Crime and Disorder Bill [H.L.]

HL Deb 17 March 1998 vol 587 cc575-640

3.13 p.m.

Report received.

Clause 1 [Anti-social behaviour orders]:

Lord Henley moved Amendment No. 1: Page 1, line 13, leave out ("in an anti-social manner, that is to say,").

The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendment No. 3. The House will remember that we devoted a major part of the first day in Committee to antisocial behaviour orders and Clause 1. I trust that we can be considerably briefer in dealing with Clause 1 on this occasion. However, I wish to return to one or two of the amendments which I tabled on that occasion. As regards Amendment No. 2, I am pleased to see the name of the noble Lord, Lord Williams of Mostyn, added to the other distinguished names which follow my undistinguished name. I am grateful for his support and for his acceptance of the amendment. I shall deal with that briefly in due course.

It was right to devote a considerable amount of time to the antisocial behaviour orders because they are a new concept and are important. We believed it important that the Government should explain the thinking behind their clauses and the way in which they would work. I am grateful for the Government's responses and for the responses which we have received in correspondence with the noble Lord, Lord Williams.

We generally support the intention behind Clause 1 and the antisocial behaviour orders. It is important that the wording of such a clause should be as clear as possible. That is why I have tabled Amendments Nos. 1 and 3. They seek, first, to delete from page 1, line 13, the words, in an anti-social manner, that is to say", and, secondly, at page 2, line 3, to leave out "anti-social acts by him" and insert "harassment, alarm or distress". That would leave Clause 1(1)(a) and (b) using the words "harassment, alarm or distress". Following the lengthy debate in Committee, I maintain that those words would be clearer and therefore they would be easier for the courts to understand and interpret. They appear in other Acts of Parliament and the courts have dealt with them for some time. I believe that to add words to "harassment, alarm and distress"—for example, in an anti-social manner, that is to say"— further complicates matters and detracts from the precision which is important in a Bill.

We generally support the intentions behind the antisocial behaviour order but believe that there is a need for improving the wording. That is why I have tabled the amendments today. I beg to move.

Lord Renton

My Lords, I hope that the Government will be able to give favourable consideration to these amendments. The trouble is that antisocial behaviour is of many kinds and here we are dealing with only one particular kind. The Bill should make that clear. We see in subsection (1)(a) that the essence of the matter is causing harassment, alarm or distress. To introduce in addition the concept of antisocial behaviour confuses the issue. Let us stick to the point. I am sure that my noble friend Lord Henley has made a good case. It is a drafting matter, but an important one.

Lord Campbell of Alloway

My Lords, yes, it is a drafting matter and a very important one. I agree with everything that has been said, but how will the proposal marry with subsections (5) to (10)? We are dealing with a new form of disposition called an antisocial behaviour order. Therefore, one must have some substance in the creation of the offence which relates to antisocial behaviour. I am not trying to be technical, but I see more than a difficulty in the drafting.

Lord Williams of Mostyn

My Lords, the noble Lord is quite right. We spent quite a lot of time discussing these matters. We said that we would think carefully and we have. The noble Lord, Lord Renton, said that this was a drafting matter. We believe that it is more fundamental than that. It is perfectly plain in Clause 1(1)(a) that an antisocial order or behaving in an antisocial manner is to behave in a manner, that caused or was likely to cause harassment, alarm or distress". That is a new concept. It is entitled to be new because we believe that this is a significant social evil which at present is unaddressed.

We want to tackle antisocial behaviour. For quite a large number of people who live in this country, their lives are made a misery by it. It is not headline-catching behaviour but it is continuous, persistent misbehaviour which makes people unable to live happily and calmly in their own homes. We believe that it is the Government's duty to address that.

We have addressed it by defining what we believe the mischief is; in other words, behaving in an antisocial manner which is likely to cause harassment, alarm or distress. Nothing could be plainer. We do not dissent from the noble Lord's definition because in the Bill, "harassment, alarm or distress" is included as the definition of antisocial behaviour. We are setting out that that is an offence which we intend to tackle with due seriousness. It is a clear indication that that type of behaviour, which is an affront to the community, will be dealt with. Therefore, the label is there for a purpose; the purpose is important; and I regret to say that on this occasion, although not on other occasions, I am not able to feel persuaded by the argument that has been put.

Lord Henley

My Lords, I obviously agreed with much of what the noble Lord said. That was before he started to address the amendment itself. I accept that there are evils and mischiefs here which need to be addressed. That is why I made it quite clear that, generally speaking, we are content with the thinking behind Clause 1. That is why we accept that there should be antisocial behaviour orders.

As I thought I made clear, and as my noble friend Lord Renton made clearer, we believe that it would be better to have the wording which we have suggested; that is, if we keep to "harassment, alarm or distress" and use those three words in Clause 1(1)(a) and (b).

However, it seems that I have failed to persuade the noble Lord. It matters not much because I accept that we still have the words "harassment, alarm or distress" and, as I understand the noble Lord's explanation, the antisocial behaviour will be limited to that. The antisocial behaviour cannot go beyond "harassment, alarm or distress".

I know that this is Report stage but I ask the noble Lord to accept that that is the case. It would probably be possible for me to withdraw the amendment on the basis that the antisocial behaviour is so limited.

Lord Williams of Mostyn

My Lords, bearing in mind that this is Report stage, I am trying to be helpful. I do not believe that the drafting could be clearer than it is in Clause 1(1)(a) which states: that the person has acted…in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress". I do not believe that it could be plainer as a matter of drafting and I am happy to give that assurance.

Lord Henley

My Lords, I thank the noble Lord for that assurance. I am sorry that he is not prepared to accept the amendment, but in the light of his considerable reasonableness on later amendments, it is right that I should withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley

moved Amendment No. 2: Page 1, line 15, leave out ("two") and insert ("one"). The noble Lord said: My Lords, as I said, I am grateful that the noble Lord has been able to add his name to the amendment. I always understood that only four noble Lords could add their names to an amendment, but on this occasion I am grateful that a fifth has been permitted so we are quite clear that the noble Lord accepts the amendment that we put forward and has agreed that the amendment should go on the statute book.

I am grateful to the noble Lord for taking the trouble to write to me and other noble Lords in his letter of 4th March in which he set out why, on balance, after considering those matters, he was prepared to accept the amendment.

We had a considerable debate about this in Committee. A number of noble Lords made the case very clearly that there may be occasions when those suffering from the mischief were solitary individuals, rather than two or more persons, and that those persons would not necessarily have the benefit of the protection provided by the Protection From Harassment Act 1997. Therefore, the protection which orders of this sort can provide may also be appropriate for them.

As I said, I am extremely grateful to the noble Lord for accepting our arguments and adding his name to the amendment. I beg to move.

Viscount Tenby

My Lords, as the noble Lord will be only too well aware, it takes a lot to silence a Welshman. However, on this occasion I shall summon enough air into my lungs to give him a very warm "thank you" in eager anticipation of his answer.

Lord Williams of Mostyn

My Lords, I have never heard such an aspersion cast against my fellow countrymen in the past.

Amendments Nos. 2 and 26 are grouped together and it may be convenient if I speak to them now. We had a very focused debate on this issue in Committee. We promised that we would think about the matter very carefully. It seemed to those of us on this side who were listening to that debate that there was a good deal of virtue and point in what was being said. All three of us undertook, when we started this Bill, to listen genuinely with an open mind and we said that if the Bill could be improved, consistent with its philosophy and structure, we should accept amendments. Therefore, I am more than happy to do so.

The noble Lord said that I had written to him on occasions and I did so on 11th and 12th March. I was able to say then, so that I shall not return to congratulate us all subsequently, that on 11 separate issues, we have tabled amendments on Report to give effect to points raised in Committee. Therefore, that is not the mark of absolute Neanderthal resistance to all possible suggestions of improvement. In fact, quite the opposite, if I may respectfully say so.

Originally we thought that this should better be cast as two and not one. My noble friend Lord Mishcon gave examples which we thought were important and other noble Lords assisted. It was thought that that remedy might be of general validity if it were cast in the way for which the noble Lord, Lord Henley, contended. I am more than happy to accept his amendment, to which I have attached my name, and also to indicate that in due time, having addressed the issue, I shall formally move Amendment No. 26 which is along the same lines.

Lord Windlesham

My Lords, before we leave this amendment, the moment should not go unrecorded. This is the sixth day in Committee and on Report and I believe it is right to say that this is the first amendment, other than those tabled by the Government, which has been accepted. Therefore, it is an important moment.

I acknowledge what the noble Lord, Lord Williams, has just said; namely, that he gave undertakings on numerous occasions throughout the Committee stage to look again at matters that had been raised. As he has just told us, there are 11 separate matters on which he will be accepting amendments today. I welcome that.

My feeling is that it could have come a little earlier in Committee. I do not say that necessarily in a spirit of censure but, if it is not out of order to make those points about the handling of the Bill, it is better to have repentance now rather than to look forward to it in the future.

On Question, amendment agreed to.

[Amendment No. 3 not moved.]

Lord Goodhart moved Amendment No. 4: Page 2, line 7, at end insert— ("() A person shall not be treated under subsection (1) above as having acted in an anti-social manner if his acts are neither motivated by an intention to harass or cause alarm or distress to other persons nor likely to cause serious and justified alarm or distress to other persons.").

The noble Lord said: My Lords, this is an important amendment; indeed, I suggest that it is a most important one. Like a number of other noble Lords, I expressed a view both on Second Reading and in Committee that the definition in the Bill of acting in "an anti-social manner" in Clause 1 is dangerously wide. An antisocial behaviour order is a very powerful weapon indeed. As it stands, and subject to debate on other amendments on the Marshalled List, it must be imposed for a minimum period of two years during which time it cannot be discharged without the consent of the local council or of the police. A breach of an antisocial behaviour order is a criminal offence and may result in a five-year gaol term. The order may be imposed as a result of conduct which is not at all criminal, or as a result of criminal conduct carrying a maximum penalty of very much less than five years.

I accept that there are some circumstances in which such an order would be justified. Such circumstances could be persistent threatening and abusive behaviour, whether it affects a neighbourhood generally or specific individuals within it. Such conduct needs to be controlled. So, indeed, does seriously disturbing behaviour, even if it is not threatening and abusive, such as frequent, rowdy late-night parties in a block of flats with inadequate sound proofing.

However, an order as powerful as the antisocial behaviour order in the Bill needs a correspondingly serious level of misbehaviour to trigger it. All that is required at present to trigger the order is that the defendant has acted, in a manner that caused or was likely to cause harassment, alarm or distress".

There is no test of the seriousness of the alarm or distress and no requirement that the alarm or distress felt by the victim should be objectively justified. We think of neighbours from hell as abusive, drunken, drug-dealing households which play loud music and hold all-night parties. But there is another type of neighbour from hell; namely, the over-sensitive neighbour who objects to the noise of normal children or who complains whenever a television set is switched on, however low the sound may be, after nine o'clock in the evening. The distress of such households may be genuine—indeed, it frequently is—but it cannot justify the making of an antisocial behaviour order.

It is possible to say—and no doubt the Minister will do so—that, in such a case, the council or the police are unlikely to apply for an order and that, if they did so, a court would be unlikely to grant it. However, I believe that there are two answers in that respect. First, harassment by councils or the police in the sense of taking unjustifiable action against local residents is not unknown, especially against people who are unpopular for many reasons, some good and some bad, in the community in which they live. Secondly, if the conduct does not deserve a penalty, then the law should not make it potentially subject to such a penalty. One should not be penalised by law and unpenalised by the exercise of discretion.

I have revised the amendments which I tabled in Committee. I hope that the amendment now before the House is clearer and better expressed, although I accept that it is no doubt capable of further improvement. The proposed new subsection, as set out in the amendment, is in my view reasonably self-explanatory. It would tighten the definition of acting, "in an anti-social manner", and would divide conduct into two classes. The first is where the motive of action is itself to cause the alarm or distress. That might be described as bullying. In that case, I accept that the seriousness of the alarm or distress is irrelevant, so long as at least some is caused or likely to be caused.

However, that probably applies to a relatively small number of cases. Indeed, in most other cases the causing of alarm or distress is not actually the motive for the conduct. In such cases, I believe that the alarm or distress must be serious and justified: that is to say, the conduct of the defendant must be such as would cause alarm or distress to a reasonable person.

I find it very difficult indeed to accept that, if one or other of those tests is not satisfied, an antisocial behaviour order can be justified. Without those tests the order is over-strict, rigid and inflexible. The trouble with the definition—to borrow a phrase from another context—is that it allows no margin of appreciation. I believe that the circumstances which trigger an antisocial behaviour order should be modified in the way proposed in my amendment. That would greatly improve the application of the order as it now stands in the Bill. I beg to move.

3.30 p.m.

Lord Renton

My Lords, I have always had great respect for the learning of the noble Lord, Lord Goodhart, whom I have known as another member of the Bar for many years. However, I have very grave doubts about his proposed amendment. Under the Bill as it stands, we find in subsection (10) that, on indictment—which means that a jury considers the matter—there may be imprisonment for five years. We must consider this in a way that will ensure that the court can enable the jury to understand the matter; in other words, to understand what has happened. Indeed, the matter is positively expressed as it stands in subsection (1), with or without the amendment proposed by my noble friend Lord Henley, for which much can be said. However, if we were to accept Amendment No. 4, we would find that subsection (1) would be paraphrased in a somewhat negative way.

There is the further disadvantage in that in subsection (1) an antisocial manner is defined as, a manner that caused or was likely to cause harassment, alarm or distress". If the noble Lord's amendment were accepted, a subjective test would be introduced; namely, whether the antisocial manner was motivated by an intention to harass or cause alarm or distress. I can imagine a jury becoming most confused when faced with both those options. I believe that members of a jury could become confused if they had to be advised on the exact meaning of both those expressions as regards what underlies the offence.

Lord Thomas of Gresford

My Lords, I fully support my noble friend's amendment. A few moments ago the noble Lord, Lord Renton, said that a jury may have to decide such issues. In fact, there are two stages set out in the clause. The first stage is that it must appear to "the authority," which is either the local authority or the police—not a jury—that the relevant conditions have been met. The amendment is addressed to that first stage. It is proposed that the antisocial manner should be defined in the way outlined by my noble friend.

The second stage is when the jury, or a magistrates' court, may become involved. That arises in subsection (10) of the clause, which says: If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable". to the various penalties set out thereafter. Therefore, when it comes to the imposition of the criminal sanction, there is, presumably, a defence that the defendant has a "reasonable excuse" for what he has done. What my noble friend is suggesting is that one should, as it were, introduce the concept of the reasonable excuse before what he described as this dangerously wide order is imposed in the first place.

What concerns me is that at the stage when the local authority or the police are considering the making of this wide order, the person against whom the order is made may not be guilty of disturbing behaviour but of disturbed behaviour. Let us suppose someone who is mentally ill and is at large in the community is causing alarm and distress through his conduct. Is his mental illness not to be taken into account in the first place in the imposition of the order by the authority, and then can it be taken into account as a reasonable excuse if he should be subsequently charged with a criminal offence under subsection (10) at some later stage after the order is made? I believe there is a conflict between the first stage, the making of the order, and the further criminal stage.

Lord Renton

My Lords, as this is Report stage I may not make another speech. However, will the noble Lord be so good as to bear in mind that although, as he rightly says, under subsection (1) there is the question of the making of an order by "a relevant authority", nevertheless the definition of the antisocial behaviour referred to in subsection (10) is dependent upon what is written into subsection (1) where the definition of antisocial behaviour appears? That is what we are concerned with.

Lord Thomas of Gresford

My Lords, I am grateful to the noble Lord for his comments. I entirely agree with what he says. In a way he is making my point; namely, if you cannot commit the offence of being in breach of an antisocial order if you have a reasonable excuse, why should the order be made in the first place? Why should not the qualifications that my noble friend suggests in his amendment be before the authority who are minded to make the order in the first place? I suggest that the Minister should reconsider the matter.

Lord Campbell of Alloway

My Lords, I do not find any inconsistency here. A relevant authority may apply for the order. However, there is a discretion under subsection (4) as regards the court. It does not have to make an order; it may make an order. If there are mitigating circumstances and special considerations, the court retains under subsection (4)—as I see it, and I stand open to correction—a discretion whether or not to make the order. If that rather simple form of construction is correct, what is wrong with the clause?

Lord Northbourne

My Lords, I share the anxieties of the noble Lords, Lord Thomas of Gresford and Lord Goodhart. I do not know the right way to solve this problem. However, I am concerned that the phraseology of Clause 1 leaves open the possibility that an order may be made in circumstances where the alarm or distress caused was not, as it were, reasonable. Surely there should at least be a limitation that the alarm or distress is such as could be caused to a reasonable person and not just to any one person. That provision should be included as a minimum. I support the amendments of the noble Lord, Lord Goodhart.

3.45 p.m.

The Solicitor-General (Lord Falconer of Thoroton)

My Lords, what underlies the amendment of the noble Lord, Lord Goodhart, as I understand it, is a concern that there may be conduct which upon analysis does not justify the making of an antisocial behaviour order because it is either reasonable or not sufficiently serious to justify the making of an order. I believe that his concern is misplaced. I believe that insufficient attention has been given to the basic procedure which applies in relation to the making of such an order. Without being wearisome I hope I may indicate briefly what is involved.

The application for an order can be made only after consultation between the local authority and the police authority. There is no obligation on an authority which regards antisocial behaviour as taking place, or arguably taking place, to make such an application. Once it has consulted and decided to make the application, as the noble Lord, Lord Campbell of Alloway, rightly pointed out, there is a discretion on the part of the magistrates' court as to whether or not it makes an order. On the point made by the noble Lord, Lord Northbourne, there is a specific provision in Clause 1(5) which requires the court, upon the application for an order being made, to, disregard any act of the defendant which he shows was reasonable in the circumstances". Therefore there is the obligation to consult; there is the discretion as to whether to apply; there is the discretion on the part of the magistrates as to whether or not to grant the order; and there is the obligation on the part of the magistrates to remove from their consideration any conduct on the part of the defendant—the person against whom the application is made—which they regard as being reasonable in the circumstances.

