The other difficulty about permitting the Appeal Court to make an interim suspension of the order is that the sheriff will have heard the evidence relating to the granting of the order. As regards interim suspension of the order before the Appeal Court, I anticipate that one

681
will be dealing with an ex parte application, unless the court was to look at the evidence. In that case, one might as well have a full hearing.
Keeping the order in force is not a risk to the subject of the order. One must start with the premise that the order was made on the basis of justifiable evidence which persuaded the sheriff that it ought to be made. The sheriff will have made the order, which he considers will enable the subject to behave normally, in the context of an antisocial behaviour order, or, in the case of a sex offender order, will require the subject to do something or refrain from doing something in order to protect the public.
During the Committee discussions, the noble and learned Lord, Lord Mackay of Drumadoon, suggested that there might be an occasion when it became evident that an applicant had been hoodwinked by a group of alleged victims into seeking an order, but there was a delay in getting the matter to a final appeal hearing. In such cases, the applicant or the person against whom the order was made could apply to the original sheriff for the order to be revoked. In my submission, that would be the appropriate way to proceed. In those circumstances, I invite the noble Lords to withdraw the amendments.
10.30 p.m.
The Earl of Mar and Kellie: My Lords, despite the reassuring words of the noble and learned Lord, I still believe that there is a possible risk of injustice. That is difficult to quantify. However, I seek leave to withdraw my amendment, although I prefer the wording in Amendment No. 56.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 56:
Page 17, line 22, at end insert ("unless it is suspended by the Sheriff Principal or the Court of Session").
The noble and learned Lord said: My Lords, before I decide whether to follow the route taken by the noble Earl, I wish to ask the noble and learned Lord the Lord Advocate a question. Do I understand him to suggest that the provision of Clause 27(b) would allow the sheriff and/or the sheriff principal and/or the Court of Session to vary an order pending the disposal of an appeal which had been taken? If so, I respectfully suggest that it might be sensible to clarify that on the face of the Bill. If he were prepared to consider that, it would not be necessary for me to test the opinion of the House on my amendment. If one looks at paragraph (10), it states that,
"any order made in the application shall continue to have effect pending the disposal of the appeal".
As I understood what the noble and learned Lord was saying a few moments ago, notwithstanding those fairly peremptory words, under subsection (7)(b), they fall to be qualified to enable a new summary application to be lodged, which, on the noble and learned Lord's estimation, could be disposed of more quickly than an appeal might be. If that is correct, it seems to me that it
682
should be clarified. As I say, if there were an undertaking to do so, I should not seek to press the amendment.
Lord Hardie: My Lords, in the light of what has been said, I shall agree to consider this matter and either write to the noble and learned Lord or come back with something at a later stage. However, that must be taken in the light of the commitments given in Committee that there is no promise. However, I certainly promise to write to the noble Earl and the noble and learned Lord.
Lord Mackay of Drumadoon: My Lords, I am grateful for that willingness to undertake reflective thinking and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Offences in connection with breach of orders]:
Lord Hardie Lord Hardie moved Amendment No. 57:
Page 18, line 21, after first ("relation") insert ("to an order under section 19(4)(a) above and").
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 58:
After Clause 21, insert the following new clause—
ANTI-SOCIAL BEHAVIOUR AS GROUND OF EVICTION
(".—(1) Schedule 3 to the Housing (Scotland) Act 1987 (grounds of eviction in relation to secure tenancies) shall be amended in accordance with subsections (2) and (3) below.
(2) For paragraph 2 there shall be substituted the following paragraph—
"2.—(1) The tenant, a person residing or lodging in the house with the tenant or a person visiting the house has been convicted of—

(a) using or allowing the house to be used for immoral or illegal purposes; or

(b) an offence punishable by imprisonment committed in, or in the locality of, the house.

(2) In sub-paragraph (1) above "tenant" includes any one of joint tenants and any sub-tenant."
(3) For paragraph 7 there shall he substituted the following paragraph—
"7.—(1) The tenant, a person residing or lodging in the house with the tenant or a person visiting the house has—

(a) acted in an anti-social manner in relation to a person residing, visiting or otherwise engaging in lawful activity in the locality; or

(b) pursued a course of anti-social conduct in relation to such a person as is mentioned in head (a) above,

and it is not reasonable in all the circumstances that the landlord should be required to make other accommodation available to him.
(2) In sub-paragraph (1) above—
"anti-social", in relation to an action or course of conduct, means causing or likely to cause alarm, distress, nuisance or annoyance;
"conduct" includes speech and a course of conduct must involve conduct on at least two occasions; and
"tenant" includes any one of joint tenants and any sub-tenant."

683
(4) For Ground 15 in Schedule 5 to the Housing (Scotland) Act 1988 (eviction on ground of use of premises for immoral or illegal purposes etc.), there shall be substituted the following—
"Ground 15
The tenant, a person residing or lodging in the house with the tenant or a person visiting the house has—

(a) been convicted of—

(i) using or allowing the house to be used for immoral or illegal purposes; or

(ii) an offence punishable by imprisonment committed in, or in the locality of, the house; or

(b) acted in an anti-social manner in relation to a person residing, visiting or otherwise engaging in lawful activity in the locality; or

(c) pursued a course of anti-social conduct in relation to such a person as is mentioned in head (b) above.

In this Ground "anti-social", in relation to an action or course of conduct, means causing or likely to cause alarm, distress, nuisance or annoyance, "conduct" includes speech and a course of conduct must involve conduct on at least two occasions and "tenant" includes any one of joint tenants."
(5) No person shall be liable to eviction under paragraph 2 or 7 of Schedule 3 to the Housing (Scotland) Act 1987 or Ground 15 in Schedule 5 to the Housing (Scotland) Act 1988 as substituted respectively by subsection (2), (3) and (4) above in respect of any act or conduct before the commencement of this section unless he would have been liable to be evicted under those paragraphs or, as the case may be, that Ground as they had effect before that substitution.").
The noble and learned Lord said: My Lords, this new clause is designed to allow for tougher action against drug dealers and other criminals by extending the grounds for eviction to cover the behaviour of visitors to the property by providing that it will no longer be necessary to prove actual nuisance or annoyance, but simply the likelihood of nuisance or annoyance; and by extending the grounds to cover criminal acts in the locality of the house, not just within the house itself. In these respects, it will bring Scotland into line with England and Wales.
The aim is to make it possible for landlords to take tough action to deal with those who are carrying out their criminal activities in and around tenanted properties. The person must have been convicted of the offence before the local authority can take action to evict the tenant on this ground. The sheriff will exercise his discretion in deciding whether in all the circumstances it is reasonable to evict the tenant. Where the tenant has been coerced by visitors or those residing with him, it is unlikely that the sheriff would find it reasonable to order repossession of the house. Guidance to landlords will stress that eviction should not be sought in such circumstances.
The requirement that there should simply be a likelihood of nuisance or annoyance is intended to deal with the difficulties encountered in practice in persuading neighbours to give evidence. On the basis of the proposed amendment, the victim of the behaviour would not have to give evidence that nuisance or annoyance had been caused. Evidence could come instead from third parties—for example, the police or employees of the landlord—to support a judgment that nuisance or annoyance was likely to he caused by the behaviour in question.
These provisions mirror those introduced in England and Wales under the Housing Act 1996, which have already been shown to go some way towards combating the menace of drug dealing and serious antisocial behaviour which blight the lives of so many decent people on our housing estates. I beg to move.
Lord Mackay of Drumadoon: My Lords, I welcome this amendment for three reasons. First, it seeks to incorporate into the law of Scotland something which has proved to be of value in England. Secondly, it implements a commitment set out in the Tory Party manifesto for Scotland which had, as one of its policies, to introduce legislation to make it a breach of a tenancy for a tenant to deal in illegal drugs from rented premises or permit others to do so. I look forward to similar good ideas being brought forward.
Thirdly, and seriously, this a very valuable addition. There is no doubt that drug dealing bedevils a number of the housing areas of Scotland, whether it be privately owned property or property owned by local authorities. Dealing in drugs affects not just people that live in the immediate vicinity of the house but those further down the street and the general environment. Any measure that this Government propose to attack that evil will have the full support of these Benches. Therefore, I very much welcome the initiative to introduce such a clause at this stage of the Bill's proceedings.
The Earl of Mar and Kellie: My Lords, I am afraid that I do not have quite such a glowing response as that of the noble and learned Lord to the amendment, which would introduce wide powers and extend the range of grounds to evict antisocial tenants. It is the proposed powers of eviction which concern me. Indeed, Shelter Scotland has encouraged me to ask a number of questions and make a few points about these new powers.
First, those powers apply only to tenants and not to owner-occupiers. The spirit of these new causes of eviction are no doubt admirable; but the letter is drawn too widely. The eviction of drug dealers, other criminal or immoral operators and actively antisocial people will be welcomed, but many more tenants will be caught by these new powers. Anyone who is imprisoned for an offence committed in the vaguely defined "locality" of his home, can be evicted. That includes motoring offences, not having a television licence, not paying a fine, breaching a community service order or even defrauding a mail-order catalogue. Conversely, an assault to severe injury committed three miles away would not merit eviction.
This raises the question of the definition of the punishment of imprisonment; it now seems that the loss of one's home is to be added to the loss of liberty, reputation and income. That flies in the face of the commonsense evidence that reoffending is more likely to occur when ex-offenders are homeless. It also flies in the face of the Scottish Office code of guidance on homelessness, which states that local authorities should try to prevent prisoners becoming homeless on release, and help them safeguard existing tenancies. Is that extension of imprisonment intended? When can a line be drawn under the offence?

