HL Deb 17 March 1998 vol 587 cc657-706

8.45 p.m.

Consideration of amendments on Report resumed.

Clause 15 [Contravention of curfew notices]:

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. 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 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.

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 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 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 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 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 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 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 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 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 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 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 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, 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 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.
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 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 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 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 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.
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 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 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.

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 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) 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 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 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 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 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 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 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 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 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 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—

  1. (a) using or allowing the house to be used for immoral or illegal purposes; or
  2. (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—
  1. (a) acted in an anti-social manner in relation to a person residing, visiting or otherwise engaging in lawful activity in the locality; or
  2. (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. (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—
  1. (a) been convicted of—
    1. (i) using or allowing the house to be used for immoral or illegal purposes; or
    2. (ii) an offence punishable by imprisonment committed in, or in the locality of, the house; or
  2. (b) acted in an anti-social manner in relation to a person residing, visiting or otherwise engaging in lawful activity in the locality; or
  3. (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?

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

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

  1. (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:
  2. (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 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 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 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 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—

  1. (a) section 18 of the Offences against the Person Act 1861 (wounding or causing grievous bodily harm with intent, etc.);
  2. (b) section 2 of the Public Order Act 1986 (violent disorder); or
  3. (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 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 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.

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 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 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 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 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. 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.