We believe that that is safeguard enough to ensure that the orders are not made in inappropriate circumstances. Equally, we believe that one needs to deal with this on a case-by-case basis. We need to give magistrates a straightforward and clear test they can apply, which we believe our provision does. We believe that there are more than sufficient safeguards in the Bill as it is. I say with the greatest of respect to the noble Lord, Lord Goodhart, that his amendment is unnecessary, misplaced and simply adds to complication where none is necessary.

I turn to the two elements in the amendment—

Lord Thomas of Gresford

My Lords, before the Minister does that, can he explain what the Government have in mind by the expression "without reasonable excuse?" What kind of excuse would be reasonable for the breach of an antisocial order that had been made by a magistrates' court?

Lord Falconer of Thoroton

My Lords, it would be wrong for me to start to define here what is a reasonable excuse because that quintessentially is a matter that magistrates decide on a day-to-day basis.

Lord Thomas of Gresford

Oh!

Lord Falconer of Thoroton

My Lords, I can give the noble Lord, Lord Thomas of Gresford, an example as he made a strange noise when I said that. If, for example, the nature of the antisocial behaviour was continually to make a noise with a car, or a noise of the kind that the noble Lord, Lord Thomas of Gresford, makes from time to time, a reasonable excuse might be that a medical emergency required the arrival of a loud car at night to drive someone away. There is tremendous danger in someone seeking to indicate in this debate what constitutes reasonable excuse because then it would become defined. I say with the greatest of respect to the noble Lord, Lord Thomas of Gresford, that I should have thought his vast experience in the courts would lead him to the conclusion that magistrates are wise enough and experienced enough to know a reasonable excuse when they see it. As one reads the provisions of the Bill, one can see that there is no conflict whatever between the criminal offence stage—namely, determining whether there is a breach of the order—and the stage at which one is considering whether to make the order.

I shall deal with the two elements of the amendment of the noble Lord, Lord Goodhart. First, on the issue of specific intention, in considering whether to grant an order in the first place the courts will have to consider whether on the balance of probabilities the behaviour of the individual or the individuals was likely to cause harassment, alarm or distress in the future. As I have already stated, the nature of this order is merely prohibitive. That is to say, a person subjected to the terms of an order is merely being asked to behave in a reasonable manner, in a way which is considered to be within the bounds of the law. We are not talking at this first stage about sanction for a criminal offence. Moreover, as I have indicated, a defence of reasonableness has been provided. Surely there can be no need to prove intent merely to seek an order which simply demands that a person acts reasonably. To ask for that would be to cut across one of the main purposes of the provision. We believe that it is the heedless, careless antisocial actions that the order needs to target, not just those with deliberate intent. The orders do not simply duplicate that which is already provided in the Public Order Act 1986 and Protection from Harassment Act 1997.

The prohibitive order is, as noble Lords know, backed by a criminal offence in the event of a breach, and this offers—as the noble Lord, Lord Thomas of Gresford, rightly pointed out, albeit with an air of bafflement—the defence of reasonable excuse. Someone who breaches the order will therefore not be liable to prosecution under the criminal law unless he wilfully breaches the order.

The second issue is whether the behaviour should be such as to cause "serious" or "justified" alarm or distress. For the reasons I have indicated, we do not feel this is necessary. I entirely agree that applications should not be brought where the behaviour at issue is trivial. But I believe that for the reasons I have indicated there are sufficient protections to prevent that happening. Moreover, the amendment makes the clause more difficult to understand and unnecessarily complicated. For those reasons, I ask the noble Lord to withdraw his amendment.

Lord Goodhart

My Lords, perhaps I may reply briefly to the noble Lord, Lord Renton. Whether the making of an antisocial behaviour order is justified by the defendant's behaviour—it is an issue to which my amendment goes—is a matter for the court alone at the first stage of the procedure. If and when the matter comes before members of a jury, they will have to decide what will probably be a simple factual question: whether there has been a breach of the order; and, if so, whether the defendant has a reasonable excuse for it. Therefore the concerns expressed by the noble Lord, Lord Renton, are not justified by my amendment.

The noble and learned Lord, Lord Falconer of Thoroton, gave the answer I expected and foresaw; namely, that one can rely on the discretion of the local authority, the police or the courts to ensure that unjustifiable orders are not made. That is not good enough. As I said earlier, people should not be in danger of having antisocial behaviour orders made against them under the law and then having to rely on the discretion of the local authorities, the police or the courts to avoid having the order made against them. The level of conduct which triggers the order should in itself be high enough not to make it necessary in large numbers of cases to have to rely on the discretion of the courts.

I regret to say that I believe that Clause 1 as it now stands contains a potential—I hope that it will never be more than a potential—for a serious infringement of human rights. In those circumstances, I must seek the opinion of the House.

3.53 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 131.

Division No. 1
CONTENTS
Ackner, L.	Lane, L.
Addington, L.	Linklater of Butterstone, B.
Beaumont of Whitley, L.	Ludford, B.
Bellwin, L.	McNair, L.
Brightman, L.	McNally, L.
Calverley, L.	Maddock, B.
Cochrane of Cults, L.	Mar and Kellie, E.
Coleridge, L.	Monson, L.
Dholakis, L.	Moyne, L.
Ezra, L.	Northboume, L.
Falkland, V.	Redesdale, L.
Gainfotd, L.	Rochester, L.
	Rodgers of Quarry Bank, L
Goodhart, L. {Teller]	Russell, E.
Grey, E.	Saltoun of Abemethy, Ly.
Hampton, L.	Shaughnessy, L.
Harlech, L.	Thomas of Gresford, L. [Teller.]
Harris of Greenwich, L.	Thurso, V.
Henderson of Brompton, L.	Tope, L.
Holderness, L.	Tordoff, L.
Hooson, L.	Wallace of Saltaire, L.
Ilchester, E.	Williams of Crosby, B.
NOT-CONTENTS
Acton, L.	Gallacher, L.
Allenby of Megiddo, V.	Gilbert, L.
Alport, L.	Gladwin of Clee, L.
Amos, B.	Glenamara, L.
Ampthill, L.	Gordon of Strathblane, L.
Annan, L.	Gould of Potternewton, B.
Archer of Sandwell, L.	Graham of Edmonton, L.
Balfour of Inchrye, L.	Grenfell, L.
Bassam of Brighton, L.	Hardie, L.
Bath and Wells, Bp.	Hardy of Wath, L.
Berkeley, L.	Haskel, L.
Blackstone, B.	Hayman, B.
Blease, L.	Hilton of Eggardon, B.
Blyth, L.	Hogg of Cumbemauld, L.
Borrie, L.	Howie of Troon, L.
Bruce of Donington, L.	Hoyle, L.
Burlison, L.	Hughes, L.
Campbell of Alloway, L.	Hughes of Woodside, L.
Carmichael of Kelvingrove, L.	Hunt of Kings Heath, L.
Carter, L. [Teller.]	Hylton, L.
Castle of Blackburn, B.	Irvine of Lairg, L. [Lord Chancellor.]
Charteris of Amisfield, L.
Chorley, L.	Islwyn, L.
Cledwyn of Penrhos, L.	Jay of Paddington, B.
Clinton-Davis, L.	Jeger, B.
Cocks of Hartcliffe, L.	Jenkins of Putney, L.
Craig of Radley, L.	Kennedy of The Shaws, B.
Crook, L.	Kennet, L.
David, B.	Kilbracken, L.
Davies of Coity, L.	Kilpatrick of Kincraig, L.
Davies of Oldham, L.	Kintore, E.
Dean of Beswick, L.	Kirkhill, L.
Dean of Thomton-le-Fylde, B.	Lockwood, B.
Desai, L.	Lofthouse of Pontefract, L.
Diamond, L.	Lovell-Davis, L.
Dixon, L.	McCarthy, L.
Dormand of Easington, L.	McIntosh of Haringey, L. [Teller.]
Dubs, L.
Elis-Thomas, L.	Mason of Barnsley, L.
Evans of Parkside, L.	Merlyn-Rees, L.
Swing of Kirkford, L.	Merrivale, L.
Falconer of Thoroton, L.	Milner of Leeds, L.
Farrington of Ribbleton, B.	Milverton, L.
Fitt, L.	Molloy, L.

Monkswell, L.	Shore of Stepney, L.
Montague of Oxford, L.	Simon, V.
Montgomery of Alamein, V.	Simon of Glaisdale, L.
Murray of Epping Forest, L.	Simon of Highbury, L.
Nelson, E.	Slim, V.
Nicol, B.	Smith of Gilmorehill, B.
Palmer, L.	Stallard, L.
Peston, L.	Stoddart of Swindon, L.
Pitkeathley, B.	Strabolgi, L.
Plant of Highfield, L.	Strafford, E.
Ponsonby of Shulbrede, L.	Symons of Vernham Dean, B
Prys-Davies, L.	Tenby, V.
Putlnam, L.	Varley, L
Ramsay of Cartvale, B.	Wallace of Coslany, L.
Rea, L.	Weatherill, L.
Rendell of Babergh, B.	Westbury, L.
Renton, L.	Wharton, B.
Richard, L. [Lord Privy Seal]	Whitty, L.
Sainsbury of Turville, L.	Williams of Elvel, L.
St. John of Fawsley, L.	Williams of Mostyn, L.
Sewel, L.	Winston, L.
Shepherd, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.2 p.m.

Lord Henley moved Amendment No. 5: Page 2, line 23, leave out ("less than two") and insert ("more than five").

The noble Lord said: My Lords, this is a variation on a pair of amendments, of which I moved one and the noble Lord, Lord Goodhart, moved the other at Committee stage.

In Committee, I argued that a total discretion ought to be given to the courts in terms of how long the period specified in the order ought to last. As the Bill is drafted, the antisocial behaviour order, shall have effect for a period (not less than two years)", but no maximum is imposed. We argued that that could be left entirely to the courts and that the courts should be free to choose the length of time that they considered suitable without a minimum—or, for that matter, a maximum. The noble Lord, Lord Goodhart, suggested that it might be more appropriate that there should be a maximum figure. Therefore, I return to the matter with a variation whereby the minimum period, "not less than two years", should be deleted; but I have also specified a period not more than five years to make it clear that there is a maximum beyond which the courts should not go.

These are matters that can be left to the courts. I do not believe it is right that the court should be limited to a period greater than two years, with the possibility of removing the order with the consent of both parties as set out in subsection (9). I should be interested in hearing explanations from the Government as to why they feel that, again, not only should there be no minimum but also that there should be no maximum. I beg to move.

Lord Goodhart

My Lords, this amendment is on the lines of one that I moved in Committee. At that time I proposed a maximum period of two years. However, I said then, and I repeat, that it could well be argued that a longer maximum is justifiable. In the circumstances, I am happy to support the noble Lord's amendment.

Lord Falconer of Thoroton

My Lords, this amendment would change the nature of the antisocial behaviour order and what it is trying to achieve. We discussed this at some length during Committee when similar amendments to the clause were tabled.

We see the order as a tool to deal with a serious and escalating problem of antisocial behaviour in our communities. It is not to be used lightly. I hope that the procedures I set out in relation to the previous amendment made that clear. It is a last resort when other methods have failed. If it is not successful, as the structure of the order makes clear, the next step is the criminal law. We do not see it as a tool to deal with petty irritations, grievances or disputes between neighbours. The minimum two-year duration for an order is a mark of the seriousness with which we expect all those involved to view it. That is an important point. That includes the offender, the police, the local authority and the courts. Behaviour which does not merit a two-year order should not be dealt with in this way.

As regards the proposed five-year maximum duration for an order, I agree that an order going beyond this would only exceptionally be justified. For most cases, particularly young people, five years would be more than sufficient for such prohibitions. But I do not see any reason to limit the discretion of the courts where, exceptionally, an order is justified for a longer period. That is the line adopted for a restraining order in the Protection from Harassment Act 1997, and similar arguments apply.

I appreciate that our approach may seem severe. But we need to deal effectively with such behaviour to stamp it out. We do not underestimate the severity of the effect of such behaviour on people who are adversely affected by it. For those reasons, the Government cannot accept this amendment. I ask the noble Lord to withdraw it.

Lord Henley

My Lords, I have no intention of pressing the amendment today. However, I may wish to return to it at a later stage.

The noble and learned Lord talked in terms of not wishing to restrict the discretion of the court by not setting a maximum; however he does wish to restrict the discretion of the courts in setting a minimum. I should have thought that the courts are the best people to decide whether there might be occasions when a period of less than two years was appropriate. There might be a serious outbreak of antisocial behaviour causing harassment, alarm or distress, but the courts might feel that a period shorter than two years—merely six months or a year—might be appropriate to deal with the mischief and prevent it recurring. It is certainly a matter that ought to be addressed.

Similarly, if the matter is of great seriousness, it is right that there ought to be a maximum period. If it is thought that a period longer than five years is appropriate, then possibly other remedies ought to be pursued; or possibly the criminal law ought to be made use of.

Certainly there are arguments that imposing a limit on the courts indicates to them that they should think very seriously about the degrees of mischief that they are addressing between, say, one year and five years. Anything beyond that is a matter of much greater seriousness. One can envisage examples where the problem would be likely to continue for more than five years. I shall return to that minimum and maximum at a later stage because I believe the point is important. This afternoon I prefer to withdraw the amendment with a view to addressing it later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 6: Page 2, line 25, leave out ("Subject to subsection (9) below").

The noble Lord said: My Lords, any bruising I may feel after the fairly clear rejection of my previous amendment is modified by my conviction that, if both the Government and the Opposition join forces against us, we must be in the right.

I asked for Amendments Nos. 6, 7, 10, 11, 12 and 14 to be grouped together. They deal with two different subjects but there is a common link between them. Amendments Nos. 6, 7, 11 and 12 deal with the exclusion of any power of the courts to discharge an antisocial behaviour order or a sex offender order without the consent of the applicant. Amendments Nos. 10 and 14 deal with the exclusion of the power to order a conditional discharge. They are two different subjects but they have a common theme, which is what I believe to be the Government's wholly unjustified refusal to trust the courts to act properly.

The Government appear to consider that the courts cannot be trusted to exercise the power to discharge an antisocial behaviour order within two years or a sex offender order within five years or the power to order a conditional discharge. My reaction to that is to ask: why ever not?

Let us look first at the power to order a discharge. The court has a discretion to make the order in the first place. As I said earlier, the antisocial behaviour order is a powerful order which should not be kept in place when it is not required. The Minister, the noble Lord, Lord Williams of Mostyn, accepted in Committee on 3rd February (Hansard, col. 575) that there may be changes which fundamentally affect the basis of the order. He gave as an example the teenager who goes to college where he grows up and matures. The noble Lord said that he would expect no difficulty in discharging an order in such a case. I regret that I am not so confident.

The effect of the provisions covered by Amendments Nos. 6, 7, 11 and 12 is to transfer the power of decision over discharge of an order from the court to the local authority or the chief officer of police. I believe that there are three objections to that. First, this in effect turns the applicant into a judge in his own cause, which I believe is wholly wrong in principle. Secondly, a local authority is the wrong body to take decisions of this kind. It is likely to be influenced by political considerations of the popularity or unpopularity of the individual concerned and to play safe by refusing consent. Thirdly, I believe that it will create problems for the local authority or chief officer of police.

Since the power of decision has effectively been transferred from the court to the local authority or the chief officer, the local authority or the chief officer will have to consider in a judicial manner whether to consent to the discharge of the order. That decision is subject to judicial review. I believe that it is a burden which those bodies would prefer not to have and which it is not appropriate for them to have. It is surely better that a local authority or chief officer of police should put before the court any evidence that the order is still needed when the subject of the order makes the application for discharge and should be able, through their lawyers, to cross-examine the subject of the order on his evidence that the order is not needed.

The second aspect of failure of trust is the refusal to allow the power to order a conditional discharge. I ask again why on earth the court should not have power to order a conditional discharge. The noble Lord, Lord Williams of Mostyn, said in the same debate that a conditional discharge ignores the original order. He said: We have come to the policy conclusion that if, without reasonable excuse, which is a defence, a breach of the order occurs, it must mean that the defendant has continued in his actions in defiance of the court…It means that he has a pattern of behaviour that he either cannot or will not control".—[Official Report, 3/2/98; col. 605.]

I believe that that analysis totally ignores the reality of the situation. The reality is that many people will commit minor breaches of antisocial behaviour orders in circumstances where they do not have a reasonable excuse but where they equally have no intention of defying the court. Let us assume that an order requires a particular defendant to be in his house from 9 p.m. onwards every Saturday night because he is a troublemaker who has caused rows in the town centre late on Saturday evenings. He goes to the pub in good time, well before nine o'clock. Unfortunately, he fails to look at his watch and loses track of time. He is caught by the police sneaking back into his house at ten minutes past nine in the evening. Does he have a reasonable excuse? Manifestly, he does not. But is he acting in defiance of the court? Equally clearly, he is not. The fact is that there will be many trivial breaches.

The noble Lord, Lord Williams of Mostyn, admitted in Committee when I put the question to him that the court can recognise that a breach is trivial by imposing a £5 fine. Why on earth, then, can the court not order a conditional discharge in circumstances such as I have described? That is surely a much more useful and appropriate remedy than a purely nominal fine. The court would be saying, "We accept that this is a trivial breach and is not deliberate, but you must be more careful. If you do it again, you will be in real and serious trouble." Why not trust the courts with powers of that kind? Why not give powers to the courts to discharge orders that are no longer needed? Why not allow courts to order conditional discharges?

No doubt the Government want to prove their toughness. It is, of course, right that seriously antisocial behaviour should be dealt with toughly. But there is a point at which toughness becomes authoritarianism. In restricting the power of the courts in the way proposed in the Bill, the Government have passed that point. I believe that the noble Lord, Lord Williams of Mostyn, knows that as well as I do. I beg to move.