685
Among those soon to be evicted are vulnerable women and children who have committed no offence. They are in the frame because someone else has committed an offence in the house or in its vicinity. This could be a visitor, and not just a resident. Eviction could follow the conviction of a visitor with a small quantity of drugs for personal use. Is it realistic for tenants to operate an active search on every visitor—a sort of Wild West saloon, "Leave your drugs at the door", regime?
There is also danger that there will not be consistency across Scotland. Not only do we have 32 local authorities and more housing associations adopting their own unique policies on housing convicted persons; we also have more than 100 sheriffs, each with his or her own consistent, but unique, practices. Unless the wording of these new grounds of eviction are more tightly drawn, I believe that the chances of eviction will vary too much across Scotland. Finally, no fast track procedure is proposed in the amendment. It will take just as long for an eviction order to be acquired as it does now. Presumably the intention is to deal swiftly and resolutely with seriously antisocial neighbours.
10.45 p.m.
Lord Hardie: My Lords, I shall begin by dealing with the points raised by the noble Earl. First, so far as concerns the question of penalising tenants as opposed to owner occupiers, the owner occupier could lose his or her home if he suffered a custodial sentence either by virtue of not being able to keep up the mortgage payments or, in the context of drugs, by virtue of the confiscation provisions.
In addition, owner occupiers, like tenants, could be subject to other orders such as antisocial behaviour orders. This measure has been extended to tenants to reflect the social menace of drug dealing which is frequently at the root of much antisocial behaviour in our cities and towns. The existing grounds for eviction do not catch all of the offending behaviour. The provisions we are introducing simply reflect the provisions which were introduced in England and Wales in 1996 to allow eviction for criminal activity in the locality of tenanted properties, to cover behaviour of visitors, and to facilitate the use of professional witnesses.
The noble Earl referred to the definition of "locality". This is intended to cover as wide an area as possible, not just immediate neighbours. At the same time some recognisable link would need to be established between the tenant's behaviour and the fact that he lives in an area that may be affected by that behaviour. For example, the definition would certainly cover the common parts of a tenement or block of flats. It would also cover other parts of a housing estate. It would even cover parts of the same general locality which did not have the same landlord. I do not have any difficulty with that definition because of its nature the antisocial behaviour would cover—particularly if it is related to drug dealing—that sort of locality. One would consider the locality to determine whether it would be appropriate
686
for the tenant in question to remain as a tenant within that locality, having regard to the dangers to the rest of the citizens living within that area.
The noble Earl quite properly pointed out that the measure would affect tenants who were unfortunate enough to have visitors who had committed such offences. He asked whether a tenant would need to search his or her visitors to see whether they were in possession of a small quantity of drugs. Clearly, if we are talking about a small quantity of drugs not carried for the purpose of dealing, that would be a matter that the sheriff would take into account in the use of his discretion as to whether it would be appropriate to evict the tenant, particularly if it was a case of possession of drugs by a visitor to the premises. On the other hand, in drug dealing and other situations much serious antisocial or criminal conduct is perpetrated by visitors to houses, either in or outwith the dwelling house, and often the tenant is well aware of what is going on and it is not appropriate that that should be permitted. It is important to deter tenants from allowing visitors to behave in an antisocial manner particularly as regards drug dealing.
I understand the anxieties of the noble Earl and of Shelter about these provisions, particularly as regards the possibility of women and children being evicted. But eviction should always be considered as an action of last resort, in particular where children are involved. I am sure that that would be another factor that the sheriff would take into account. He would look at the whole circumstances of the family and of the offence before deciding whether it was appropriate to evict. Before initiating any such action, local authorities would have to take the welfare of any child into account. The welfare of such a child would be a paramount consideration for the local authority in accordance with the Children (Scotland) Act 1995.
Housing and social work departments must therefore work together in exercising their respective functions in relation to children under the different legislation.
I hope that some of those comments have satisfied the noble Earl and that he is able to withdraw his opposition to the amendment.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 59:
After Clause 21, insert the following new clause—
NOISE-MAKING EQUIPMENT: POLICE POWER OF SEIZURE
(".—(1) The Civic Government (Scotland) Act 1982 shall he amended in accordance with this section.
(2) In section 54 (offence of playing instruments, etc.), after subsection (2), there shall be inserted the following subsections—
"(2A) Where a constable reasonably suspects that an offence under subsection (1) above has been committed in relation to a musical instrument or in relation to such a device as is mentioned in paragraph (c) of that subsection, he may enter any premises on which he reasonably suspects that instrument or device to be and seize any such instrument or device he finds there.
(2B) A constable may use reasonable force in the exercise of the power conferred by subsection (2A) above.
(2C) Schedule 2A to this Act (which makes provision in relation to the retention and disposal of property seized under subsection (2A) above) shall have effect."