Lord Renton

My Lords, although I was against the noble Lord, Lord Goodhart, on his previous amendment, on which he was defeated, I hope that the Government will give very sympathetic attention to this amendment. We must bear in mind that defendants may have become deeply ashamed of their antisocial behaviour. It may not take them very long to repent. We should not have orders of this kind in force longer than necessary, especially where young people are concerned. The late Lord Wilson of Rievaulx once said: A week is a long time in politics". I can assure your Lordships, not without some experience, that two years can be a long time in law.

Lord Thomas of Gresford

My Lords, in supporting my noble friend on these amendments, perhaps I may disagree with him on one matter. He says that there is a failure of trust in judges and magistrates on the part of the Government. I do not believe that there is a failure of trust. If there is a failure of trust in judges and magistrates doing their job properly, there is no objective evidence to justify it. Indeed, the evidence is all to the contrary. If the Government want toughness, the gaols are full to overcrowding.

As I see it, there is a continuation of an underlying theme from the last government that there is political capital to be made in castigating the judges as soft and projecting the Government as being tough. That is the theme that has run all the way through from mandatory sentences in the period of the last government to the restrictions on the powers of judges and magistrates as contained in the Bill. There is nothing to support that. For those reasons I ask the Government to think again and leave the discretion to the magistrates and judges to do what is appropriate and right in terms of these orders.

Lord Henley

My Lords, I have a degree of sympathy for the first half of the group of amendments tabled by the noble Lord, Lord Goodhart, where he is seeking to give a discretion to the courts to discharge an order before the end of the period of two years. I have less sympathy with the second half of the group and would therefore be grateful for a degree of clarification from him when he comes to respond to the Minister as to how he intends to proceed. It is unlikely that we can support Amendment No. 6 if it means supporting all the amendments in the group. As he put it, they divide into two distinct categories.

As regards the first half of that group, though it is not grouped with them, Amendment No. 8 in my name and that of my noble friend deals with this issue in a slightly simpler manner. It leaves all the provisions as they are but gives a discretion to the court—where it is of the opinion that there are exceptional circumstances relating to the offender or the offence which justify it in so doing—to discharge an order without the consent of the two parties. However, it makes it absolutely clear that if the court does so, it shall clearly state its reasons.

As I said, I should be grateful for clarification from the noble Lord when he responds to the Minister as to how he intends to proceed with the two categories of amendments.

Lord Falconer of Thoroton

My Lords, as the noble Lord, Lord Goodhart, pointed out, these amendments deal with two different issues: first, they give the court power to discharge antisocial behaviour orders and sex offender orders before they reach the end of their duration as ordered by the court; secondly, they give the court power to order a conditional discharge where there has been a breach of either the antisocial behaviour order or the sex offender order.

Perhaps at the outset I can deal with two completely unfounded points that were made. First, it was suggested that the provisions in the Bill as it is presently drafted indicate that somehow the Government do not trust the judiciary or the magistrates. That is quite wrong. I draw attention specifically to the fact that on the previous amendment the complaint being made was that we were giving too much discretion to the magistrates' court. It would appear therefore that in stage one we are giving too much discretion and in stage two, too little.

I believe that the approach we have taken in relation to both not giving a right to discharge against the consent of the local authority and not saying a conditional discharge is available, is based entirely on matters of practicality, which I hope to make out now. The second point was that we are simply trying to appear to be tough. That is quite wrong; we are simply trying to be practical.

Perhaps I can deal first with the minimum duration of the orders and the issue of discharge before this. The Bill as drafted at present allows for an order to be discharged if both sides agree. Such circumstances for an antisocial behaviour order might include a move to a different area, or a teenager going away to college—the kind of change which fundamentally affects the basis of the order. If there is such a fundamental change, there will be no basis for the local authority or the chief officer of police to refuse to consent to a discharge. As the noble Lord, Lord Goodhart, pointed out, there would be judicial remedies not in the magistrates' court if there was a problem in relation to that. Moreover, even without consent, the orders can be varied to reduce or change their conditions.

We do not believe it would be sensible to go further than that. An order is not a penalty. Antisocial behaviour orders should only prohibit antisocial behaviour, not interfere in the defendant's everday lawful and socially acceptable activities. Such an order carries no criminal record implications. We do not want to open up an area of continued dispute over possible early cessation of the orders, which would be the effect of the amendment. The defendant should be well aware that the kind of activity prohibited is unacceptable to society; he should cease that activity; and the order can run its length without adverse effect.

To turn to sex offender orders, we need to take a realistic approach. In reality, where an order has been established as necessary and a court has accepted that, the need for it will not go away. The circumstances may change but, unless something exceptional happens, the risk to the public will remain. We could not support the dilution of that position where a matter as serious as this is concerned.

The antisocial behaviour order should not be seen as banning activity which will become acceptable in time. Antisocial activity is simply not acceptable. That is what the order is about. Nor is the need to control the activities of a sex offender likely to change. For those reasons the Government cannot accept the amendments relating to discharge without the consent of the local authority or the chief officer of police.

To turn now to the issue of conditional discharge for breach of the orders, I understand why noble Lords have tabled these amendments since, at first sight, not to allow a conditional discharge for the breach of an order could be seen as fettering the discretion of the court. Let me explain why I do not feel that to be the case.

For an antisocial behaviour order to be imposed, prior to the order the defendant had acted in an antisocial way. We assume that he had not been prepared to stop those actions voluntarily. Though it is not within the legislation, the guidance will make clear that normally other means short of court action, such as mediation, should have been explored. The antisocial behaviour order, as I made clear in the course of the last debate, stands as a last resort against the individual concerned short of, if an offence is committed, invoking the criminal law.

For a sex offender order the defendant's original behaviour, although it may appear trivial, has been sufficient to convince the police and subsequently the courts that there is reasonable cause to believe that the public are at risk of serious harm from him. The prohibitions are justified as necessary to protect the public from serious harm.

This is a clear message to the defendant. The order is saying, "Continue in this behaviour and you will be in serious trouble. If you breach the order, there will be consequences under the criminal law". But to make a conditional discharge following a breach appears to ignore all that. The prohibition on the behaviour is already present in the original order. It does not need to be repeated. And the flouting by the defendant of the authority of the court is ignored.

Let me take the example of the noble Lord, Lord Thomas of Gresford. The defendant has behaved in a specific way which, after mediation and the exercise of all the considerations to which I referred, led to the court making an order which says, "Do not do this. If you do, you will be in breach of the criminal law". He does it. He is in breach of the criminal law and the noble Lord, Lord Thomas of Gresford, is suggesting that the criminal law should say, "If you do it again, you will then suffer consequences". We do not believe that to be appropriate. As a matter of commonsense it does not seem to us to be the way to stop people behaving in an antisocial manner.

I should perhaps make one final point specifically on the sex offender order. The defendant has been able to show no reasonable excuse for the breach of the order, where he is convicted of a breach. Without such excuse, the breach of the order means that the defendant has continued in the action in defiance of the court, and in the knowledge that his conduct will be viewed in that way. That suggests that this is a pattern of behaviour that he cannot control. This is a serious matter in relation to sex offender orders, especially in the context of behaviour which has been established as needing to be prohibited because of the risk of serious harm to the public.

For those reasons, after careful consideration, the Government cannot accept these amendments.

4.30 p.m.

Lord Goodhart

My Lords, the noble and learned Lord, Lord Falconer of Thoroton, said that we were being inconsistent in saying that the courts had too much discretion in the making of an antisocial behaviour order and too little discretion in the punishment. That difference is because these are two entirely different kinds of discretion. As far as concerns the definition, we are saying that anything that is likely to give rise to a penalty—this is a penalty: it may be a civil penalty at stage one rather than a criminal penalty—must be clearly defined in the Act which creates that penalty. We should not rely on the courts to apply that as a matter of discretion and to use their discretion to prevent the law having an unjust and excessive operation.

When it comes to the question of imposing a penalty, which is what this group of amendments is concerned with, it is right that the courts should be given a very wide discretion. That is a matter not just to do with these orders but of the general principles of law.

As far as concerns the discharge of the order, the noble and learned Lord said that the order is not a penalty. However, if it is not a criminal penalty, it is at least a civil penalty. One of the principles of civil penalties, as with injunctions, is that they are always subject to discharge when the circumstances no longer justify them. That is recognised in principle because there is a power here to discharge. All we are saying is that the appropriate body to decide whether the discharge is justified is the court and not the local authority or the chief officer of police.

On the question of conditional discharges, I accept that the defendant will have acted in an antisocial way before an antisocial behaviour order is made. I certainly hope, though the Bill does not in itself make it clear, that this will be regarded as a last resort for dealing with the problem. But it is wholly contrary to common sense to suggest that there is no such thing as a trivial breach of the order. Clearly, the order cannot just say, "You must not continue to behave in an antisocial manner". It must lay down parameters of what the defendant can or cannot do. Those parameters may be broken. When they are broken, the matter should come before the court. But the breach of the antisocial behaviour order may or may not be a serious one. It is perfectly possible for there to be a trivial one. The courts will have a power to impose a nominal fine. I say again, why on earth should they not have power to order a conditional discharge?

The noble Lord, Lord Henley, asked me how I intended to proceed. My noble friends and I regard this as a serious matter on which we intend to test the opinion of the House. I do not intend to make a habit of that and it will be some time before we proceed to do it again in the course of this debate. However, together with the earlier amendment, we regard this as a very serious matter, indicating, if not distrust of the power of the courts, at least, as my noble friend Lord Thomas of Gresford said, a reluctance to allow them to exercise their powers freely.

I intend to test the opinion of the House on Amendment No. 6, which is in effect a paving amendment. If that is defeated, I will not seek to take the matter further on Amendments Nos. 10 and 14. If it succeeds, we might have to look at that again. I seek to test the opinion of the House on Amendment No. 6.

4.35 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 120.

Division No. 2
CONTENTS
Addington, L.	Lindsey and Abingdon, E.
Beaumont of Whitley, L.	Linklater of Butterstone, B.
Calverley, L.	Ludford, B.
Carlisle, E.	McNair, L.
Cox, B.	McNally, L.
Dholakia, L.	Maddock, B.
Ezra, L.	Mar and Kellie, E.
Falkland, V.	Newby, L.
Geraint, L.	Nicholson of Winterboume, B.
Goodhart, L. [Teller.]	Redesdale, L.
Grey, K.	Renton, L.
Hampton, L.	Rochester, L.
Harris of Greenwich, L.	Rodgers of Quarry Bank, L
Henderson of Brompton, L.	Russell, E.
Hooper, B.	Thomas of Gresford, L. [Teller.]
Hooson, L.	Thomas of Walliswood, B.
Hylton-Foster, B.	Thurso.V.
Kenyon, L.	Tope, L.
Kitchener, E.	Wallace of Saltaire, L.
Lester of Herne Hill, L.	Williams of Crosby, B.
NOT-CONTENTS
Acton, L.	Blease, L.
Allenby of Megiddo, V.	Borrie, L.
Alport, L.	Braine of Wheatley, L.
Amos, B.	Brooke of Alverthorpe, L.
Ampthill, L.	Bruce of Donington, L.
Archer of Sandwell, L.	Burlison, L.
Barnett, L.	Carmichael of Kelvingrove, L.
Bassam of Brighton, L.	Carter, L. [Teller.]
Bath and Wells, Bp.	Castle of Blackburn, B.
Berkeley, L.	Cledwyn of Penrhos, L.
Biffen, L.	Clinton-Davis, L.
Blackstone, B.	Currie of Marylebone, L.

David, B.	Longford, E.
Davies of Oldham, L.	Lovell-Davis, L.
Dean of Beswick, L.	McCarthy, L.
Dean of Thomton-le-Fylde, B.	McIntosh of Haringey, L. [Teller.]
Desai, L.
Diamond, L.	Masham of Ilton, B.
Dixon, L.	Merlyn-Rees, L.
Dormand of Easington, L.	Milverton, L.
Dubs, L.	Molloy, L.
Elis-Thomas, L.	Molyneaux of Killead, L.
Ely, Bp.	Monkswell, L.
Evaas of Parkside, L.	Montague of Oxford, L.
Ewing of Kirkford, L.	Murray of Epping Forest, L.
Falconer of Thoroton, L.	Nelson, E.
Farrington of Ribbleton, B.	Nicol, B.
Fitt, L.	Palmer, L.
Gaiasborough, E.	Peston, L.
Gallacher, L.	Pitkeathley, B.
Gilbert, L.	Prys-Davies, L.
Gladwin of Clee, L.	Puttnam, L.
Glenamara, L.	Ramsay of Cartvale, B.
Gordon of Strathblane, L.	Randall of St. Budeaux, L.
Gould of Potternewton, B.	Rea, L.
Graham of Edmonton, L.	Rendell of Babergh, B.
Grenfell, L.	Richard, L. [Lord Privy Seal.]
Hardie, L.	Sainsbury of Turville, L.
Hardy of Wath, L.	St. John of Fawsley, L.
Haskel, L.	Sewel, L.
Hayman, B.	Shepherd, L.
Hilton of Eggardon, B.	Simon, V.
Hogg of Cumbemauld, L.	Simon of Glaisdale, L.
Hollis of Heigham, B.	Simon of Highbury, L.
Howie of Troon, L.	Smith of Gilmorchill, B.
Hoyle, L.	Stoddart of Swindon, L.
Hughes, L.	Strabolgi, L.
Hughes of Woodside, L.	Strafford, E.
Hunt of Kings Heath, L.	Symons of Vernham Dean, B.
Irvine of Lairg, L. [Lord Chancellor.]	Taylor of Blackburn, L.
	Tenby, V.
Islwyn, L.	Thomas of Macclesfield, L.
Jay of Paddington, B.	Varley, L.
Jeger, B.	Walker of Doncaster, L.
Jenkins of Putney, L.	Wallace of Coslany, L.
Kennedy of The Shaws, B.	Watson of Invergowrie, L.
Kennet, L.	Whitty, L.
Kilbracken, L.	Williams of Elvel, L.
Kirkhill, L.	Williams of Mostyn, L.
Lockwood, B.	Winston, L.
Lofthouse of Pontefract, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.44 p.m.

[Amendment No. 7 not moved.]

Lord Henley moved Amendment No. 8 Page 2, line 30, at end insert ("unless the court is of the opinion that there are exceptional circumstances relating to the offender or offence which justify its doing so, in which case the court shall state its reasons").

The noble Lord said: My Lords, I intend to speak to this amendment very briefly in order to ask just one question. We have already debated this matter. In the event we decided that we could not offer our support on these matters to noble Lords on the Liberal Benches. The question deals with when the court is able to discharge such orders in under two years without the agreement of the two parties. We have been told that the orders have to last for two years.

Bearing in mind the response that I received from the noble and learned Lord regarding a previous amendment when he said that the two-year limit was there because it indicated the seriousness with which these matters should be viewed, can he inform us why these matters are considered to be very serious in England and Wales where an order must be for two years, but not, as I see from Clause 20(7), in Scotland where no such limit applies? I daresay I shall be told that things are different in Scotland. If these matters are considered to be so serious in England that the order must be for at least two years, I do not see why the same should not apply in Scotland. In addition, if it does not apply in Scotland, I do not see why we need such a limit in England and Wales. I shall be grateful for a response from the noble and learned Lord on that matter. It is probably a matter to which I shall return when I return to something similar to Amendment No. 5. I beg to move.

Lord Falconer of Thoroton

My Lords, the noble Baroness, Lady Anelay of St Johns, advised me on the first occasion that I spoke that one should never get into matters relating to Scotland lest one did now know what one was talking about. I have set out in detail what is the justification for a minimum two-year period in relation to England. I am told that the different criminal procedure in Scotland makes it desirable for there to be no limit of that sort in relation to Scotland. It would not be sensible for me to go further than that.

Lord Henley

My Lords, I am very interested in that response, particularly as the noble and learned Lord has his noble and learned friend the Lord Advocate sitting next to him. As I said, I intend to return to this matter. I try to avoid getting involved in matters relating to Scotland—and I say that as someone who lives very close to it. I accept that the legal system is different there.

When the noble and learned Lord put the arguments in favour of having the two-year minimum period for the sentence, he said it was because the Government wanted to indicate the seriousness of the orders. The same must also apply in Scotland, and therefore similar rules ought to apply there. I do not intend to pursue the matter at this stage particularly as I do not have my noble and learned friend sitting next to me to assist me in arguing these issues with both noble and learned Lords.

I hope that one, if not both, of them can write to me giving some indication as to why Scotland should be treated differently in these matters and why the arguments that the noble and learned Lord, Lord Falconer, put forward were valid for England, but not for Scotland. I hope that they can write to me between now and a later stage. I might come back to the matter at that later stage. I see that the noble and learned Lord wishes to press me before I sit down.

Lord Falconer of Thoroton

My Lords, I would not dream of pressing the noble Lord. Perhaps I may assist slightly further. There has been consultation in both England, Wales and Scotland as regards this issue. The consultation about England and Wales favoured a minimum duration, whereas there was no such feeling in relation to Scotland. So we reflect the difference, quite rightly, between the two.

Lord Henley

My Lords, the noble and learned Lord said that they responded to consultation and that is very good. That consultation indicated a different approach in the two countries. But the arguments he put forward earlier were not the same. They were arguments based on the fact that the orders should be taken so seriously that they should be made only for a period of two years or more.

I shall read carefully in Hansard what the noble and learned Lord has said and I look forward to receiving a letter from both noble and learned Lords in due course setting out their arguments in slightly greater detail. However, I may wish to return to this matter at a later stage, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 9: Page 2, line 37, leave out ("five") and insert ("two").

The noble Lord said: My Lords, in Committee two alternative amendments were tabled to limit the sentencing powers of the court for breach of an antisocial behaviour order. One of those versions sought to make the breach punishable as a contempt of court under the Contempt of Court Act 1981 rather than as a criminal offence. The other amendment sought to retain such a breach as a criminal offence, but to restrict the maximum sentence under Clause 1 to two years. Both amendments would have had the effect of reducing the maximum sentence to a period of two years, which is the maximum punishment for contempt under the 1981 Act.