687
(3) In section 60 (powers of search and seizure)—
(a) in subsection (5)—

(i) after the words "Nothing in" there shall be inserted the words "section 54(2A) of this Act or"; and

(ii) for the words from "which" to the end there shall he substituted the words "which is otherwise exercisable by a constable"; and

(b) in subsection (6)—
(i) in paragraph (a), for the words from "in pursuance" to the word "vessel", there shall be substituted the words—
"to enter and search—
(i) any premises in pursuance of section 54(2A) of this Act or of subsection (1) above; or
(ii) any vehicle or vessel in pursuance of the said subsection (1),"; and.
(ii) in paragraph (c), after "under" insert "section 54(2A) of this Act or".
(4) After Schedule 2 there shall he inserted the Schedule set out in Schedule (Schedule 2A to the Civic Government (Scotland) Act 1982).").
The noble and learned Lord said: My Lords, one of the main causes of complaints about antisocial behaviour is excessive or inappropriately timed noise. This new clause will add to the options the police have to tackle noise nuisance.
The clause implements one of the recommendations in the 1996 Scottish Affairs Committee report on housing and anti-social behaviour. When the committee considered the problem of noise nuisance, it concluded that existing police powers to confiscate noise-making equipment—which are limited to common law powers including the power to take equipment which may be needed as evidence—were inadequate. It recommended that the police should have the statutory power to confiscate equipment where they have grounds to suspect that a noise offence has been committed under the Civic Government (Scotland) Act 1982.
This clause provides that power. If a person causing a noise fails to stop when requested to do so by the police, then the police will be able to take the noise-making equipment away and hold it for 28 days. The noble Lord, Lord Thomas of Gresford, will be relieved to know that we are speaking about equipment and not noises emanating from him! After that period, the owner will be able to apply to get it back, but will have to meet whatever conditions are imposed by the police on its collection and to pay whatever charge the police consider reasonable to cover their costs. Where court proceedings are instituted, then the equipment can be held until the end of the case.
There will, of course, be safeguards to protect the interest of an innocent owner who did not cause the noise nuisance himself and did not know that the equipment was likely to be misused. And there will be an appeals mechanism to ensure that the police do not act unreasonably in handling claims for the return of such equipment.
Overall we consider this to be a modest but useful measure to assist in the effort to tackle antisocial behaviour. We hope that it will make people think twice about disturbing their neighbours with, for example,
688
loud music late at night if they know that they run the risk of being deprived of their music equipment for a period.
I commend this clause and the associated schedule to the House. I beg to move.
Lord Thomas of Gresford: My Lords, for the purposes of the record, I think that I should say to noble Lords that the only noises I have made have been by the blowing out of air through my mouth in what was once called in happier days a raspberry.
The Earl of Mar and Kellie: My Lords, the noble and learned Lord will be pleased to know that I do not oppose the amendment. I am certain that the first time the provision is operated there will be loud cheering in the neighbourhood.
With regard to a third party owner, the breaking of equipment while the constable uses reasonable force to seize it may produce a problem, but it does not cause me to object to the amendment.
On Question, amendment agreed to.
Clause 23 [Racially-aggravated assaults]:
Lord Henley Lord Henley moved Amendment No. 60:
Page 19, line 1, after ("harm);") insert—
("(bb) an offence under section 18 of that Act (shooting or attempting to shoot or wounding with intent to cause grievous bodily harm);").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 61, 64, 66 and 67. We come now to racially aggravated offences, on which we spent some three hours in Committee. I trust that we can deal with these matters rather more quickly at this hour.
First, perhaps I may make it clear that all of us on this side—and I trust that is true of all parts of the House—are opposed to and abhor racial violence, or for that matter any crime that has racial undertones. I believe that everyone in all parts of the House believes that these matters should be addressed with rigour and that the courts should be able to take these matters into account in sentencing along with any other aggravating circumstances. In the light of the recent opening of the Stephen Lawrence inquiry, it is very important that all of us should make that clear.
The second point I wish to make is that on these Benches we all welcome the fact that the Government wish to take these matters seriously and ensure that the courts have adequate powers to deal with racially aggravated offences. But whether these clauses achieve that aim is another matter. As I put it in Committee, I believe that the jury is still out, particularly in the light of the comments that I and others quoted at Second Reading from both the Lord Chief Justice and the Attorney-General that the courts did have powers to take racial—I await correction from the noble and learned Lord—
Lord Falconer of Thoroton: My Lords, I am surprised to hear a reference to the Attorney-General saying that the court has enough powers.
Lord Henley: My Lords, I understood that it was the Attorney-General. I am afraid that I do not have a copy

689
of Hansard from Second Reading, when I quoted from the Attorney-General. But, whether he thought that the courts had sufficient powers, the Attorney-General certainly made it clear that the courts had power to take these matters into account and could do so in sentencing. I will look very carefully at the quotation that I used at Second Reading.
As the noble and learned Lord will be aware, these amendments are more or less the same ones as I moved in Committee. I moved them then very much in a spirit of inquiry. First, I was asking just why some offences of violence were not included, and in particular why the more serious offences under Section 18 of the Offences Against the Person Act were not included; and similarly, why the more serious offences of public order were not included? Again, at that stage I moved an amendment relating to criminal damage—a matter with which the noble Lord, Lord Dholakia, will deal later and one on which I wish to offer him a degree of support.
I moved the amendments also because it seemed to me—as I argued earlier (I suspect not very effectively), when I received considerable support from the noble Lord, Lord Colville, who argued the case much better—that there could be occasions when, not including the more serious Section 18 offences, the provision could actually complicate the job of the trial judge in directing the jury. I should certainly like to refer the noble and learned Lord to the remarks made by the noble Lord, Lord Colville, at col. 1282 on the third day of Committee, when he dealt with those matters somewhat more effectively.
In responding, the noble Lord, Lord Williams of Mostyn, (I do not know whether he will respond this evening; I believe it is the noble and learned Lord) made the point that it was not beyond the wit of the prosecution to get matters right by including the appropriate range of offences. My response then, as it is still, was that it would make matters much simpler to include the greater offences. To put it very simply, in the case of the first amendments to include the Section 18 offences in the list of racially aggravated offences, and by that means make the job of those involved in the prosecution much simpler and prevent that particular problem from arising.
As I said, I propose these amendments in a spirit of inquiry, but I believe that there are matters that ought to be addressed and I should be grateful for a response from the noble and learned Lord. I beg to move.
Lord Thomas of Gresford: My Lords, do I understand correctly that the proposal is that there should be two counts on an indictment: Section 18 with life imprisonment and racially aggravated Section 18 with life imprisonment? Is that the proposal?
Lord Henley: My Lords, this is not Committee stage, but perhaps I may explain again—probably inadequately—what I tried to say before. If a Section 18 offence were not included in the Bill, it might be that someone would be charged under Section 18, in which case racial aggravation could not come into it. To include racial aggravation, one would have to charge for
690
the lesser offence under Section 20, which is included in the Bill. I think it could create complications if, when directing the jury, a judge had to make clear that racial aggravation could not be considered under Section 18, hut, if they decided not to convict under Section 18 but to convict on the lesser offence under Section 20, at that point racial aggravation could be taken into account. That seemed to me to create problems, and I believe I received a degree of support from the noble Viscount, Lord Colville of Culross, and others. I refer the noble Lord to the argument at Committee stage.
Lord Falconer of Thoroton: My Lords, before I comment on this group of amendments, which seek to add to the list of specific offences which can be considered as racially aggravated under Part II of the Bill, perhaps I may make three points.
First, I express the Government's gratitude for the statements of the noble Lord, Lord Henley, about abhorring racially motivated crimes. Secondly, I also express gratitude that he is glad that the Government wish to be seen to be serious about these matters. Thirdly, as regards the way we shall deal with the amendments today, an amendment in the name of the noble Viscount, Lord Colville of Culross, also seeks to introduce the offence of racially aggravated Section 18, if I may call it that. As I understand it, his amendment focuses in particular on the complication of charges and summing-up to the jury by the judge. It was a point specifically raised by the noble Lord, Lord Henley, in moving his amendment. Perhaps I may deal with that point after the noble Viscount, Lord Colville of Culross, has moved his amendment, because the whole argument in relation to that will then be exposed. That is not to suggest that the noble Lord, Lord Henley, has not exposed the argument; he has done so entirely adequately, as far as I am concerned. However, it would be repetitive if I had to repeat the arguments after the noble Viscount has made his remarks.
In dealing with this group of amendments, perhaps I may deal with the principle of why certain offences have been included and others have not. The Government gave careful consideration to the offences to be included in this part of the Bill. We made it clear that the purpose of these provisions is to provide increased sentences for racially aggravated crimes directed against the person. As I said in Committee, where the basic offence already carries a maximum sentence of life imprisonment, as in the case of Section 18, the racially aggravated offence is not required in practical terms as the maximum sentence cannot be increased. It is for this reason that we have not included, for example, murder and manslaughter in the list of offences. We made the point in the course of the debate in Committee that, if one simply increased the maximum sentence for offences where the maximum was not already life, one would be dragging all those crimes, racially aggravated or not, up to a level, and we did not believe it was appropriate to do that.
I should emphasise—though the noble Lord, Lord Henley, understands this—that we are not creating new racially aggravated Section 18 offences. Nevertheless, the judge can increase the sentences for racially aggravated Section 18 offences as a result of Clause 69