There are considerable advantages in using the contempt of court punishment, as my noble friend Lord Thomas of Gresford pointed out in Committee. In particular, a defendant, if punished for contempt of court, can be released on an apology and with adequate assurances of future good behaviour. As a result of the breach, a defendant does not become a criminal and is not technically a convicted person.

However, the Government have made it clear that they intend to treat a breach of an antisocial behaviour order as a criminal offence, and they have said that they regard that as a fundamental aspect of the Bill. In those circumstances, we have not tabled an amendment suggesting that the punishment should be that for contempt of court. We accept that one advantage for the defendant of treating the matter as a criminal offence is that he will have the right to a jury trial.

However, one may ask: why a five-year maximum? A breach of an antisocial behaviour order may, and often will, consist of actions which themselves are crimes. If so, the defendant can be punished for those crimes and can be separately charged with a separate offence of a breach of an antisocial behaviour order, possibly leading to a consecutive sentence. That course might be appropriate to mark a breach of the order, but I cannot see any circumstances in which it would be appropriate to give a consecutive sentence for a period as long as five years. If the breach of the antisocial behaviour order is not itself a criminal offence, I regard it as inconceivable that it would be possible to justify a five-year sentence for that breach.

The noble Lord, Lord Williams of Mostyn, said on 3rd February: there may well be extreme circumstances where a five-year sentence would be justified. I can easily conceive of those circumstances".—[Official Report, 3/2/98; co1.605.] I have great difficulty in doing so.

The noble Lord may have had in mind repeat offences, but, if so, a two-year sentence seems an adequate maximum. If the defendant is released at the end of serving that sentence and breaches an antisocial behaviour order again, back to prison he will go on, no doubt, another two-year sentence. The same is true of the maximum period for breach of a sex offender order (Amendment No. 13). In those circumstances, I ask the Government to reconsider the extraordinarily long five-year sentence for breach of an antisocial behaviour order. I beg to move.

Lord Monson

My Lords, in Committee I suggested that it was somewhat ironic that the Labour Party (which all through the 1980s and the first half of the 1990s constantly castigated the Conservatives for introducing or advocating ever-higher maximum sentences, maintaining instead that what deters criminals is not higher sentences, but the near-certainty of detection) now seems to be donning some of the Conservatives' clothes with regard to sentencing policy. As the noble Lord, Lord Goodhart, said, a five-year maximum seems ridiculously high for someone who contravenes an antisocial behaviour order. I know that we shall be told that a five-year sentence is only a maximum and that in practice that sentence may never be imposed—that is true—but the maximum is nevertheless a marker and, as such, is likely to lead to higher average sentences than would otherwise be the case. For that reason, I warmly support Amendment No. 9.

I was tempted to add my name also to Amendment No. 13—I do not think that the noble Lord, Lord Goodhart, spoke to this amendment although it has been grouped with Amendment No. 9—as, in most cases, a five-year maximum would, in my view, be excessively high for breach of a sex offender order. We must remember that many sex offences consist of nothing much more serious than an "Oval Office-style grope", so to speak. However, as a small proportion of past offenders were convicted of very much more serious offences, it would perhaps be dangerous to lower the maximum, so I am afraid that I cannot support Amendment No. 13.

Lord Henderson of Brompton

My Lords, I support the amendment. Unfortunately, I was not present for Committee stage, but I have read what went on. I think that this reduction is right. It happens to be the same as the two-year sentence for contempt of court. I believe that the amendment before the Committee related to that. It is right to have the same maximum here. Clearly, if a former prisoner misbehaves after release, it is right that he should receive the same penalty as is given for contempt of court.

Apart from anything else, I find the five-year maximum extraordinary. I cannot imagine that any Labour Minister would feel it right to put on the statute book a maximum sentence of five years, especially if that will increase the number of prisoners. I have heard the noble Lord who is going to reply on this amendment saying—no doubt gently but teasing the Opposition—that the Labour Party is pure and clean and has no responsibility for the fact that there are 60,000 prisoners in our prisons; that since this Government have been in office, between 5,000 and 6,000 more have been added to the prison population; and that that is only another 10 per cent.—a mere trifle. However, provisions such as this, which seek to impose five-year sentences for comparatively minor trouble, will bring us up to the 100,000 prisoner mark—and it will be the Government who are responsible for that, not the Opposition.

I believe that the Government owe it to the House to explain why they have specified a high maximum sentence for a comparatively minor offence. I am not saying that it is not an offence, because it is a substantial offence, but it is not the greatest of offences. It is not as serious an offence as, for example, grievous bodily harm.

We were reminded a short time ago that a week is a long time in politics. It certainly can be sometimes. I believe that a week in prison is a long time and that it would do sentencers and Front-Benchers a great deal of good if they spent a week in prison so that they would know how long such a sentence really is. They would find it extremely upsetting. Even an introduction to prison is bad enough. I believe that in the majority of cases prison sentences should be considered in terms of weeks or even months, but not in terms of years. I am very sorry that this Government of all governments should seek to push through this provision. I very much hope that they will think again and indicate that at Third Reading they may relent.

5 p.m.

Lord Thomas of Gresford

My Lords, the noble Lord referred to the maximum sentence for contempt of court, to which I referred at Committee stage. My noble friend Lord Goodhart also referred to it a moment ago. Your Lordships will recall that, in addition to the two-year maximum sentence for contempt of court for breach of a court order, there is a provision in the prison rules that the person who suffers imprisonment as a result of the contempt is kept separate and apart from prisoners who are convicted of ordinary crimes in the criminal courts. I urged the Government to accept that that was the proper way of dealing with this matter. That argument was not accepted and we have not persisted in it. However, we persist in relation to the five-year maximum sentence.

I am grateful to the noble Lord, Lord Williams of Mostyn, for writing to me on 3rd March on this topic. The noble Lord, Lord Northbourne, and I challenged the noble Lord, Lord Williams, to come up with a set of facts that would justify a maximum sentence of five years. In his letter of 3rd March he painted a scenario that was intended to be illustrative only. Grateful to him as I am for taking the trouble to do that, I regret that I cannot accept anything approaching a five-year sentence for the scenario that he has painted.

It is of interest that on Friday last a sentencing conference took place in Cardiff. The nature of that conference will be familiar to the noble Lord, Lord Williams of Mostyn. The morning was spent discussing sentencing. There was discussion of various sentences for serious crimes in the region of two to four years both at first instance and in the Court of Appeal. Following lunch, we were addressed by the Minister in the other place, Mr. Alun Michael. I put to him the question that I put to the noble Lord, Lord Williams. I asked what possible set of circumstances he could envisage to justify anything approaching a five-year sentence for breach of an antisocial behaviour order when another more serious crime had not been committed. Although some explanation was provided, that explanation was not satisfactory either to me or to the professional judges with whom I later conversed. The idea that breach an order of this kind should be placed above various other serious offences was one which the professional judges simply could not accept.

The only justification put forward for the five-year maximum is that that was the maximum sentence imposed in the dying days of the previous government under the Protection from Harassment Act 1997. We opposed the maximum sentence in that Act. It is sad to see a Labour Government repeating the same error.

Lord Williams of Mostyn

My Lords, I do not intend to make a Second Reading or Committee speech. To look at each particular component of this Bill as though it stands entirely alone is perhaps a fallacious approach. We have proposed a regime that is intended to stop young offenders from offending at a very young age. The components of that regime are to assist young offenders and prevent continuing crime. But if in this context a crime has been committed we must look at what the penalty should be.

I do not agree with the noble Lord, Lord Henderson of Brompton, that these are comparatively minor troubles. They are not if one is at the receiving end of them. I understand the concerns of noble Lords in relation to antisocial behaviour. I make two points. First, it is a maximum penalty only and need not be applied by the courts, and it will be subject to appeal in the usual way. Secondly, we believe that it will be used rarely but that its existence is necessary to show how seriously the community regards this kind of behaviour, which often goes unpunished, which means that at the moment the community is unprotected. There may be occasions when it is appropriate: continuing or escalating serious antisocial behaviour, possibly in a racist context or possibly not, in spite of warnings that action will be taken for a breach, or even continuing actions by way of breach while the action for the original breach is before the court.

I stress that this is a maximum penalty and it does not have to be used. We believe that it has the virtue of being there to indicate that in the gravest, grossest circumstances that is the penalty which is available. As the noble Lord, Lord Thomas of Gresford, has indicated, it is the maximum penalty—I know that he disagrees with it—for protection against harassment. Perhaps it is difficult for some of us who have not been at the receiving end of continued antisocial conduct to realise how it can grievously wound an individual's entitlement to live a reasonably calm and ordered existence without constant aggressive action by others.

I turn to sex offender orders. As indicated earlier by the noble Lord who spoke to this matter, Amendment No. 13 is grouped with Amendment No. 9. We believe that breach of a sex offender order without reasonable excuse is a serious matter. We all know the dangers of it. We know the concerns of parents and those who have to care for small children. I repeat that five years is the maximum penalty. The courts can impose a lighter sentence, and that is a matter for their discretion. There may be some circumstances in which five years is the right sentence. We do not believe that we should remove the options where they are justified.

I hope that the noble Lord, Lord Henderson of Brompton, will acquit me of discourtesy if I do not respond to his wider views on sentencing generally. With great respect to him, I believe that that may be part of another debate on another occasion. We cannot accept these amendments.

Lord Goodhart

My Lords, nothing that the Minister has said convinces me that there is any need for a sentence of as long as five years or that it is appropriate to retain that in the Bill as it stands. However, I am conscious that we have a lot of business to get through. The reason I do not take the matter further is my belief that a five-year sentence will in practice never be applied. Therefore, we are not talking about something which in practice is likely to be as serious an infringement of rights as some of the other provisions of the Bill may be. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 2 [Sex offender orders]:

[Amendments Nos. 11 to 14 not moved.]

Clause 3 [Sex offender orders: supplemental]:

Lord Goodhart moved Amendment No. 15: Page 4, line 8, leave out from beginning to ("or") in line 10.

The noble Lord said: My Lords, a sex offender order is, as I described the antisocial behaviour order earlier, an extremely powerful sentence. Of the two it is clearly the more powerful. It lasts for a minimum period of five years and makes the defendant subject to notification regulations under the Sex Offenders Act 1997. A breach carries a five-year penalty. My noble friends and I believe that it is wholly inappropriate to make this order where the triggering offence is one that has been dealt with by a caution. A caution is given where an offence has been admitted but is not so serious as to justify prosecution.

When I raised this matter at Committee stage the noble Lord said that, the reason [for the caution] may be that the complainant is simply not up to the trauma of giving evidence in court".—[Official Report, 3/2/98; col. 626.]

I suggest that that is very unlikely to be the reason because the defendant has to admit the offence before the decision can be taken to caution him. If the defendant has committed the offence, if he is not cautioned but taken to trial it must surely be that a guilty plea is virtually inevitable.

The sex offender order seems to be directed, mainly if not entirely, and rightly, at paedophiles. We want to stop the situation that we have seen reported in the newspapers recently of a paedophile, released from prison, who has been discovered hanging around a children's library. I do not believe that paedophile offences are ever likely to be the subject of a caution after there has been an admission of guilt.

Cautions are likely to be imposed for different kinds of offences, in particular, for the unwanted grope at the office party or the 16 year-old boy who is having sex with his 15 year-old girlfriend. Such a case does not lead to the circumstances where a sex offender order is necessary or appropriate. The sex offender order should be confined to cases where the defendant has been duly convicted in a court and not where he has merely been cautioned. I beg to move.

Lord Thomas of Gresford

My Lords, I support the amendment. The Government do not appear to have carried out any analysis of the sex offences for which cautions are administered. I accept entirely what my noble friend said a moment ago: where there is anything approaching a serious sexual offence, a caution would never be administered and the person would appear before the court to be convicted if he is guilty of the offence.

The type of circumstances to which my noble friend referred, where something is much less worthy of opprobrium, are circumstances where cautions would be administered. This is far too serious an order to be imposed in such circumstances.

Lord Falconer of Thoroton

My Lords, the amendment raises the issue of why a sex offender who has only merited a caution would still be caught by the Bill's provision in relation to sex offender orders.

There is a good reason for that, just as there is a good reason why such offenders are covered by the registration provisions in Part I of the Sex Offenders Act 1997. We all know that some sex offenders are likely to repeat their offences and that sex offenders may start with minor offences and progress to more major ones. That is sad but nevertheless true. We may not be able to judge conclusively if that will happen with any individual but we can reach a judgment on the basis of some kind of risk assessment. That is being seen as an ever more crucial part in dealing with sex offenders and in protecting the public from their abuse.

But what matters in any such assessment is both the nature of the original offence and the up-to-date assessment of the offender. How the offender was dealt with at the time of the original offence is not a material factor in the subsequent assessment of risk. There may have been particular reasons for the original disposal—trauma of the complainant, the defendant's age, the promise of a supportive environment to help him overcome his problems or other reasons. Those may have since changed. But the offence was still committed—admission of the offence is a necessary element in a caution—and the risk of re-offending still remains.

I doubt very much whether there will be many, if any, orders made in those circumstances, but we cannot afford to rule out the possibility, just as we could not afford to rule it out from registration under the Sex Offenders Act. To do so would jeopardise our aim of protecting the public in a way which we feel is unnecessary and unjustified. We have thought carefully about it. We feel that it is justified. In those circumstances, the Government cannot accept the amendment.

5.15 p.m.

Lord Goodhart

My Lords, the noble and learned Lord said that the Government could reach a judgment on the basis of some kind of risk assessment. It does not appear that any such risk assessment has yet been carried out. I regret that this penalty is being introduced before a risk assessment is looked at. The whole point of a caution is that it is not a penalty, although it may be taken into account if there is a subsequent offence within a certain period of time.

The effect of the legislation is that the person who is cautioned will indeed be exposed to a penalty. The penalty is the possibility that he will be put into the class of people against which a sex offender order can be made. That is a matter which causes me serious concern, but due to the pressure of time I do not propose to press this amendment to a vote this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

Clause 6 [Formulation and implementation of strategies]:

Lord Falconer of Thoroton moved Amendment No. 18: Page 5, line 42, at end insert ("(taking due account of the knowledge and experience of persons in the area)"). The noble and learned Lord said: My Lords, the government amendment changes the basis by which reviews of the levels and patterns of crime and disorder are carried out. That is in relation to the Bill's provisions with regard to the developing of a strategy in relation to crime and disorder. Before the proposed amendment, the onus was on the police and local authorities to review these and carry out some analysis of the review before consulting the public. That approach ran the risk of the results of the review being published before they were verified against public perceptions. The amendment we are proposing will involve the local community from the start of the process. It will be able to express its concerns about both the actuality of crime and disorder and, as importantly, the fear of crime. The crime and disorder strategies will then address both those concerns and will gain credulity in the eyes of the community. The post-legislative guidance we shall be issuing will stress the need to establish the levels of fear of crime and to act to reduce them if necessary.

Amendment No. 18 is grouped with Amendment No. 19. That is an amendment proposed by the noble Lord, Lord Henley, and others, which includes a provision that in preparing a strategy the relevant body should carry out a review of the fear created by crime and disorder in the area. It is inevitable that the levels of the fear of crime would be determined during the consultation with the local community. The practical effect of this second amendment is, to all intents and purposes, the same as the amendment that the Government propose. In view of that, I hope that noble Lords supporting the amendment will be satisfied and will, accordingly, withdraw their amendment.

Lord Henley

My Lords, I shall do even better than that and not bother to move my amendment. It gives me the opportunity to discuss this issue and to raise the question of the fear of crime so that the Government can make their position clear.

It was brought to my attention by bodies representing a number of pensioners and pensioner organisations that fear of crime was as serious a problem as crime itself. That was a matter addressed in Committee by the noble Earl, Lord Mar and Kellie, when he gave the example of his brother, who is a minister in a fairly law-abiding part of west Scotland, who was unable to hold meetings in the evenings because, even though there was relatively little justification for it, many of the elderly residents were frightened of going out due to a fear of crime.

I therefore tabled the amendment merely to rehearse some of those views and seek the Government's response. I am grateful that the Government have taken that point on board and have come forward with Amendment No. 18 which, as the noble and learned Lord put it, addresses our concerns.

I have one other related question which goes back to Clause 5 rather than Clause 6. Clause 5(2) provides for responsible authorities acting in co-operation with the listed persons and bodies. Subsection (2)(c) refers to: every person or body of a description which is for the time being prescribed by order of the Secretary of State under this subsection". I presume that in due course the Secretary of State will issue a circular to the responsible authorities setting out who those persons are. Will the regulations which come before the House be under the affirmative or negative procedure? Will the noble and learned Lord elaborate on that issue and make it clear to the House that among those consulted will be bodies representing the elderly and pensioners as well as many others? Will the noble and learned Lord explain whom he believes the Secretary of State will suggest and what guidance will be given?

I am grateful to the noble and learned Lord for bringing forward Amendment No. 18. I give an assurance that once the House has accepted that I shall not move my Amendment No. 19.

Viscount Tenby

My Lords, I, too, thank the noble and learned Lord for his remarks in this connection. I believe that Amendment No. 19 puts the case more frankly, but perhaps the wording is too emotive. In recent days, I have received representations from organisations representing the elderly and pensioners expressing their concern about the fear which those people have of crime. Although many senior police officers will say that many of those fears are exaggerated and stoked up by the media, for whatever purpose, the reality is that in recent years crime has increased substantially, whatever the statistics may show to the contrary. Therefore, it is essential to take into account the feelings of local people in this respect, and I welcome the noble and learned Lord's remarks.

Lord Renton

My Lords, I understand that we are discussing Amendment No. 20 with Amendments Nos. 18 and 19.

Lord Henley

My Lords, we are discussing the Government's Amendment No. 18 and my Amendment No. 19.

Lord Renton

My Lords, I am grateful for that correction. In spite of what was said by the noble Viscount, Lord Tenby, we will come to Amendment No. 20 in a moment.