691
of the Bill, which permits it to be taken into account when sentencing. That is why Section 18 has not had added to it the racially aggravated element as part of a crime.
Amendments Nos. 64, 66 and 67 propose to extend the provisions to deal with affray, unlawful violence and riot. The Government's intention in proposing the new offences is to deal with a specific problem of racial violence and harassment. For that reason we restricted the range of the provisions to concentrate on those violence and harassment offences directed against the person. This second group of amendments, which deals with affray, unlawful violence and riot, are not directed against specific persons; they are mêlée or public order offences. We do not believe it is appropriate to add a racially aggravated element to them.
There could in theory be a large number of offences which could be added to the list of specific offences we have included in the Bill. The offences in the amendment go beyond offences against the person to include public order offences, which need not be directed against a specific individual or victim. Criminal damage raises special issues because of the peculiar nature of the offence and its particular connections with racial aggravation. I shall not deal with that in relation to this amendment; it will be dealt with by my noble friend Lord Williams of Mostyn when he comes to deal with a later amendment.
The offences proposed by the noble Lord, Lord Henley, fall outside the immediate area of concern. The offences included in the amendment would nevertheless be covered by the provisions in Clause 69 so that, where there was evidence of racial hostility, the court could consider that as an aggravating factor meriting an increased sentence. I hope that I have explained the Government's thinking behind what is and what is not included, and that, in the light of that explanation, the noble Lord will call the jury back and withdraw his amendment.
Lord Henley: My Lords, we will see about that. In rejecting my arguments, the noble and learned Lord seems to be saying that what is important is that the courts have the ability to increase the sentences for a number of specific offences. For example, the Government wish to increase the sentences for offences under the Offences Against the Person Act, but do not see the need to increase them under Section 18 or for manslaughter or murder because there is already a maximum beyond which one cannot increase them.
At Committee stage, as I understood it, the noble and learned Lord was at pains to point out that the Government were creating new offences and that it was not merely a matter of increasing the sentences. But if in the end the sole aim is to increase the sentences, could not that have been done by increasing the sentences rather than adding the new offences? By increasing the sentences, one could then have dealt with not only racial aggravation, but also any other form of aggravation it was felt necessary to include—for example, if there were growing problems of homophobic attacks on
692
people and it was felt that the courts should be able to make a stand, then they would be able to do so under the Act as it was.
The Government have probably got a good case here. But it may be that they feel it necessary to single out racial aggravation over and beyond all other forms of aggravation that may come about. In that case, I can see the point of their argument. But I believe that somehow the Government have got their argument twisted. They are trying to increase the sentences. That they could have done. They have in fact created new offences, which was not necessary.
Having said that and having said that I welcome what the Government are trying to do, it will not serve any purpose for me to continue with these amendments. I shall therefore take the opportunity on this occasion to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Lord Monson Lord Monson moved Amendment No. 62:
Page 19, line 17, leave out ("two years") and insert ("one year").
The noble Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendments Nos. 65 and 69. These modest amendments reintroduce one which I moved in Committee but which was rather subsumed into a discussion about the general principles of Clauses 22 to 26 inclusive. As I said then, like The Times, the Daily Telegraph, the Conservative Party certainly up until 1990 and possibly a little later, and a great many other people, I believe that all crimes of violence of a given magnitude ought to be punished with equal severity, no matter who the victim may be. However, neither the present Government, nor, as I understand it, the Liberal Democrats, nor the Conservative Party under its current leadership, take that view, so obviously there is no point in continuing that argument, in this House at any rate.
I hope it will be accepted that these are not in the slightest degree wrecking amendments. Their purpose is to ensure proper moderation and some consistency in the enhancement of any prison sentence imposed following conviction where a racial or national element has been proven.
It is true that the Bill as it stands provides for sharp increases in many fines—100 per cent. in some cases and up to 150 per cent. in others—but that is inherent in the established pattern of maximum fines on scales 3, 4, 5 and so on. There is very little that can be done about that. But I suggest that disproportionate prison sentences worry people far more than disproportionate fines do.
In this regard, the next amendment—Amendment No. 63 in the name of the noble Lord, Lord Dholakia—seems to me faultless if you accept the general principles underlying this group of clauses. It increases the maximum by 20 per cent., from 10 years to 12 years. Some of the Government's own provisions, which increase the maximum sentence by 40 per cent., from five to seven years, are somewhat harsher but still not totally off the map, so to speak. But to increase the maximum by 300 per cent., from six months to two

693
years, really does seem excessive, as the noble Lord, Lord Carlisle of Bucklow, suggested at the Committee stage. I am sorry that he is not here tonight, but of course one could hardly expect that so late in the evening.
The noble Lord, Lord Carlisle, pointed out that common assault was a very trivial offence, not involving physical injury. I am not a lawyer, as your Lordships will know, but from the legal dictionaries with which your Lordships' Library is copiously supplied, one sees that shaking one's fist at somebody without laying a finger on them constitutes common assault. The noble and learned Lord, Lord Falconer, said at the Committee stage:
"It seems to me to be a matter of judgment as to whether or not one increases it"—
the maximum sentence for common assault—
"to nine months, 12 months, 18 months or two years".—[Official Report, 12/2/98; col. 1294.]
Indeed, it is a matter of judgment, but I suggest that most people would judge it quite unreasonable that an individual could be sentenced to two years' imprisonment merely for shaking his fist at somebody of another race or nationality without touching them. I beg to move.
Lord Williams of Mostyn: My Lords, the point of these amendments is to reduce the maxima which are proposed in the Bill. The basic offences all carry maximum sentences of six months' imprisonment and/or a fine. The proposal is that that should be two years' imprisonment or an unlimited fine as maxima. New offences are no longer created with a maximum penalty of 12 months' imprisonment and there are very few remaining examples of older offences with a 12 months' maximum.
As the noble Lord, Lord Henley, indicated, racial aggravation is sometimes extremely serious and grave. We believe that the maximum penalties should be set at the level which we propose—two years—rather than that proposed by the noble Lord, Lord Monson. With great respect, I reject the suggestion that one looks at percentage increases and then comes to the conclusion that if it is 300 per cent. it is a meaningless penalty, whereas if it is 50 per cent. or 100 per cent. it is perfectly acceptable.
We believe that as a measure of the proper, considered indignation of a community about racially aggravated offences, we have set these penalties correctly. I am bound to say that the majority of those who responded to the consultation exercise agreed and thought that we had struck the right balance between the different considerations. I hope that the noble Lord will be able to withdraw his amendment.
11.15 p.m.
Lord Monson: My Lords, I agree that these offences can be very grave, but I do not believe that the noble Lord, Lord Williams, could possibly agree that shaking a fist at somebody constitutes a grave offence. I take his point about maximum sentences on conviction on
694
indictment. We shall reach Amendment No. 80, to which I have added my name, the day after tomorrow. I believe that the noble Lord has been very helpful to my noble friend Lord Bridges in connection with that amendment. It provides for a maximum sentence on conviction on indictment of six months rather than 12 months or two years. So the matter is not totally without precedent.
I say again that I am sorry that the noble Lord, Lord Carlisle of Bucklow, with his enormous experience, is not here. Those noble Lords who were here at Committee stage may remember that he suggested that all sorts of problems might arise from a two-year maximum sentence. It would be very costly because people would opt for trial by jury and juries might fail to convict. However, there is little point in trying to take this matter further tonight. I beg leave to withdraw the amendment.
Lord Thomas of Gresford: My Lords, before the noble Lord withdraws the amendment, perhaps I may inquire of the Minister whether it is intended that offences under this clause should attract a consecutive or concurrent sentence or whether the purpose is to charge on indictment common assault and an offence under this clause which would carry consecutive sentences. Can the Minister clarify the position?
Viscount Colville of Culross: My Lords, before the Minister replies the House ought to know that the noble Lord, Lord Carlisle of Bucklow, is not here because he is sitting in the Court of Appeal in Guernsey.
Lord Williams of Mostyn: My Lords, what happens when prosecutors bring charges is within their discretion. When consecutive sentences are imposed, classically, and rightly, that is within the province of the presiding judge.
Amendment, by leave, withdrawn.
Lord Dholakia Lord Dholakia moved Amendment No. 63:
After Clause 23, insert the following new clause—
RACIALLY-AGGRAVATED OFFENCES OF CRIMINAL DAMAGE
(1) A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 which is racially aggravated for the purposes of this section.
(2) A person guilty of an offence falling within subsection (1) shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both:

(b) on conviction on indictment to imprisonment for a term not exceeding 12 years or to a fine, or to both.

(3) If, on the trial on indictment of a person charged with an offence falling within subsection (1) above, the jury find him not guilty of the offence charged, they may find him guilty of the basic offence mentioned in that subsection.")
The noble Lord said: My Lords, perhaps I may first of all share the sentiment expressed by the noble Lord. Lord Henley, and also by the Front Bench opposite, that racist behaviour of any nature ought to be condemned. I am delighted that that has been made very explicit.
I had hoped to introduce this amendment at Committee stage, but unfortunately I was abroad. I have looked at the discussion which took place. I am delighted that I have an opportunity to have a second bite at this particular cherry. The new clause would add to the new racially-aggravated offences in the Bill a further offence, which is of racially-aggravated criminal damage.
The noble Lord, Lord Henley, was good enough to mention Stephen Lawrence. I believe that everyone accepted that it was a racist murder of this young man. One adds to that what happened at the place where he was murdered. A little plaque marking the death of Stephen Lawrence was damaged by hooligans only the other day. One must consider the reaction of the family and the hurt that it would have caused. That is just a very small example. There is example after example of the extent to which criminal damage based on racist action is perpetrated against synagogues, temples and mosques, and properties occupied by people from ethnic minority communities.
It is interesting that the Home Office consulted a large number of organisations, asking whether there should be an offence of racial criminal damage. Approximately 90 per cent. of those who responded, including the Association of Chief Police Officers, the Metropolitan Police and the Crown Prosecution Service, said that there should be such an offence. In other words, more or less everyone involved in the criminal justice system agreed that there should be such an offence. Therefore, I was surprised that the Government initially declined, or omitted, to include such an offence in the Bill.
I have tried to understand why that should be so. If the intention is to identify and to encompass within criminal statutes the types of racist offences which most frequently and most devastatingly affect the lives of ethnic minorities in Britain, there is a strong case for the inclusion of an offence of racially aggravated criminal damage.
Of the racial incidents recorded by the police during 1996, one of the most frequent matters reported to the police was damage to property. Further, where the criminal damage is racist graffiti on more public property, such offences are counted or reported only very seldom.
As the Bill is currently drafted, an act of criminal damage could constitute one of the two incidents which could give rise to a prosecution of racially aggravated harassment under Clause 25. To members of ethnic minority communities it will be ludicrous that racial harassment in the form of damage to their home, their car or other possessions will constitute a racially aggravated offence only if it occurs twice or if it is preceded or followed by a separate incident of harassment.
Turning to Clause 24, which creates new racially aggravated public order offences, it would be possible to include certain acts of damage to property as all or part of the behaviour at issue, but in order for one of the offences under Sections 4, 4A or 5 of the Public Order Act 1986 to be committed, it will be necessary, in addition, to prove the intention of the perpetrator to
696
cause harassment, alarm or distress. It would he inappropriate and artificial to try to bring criminal damage committed on racial grounds within this new legislation by such means.
The Government should not be constrained. There is a clear need, supported by the police and the CPS, to establish a specific offence of racial criminal damage. I suspect that the Government may be influenced because the new clause will not always neatly fit their formulation of "racially aggravated" in Clause 22 since the victim of some types of criminal damage with a racial element may not be a person within an identifiable racial group; an example would be if racist graffiti were daubed on the walls of the town hall or on the staircase of a large council housing estate. In such cases the racist nature of the offence would be obvious, and it is likely that the message itself should be sufficient to satisfy the second limb of the definition of racially aggravated; namely, that
"the offence is motivated…by hostility towards members of a racial group based on their membership of that group"
I plead that another reason could be that criminal damage under Section 1(1) of the Criminal Damage Act 1971 already carries a maximum sentence of 10 years, unless it is arson, which carries life. To be consistent with the structure of the Bill, the amendment proposes that the maximum tariff for racially aggravated criminal damage should be two years longer—that is, 12 years. I believe that the amendment, which is supported by many organisations, tests the Government's intention. Ultimately, the test of a civilised society is whether it confronts such racist behaviour as we would confront the antisocial behaviour we discussed earlier. I beg to move.
Lord Henley: My Lords, I support this amendment. At a previous stage the Government argued that the current maximum sentence for offences of this kind was 10 years. They said that that was enough and there was no need to increase it. I accept that broadly speaking 10 years is enough for the most serious kinds of offences, short of arson where obviously a longer sentence can be imposed. However, the proposed amendments to Clauses 22 to 24 do not simply create new maximum sentences but new offences in themselves. I take it that part of the reason for that is the importance of getting across the right message. If so, surely the Government should accept the argument put forward by the noble Lord, Lord Dholakia—they should also accept the arguments that I have advanced—in relation to this matter and ensure that these offences are taken seriously. Alternatively, they might turn to Clause 69 (previously Clause 68), to which no doubt we shall refer at a later stage, and not bother at all with any part of Clauses 22 to 26 (racially aggravated offences in England, Wales and Scotland). Clause 69 allows racial aggravation to be taken into account by the court. That increases the seriousness of the offence and presumably the sentence available to the court at present. For that reason I support the amendment moved by the noble Lord, Lord Dholakia.
Lord Thomas of Gresford: My Lords, I also support my noble friend's amendment and the sentiments that