Baroness David

My Lords, I am pleased that the Government have come forward with the amendment. I have received a number of representations about the matter. Although I wish the amendment were more strongly worded, like that of the noble Lord, Lord Henley, I know that the aim is the same and I thank the Government for bringing it forward.

Lord Dholakia

My Lords, I put my name to Amendment No. 19 and I am delighted that the sentiment will be contained in the Bill. I wish to stress the extent of the fear of crime and to cite an example from a survey carried out by the National Federation of Post Office and BT Pensioners which I received today. It indicates the extent of fear among old people. Of the 300 respondents—they are waiting for the results from 20,000 others-56 per cent. go out less at night due to fear of crime; 45 per cent. feared crime against the person and property; 71 per cent. felt that policing levels in the neighbourhood were inadequate; and 13 per cent. had been the victims of bogus callers. Amendment No. 18 will go a long way to redress that situation. If the aim of the Bill is to adopt the multi-agency approach in dealing with crime and disorder it is right and proper that an audit of the fear of crime is undertaken. Furthermore, old people should have a place at the table during discussions about the fear of crime. I am grateful for the Minister's assurances.

Lord Falconer of Thoroton

My Lords, I am grateful to all noble Lords who have spoken in support of the amendment and I am grateful to the noble Lord, Lord Henley, for indicating that he will not move his Amendment No. 19.

The noble Lord asked a number of questions about Clause 5(2)(c). It refers to: every person or body of a description which is for the time being prescribed by order of the Secretary of State under this subsection". The order will be a statutory instrument by negative resolution. The precise details of how that will be dealt with are set out in Clause 92(2).

We have not yet decided which the prescribed bodies will be and I am grateful to the noble Viscount, Lord Tenby, for his suggestions. They will probably include bodies such as social housing providers, environmental health officers and voluntary organisations. I am sorry that I cannot go further at this stage, but I believe that that answers most of the noble Lord's questions.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Lord Henley moved Amendment No. 20: Page 6, line 3, after ("meetings") insert ("which are easily accessible to the elderly and disabled").

The noble Lord said: My Lords, the amendment continues on the same theme, It addresses directly the risk that the fear of crime may prevent certain sections of the community from attending a public meeting on a crime and disorder strategy. My amendment refers to the elderly and disabled.

It also addresses the more general issue of access, which is important. It is not merely access for elderly or disabled people, important though that is, but access in terms of time. If, for example, as a result of worries about crime at night it was believed that meetings should be held during the day, one would have to make arrangements to allow for those who are at work during the day and can attend meetings only in the evening.

I appreciate that the amendment might be inadequately drafted, but its purpose is to ensure that meetings are held in ways and at times that enable as many people as possible, from as wide a section of the community as possible, at some time or another, and at some place or another, to attend and contribute to the development of the crime and disorder strategies which are set out in Clauses 5 and 6. I beg to move.

Lord Renton

My Lords, I regard this as an important and necessary amendment. The elderly and disabled are most vulnerable to criminal attacks, even in their own homes. Recently, we have seen reports of appalling cases in which people living alone have been assaulted and sometimes killed and anything of value in their home has been stolen. Those people really should be at the meetings which are envisaged. I hope that the Government will give sympathetic consideration to this amendment which is extremely important.

5.30 p.m.

Baroness Masham of Ilton

My Lords, there is one small point which I wish to make. It would be better to insert the word "people" or "persons" so that the amendment reads, which are easily accessible to persons who are elderly and disabled". or, accessible to elderly and disabled people". It is important not to forget that people are people first and foremost, whatever their disability or age.

Lord Falconer of Thoroton

My Lords, it would be difficult to oppose the sentiment underlying this amendment as it is the Government's intention to encourage widely-based consultation during the crime and disorder analysis stage of developing local strategies. I fully accept what the noble Lord, Lord Renton, said. I accept also what the noble Baroness said in relation to ensuring that the elderly and disabled are treated as people rather than as something else.

However, in practical terms, as a matter of legislation, there may be occasions when complying with the legal requirement proposed could result in it being impossible to hold meetings in some communities because an appropriate venue was not available. Therefore, a more appropriate way forward to deal with that important issue is for the non-statutory guidance that will accompany the legislation to urge specifically the use of a venue which will encourage as many people as possible to take part in the process and which will be readily accessible by elderly and disabled people.

I am happy to give an undertaking that the guidance will contain such advice. By doing that, the particular needs of every member of the community, whether from minority groups, the young, elderly people or disabled people, will be recognised but the practical difficulties of making such a specific legal requirement as that proposed will be avoided. The views of such vulnerable groups can be sought by other means apart from public meetings, if necessary. We should bear that in mind in developing our strategies. For those reasons, I hope that the noble Lord will withdraw the amendment.

Lord Henley

My Lords, I start with an apology to the noble Baroness, Lady Masham. I have been a Minister in a number of different departments with responsibility for disability issues. I should have known far better than to use the word "disabled". We have seen a development of the use of language over the years and we have begun to get away from crude terms such as "the disabled". We have moved on to the phrase "disabled people". The noble Baroness may remember that we then moved on to an expression, which was rather a mouthful, which was "people with disabilities". However, we have now moved back to "disabled people" which is a more satisfactory form of words. I deeply regret that I did not think of that when drafting the amendment and should I wish to return to the matter I shall make sure that I get those matters right.

Having said that, I have no plans to return to this matter because I am satisfied with the answer given by the noble and learned Lord, Lord Falconer. He states that there will be non-statutory guidance which is obviously the appropriate manner in which to proceed. That guidance will set out how the responsible authorities are to go about the consultation process.

The Bill refers to "public meetings or otherwise". I trust that we shall have an opportunity to see the draft guidance in due course. I hope that the guidance will make it clear that where possible public meetings should be held and that the "or otherwise" is very much an "or otherwise" and should not be used with great frequency. Where public meetings are held, all that can be done should be done to make sure that they are as accessible as possible in relation to both time and place and that as many people as possible can attend. On the basis of such an assurance from the noble and learned Lord, I am more than happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hylton moved Amendment No. 21: Before Clause 8, insert the following new clause— PROSTITUTION BY CHILDREN AND YOUNG PERSONS (".—(1) Section I of the Street Offences Act 1959 is amended in accordance with subsections (2) and (3). (2) For subsection (1) substitute— (1) It shall be an offence for a woman who has attained the age of 18 to loiter or solicit in a street or public place for the purpose of prostitution. (3) After subsection (4) insert— (5) An authorised person (as defined in section 31 of the Children Act 1989) may apply to the court for an order to be made under section 44 of that Act with respect to a child who loiters or solicits in a street or public place for the purposes of prostitution. (4) In paragraph 24 of Schedule 2 to the Sexual Offences Act 1956 (penalty for offence committed under section 23 (procuration of girl under twenty-one)), for the words "Two years", in both places in which they occur, substitute "Four years".").

The noble Lord said: My Lords, Amendment No. 21 was printed last Thursday and I apologise for the fact that it appears not to have been available generally until yesterday. However, the Government and some of your Lordships have had much longer notice of it than that.

The amendment follows directly from a long sequence of work which led to legislation penalising the organisers of sex tourism overseas and giving extra-territorial jurisdiction to the British courts in cases involving sexual abuse of people under 18 in countries overseas.

For some years now there has also been concern about child prostitution in this country. The Children's Society, Barnardos, and other voluntary organisations together with the Association of Chief Police Officers, the Association of Directors of Social Services and, in particular, the Magistrates' Association have all asked for better and more consistent inter-agency co-operation plus changes in the law.

This Government claim to be a listening government, and I am glad that that is so. Therefore, I urge them to take heed of the advice from the expert groups which are most directly involved in this matter. What is the extent of the problem? In the seven years to 1996, 4,495 cautions and convictions were recorded against children involved in prostitution. Yet, in a similar six-year period, there were only six convictions of adults for procuring children for prostitution. It appears that those figures gravely understate the scale of the evil.

The evidence from the Children's Society's five streetwork projects in England and Wales shows that each year substantial numbers of children and young people, some of them as young as 10 or 12, run away from their families and from the care of local authorities. They seek to escape physical, emotional and sexual abuse and other acute forms of bullying. Many of those children become homeless and destitute. They have no access to social security. They may be, or may become, addicted to drugs and alcohol. Such addictions are often used by pimps as a means of control.

Voluntarily or otherwise, large numbers of children become trapped each year in prostitution. In my opinion, all those children need protection, education and rehabilitation. Above all, they need loving care from adults whom they can trust.

The purpose of the proposed clause is to try to ensure that young people under the age of 18 receive the protection they need when they are at risk or already involved in prostitution. That approach complies with the United Nations Convention on the Rights of the Child, which this country ratified in 1991. Articles 3, 19, 34 and 35 of the convention are particularly relevant.

Police cautioning of such young people is not a sufficient or satisfactory approach. On the other hand, prosecution may take a considerable time and is not in itself a desirable option unless it means that the young person is quickly moved to a safe environment and is then effectively rehabilitated. Conviction may also become a bar to gaining employment.

For those reasons, the Children Act is the right framework to use. That is why subsection (3) of the amendment refers specifically to that Act in an enabling way. Sections 17, 20 and 47 of the Act already place relevant duties on the local authority. Sections 22, 24 and 31 are also likely to be helpful.

In Subsection (3) of the amendment, "an authorised person" would normally mean a local authority or an approved voluntary organisation. The purpose of subsection (2) is to continue for women over the age of 18 the offence of loitering or soliciting for prostitution. The options of cautioning or prosecution, therefore, remain open for these people. The purpose of subsection (4) is to increase the maximum penalty for acting as a pimp from two years' to four years' imprisonment, although I understand that at present such people cannot be remanded in custody. That may be a weakness which should later be addressed. The existing legislation on the subject is the Sexual Offences Act 1956, Section 23 of which refers specifically to girls under 21—hence the wording of my amendment.

Your Lordships may consider that the penalties for acting as a pimp should be still further increased. Perhaps the fines applicable should be much larger. If the amendment is agreed, I would be happy to accept further amendments imposing stronger penalties. If the Government or Members of this House can devise effective deterrent sanctions to dissuade men, other than pimps, from sexually abusing young people under the age of 18 and, a fortiori, under the age of 16, that could also be most helpful. Such men are indeed serious sexual offenders and yet they are seldom—almost never—prosecuted.

The amendment is the result of ad hoc drafting and I accept that it probably does not come up to the high standards usually set by government experts. Nonetheless, it addresses urgent social problems and reflects the approach of the whole Bill by seeking to prevent serious crime, especially that among and affecting children and young people. I commend the amendment to the House and trust—

Lord Renton

My Lords, I apologise to the noble Lord for interrupting. However, would he be so good as to explain why it is that Section 1 of the Street Offences Act 1959 needs to be altered?

Lord Hylton

My Lords, the short answer to the noble Lord's question is that that section provides for the prosecution and cautioning of girls, women, under the age of 18.

However, perhaps I may continue. I trust that the Government will reflect deeply on the issues involved and learn from the excellent preventive work of a variety of voluntary organisations. If that happens, it seems to me that Her Majesty's Government will be able to offer a better amendment, either in this House or in another place at a subsequent stage. But would a government redraft include boys as well as girls? I ask that question because a small number of boys are sometimes involved. Further, would it provide proper penalties for those who have sexual intercourse with under-aged people? It may be asked whether the amendment, if approved, would cost money. I believe that the answer to that question is yes, it would. But, in my view, it would be money well spent if we believe in social inclusion and in helping the victims of abuse. I beg to move.

Lord Renton

My Lords, I have but one short point to make. It is due to the fact that, 39 years ago, I had the responsibility of piloting the Street Offences Act through its Committee and Report stages in another place. I believe that that legislation has stood the test of time remarkably well. I intervened to ask the noble Lord, Lord Hylton, to explain why there was a need to replace Section 1 of the Act. I do not think that it is necessary to do so. However, that is a relatively small point in relation to his amendment as a whole which, if I may say so, should commend itself to the House.

5.45 p.m.

Baroness Kennedy of The Shaws

My Lords, I support the amendment. I should like to explain to the noble Lord, Lord Renton, why this substitution is sought. The original Act creates an offence which is not age specific. We are seeking to ensure that prosecutions of young persons and children should not take place. We believe that the appropriate way of dealing with young people committing such acts is through welfare and the provisions of the Children Act. That is the rationale behind the amendment.

Research and Home Office figures show that there is an increase in children and young girls found on the streets, most of whom are in that situation because they have been victims of abuse in their own homes or while in care. They are profoundly damaged and often see no value in their own bodies because they have already been exploited by adults. They find this activity to be a way of making money; indeed, it is the only way that they can do so. We want to show that the proper way of proceeding in these cases is to provide assistance to such young people through welfare and not through the criminal courts by way of the criminal process. In recognition of a growing problem, we are seeking to divert from the criminal process towards welfare.

We are also seeking to increase the penalty for those who are arrested in relation to such matters where the young people involved are under age. We believe that the penalties for exploiting young women and children should be greater. One knows from experience that there are adult men who, for particular reasons, seek out girls and children. In our view, that abuse is more serious and should draw down greater penalties than those which exist at present in relation to adults. Those are the bases upon which we are proposing the amendment.

There is, of course, an issue surrounding age. It is possible that some people feel that the age of 18 may be somewhat too old, given the fact that the age of consent is 16. Certainly, the position from these Benches is that we are happy to hear what my noble friend the Minister may say in that respect. I am sure that we could be assuaged if the view were taken that particular concern exists about those under the age of 16 and that it would be problematic in relation to those over 16 but not yet fully adult as defined in the Children Act. We would like the amendment to relate to those who have not yet attained the age of 18. However, we would probably be content if the Government were at least prepared to consider the amendment in relation to girls and young women up to the age of 16 if my noble friend the Minister feels that problems could arise with regard to legal definitions as to age.

I hope that the noble Lord, Lord Renton, can be persuaded on those arguments While it is right that his piece of legislation, which is almost 40 years old, has in many ways stood the test of time, it has not done so in this regard. Indeed, thinking has moved on and social problems, especially those regarding the abuse of children, have been recognised in a way that was perhaps not possible 40 years ago. We believe that the proper process is a welfare process rather than a criminal one.

The Lord Bishop of Bath and Wells

My Lords, I speak as chairman of the Children's Society, much of whose work is reflected in the case now being put forward. In support of the amendment, I should say that we have a growing concern about child prostitution. As the noble Lord, Lord Hylton, has said, the evidence gained from projects is distressing indeed. One reads case histories of young women and girls who sometimes almost from the beginning of their lives enter a downward spiral and end up in prostitution. I have visited projects, including homeless projects, where one often meets youngsters who are totally exposed to these kinds of situations on the streets.

Much of this prostitution derives from the flight from what is impossible, whether that is from residential homes or from abuse in the family home from a parent or other people in that home. Many young people who have found themselves homeless and unprotected have offered sexual favours to pay for a home and what they perceive as security, but they enter a form of entrapment and imprisonment. It may be said that this amendment could undermine the didactic function of the law, but for those who are above the age of childhood the law is clear. We are trying to press home the fact that children need to be considered in a different way. So often in these cases prosecutions focus on the children who have become prostitutes rather than on those who have abused them or who continue to abuse them. We believe that the prostitution of children is in many ways a form of child abuse and should be dealt with as such. I do not believe that if we change the attitude towards children who are prostitutes, that will undermine the seriousness of prostitution as a crime.

It is important to ask whether the law as it now stands achieves its objectives. So far it has not done so. Children still hear the voice of the man who promises to protect them and feel the pain of homelessness. Often they have lived with violence from childhood and that has made them flee into society. They find that experience infinitely more powerful an influence on what they decide to do than what the law may say. We believe that this amendment preserves the recognition of the wrongness of prostitution but at the same time recognises that children are enormously at risk in this area. We have learnt from our projects that we can help them emerge from this provided that they have not been criminalised. By being present and gaining their trust and by offering a place of security that is not bound to prostitution, we can help children rebuild their lives.

As regards the question of age, I believe that in this Bill the age of responsibility is shifting or becoming less clear. Our understanding is that under 18 would be a reasonable age for this purpose. I follow a Lord who regarded the misuse of power over someone who commits adultery in the following way; namely, you say to the person who has committed the sin, "Go and sin no more" but you recognise that the hypocrisy, blame and misuse lie elsewhere and should be pursued as such by the law.

Lord Meston

My Lords, I speak in support of this amendment. I speak with the experience of someone who has had many dealings with local authority care proceedings. It is a sad fact that children who are notionally in local authority care and, as the noble Baroness, Lady Kennedy, said, have already been abused, are particularly vulnerable to organised prostitution and pimps. In my view the noble Lord, Lord Hylton, was absolutely right to say that cautioning is simply not enough. There is much to be said for now using the machinery of the Children Act to deal with this problem.

Lord Northbourne

My Lords, I congratulate the noble Lord, Lord Hylton, and the noble Baroness, Lady Kennedy, on raising this important issue. Child prostitution is a serious problem in our society and one which I regret to say is getting worse. It seems to me that the objects of this amendment are threefold; namely, to decriminalise prostitution for the under-18s; to provide for child prostitutes to he taken into care or rehabilitation; and to increase the penalties for pimping. It seems to me that of those three objectives the last two are the most important; namely, to get child prostitutes into care and rehabilitation, and to ensure that pimps are properly dealt with by the law. In that context I cannot see why they should not be treated simply as child sex offenders.

I see the difficulties of taking into care girls between the ages of 16 and 18 who are consenting to prostitution, or perhaps even initiating the process and are not in the clutches of pimps. I have one further point to make. It is not only girls who are in the clutches of pimps who are prostitutes today. Many teenage girls and, I regret to say, many lone mothers are prostitutes because they have simply run out of money and they see no other possible way of making ends meet. That is an underlying problem that we should also consider in this context. I do not think the amendment is perfect but if the noble Lord were to press it I would certainly support it.