697
he expressed in moving it. My noble friend has identified an important omission in the Bill. In particular, he has referred to damage caused to property by graffiti of a racial nature. Very often the damage is of a much more serious nature. My noble friend's proposed subsection (3) points out the matter to which I referred in the debate on the previous amendment. If that subsection were part of the Bill there would be only one offence charged in an indictment; namely, the offence of criminal damage under this clause with an alternative verdict open to the jury. It follows that there would be a single sentence passed for that offence. I am anxious to clarify the position for the benefit of those who are charged with bringing prosecutions under this Bill when it becomes an Act. Is it suggested that there he two charges in the indictment of a single charge with an alternative that leads to a single sentence?
Lord Williams of Mostyn: My Lords, yesterday we were able to accept the thrust of an amendment moved by the noble Lord, Lord Dholakia, relating to ethnic monitoring in the context of the Data Protection Bill. We did so on the basis that we had listened to views expressed by the noble Lord and other noble Lords and interested parties outside the Chamber. I believe that the noble Lords makes a good case subject to one or two matters that require further examination. We have decided to look at the issue again and have concluded that we should accept the principle of a racially aggravated offence subject to finding a way of overcoming certain difficulties. Perhaps I may outline them briefly. One is length of sentence, to which the noble Lord referred; another is defining the victim. Normally, in criminal damage cases it is the owner of the property, but there will be cases where the victim of the racial hostility will not be the owner of the property. He might be the tenant of local authority accommodation, or, as the noble Lord said, there may be some cases where there is no identifiable victim of racial hostility. His example was a good one: racial graffiti sprayed on bus shelters for all to see.
I hope to be able to look at the problems which are technical and not of principle and bring forward an amendment on Third Reading which would address the concerns expressed by noble Lords.
In response to the question asked by the noble Lord, Lord Thomas of Gresford, that will be a matter for individual prosecutors. In some cases, at the moment, where there are alternatives, some prosecutors prefer to have the alternatives plainly on the indictment and others prefer to open the case in the alternative on a single charge, there is merit in allowing discretion to prosecutors in particular cases, subject, of course, to the overall discretion of the trial judge. On the basis of the undertaking, not just the assurance, that I have given to the noble Lord, I hope that he will feel able to withdraw his amendment for the moment.
Viscount Colville of Culross: My Lords, before the noble Lord, Lord Dholakia, decides what to do, perhaps I may urge him if he is discussing this with the Government, to choose 14 years rather than 12. If the
698
case is very serious, and the offender is under 18, unless the maximum sentence is 14 years one cannot deal with him under Section 53 of the Children and Young Persons Act. Sometimes that is the right thing to do. The way that the provision is drafted at the moment, one would be debarred.
Lord Williams of Mostyn: My Lords, just to be helpful, that is a question which the Government have in mind. I was being economical earlier when I said that one of the problems was length of sentence.
Lord Dholakia: My Lords, I am grateful to the noble Lord, Lord Henley, and to the noble Lord, Lord Monson, for their support. I am delighted that the Minister has agreed to take this matter back and return with the appropriate recommendation on Third Reading.
It is a sheer joy, as the Minister rightly pointed out, that he accepted my amendment to the Data Protection Bill yesterday, and he has today accepted my amendment on racially aggravated offences, he has been very kind to me. I suspect that since the day when the supreme champion at Crufts was a Welsh terrier, he has changed his attitude towards this House. I beg leave to withdraw the amendment.
Amendment by leave withdrawn
Clause 24 [Racially-aggravated public order offences]:
Amendments Nos. 64 to 67 not moved.]
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 68:
After Clause 24, insert the following new clause—
RACIALLY-AGGRAVATED OFFENCES: ALTERNATIVE VERDICTS
(" .—(l) A person charged with an offence under—

(a) section 18 of the Offences against the Person Act 1861 (wounding or causing grievous bodily harm with intent, etc.);

(b) section 2 of the Public Order Act 1986 (violent disorder); or

(c) section 3 of the Public Order Act 1986 (affray);

may be charged with that offence as being a racially-aggravated offence.
(2) If, on the trial on indictment of a person charged with an offence falling within subsection (1)(a) above as so aggravated, the jury find him not guilty of that offence, they may find him guilty of any offence specified in section 23(1) above.
(3) If, on the trial on indictment of a person charged with an offence falling within subsection (1)(b) or (c) above as so aggravated, the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 24(1)(a) above.").
The noble Viscount said: My Lords, I have not yet said thank you to the Government Front Bench for the letters that have been sent, and in particular, for accepting the principle that I suggested in Clause 9. I am grateful and I have absorbed what was said in those letters.
The amendment has already been introduced by the noble Lord, Lord Henley. We discussed it in Committee. I hope that I have made a constructive suggestion in relation to what I envisage being a difficult problem. It may not be comprehensive, but at least I think that I

699
have illustrated the type of difficulties that will arise. I hope that the Government will address the matter, because what they are doing has my full support.
I am pleased that racial aggravation is to be recognised on the face of the statute and that certain of the maximum penalties are to be increased. They are inadequate. It is wholly desirable that they should be increased so that the racial aggravation can be reflected properly.
The difficulties are practical. As already stated, the Bill creates new offences. We have a new offence which constitutes racially aggravated Section 20, and similarly under the Public Order Act. Perhaps I may illustrate the problem by using the Offences Against the Person Act. I agree that the prosecution should be given a certain amount of discretion, as the noble Lord, Lord Williams, said. However if it chooses to bring an indictment under Section 18 of, let us say, wounding with intent to cause grievous bodily harm and it does not add a second count under Section 20 or the new Section 20 relating to racially aggravated offences because it does not want a conviction under anything other than Section 18, the matter in its view being very serious, the trial may proceed. It not infrequently happens that as the trial proceeds the prosecution case wavers and it becomes apparent that it will not obtain a conviction. Although the jury is sufficiently astute to tell the difference between intent to cause grievous bodily harm and unlawful and malicious wounding under Section 20, it will not be given the opportunity unless one can find a method of bringing in that alternative verdict.
At present, there is no necessity to add another count to the indictment because under the Criminal Law Act all the ingredients of a Section 20 offence are included in a Section 18 count on the indictment. Therefore, it is possible to direct the jury that they may convict under Section 20 if that is the way they find the facts have emerged. There is no difficulty about that and frequently juries get it right. It is an extremely happy state of affairs and one finds that justice has been done.
The noble Lord, Lord Williams, said that in Section 18 cases it is for the prosecution to decide whether to open on the basis that it was a racially aggravated Section 18 wounding. Very well, it may do so. However, unless it also brings the racially aggravated Section 20 Charge, the latter newly created offence will not be available under the Criminal Law Act 1967 because it will contain an element that is not present in Section 18; that is, the racial aggravation. Therefore, it will not be a true alternative and without adding a count to the indictment it will not be possible for the jury to convict on the new offence.
I am bound to say that if I were conducting the trial and the prosecution came along late in the day and stated that it wanted to add a new indictment carrying not what the defendant would have expected, which is a five-year maximum sentence, but a new count which carries a seven-year maximum sentence, I would hesitate because I would not be certain that that was correct. Whether a new count can be added is for the judge's discretion. I would think that the later it was in the trial, the more prejudice there would be to the
700
defence and the less likely I would be to add the new count under the provisions of the Bill. Much the same thing happens under the Public Order Act.
The other difficulty is that, in the end, there may be no trial. It may be that at the pleas and direction stage in the Crown Court the defendant decides to plead not guilty to the count on the indictment but guilty to a lesser count. That happens frequently. Looked at in the round, it is probably justifiable to accept that. The prosecution must decide whether it will do so and the court must sanction it. But it may well be that that is the proper course to take; it is just and it avoids all the witnesses having to give, in some cases, traumatic evidence, which they detest. It will not be possible, unless there is permission from the court at that stage, to add the racially aggravated offence which is not on the indictment because the defendant will be confronted with pleading guilty not to what he thought carried a comparatively short sentence, for instance, under Section 4 of the Public Order Act, but under a much enhanced maximum of a racially aggravated Section 4. One would find it very difficult, in justice, to allow the prosecution to add the count to which the defendant could then plead.
I am not saying that that is insuperable but the complications which will arise from that most laudable attempt to increase the maxima where they are, at present, inadequate has not been entirely followed through. I am sure we can all get by but I do not believe that the prosecution will find it nearly as easy to use the new provisions as the Government hope in the proper cases. There will be complications in the course of trial which will result in less than adequate sentences being passed for what are very nasty, racially aggravated, violent or public disorder offences simply because it will not be possible to have the right count on the indictment.
I do not know what the answer is. I have suggested that one can artificially create, for the purposes of alternative verdicts, racially aggravated Section 18, racially aggravated violent disorder and affray, simply in order that they can be argued and indicted with those alternatives as a possible let-out, alternative verdict or plea.
I do not know what the Government have to say about that. In my submission, it will make it much easier to use those admirable provisions if something of the sort that I suggest could be introduced into the legislation. I beg to move.
Lord Falconer of Thoroton: My Lords, I am extremely grateful to the noble Viscount, Lord Colville, for setting out the background and the basis of his amendment with such clarity so that everyone understands it. I recall that he gave a detailed explanation of his concerns about charging in Committee with the same degree of clarity.
I understand the concerns which the noble Viscount has expressed but the Government do not believe that it is necessary or appropriate to create the new offences he suggests with no increase in sentence simply to offer a jury alternative verdicts, which I believe is the basis on which the noble Viscount puts the matter.