Baroness David

My Lords, I support this amendment. We had a session of the all-party children group to discuss child prostitution. There were spokesmen from Barnardos, the NSPCC and, I believe, the Children's Society. A great many of us present at that meeting were shocked to hear of the extent of the problem. Pimps pick up these children and make them fall in love with them. Then the young children will not give evidence against these men. The children may be kept in the most horrible circumstances shut up in a room for weeks on end. As has been said, these children have probably already been abused or have run away from home. The situation is bad. Whatever we can do to help to get these children into welfare would be a good thing.

Lord Henley

My Lords, I rise only to express one concern about this amendment—the spirit of which I accept—and that is concern about the proposed new subsection (2) which states, It shall be an offence for a woman who has attained the age of 18 to loiter or solicit in a street or public place for the purpose of prostitution". Like the noble Lord, Lord Northbourne, I have some concerns about that age of 18 and wonder whether 16 might be more appropriate, particularly as the Children Act would apply to those below whatever age one put in place. If one puts possibly very street-wise 16 and 17 year-olds into care with younger children that could pose considerable dangers. For that reason I do not wish to support the amendment as it is but I certainly think that it deserves considerable thought from the Government. I look forward to hearing what they have to say.

Baroness Masham of Ilton

My Lords, I strongly support my noble friend's amendment. I think it needs more than thought; it needs action from the Government. Why have the pimps got away with it for so long, because they do horrific things to children? I believe it was the Barnardos report which gave an example of young children running away from care in Leeds and being used as prostitutes in Bradford. As the noble Baroness, Lady David, said, they were locked up and tortured, so they were frightened and did not give away the pimps. Some action is needed here. I include boys. It is an international issue. Boy prostitution is on the increase as well as girl prostitution. Many men will say, "The younger the better".

6 p.m.

Lord Williams of Mostyn

My Lords, I declare a former interest. Until the election I was a trustee of the NSPCC and therefore over the years I have been aware of some of the problems identified tonight.

As the noble Lord, Lord Northbourne, pointed out, there is a threefold consequence from the amendment: decriminalising soliciting for prostitution in the streets for girls under the age of 18; enabling emergency protection orders to be obtained for a child found soliciting; and an increase in the penalty for procuring a girl under 21 from two years to four years.

I entirely agree that it is terrible for any child, boy or girl, to be involved in prostitution. It is our view that there is no doubt that a child involved in prostitution, as my noble friend Lady Kennedy said, is primarily the victim of coercion or abuse and not a consenting participant. Indeed, a girl under 16 cannot consent in law to sexual intercourse, so those who have sexual intercourse with girls under 16 are already committing an offence. We are seriously concerned that to decriminalise child prostitution would increase the numbers of child prostitutes on the streets.

The Children Act 1989 already requires all agencies to make the protection of children at risk of harm a paramount consideration. The police are aware of the problem, an awareness due in no small measure to the efforts of the children's charities to which, among others, the right reverend Prelate referred. We entirely agree that children in prostitution should be treated as victims in need of welfare. I reiterate the point made by my noble friend Lady Kennedy of The Shaws. Between the police, children's charities and others, there has been development of guidelines about how one deals with children in this age group and in this dreadful situation. They are now treated as victims in need of welfare. The guidelines were piloted, I think it is well known, in Wolverhampton and Nottingham. They are being adopted throughout the West Midlands and in other forces. The ACPO spokesman on prostitution issues has confirmed his opposition to any decriminalisation because of the risk that that would lead to an increase in the number of child prostitutes.

I do not take nitpicking points but it is right, as the noble Lord indicated, that his amendment deals only with girls, not boys. It would mean that those over 18 who solicited for sexual purposes would be guilty of a criminal offence. We have serious worries, which I put as soberly as I can, that this will create a new market—I am sorry to use that word; but that is what it is—in 16 and 17 year-olds who could legally solicit. There is a serious risk that it will put more not fewer girls at risk from pimps and exploitation.

My noble friend Lady David, and the noble Baroness, Lady Masham, asked why pimps are so rarely successfully prosecuted. In quite a lot of experience of the criminal law I think that I only came across two cases. I believe that the reason is the difficulty of proof for the reasons specified by both noble Baronesses.

It is unfortunate—I have to put it brutally again—that on the advice we have the pressure for younger prostitutes is now increasing. I am sorry to say this but it is partly a function of fashion and partly because of the development of AIDS among older prostitutes. The description I give is not a happy one, but I have to put it before your Lordships, in case we pass an amendment to a law which has consequences entirely opposite to those we want.

There is no doubt that these young girls are victims; that the efforts of the police should be to get girls out of prostitution. But we do not want in any way to indicate that prostitution or soliciting for prostitution by young girls under 18 is not to be unlawful. We think that we should work with the police and other agencies along the lines undertaken at present to see whether we can deal more effectively with the problem.

The Children Act already provides for protection orders for children at risk of prostitution. If a child is at risk or is in commercial sexual exploitation, he or she would be at risk of significant harm, and that is the ground already for the protection order under the Children Act. So the opportunity is there.

There is then the question of the increase in the penalty for the offence from two years to four years. Unfortunately, as I think we all agree and recognise rather gloomily, pimps are rarely successfully prosecuted. We need to look carefully at the overall context of the Bill. We want to deal with children as soon as may be who are at risk of harm or have been harmed. We want to see how reprimands and final warnings will work. It is an issue which needs to be urgently addressed. At present we are looking at the way in which police should deal with young prostitutes when the Bill becomes law. We are discussing it with ACPO. There is no doubt that new guidance is needed. The present circulars were issued immediately after the Street Offences Act 1959 and are thoroughly out of date.

I sympathise with the purpose of the amendment. It is a worthy purpose. We are deeply troubled that if we decriminalise this activity we shall be creating a new market. We believe that the way ahead is to develop the present pilot schemes we have, to which I referred, to make sure that full use is made of the opportunities under the provisions of the Children Act. We believe that we need to look at penalties in terms of sexual exploitation so that we have a coherent regime rather than picking out one sentence from legislation. The noble Lord proposes an increase from two years to four years in the case of procuring a young woman for sexual intercourse when she is under the age of 21 years.

I am sorry if my conclusion is disappointing. But at least if noble Lords do not agree with the reasoning, I hope that they will accept it to be a legitimate view. I know that I am alone in resisting this. But I should be deeply troubled if we were to amend the law to provide that girls under 18 could solicit for prostitution without the ultimate legal sanction. Many people who prey on young girls will think, "Choose them under 18".

Lord Renton

My Lords, before the Minister sits down, he said that he was alone in expressing his view. Perhaps I may say that having heard him, he has converted me.

Lord Meston

My Lords, is the Minister saying that he is satisfied with the existing use of emergency protection orders? Alternatively, is he hopeful that in the future better use might be made of them in order to deal with the problem?

Lord Williams of Mostyn

My Lords, it is undoubtedly the latter. We have been dealing with guidelines which are now 40 years out of date. I believe that the pilot projects to which I referred may be of great value because the problems are not single, individual problems. Each child will suffer a range of problems. I believe that one has to deal with a particular child in an individual way. I think that that is the best way of trying to attack a problem which is cruel and vicious in the extreme. It is exploitation of children, after all.

Lord Hylton

My Lords, I am extremely grateful to all noble Lords who have spoken in this short debate. I found it extremely encouraging that all speakers were prepared to support the amendment even though some may have had reservations on specific aspects of it.

I confess that I found the Government's reply somewhat discouraging. I could have said a good deal more in relation to the amendment. For example, I could have quoted the recommendations of the Council of Europe in 1993–94; or Sir William Utting's report on safeguards for children living away from home, entitled, People Like Us; or the point of view of the National Women's Commission. There is a very great deal of outside opinion and study to support the thrust of the amendment.

The Minister referred to police awareness of the situation. What has been the impact of the guidelines issued, not 40 years ago, but much more recently in the context of the Children Act? I understand that there are only two police pilot projects using the Children Act. That seems a highly insufficient number.

As to the principle of the matter, concerning decriminalisation, again I was not very happy with the Government's reply. If this amendment can be approved, I will undertake to bring forward a new one at the next stage of the Bill which would limit the age to 16 and not 18, and which might incorporate other improvements. On that basis I wish to test the opinion of the House.

6.12 p.m.

The Deputy Speaker (The Viscount of Oxfuird)

My Lords, the Question is, That Amendment No. 21 be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Not-Contents" have it. Clear the Bar.

Division called.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, the Question is, That Amendment No. 21 be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". The "Not-Contents" have it.

Amendment negatived.

Clause 9 [Parenting orders: supplemental]:

Baroness David moved Amendment No. 22: Page 8, line 6, leave out subsection (1).

The noble Baroness said: My Lords, we now come to parenting orders, about which there has been a good deal of criticism by a number of children's organisations and indeed by many others. This amendment removes the statutory presumption in favour of courts making a parenting order where the offender is under 16. The Bill as it stands requires the court to make a parenting order if it is satisfied that such an order would help to prevent further offences and to give reasons if it does not make such an order.

Reinforcing parental responsibility is an important part of tackling youth crime. Experience shows that parental skills courses provided on a voluntary basis work well: they can help to improve parenting and reduce family break-up, the taking of children into care and the likelihood of offending, truancy and antisocial behaviour by young people. Funding more such courses on a voluntary basis, as part of family centres and other community projects in disadvantaged areas, would make an important contribution to preventing delinquency. Group work with the parents of young offenders alongside intermediate treatment programmes for young offenders has also been shown to be beneficial in bringing about more effective parental control and leading to improved behaviour and reduced offending by their children.

However, organisations working with young offenders and their families have reservations about the likely efficacy of a compulsory court order. Co-operative parents who are keen to accept help could be involved in parenting skills groups, whether or not it was compulsory. However, as the noble Lord, Lord Northbourne, Chairman of the Parenting Support and Education Forum, said in Committee: We must listen to the voice of those who work with parents. Counselling and guidance sessions could conceivably, and may sometimes, help. But there are very severe limitations … parents will go into these sessions in a spirit of rebellion and resentment. That will mean that they are not normally receptive. The severity of the sanction in many cases will seem unreasonable".—[Official Report, 10/2/98; col. 1073.]

The order is least likely to work with unco-operative parents—and if they are returned to court and fined for not co-operating, this is very unlikely to help reduce the child's offending. Fines simply increase the degree of pressure and hardship on families, for many of whom life is already a struggle to survive. If parents do not pay the fine, they could be imprisoned for non-payment—the alternative of community service for fine defaulters is currently available in only two pilot areas—which would have devastating effects on children. The parent who faces these sanctions most often will be the child's mother, as it is the mother who most often attends court. These penalties would be particularly harsh on women who already face great difficulties in bringing up and trying to control children who are getting into trouble.

There are also difficulties about fining a parent because of a child's refusal to obey a requirement—for instance, a curfew. To punish a parent for a child's actions could result in injustice. It could also increase resentment on the parent's part, lead to excessive physical punishment and thereby put children more at risk.

Because of the complex considerations involved, it is inappropriate to include in legislation a statutory presumption that courts should make such orders. It would be preferable to leave the use of these orders to the court's discretion.

In Committee on 10th February my noble friend Lord Williams said: Some inadequate parents can be assisted. They can sometimes—as the right reverend Prelate said—be assisted on a voluntary basis … We would prefer voluntary counselling and parenting guidance, but for those who do not wish it, who are perhaps afraid of it, in some cases a sanction may he of assistance".—[Official Report, 10/2/98; col. 1077.]

My noble friend Lady Kennedy commented: I am concerned that by creating a presumption in favour of the court making such orders they will be made much more often than would be the case if involvement in voluntary schemes were the course taken".—[Official Report, 10/2/98; col. 1079.] By removing the statutory presumption in favour of courts making parenting orders, the amendment would increase the likelihood that the courts will use these orders only when they are genuinely appropriate and not in circumstances when voluntary help is a preferable and more effective option.

I believe that the argument against the statutory presumption is a very good one. I should be very surprised if I am convinced by what my noble friend says when he replies, unless he is prepared to accept the amendment, which I very much hope he will. I beg to move.

Lord Windlesham

My Lords, perhaps I may support the amendment from this side of the House, if that is agreeable to the noble Baroness, Lady Kennedy of The Shaws, who is one of the sponsors and to whose comments we look forward.

We are concerned here with the balance, never easy to strike in formulating public policy, between compulsion and voluntarism. Surely the test should be what is likely to be the outcome in practice. In replying to the previous amendment, the noble Lord, Lord Williams of Mostyn, applied that very test. However good the intentions, the consequences might be different from what the promoter intended. The test should he not what sounds tougher or softer on the public platform, but the likely practical consequences.

I am sure we can all agree with the noble Baroness, Lady David, that parental responsibility is a relevant factor in tackling youth crime. It is right that it should be the focus of attention in the discussion documents, in the White Paper and in the Bill before us. Persuading parents, sometimes inadequate or single parents of unruly children who are more often a source of anxiety or anger than of love, to try to improve their parenting skills must be a desirable aim of public policy. But how is it to be achieved?

In Committee we heard several references to the good work done by voluntary agencies. The right reverend Prelate the Bishop of Bath and Wells spoke about the work of the Children's Society, of which he is chairman: and other examples were given. All those with first-hand knowledge emphasised the importance of voluntary attendance. Expert guidance is important, but attendance should be voluntary rather than compulsory. Compulsory attendance was vividly described by the noble Lord, Lord Northbourne, an extract from whose speech was quoted by the noble Baroness, Lady David. He said that parents taking part in guidance sessions because they had been compelled to do so would attend, in a spirit of rebellion and resentment'.—[Official Report, 10/2/98; col. 1073.] Those struck me as two accurate and well-chosen words. The problem therefore lies with unco-operative parents; not with those who are willing to co-operate. I submit that that is the crucial distinction.

While the Bill stops short of imposing criminal sanctions, the statutory presumption in favour of a court making a parenting order nevertheless takes a significant step in that direction. Failure to co-operate will be punished by fines. In many cases fines will not be paid. Default will lead to criminal penalties. To take this path can only worsen, rather than strengthen, relationships in malfunctioning families which already are subject to many disadvantages. What is likely to be the outcome? More children taken out of their homes, however dysfunctional those homes may be, and into care. The frequency of offending and re-offending by young people in institutional care is so high that it needs no repetition this evening. I strongly support the amendment.

Baroness Kennedy of The Shaws

My Lords, I support the amendment. I have myself been involved in a parenting skills course and I support such courses. When my children were very small I visited our local school and became involved with something called Parent Link. I attended courses dealing with issues such as sibling rivalry, childhood tantrums, and so on. I believe I acquired some skills which I found extremely useful. As my children are approaching adolescence, I may again wish to attend a course.

Courses are not confined to those who have serious social problems or those whose children might appear before the courts. I believe that we should extol their virtues for all parents; we all have things to learn. I remember learning something called "reflective listening with one's children". I found it useful in the courts when dealing with judges. I believe that there are many skills to be learnt. Undoubtedly, the experience of all those involved is that such courses are most successful when the people taking part do so on a voluntary basis. Of course, there may be occasions—as the Minister said on the last occasion—when a sanction may be of some assistance. I accept that that may be the case. I accept that occasionally coercion may be useful. However, the clause introduces a statutory presumption in favour of the courts making such an order. That is what concerns those who have considerable experience in these matters.

Courts can be instrumental in encouraging parents to take part in such programmes and in reminding them that they are not just for people whose children get into trouble or who have problems, but that all parents can benefit from them. My experience is that parents are only too happy to find that such assistance is available. But as soon as we take a stick to people and introduce punishment for non-participation, we move into a different situation in which we may increase problems within families, rather than assist them.

I ask the Minister therefore to consider the anxieties expressed. This is not about being soft; it is about recognising what is most effective. While we are wholly in favour and in fact have been scholars of parenting courses—I suspect that there are not too many other noble Lords on these Benches who have attended courses as I have, admitting that they have something to learn even on parenting—there are other ways of dealing with this issue. I therefore support the amendment of my noble friend and hope that the Minister will give due consideration to it.

6.30 p.m.

Lord Goodhart

My Lords, I agree with those who have spoken. The parenting order made against parents who are unwilling to co-operate is likely to be counterproductive. An order under Clause 9(1) can be made only if the relevant condition under Clause 8(6) is fulfilled; that is, that, the parenting order would he desirable in the interests of preventing". certain types of criminal behaviour. Is the Minister suggesting that under Clause 8(6) the court could take the view that a parenting order is not desirable where the parents are clearly not going to be co-operative? If so, that is certainly not clear and I support the amendment because that makes it clear. If the Minister does not take the view that that is a relevant consideration under Clause 8(6), then I strongly support the amendment because, in those circumstances, it would clearly be necessary and desirable and would substantially improve the effectiveness of a parenting order.

Lady Saltoun of Abernethy

My Lords, I too support the amendment. There is not a great deal that I can add to what the noble Baronesses, Lady David and Lady Kennedy, said or to what the noble Lord, Lord Windlesham, said. However, I should like to emphasise what I said in Committee.

I am extremely concerned about any legislation which may fine an unco-operative mother for not attending a parenting course and then, because she cannot or will not pay the fine, send her to prison with disastrous results to the children who will almost certainly have to be taken into care. We have heard a lot this afternoon about some of the things that are apt to happen when children are taken into care, especially when they run away or leave care.

I am sure that many residential homes are excellent. But no residential home, however good, can replace a child's own home. After many years I am convinced that even a fairly bad home is preferable to no home at all. That is what being taken into care means: that at the end of the day, when the child leaves care, the child has no home.

The Lord Bishop of Bath and Wells

My Lords, perhaps I may make one point. Parenting skills cannot be dissociated from the relationship between the parents. It is sometimes thought that people can simply go on a course in parenting skills; but as soon as they begin, those attending are immediately involved in trying to understand how they relate to each other. In the families where these issues arise, there may well be violent, angry relationships which would be dangerous to bring into the situation.

We cannot simply start a course on parenting skills as though those skills do not depend on the relationship between the parents. We have just heard a reason why single parents may suffer under such a provision. But with regard to the parents themselves, the necessity to face up to the implications of their mutual non-relating may be a further reason for not imposing the order. Also, and more seriously, if parenting skills courses are to tackle the relationship between husband and wife or between partners, the child will be even more exposed because the child will then carry the conflict between the two parents who are refusing together or not refusing together to face up to the implications of what they have become.

It all seems to me to endorse the amendment that says that something may be offered and pressed home. And, while I understand the desire for coercion, in the area of family relationships it is extremely difficult to use.

Viscount Tenby

My Lords, I too rise briefly to express support for the amendments in the name of the noble Baroness, Lady David.

At Second Reading I expressed anxiety about the effect of parenting orders on, say, disordered single mothers and those least able to cope with the provisions. The Minister, in his usual courteous and reasonable way, replied that it was unlikely that any court, having regard to the specific circumstances of a case, would impose a financial penalty for non-compliance where it was unlikely that the terms of the fine would be met. I agree that—thank goodness!—most courts will be guided by such common sense considerations.

But if a financial penalty is deemed to be appropriate and there is failure to comply, what alternatives are possible? Is it the case—this is something to which the noble Baroness referred and if possible I should like the Minister's answer to it—that at present community service orders in relation to fine default can only be imposed in two pilot areas? I believe that to be an important question, not only in this instance, but in the whole area of the lower courts where the imposition of community service orders has been found to be most desirable. I should therefore be grateful for an answer on that point.

As the noble Baroness, Lady David, said, voluntary co-operation by way of counselling groups and such organisations is always to be preferred to coercion. I should like discretion on whether or not to issue a parenting order to be left in the hands of the appropriate court.

Lord Williams of Mostyn

My Lords, grouped with Amendment No. 22 in the name of the noble Baroness, Lady David, are Amendments Nos. 23 and 24 in my name. I shall speak to them together if I may.

Amendment No. 22 is the identical amendment which we discussed in Committee. Clause 9(1) puts a duty on the court to make a parenting order in cases where a child or young person who is under the age of 16 is convicted of a criminal offence and where the court is satisfied that the condition in Clause 8(6)(b) is met; namely, that it would be desirable in the interests of preventing the further commission of an offence by that child or young person.

As has been observed, in the case of 16 and 17 year-olds, the duty is replaced by a power to impose a parenting order. It is worth bearing in mind what a parenting order is. It requires the parent to comply for a period not longer than a year with such requirements as are specified, and to attend for a concurrent period not exceeding three months not more than once in any one week for counselling or guidance sessions. None of these orders under Clause 8(3) can be made unless the court has been notified by the Secretary of State that arrangements for implementation have been made within the relevant area.

We believe that there should be a distinction between 16 and 17 year-olds and those who are younger. It is quite a frequent divide in the criminal justice system. After all, 16 and 17 year-olds may well have left school; they may be living independently, they may even these days have family responsibilities of their own. Some may be in full-time education and fully dependent on their parents. We believe that there should be that distinction.

As the noble Baroness has said, and quite plainly, if her amendment were carried the court would simply have a power rather than a duty to impose a parenting order. We do not think that is the way to go. I agree with what the noble Baroness, Lady Kennedy, said. It is not a case of being soft or effective; it is a case of looking for the best solution in all the circumstances. We think the most effective solution is the one that we have set out in the Bill.

On the point raised by the noble Viscount, Lord Tenby, perhaps I may write to him, having researched that question further, if he is kind enough to allow me to do so. I am grateful to him.

I turn to Amendments Nos. 23 and 24. These are two of the 11 issues on which I indicated earlier we had reflected and decided that the arguments were persuasive and that we ought to respond to them in that way. Clause 9(2) as it stands requires the court, when considering a parenting order resulting from the conviction of a juvenile under 16, to consider information about family circumstances and the likely effect of the proposed order on those circumstances. Subsection (2) parallels the arrangements in some criminal disposals for juveniles. Similar family-related information will be before a family proceedings court when it is dealing with a child safety order under Clause 12(1).

Those arrangements do not exist with the antisocial behaviour order, the sex offender order and convictions stemming from failure to ensure a child's attendance at school. The courts would have to rely on the facts before them. My noble and learned friend the Solicitor-General pointed out that an order can only be made provided the court is satisfied that the relevant conditions are fulfilled; that is, preventing a repetition of the behaviour which led to the order in the first place.

We listened to the arguments and considered them subsequently and we accept that, as the clause stands, there is potential for confusion. We accept, therefore, having listened to the arguments, that it would be better that the requirements in Clause 9(2) extend to all cases involving children under 16 where a parenting order is made. I wrote to the noble Viscount, Lord Colville, on 20th February to explain that we had accepted the arguments and would bring forward an amendment—it is Amendment No. 23—to rectify that position.

Amendment No. 24 responds to concerns which were raised when we discussed a similar amendment at Committee stage tabled by the noble Lord. Lord McNally. He was not present on that occasion but the noble Lord, Lord Thomas of Gresford, was. The Solicitor-General indicated that we would consider the question of reasonable excuse and that we saw the force of the arguments. I wrote to the noble Lord, Lord McNally, on 20th February to say that we would be tabling an amendment to that effect. That is what we have done. It is Amendment No. 24. Therefore, in respect of Amendments Nos. 23 and 24, we have listened to the arguments and have been persuaded. In respect of the first amendment in the name of the noble Baroness, Lady David, we have not been so convinced.

6.45 p.m.

Baroness David

My Lords, I am extremely disappointed. I should like to thank very much all those noble Lords—noble Lords from absolutely every Bench—who have spoken in support of this amendment: and very strong and good support I have had. I wonder whether my noble friend would be willing to take this away and think about it, and think that the power would he adequate in the circumstances. I should be very grateful if he would do that. I hope that when he thinks about the support I have had for this amendment he will agree that that would be a decent thing to do. I very much hope that he might be willing to do that.

Lord Williams of Mostyn

My Lords, I always listen to argument but I do not want to mislead. We have listened to the arguments quite carefully. I have put forward our response to Amendment No. 22 and I have put forward a completely different response to Amendments Nos. 23 and 24, where we thought the arguments were such that we were persuaded. I have not been persuaded so far. I think it is unlikely that any of my colleagues in another place will be persuaded. But obviously everything that is said in your Lordships' House is discussed by the Solicitor-General, the Lord Advocate and myself, and frequently we transmit our views about—I say this carefully—the virtue and merit of arguments in your Lordship' House to our masters above us; and they sometimes listen—in fact they always listen, but they do not always agree.

Baroness David

My Lords, before the noble Lord sits down, if they are going to have this discussion, surely they can have it before the next stage of the Bill. I should like to hear the result of that discussion with the Secretary of State, or whoever it is. Could that not happen please?

Lord Williams of Mostyn

My Lords, there will be a concluded government view before the Bill goes from your Lordships' House. Whether it will be pleasing or displeasing is another question.

Baroness David

My Lords, if there are going to be discussions, I think my best plan is to withdraw the amendment now and come forward with it or something very similar at Third Reading and hope that there will have been discussions—and perhaps more profitable discussions from my point of view than seem to have happened so far. With that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendments Nos. 23 and 24: Page 8, line 12, leave out ("where the person convicted of the offence is under the age of I6,") and insert—

1. ("(a) in a case falling within paragraph (a) of subsection (1) of section 8 above;
2. (b) in a case falling within paragraph (b) or (c) of that subsection, where the person concerned is under the age of 16; or
626
3. (c) in a case falling within paragraph (d) of that subsection, where the person to whom the offence related is under that age,").

Page 8, line 43, after ("parent") insert ("without reasonable excuse").

The noble Lord said: My Lords, I have already spoken to Amendments Nos. 23 and 24. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 11 [Child safety orders]:

The Deputy Speaker

My Lords, in calling Amendment No. 25 I must advise the House that, should it be agreed to, I cannot call Amendment No. 26 due to pre-emption.

[Amendment No. 25 not moved.]

Lord Falconer of Thoroton moved Amendment No. 26: Page 10, line 13. leave out ("two") and insert ("one").

The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 14 [Local child curfew schemes]:

Baroness Anelay of St. Johns moved Amendment No. 27: Page 12, line 15, at end insert ("or under the effective control of the parent of the child").

The noble Baroness said: My Lords, Clause 14 introduces local child curfew schemes. A local authority will be able to impose a curfew scheme over a specified area and the local authority can further then specify which age groups of children under 10 will be forbidden by that ban from leaving their homes between the hours of 9 p.m. and 6 a.m. or at some period between those two times. What I would call the let out clause is in subsection (2)(b). The only way that children can go out legally in curfew time is by being under the effective control of a responsible person aged 18 or over. My amendment would make it legal for them to go out in curfew time in addition if they were then under the effective control of their own parent, a parent who could be under the age of 18.

That may at first sound a rather odd objective but it is a fact that young people under the age of 18 could be parents of children covered by a curfew order since such schemes can affect children between the ages of nought and 10. I rather suspect that the order itself will he so difficult to implement in the eyes of a local authority if different ages are specified that local authorities will be tempted to impose a blanket ban on all children in an area under the age of 10.

The report issued last Thursday by the Office for National Statistics shows that under-age pregnancies have now hit a 10-year high with almost 9,000 girls becoming pregnant in 1996. It is the third successive annual rise in pregnancies among girls aged between 13 and 15 years. It is estimated that about 48 per cent. of those young girls will not have an abortion and therefore will give birth. Some of the children will be put up for adoption, but it is estimated that the majority will remain with their natural mothers.

As it stands, this Bill would make it an absolute offence for a parent under the age of 18 years to take his or her own child out of the home in an area covered by a curfew scheme. Perhaps the parent wants to take the child to the grandparents or away on holiday travelling on an overnight train or a flight. Is it really what the Government intend that they should fall foul of such an absolute offence? Surely it is not good practice to create offences as a consequence of which innocent parents must rely on the mercy of administrative indulgence in order to escape prosecution.

I note that the Government seem perhaps to agree with that general principle given their support last night for the Criminal Justice (International Co-operation) (Amendment) Bill, which received its Second Reading in this House. Last night the noble Lord, Lord Evans of Parkside, the sponsor of that Bill, said that the purpose of it was to put an end to reliance upon an administrative arrangement which the police and the CPS can use in individual cases to give chemical manufacturers freedom from prosecution when they are assisting the police.

When responding for the Government, the noble Lord, Lord Williams of Mostyn, said, It is perfectly true that the Crown Prosecution Service can, by arrangement with the police, give an undertaking that a manufacturer or supplier will not he prosecuted. We believe that that should he on a proper statutory basis".— [Official Report, 16/3/98: col. 548.]

I believe that there is a "read-across" of principle here.

I beg to move.

Lord Goodhart

My Lords, I pointed out this matter myself at Second Reading. I said that, as it stands, if a curfew scheme is in force, a 17 year-old girl carrying her baby through the area in which the scheme operates technically would be in breach of the scheme. Therefore, I naturally support the amendment moved by the noble Baroness, Lady Anelay. It seems to me to be an obvious matter of common sense.

Lord Renton

My Lords, I, too, support this amendment. The basic point is a very simple and short one. Alas, there are now too many parents, especially mothers, under the age of 18. But that does not make them other than loving towards their children and anxious to protect and do all they can for them. Therefore, we should bear that in mind. This amendment is necessary.

Lord Falconer of Thoroton

My Lords, the noble Baroness put her point extremely clearly and well. She had very eloquent support from the two noble Lords. There is plainly potential for a problem. Therefore, I agree in principle with the thrust of the noble Baroness's amendment. If she is prepared to withdraw it, I can give her an undertaking now that I will return at Third Reading with an amendment to the same effect.

Baroness Anelay of St. Johns

My Lords, I am almost speechless, but not quite, because I have further amendments on which I shall try to persuade the Government tonight. I thank the Minister for his courtesy and the offer to look at this matter again, bringing back an amendment in his name on the same subject. On the basis of the undertaking he has given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 28: Page 12, line 17, leave out ("with").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 87 and 106. Amendment No. 28 responds to a concern raised by the noble Lord, Lord Henley, at Committee stage when he pointed out that the use of the word "with" in Clause 14(3) was otiose and inelegant English. My noble friend Lord Williams of Mostyn wrote to him on 20th February to indicate that at Report stage we would table an amendment to remove the word "with" in Clause 14(3). The other two amendments have the same effect in relation to Clauses 30 and 40 respectively. I beg to move.

Lord Henley

My Lords, I accept that this amendment is not as important as the amendment previously moved by my noble friend Lady Anelay. But I am grateful to the noble and learned Lord for meeting my particular requirements. I believe that I moved only one amendment deleting the word "with", and the noble and learned Lord and those who advise him have found the use of the word in two other instances in the Bill. I trust that there are no further ones that need removing, but if there are, that can be done along with the raft of other amendments that no doubt the noble and learned Lord and his friends will be bringing forward at Third Reading to meet other requirements that we may make during the passage of this Bill. I believe that we have something of the order of 221 amendments before us at Report stage, over half of which are government amendments. I am very grateful that a great many of the government amendments such as these are in response to requests made by Members on all sides of the House.

On Question, amendment agreed to.

Baroness Kennedy of The Shaws moved Amendment No. 29: Page 12, line 23, at end insert— ("() The Secretary of State shall not confirm a local child curfew scheme unless he is satisfied that—

1. (a) the local authority and police authority have taken all reasonable steps to avoid the need for such a scheme;
2. (b) the behaviour of the children to whom the scheme would apply has been sufficiently serious to warrant the making of the scheme; and
3. (c) so far as is practicable, the views of all those who would be affected by the proposed curfew have been ascertained and given due consideration.").

The noble Baroness said: My Lords, the Minister knows that my position is that the local child curfew scheme is an entirely unnecessary provision. It is my view, and that of others, that the police already have powers under the Children Act to return home any child that is at risk. The local authorities investigate if there is suspected neglect or abuse. Local authorities have powers under the Children Act to obtain orders if they feel that a child is beyond parental control.

So I make it clear from the outset that our view is that a local child curfew scheme is unnecessary. However, I anticipate that the curfew provisions are not going to be abandoned and therefore we put forward these amendments. They seek to fetter the Secretary of State's powers within primary legislation.

On a previous occasion the noble Lord, Lord Williams, and the noble and learned Lord, Lord Falconer, made promises as to how the Home Secretary would conduct himself. Promises are not good enough. If that conduct is not specified on the face of the Bill, there is nothing to stop a future Home Secretary behaving in a less responsible manner than the current one. We believe that it is far more satisfactory to have on the face of the Bill a fetter on the powers of the Government in this regard.

The three conditions of this amendment are put before the House on the basis that it is our view that the curfew is likely to be in breach of a family's rights under the European Convention on Human Rights. I raise that now because it should be a matter of concern to this Government, particularly as they have championed a Human Rights Bill through this House and it is about to move to its next stage.

Under the provisions of the European Convention on Human Rights the state can interfere with family life only if it is necessary in a democratic society. In our view it is doubtful that those under 10 years of age could ever be so out of order and behave in such a way that a blanket curfew can be considered acceptable. In the absence of a public emergency it is our view that it is necessary for some degree of parental rights over a named child to be secured by a court order. I raise that point because I believe that the amendment we are putting forward in these three separate propositions would save the Government from falling foul of Article 8.

Paragraph (a) makes it clear that the curfew must be a measure of last resort. When we debated this in Committee, the noble and learned Lord, Lord Falconer, confirmed that the curfew would be used only if the local authority believed that there was no other way of dealing with the problem of unsupervised children. He rejected the wording of our amendment, so we have changed it and what we now propose, as the first "fetter" on the Home Secretary, is less stringent than were our previous provisions, but makes the point that less draconian steps should be considered before a curfew is sought.

Paragraph (b) makes it clear that the curfew must be in response to a "serious" situation. At present, the Bill provides that a curfew may be granted simply for the purpose of maintaining order. That could allow a curfew to be imposed without any evidence of children being out of control.

Paragraph (c) requires that the views of all those who would be affected by the proposed curfew must be ascertained and given due consideration. In Committee the noble Lord, Lord Williams, said that before the order becomes effective there must be consultation with the area affected. He said that it was hoped that it would then be possible to consult those affected—that is, those having a bad time because of the conduct of the under-10 year-olds, as well as the children who may be affected by the order or, as is more likely, their parents. They can say whether it is a good or a bad idea. None of that appears in the Bill and it is our submission that the noble Lord should turn his hope into a requirement. That is why we have tabled this amendment. I beg to move.

7 p.m.

The Lord Bishop of Bath and Wells

My Lords, I recognise the need for action in this area, having received quite a lot of feedback from the sort of places where such difficulties occur. The communities affected sometimes recognise that this is a necessary step for exposed and vulnerable children in what is so often a brutalising situation. It is recognised that we need to increase a parental sense of responsibility. All of those points are important, but I support the amendment because I do not think that the right way to deal with this problem has yet been found.

There are profound difficulties in what the Bill proposes. I keep returning in my own mind to the question of how such provisions will work. We have talked about practicalities with regard to other parts of the Bill. The noble Baroness, Lady Kennedy, has said that legal opinion suggests that these provisions interfere with parents' rights under Article 8 of the European convention. We, too, have received this advice.

I also support those who question whether the threat posed by young children can be so great that it is necessary to have such provisions to deal with it. It is not that I underestimate what they can do in particular places, but I feel that there are other ways of dealing with this, such as taking a multi-disciplinary approach to the problem.

Looking back over long years of such problems, it has often been difficult for communities to take the initiative in this direction. Communities need encouragement to tackle such situations. However, I question whether this is too big a solution to the problem. Would we not do better to mobilise and support community groups and voluntary organisations which are already involved in tackling such problems?

The amendment is also important because it seeks to gain police approval for such a scheme. Community policing is tremendously important, but very often it is not given the support that it deserves. The work of community policemen, in liaison with other organisations, can often help to tackle this blight on some estates.

I wonder whether, unamended, these provisions would not undermine the purpose of the youth justice teams which the Bill is setting up. As we have heard, children are significantly at risk, but, again, as we have just heard in the debate about child prostitution, the Children Act 1989 can tackle the problem of such children. Are we not overdoing our reaction to a problem that can be tackled in the local community by those who are involved in caring for those communities?