701
In practical terms, the suggested amendments would require the prosecution to meet the additional hurdle of proving racial aggravation without providing any additional sentence. Where there is evidence of racial aggravation, Clause 69 already enables the court to impose a higher sentence. I pointed to the difficulty of dealing with public order offences which are not directed against the person in my response to the amendment of the noble Lord, Lord Henley.
The problem which the noble Viscount identifies, as I understand it, is that there is a Section 18 offence which does not have the racial aggravation feature in it. The circumstances lead to the conclusion that what may be appropriate is a conviction on a Section 20 racially aggravated offence. But that is not a verdict open to the jury or to which the defendant can plead on the basis of an indictment that only has Section 18 on it because racial aggravation is not an element in Section 18 unless the amendment is accepted.
The first answer, as a matter of practicality, assuming that the circumstances justify it, would be for the prosecution at the outset of the case to include upon the indictment not just Section 18 but also racially aggravated Section 20. If that course was taken, the range of verdicts which the noble Viscount would wish to be available would indeed be available. Whether that course is appropriate will obviously depend upon the particular case. We believe that that course provides a sufficient degree of flexibility for prosecutors to permit the whole range of outcomes to be covered.
The noble Viscount is right to say that cases which start off looking rather good, particularly before you get anywhere near court, often tend to fade and subside the closer you get to court and when you get into court. But prosecutors are aware of that and are able to use their judgment in how they draw up the indictment. I do not believe that an indictment with a Section 18 and a racially aggravated Section 20 would be an indictment in respect of which, assuming it went to trial, there would be real difficulties about the summing up.
I entirely understand the points made by the noble Viscount in relation to the situation where the prosecutor seeks to add a racially aggravated Section 20 offence at a later stage in the trial. Of course, there will be cases where it is not appropriate to allow that to be added simply because it would be contrary to the interests of justice for a defendant to have to face a new charge, with a new element, and a much higher sentence at such a late stage. Again, it is a matter of judgment for the prosecutor. He must decide at the beginning the appropriate way in which to deal with the case.
There was a case where a Section 18, but no racially aggravated Section 20, was on the indictment. The defendant wished to plead to a lesser offence than Section 18, while the prosecution wanted him to plead to a racially aggravated Section 20. Again, there may be circumstances where that may be ruled out because it is too late or because the defendant will not agree to anything except a non-racially aggravated Section 20. However, when one is in that situation, it would
702
normally be possible for the indictment to be amended, even at a late stage, if what is wanted is to give effect to the plea that the defendant wishes to make.
I appreciate that not every situation can be readily catered for, but we believe that the way in which we have dealt with it is better than creating a new offence simply for the purpose of allowing alternative verdicts. We do not regard that as an appropriate basis to create a new offence. We believe that we must leave it to prosecutors and that, using good sense, most circumstances will be covered. Although we are genuinely grateful for the problem being aired, we do not feel able to accept the amendment.
11.45 p.m.
Viscount Colville of Culross: My Lord, I am not really surprised by that response. I am most grateful to the noble and learned Lord for having applied his mind so thoroughly to the matter. Indeed, he is quite right to say that the prosecution will really have to choose at an early stage whether or not to add a second count, whether it be a racially aggravated Section 20 for a violence case or a racially aggravated Section 4 for an affray or violent disorder case. I believe that, quite frequently, the prosecution will not wish to do so because, merely by doing so, they will indicate to the defence that they are prepared to accept the lesser offence. In their wisdom they may not think that it would be just or proper in the public interest to charge the person with the lesser offence when in fact the conduct which he is alleged to have committed warrants a much higher degree of indictment.
Unless we get over the problem, I am afraid that the use that will be made of the Bill's provisions will not be as extensive or appropriate as would otherwise be the case. I know that the Government do not want that; nor, indeed, do I. When they continue to consider the matter with the CPS, I just hope that they can work out the practicalities involved. This is something which will come through when the Bill reaches the statute book. I do not want to lose the opportunity of being able to use these greater powers of sentencing in appropriate cases. Nevertheless, I must leave the matter there and trust that the Government will continue to think about it.
I do not expect any further amendments to be brought forward, but I do expect the Government to consult with the CPS on the matter. I believe that the CPS will express very strong views as regards the correct way to handle such matters. If there are strong views then, for goodness sake, let us ensure that they are used consistently across the whole length and breadth of the country, because that is the other thing that is liable to go wrong. It is extremely late. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Racially-aggravated harassment etc.]:
[Amendment No. 69 not moved.]
The Chairman of Committees (Lord Boston of Faversham): My Lords, in calling Amendment No. 70. I must point out that if it is agreed to, I cannot call Amendment No. 71.
Clause 26 [Racially aggravated offences]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 70:
Page 21, line 9, leave out ("a racially") and insert ("an").
The noble Earl said: My Lords, the hour is late and I shall be brief. I have six amendments in this group which seek to secure one of the two major omissions from Clause 26. The omitted categories are, of course, religion and social class. I shall say no more about social class today and concentrate on the inclusion of religious bigotry in the clauses on harassment and aggravation.
I see religion as divisible into two parts. First, people in Scotland discover that they have been born into a particular religious background. That is a cultural inheritance that they can do nothing about, but about which other people will make all kinds of assumptions. The second element is the doctrinal position that some citizens may adopt. These are voluntary personal decisions and, it could be argued, as such may be worthy of criticism. In other words, I am happy to be criticised for being an Elder of the Kirk, but far from it for being a lowland Protestant. These amendments call for different subsections for the Scottish equivalent in this legislation. I see no difficulty here as I am trying to capture the Scottish dimension and incorporate it into the Bill. I beg to move.
The Chairman of Committees: My Lords, as Amendments Nos. 72 to 75 inclusive are also being spoken to, I must point out to your Lordships that if Amendment No. 72 is agreed to I cannot call Amendment No. 73, and if Amendment No. 74 is agreed to, I cannot call Amendment No. 75.
Lord Mackay of Drumadoon: My Lords, the amendment moved by the noble Earl is one of a series of amendments to Clause 26. Later in the Report stage we shall discuss amendments to Clause 80 which concern the same issue of offences whose motivation is some form of religious bigotry or aggravation, or however one wishes to put it.
I suspect that the noble and learned Lord the Lord Advocate will reply to these amendments. He will be aware that they have been suggested to Members of your Lordships' House by the Law Society of Scotland which has clearly reflected on what was said in Committee, as indeed have all of us who took part in the debates at that time. Unfortunately, those of us who have practised in the criminal law whether as lawyers or, as in the case of the noble Earl, as a social worker must be aware that religious bigotry is just as prevalent as racial bigotry as an underlying reason for criminal conduct of a variety of pernicious natures.
There is a concern that as regards Clauses 26 and 80 the wrong message may be perceived; namely, that not only the Government but society think that such offences—which are to be deplored—are in some way more unsettling for the peace of society than those which are motivated by some form of religious prejudice. As I am sure the noble and learned Lord the Lord Advocate will agree, when one is involved—as he and I have been—in criminal cases in Scotland, one
704
finds that religious bigotry is often intertwined with racial bigotry. One does not, I think, need to give examples to vouch for that proposition.
This is not the time or the hour to debate this matter at length. I hope that between now and Third Reading the Government will consider whether it might be possible to expand the provisions of Clauses 26 and 80 to take account of religious motivation in the same way that they seek to address racial aggravation as a motivation. It does not seem to me impossible for that objective to be achieved. When the issue has been raised previously, Ministers have said, "We fully accept that you are right to be concerned about religious prejudice. We fully accept your right to be concerned about crime which is motivated for some other reason such as sexual orientation. But these chapters of this Bill are concerned with racially aggravated offences". I hope that a slightly more expansive view may be taken. I am satisfied that one could be taken.
While these amendments clearly will not be pressed to a Division, I hope that raising the issue will encourage Ministers to discuss with their colleagues whether two messages may be sent: that society will not tolerate crime which is motivated either by racial reasons or religious bigotry. I support the noble Earl.
Lord Monson: My Lords, as the noble and learned Lord, Lord Mackay, said, it is ideally not the right time to debate this matter at length. On the other hand, it is effectively the only opportunity we have. There will much to be dealt with on Third Reading. There is no guarantee that the issue will not arise late at night then also.
Introducing religion into the equation would open up a can of worms. If we introduce religious belief, why not philosophical belief, political belief, or, for that matter, irreligious belief? The noble Lord, Lord Thomas of Swynnerton, in his seminal book on the Spanish Civil War, reminded us that there were occasions during that war when declared atheists were killed and actually dismembered by fanatical Catholics. The same fate or worse has often been suffered by atheists in Moslem countries.
I mentioned philosophical belief. It is well known that many paedophiles sincerely believe that children enjoy the attentions of older people, and sometimes positively encourage them. It is not an offence to express such a belief, nor should it be. But it is going too far to suggest that someone who shook his or her fist at a paedophile expressing such a belief should risk being sent to prison for two years rather than six months. I cannot support any of these amendments.
Lord Thomas of Gresford: My Lords, I express my strong support for the amendments put forward. It so often happens that it is the midnight hour when we discuss amendments to Scottish legislation. Perhaps I may draw upon my strong Scottish connections to say that it is by no means a can of worms that is opened up by the amendments proposed by my noble friend and supported by the noble and learned Lord, Lord Mackay of Drumadoon. Anyone with any connections with Scotland will know the reasons that these amendments

705
are urged. I do not think that it is appropriate for me at this time of night to spell them out. I simply draw comfort from the fact that for once there appears to be a preponderance of those of Celtic origin in this House.
Lord Hardie: My Lords, I agree that it is an advantage that most of the noble Lords present are Celts. However, in relation to the amendments which are being discussed, I wholeheartedly agree with the noble Earl, and the noble and learned Lord, in their condemnation of offences motivated by religious bigotry. As I am sure do all noble Lords, the Government abhor such crimes which are wholly unjustified in any civilised society.
These amendments seek to extend the definition of the offence of racially aggravated harassment to include a reference to religion. As has been said in Committee, the Government have a clear objective in Clause 26; namely, to deal with racially aggravated harassment which poses a clear threat in our multiracial society. Unfortunately—I am not proud of this statistic—there has been a steady rise in the number of recorded racial incidents in Scotland in recent years. In 1989, there were 376. That figure rose to 832 in the fiscal year 1995–96.
The particular evil of racial harassment is that offenders identify their victims because of their appearance and because of what they naturally and inescapably are. Other groups in society do become victims of crime, including racial groups, because of who they are, but none is so open to harassment, based purely on prejudice, as the minority ethnic groups who form the majority of victims of racial crimes.
All attacks on vulnerable groups are deplorable. Section 26 is intended to reinforce the protection given to those members of our society who are particularly vulnerable to the action of bigoted criminals, and builds on long-standing legislation which seeks to protect individuals from prejudice on grounds of race.
I am aware that attacks which include elements of religious bigotry do arise in Scotland and they, too, are deplorable. However, as I said when we previously discussed this issue, such acts are difficult to identify and define in any satisfactory way. I should make it clear that I have no difficulty in prosecuting crime under the existing law, no matter what the motivation. The new offence of racial harassment carries the advantage that it may fit the facts of some cases of racial harassment better than would a breach of the peace, particularly where there is a course of conduct involved.
706
I do not believe that there is the same correspondence in the case of attacks that may include an element of harassment on the grounds of religion.
We consulted on the grounds of race, which is the issue that we are addressing in this Bill. We do not wish to detract from the message that this House will send out through the Bill to the victims of racial harassment. Our priority is to provide this additional protection for them. While I therefore understand and sympathise with the aims of the amendment, I hope that noble Lords will withdraw it.
Noble Lords will recall that in Committee I referred to the response of the Church of Scotland Church and Nation Committee to the consultation paper. In that response, the Church of Scotland recognised that, although small, there is a difference between religious and racial bigotry. That might well be an appropriate answer to the noble Earl, who raised the question of the Scottish dimension. This is a Scottish institution recognising that there is such a difference. In these circumstances, I ask the noble Earl to withdraw the amendment.
The Earl of Mar and Kellie: My Lords. I have clearly been trying to extend this clause to deal with the nature of intolerance, for whatever reason. I am certainly aware that there are many matters that people cannot do anything about. I am obviously concerned about—as the noble and learned Lord, Lord Mackay, put it—the wrong message being sent to the public.
However, I accept that the Government's proposal is to target this provision very much on racial communities. I accept that, and therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 71 to 79 not moved.]
Lord Carter: My Lords, I beg to move that further consideration of amendments on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Nuclear Explosions (Prohibition and Inspections) Bill [H.L.]
Returned from the Commons agreed to with a privilege amendment; the amendment considered and agreed to.
House adjourned at three minutes past midnight.