Lord Dholakia

My Lords, I rise to support Amendment No. 29 which has been moved by the noble Baroness. Lady Kennedy. We must be careful that we do not get carried away by the idea of imposing a curfew without adequate safeguards. The purpose of this amendment is to introduce those safeguards. It is crucial that our starting point is that "all reasonable steps" have been taken to ensure that such a scheme is needed. Having dealt with that difficulty, we must then be careful to ensure that there is adequate consultation with those who live in the areas concerned.

I raise this matter because we are dealing with a new scheme and the consequences for community relations could be serious. Many of the areas about which we are talking are multi-racial and multi-ethnic. Can your Lordships imagine what would happen if the police, local authorities and others who are responsible for the order were to target such areas? I have given examples earlier of what has happened with the stop-and-search powers. Black communities have been targeted. That could lead to a serious situation. The noble Baroness is saying that we must ensure that safeguards are introduced. I hope that the Minister will take what we have said into account.

Baroness David

My Lords, before the noble Lord, Lord Williams, rises to reply, my name is to this amendment and I should like to add my support. The child curfew order is a cumbersome affair which probably will not work. There was a long discussion on it in Committee when many noble Lords said that it would he difficult to put the order into operation. There are other methods of dealing with young children under the Children Act and it seems a great pity not to use them.

I ask specifically that the Minister replies to the point about the provisions of the Bill breaching the European Convention on Human Rights. There seems to be a real likelihood of that happening and we do not want to be taken to court again for something like that. I very much hope that the Minister will look favourably on this amendment.

Lord Williams of Mostyn

My Lords, we do not believe that these provisions breach Article 8 of the European convention, but bearing in mind what the right reverend Prelate said about the legal advice that he has received and what my noble friend Lady Kennedy said, I undertake to reconsider that point. As I have said, we do not believe that the provisions breach Article 8 but, as the question has been raised, we shall look at this again.

We discussed the matter in detail in Committee and a number of questions have been raised again today. The right reverend Prelate asked about consultation. That is specifically provided for in Clause 14(3) which states: Before making a local child curfew scheme, a local authority shall consult with— (a) every chief officer of police any part of whose police area lies within its area", so the question of community police liaison is already covered. Furthermore, Clause 14(3)(b) gives the local authority very wide discretion because it must also consult, such other persons or bodies as it considers appropriate". Perhaps it should be remembered that the overarch of the entire scheme is Clause 14(1)(b). The authority can only propose a scheme, if, after such consultation as is required by the scheme, the authority considers it necessary to do so for the purpose of maintaining order". It must be done within a specified time, not exceeding 90 days, and a specified area.

I do not see how this amendment would work. Under the proposed paragraph (b) the order is to be made if the behaviour of the children to whom the scheme would apply has been sufficiently serious to warrant the making of the scheme". I do not see how that could possibly work in practice. One is dealing with children of specified ages whether or not their individual behaviour has been sufficiently serious to warrant the making of the scheme. That is my observation on paragraph (b).

I return to the general point. These powers are not mandatory but entirely permissive. If a local authority considers that there are alternatives, such as those indicated by the right reverend Prelate, it can proceed with them. The provision is entirely permissive: there is no obligation to make use of the scheme. It is for each local authority to decide whether something of this kind is an appropriate response to a particular problem for the purpose of maintaining order.

One is referring to elected representatives of a particular area. I take the point raised by the noble Lord, Lord Dholakia, but this is not a matter of stop and search. I recognise the criticisms made of that. That was police activity whereas this is the preliminary conclusion of a local authority. The local authority is elected by the people within the relevant area and its members, unlike Members of your Lordships' House, are subject to the discipline of re-election periodically. That is step number one.

I come to step number two. On the face of the Bill, having come to its preliminary conclusion, the authority must consult the police and the local community. Such persons or bodies whom it considers appropriate will vary infinitely because communities differ. We trust that local authorities, being democratically elected, are fit to decide what is appropriate by way of consultation within their local communities. It is perfectly plain that without the support of the local community these schemes are unlikely to work.

When all that has been done the local authority needs to give the Home Secretary a clear indication of the reported problem or identified nuisance and an indication of what other measures have been taken to solve the problem. It will need to provide details of the consultation arrangements that have already been undertaken. It must indicate to the Secretary of State any views that may have been expressed. It will need to show how it intends further to consult those in the local area where the curfew notice is to be applied. We intend to set out fully all of those issues in the guidance that we shall issue to coincide with the implementation of the legislation.

I am grateful for the way in which my noble friend Lady Kennedy dealt with her concerns. I hope that I have been able to deal with them on the basis of, first, the limited parameters of Clause 14 and, secondly, my undertaking as to the nature of the guidance which the Secretary of State will issue to coincide with the implementation of the legislation.

7.15 p.m.

Baroness Kennedy of The Shaws

My Lords, I am very pleased to hear my noble friend say that he will, with others, give due consideration to Article 8. That is a matter of concern to those who have tabled these amendments. We would be very unhappy to see the Government fall foul of that article, particularly in light of the courageous steps that they have taken to place before Parliament the Human Rights Bill.

Having taken account of the matters raised by my noble friend, it may well be that the wording of these amendments can be drafted in a more felicitous way. If consideration is to be given to Article 8 it may well be that the safeguard here will allow the Government to proceed with a curfew scheme but in the limited circumstances that we seek to impose. I am content that the Government should look again at the particular article. It may well be that they will be able to draft better safeguards than those that we have proposed.

In tabling this amendment we are concerned that the threshold should be high before any local authority or any persons in authority take steps to introduce curfews. For all its faults, the antisocial behaviour order can be obtained only through the courts for children over 10 years of age who have been shown to have done something wrong. On the other hand, this curfew involves no due process and does not apply to named children. It may result in a parent who has done nothing wrong and whose child has done nothing wrong being punished by the criminal courts. That is our concern. Although the description of the steps to be taken by a local authority to obtain a curfew sounds almost Byzantine, there are concerns which it is right to raise and which we would like the Government to consider again in the context of the possibility of the Government falling foul of the European Convention on Human Rights. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 30: Leave out Clause 14 and insert the following new clause— CHILD CURFEW ORDERS (" .—(1) A child curfew order is an order which applies a ban on children of specified ages (under 10) being in a public place within a specified area and for a specified period (not exceeding 90 days)—

1. (a) during specified hours (between 9 pm and 6 am): and
2. (b) otherwise than under the effective control of a responsible person aged 18 or over.

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

1. (a) by posting the notice in some conspicuous place or places within the specified area;
2. (b) in such other manner, if any, as appears to the local authority to be desirable for giving publicity to the application.

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

1. (a) the chief officer of police;
2. (b) the probation officer appointed for or assigned to the magistrates' court.

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

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

"public place" has the same meaning as in Part II of the Public Order Act 1986.").

The noble Lord said: My Lords, Amendment No. 30 is grouped with Amendment No. 31. Perhaps I may first address some remarks to the latter. That opposes the whole principle of the child curfew order. I entirely agree with the comments of the noble Baroness, Lady Kennedy, on the previous amendment that it is unnecessary to have child curfew orders and there are already powers under the Children Act to deal with individuals. The objection in principle to curfews is that they attack whole groups rather than difficult and problematic individuals.

While the noble Lord is considering Article 8 perhaps he will consider also Article 5, which deals with liberty. These proposals involve the issue of liberty and family life. I urge the Government to consider the alternative approach favoured by the National Association of Probation Officers, which is to look at ways of introducing crime prevention strategies on difficult estates and revitalising urban areas—to cut the jargon, to give children something to do or, as the right reverend Prelate said a moment ago, to mobilise the community, parents and others, in order to do something about the difficulties that they face.

I received a letter from a Mr. King of Bristol. He listed various activities that would be outlawed by a blanket curfew order. His first suggested activity was seeing granny round the corner. He went on to list: riding bikes with friends; football; stick in the mud; going to the shops; posting a letter; carol-singing; bob-a-job and matters of that kind. Child curfew orders involve the essential principle of liberty.

If there is to be a child curfew order—the Government appear to be pretty determined on such a course—is this the right way? The proposed system in Clause 14 is cumbersome. When all that has been done, as the noble Lord, Lord Williams of Mostyn, said a moment ago, something else must be done. This is a cumbersome machinery which, as the noble Baroness, Lady Anelay of St. Johns, pointed out in Committee, is unlikely to be put into practice very often.

I was pleased to receive a letter from the Minister on 20th February in which he said: The Home Secretary has no role in terms of varying a scheme once it is submitted. His role is confined to the area of satisfying himself that the consultation which the authority has undertaken is adequate and reflects local views to a sufficient degree. He cannot be expected to second guess a local authority on detailed points which are of a local nature".

What, then, is the role of the Home Secretary that is envisaged? It is not to make a decision upon the merits of the scheme that is being put forward. It is merely to exercise a supervisory role to see that there has been consultation. Presumably some official in the Home Office will be given a check list to tick off that the right organisations have been circulated and have made some representations. That leaves the Home Secretary with no supervisory role with local knowledge of what the problem is.

In a further letter of 12th March the Minister wrote: One of the principle features of our proposals is the measure of support which the local community itself expresses towards a local child curfew scheme. It is crucial to its success".

The proposals that I have set out in Amendment No. 30 are criticised because the application would be made by the local authority direct to the magistrates' court without first seeking the views of the local community.

If noble Lords look at the detail in Amendment No. 30, they will notice some important points. First, it is suggested that the local authority make the application to the magistrates' court. As the Minister said a moment ago—he has made the point for me—a local authority consists of elected members who are responsive to the needs of the people who have elected them to the position that they hold upon that local authority. So, first, the community is reflected in the local authority that brings forward the proposal.

Secondly, the amendment makes it clear that public notice should be given of an application to the magistrates' court for a child curfew order by the affixing of a notice in appropriate places and by advertising in the press or on the radio, as needs be. Thirdly, the local community, on the proposal that I put forward which does not involve going to the Home Secretary and producing a scheme, can have a direct input by oral and written representations to the decision makers; namely, the magistrates. Under the government scheme as drafted in Clause 14, the local community cannot appear in front of the local authority or the Home Secretary and make representations of the sort that can be made to a magistrates' court.

Crucially, under the scheme that I put forward in the amendment the local community can apply for the discharge of the order if it thinks that it is no longer necessary for that order to continue. The community is involved through the bringing of the scheme by way of local authority representatives; it has the right to make representations in person to the decision makers—the magistrates—and it can apply for the discharge of the order. There cannot be greater community involvement than the scheme put forward in Amendment No. 30.

Further, the magistrates' court—unlike the Home Secretary—will be fully apprised of the local issues because the magistrates will be from that area. They will understand the difficulties in the estate from which all their customers come. They will know the area. They can ensure that proper evidence is brought before them by the police and other interested persons. If there is a dispute about the making of an order, that can be tested before the magistrates by evidence and cross examination.

So I reject the suggestion that may be made again that these proposals do not go far enough on consultation and public involvement. My proposals involve the public to a far greater degree. The decision makers will have knowledge of the issues, as opposed to what is proposed in Clause 14.

Furthermore, my proposed clause has the advantage that it retains the character of a judicial process. As the noble Baroness, Lady Kennedy, said, it maintains due process. It cannot smack of a political decision, whether it is a local political decision or a national one, if it is a court that takes that decision.

Secondly, the decision of magistrates is made in public, not in the Home Office or in the confines of the local authority committee room where the public may have no right of access, and certainly no right to speak. Any issues that may arise in relation to the curfew order can be aired in the presence of the press and the public and add to the publicity that would surround the making of the order. More important, instead of going through the machinery envisaged in Clause 14—consultations followed by a trip to the Home Secretary, followed by the Home Secretary's decision and then further consultation for an order that lasts for 90 days only—a decision by magistrates can be obtained, implemented and removed quickly.

In today's debates on the various issues that have arisen in relation to the Bill, the Minister talked of magistrates being wise enough and reasonable enough to know a reasonable excuse when they see one. That was in answer to Amendment No. 4. The noble and learned Lord, Lord Falconer, refuted the suggestion that I made that the Government no longer trust the judges and the magistrates. Later, he said that they rely upon the discretion of the local authority and magistrates' courts to do the right thing.

So when it comes to other clauses of the Bill the Government are the first to rush to the courts saying, "We rely upon them. They know what they are talking about. They know their own area". But when it comes to this proposal we are faced with machinery that is so cumbersome that it will never operate. It is decision making at a distance from the people whom it affects. I beg to move.

Lord Goodhart

My Lords, I support my noble friend. This is a bureaucratic sledgehammer. There is a bunch of young children roaming around, gathering on a street, a public garden or public path and making a bloody nuisance of themselves. What happens then? The local authority has to consult, has to draw up the order, have it approved by the Home Secretary and publicise it. When it has the order, it turns out to be totally useless because most of the children are 10 or 11, or the ringleaders are 10 or 11, and there is nothing that the curfew scheme enables the local authority to do.

By the time the order is obtained, it has taken so long that winter has set in and the evenings are too cold for the children to be mucking about anyway. Why not, for heavens sake, use the Children Act power for the police to pick up the children, take them home and, if necessary, report them to the social services, and drop this extraordinary scheme?

Lord Hylton

My Lords, I am strongly in favour of local control in matters like this, which is why I support the amendment. I like subsection (6) especially enabling local affected people to make representations or be heard before the magistrates. I strongly approve also of the 90-day period. I hope that the Government will feel able to accept the amendment.

7.30 p.m.

Baroness Anelay of St. Johns

My Lords. I shall address my remarks to Amendment No. 30 only. I am sure that noble Lords will recognise that I am the first to praise the value of magistrates and to resist the erosion of their judicial activities. I hope that I shall be able to speak about that on Thursday when we reach Clause 40. So one might expect that I would welcome the extension of their sphere of action, as proposed in Amendment No. 30. However, on this occasion I question whether it would be appropriate for the magistrates' courts to be used in the manner prescribed in the amendment. It provides that curfew order applications would be made directly to a magistrates' court either by the local authority or the police and that there would not be the requirement first to obtain the views of the local community who would be affected by the order. Of course, I note that under the existing subsection (3)(b) the local authority should consult such other persons or bodies as it considers appropriate.

Of course magistrates could take evidence. That is their job when they sit daily either in the family proceedings court, the adult court or the youth court. It is not beyond their competence so to do. But I wonder whether the court is a proper forum for holding what would need to be much in the nature of a public inquiry about the potential impact of a curfew order on a category of the local population and the requirement to take into account the needs and conditions of the locality. Magistrates' courts take evidence about individuals and they adjudicate upon their actions. Whether they are hearing issues of breach of the peace or affray, they are, in practice, tackling issues from the viewpoint of assessing actions of the individual within the framework provided mostly by the criminal justice system or within the matters governed by the family proceedings court.

I have great sympathy for what the noble Lord seeks to achieve and I share some of his concerns about the cumbersome machinery contained in the Bill. However, I have reservations about whether the magistrates' court could provide the right venue as enshrined in Amendment No. 30.

7.30 p.m.

Lord Williams of Mostyn

My Lords, I am not sure that I understood entirely the observations of the noble Lord, Lord Hylton, about the 90-day period. A period not exceeding 90 days is contained in Amendment No. 30 and in the Bill at Clause 14(1). Therefore, there is no difference.

The noble Lord, Lord Thomas of Gresford, asked us to put our minds to Article 5. We do not believe that we are in danger of breach, but as he has raised the issue we shall look at it in exactly the same way as I undertook at look at Article 8. We do not believe that there is a problem.

Local child curfews are intended to be a response to a particular problem for the purpose of maintaining order. Amendment No. 30 recognises that, because it takes the phrase from the Bill. We believe it to be self-evident that the role and support of the police are crucial. They are likely to be the primary source of advice and they will undoubtedly have a primary duty for enforcing the curfew. We find it strange that in the amendment there is no requirement for prior consultation with the police. Indeed, the police are served with notice only once an application is made to the magistrates' court. The views of the police would not be sought. Taking up a point made by the noble Lord, Lord Dholakia, the local community would not be asked its view before the application was made. The probation service and the voluntary agencies would not be consulted by the local authority before it went directly to the magistrates' court. Indeed, the notice of re-application is only then to be served on the chief officer of police and the appointed or assigned probation officer. That strikes us as putting the cart vigorously before the horse.

We believe that our scheme is perfectly workable. It consults as appropriate; that is, before the scheme is put to the Home Secretary. Everyone who has a view can put it forward. The local authority is given abundant discretion. We believe our scheme to be substantially and significantly better than the scheme put forward in the amendments. For those reasons, which I have briefly outlined, I do not believe that your Lordships should accept the amendment.

Lord Thomas of Gresford

My Lords, I listened to the Minister's reply and I regret to say that I do not accept his premise that there is no consultation. Where under-10s are running riot it is not enough to spend weeks and months in prior consultation before action is taken. What is needed is quick action which will involve the community in the sense that it can make representations directly to the decision makers and then leave it to the magistrates, who have local knowledge, to take the appropriate decision in the interests of the community.

I am disappointed at the way in which the Government stick to their cumbersome machinery. I do not propose to divide the House on this amendment, but when Amendment No. 31 is called I may have a different view. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 31: Leave out Clause 14.

The noble Lord said: My Lords, I beg to move.

7.35 p.m.

On Question, Whether the said amendment (No. 31) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 89.

Division No. 3
CONTENTS
Addington, L.	Linklater of Butterstone, B.
Avebury, L.	MarandKellie, E. [Teller.l
Bath and Wells, Bp.	Meston, L.
Carlisle, E.	Nicholson of Winterboume, B
Dholakia,L. [Teller.]	Ripon, Bp.
Dundonald, E.	Rochester, L.
Goodhart, L.	Rodgers of Quarry Bank, L.
Hooson, L.	Thomas of Gresford, L.
Hylton, L.	Tordoff, L.
Kennedy of The Shaws, B.	Williams of Crosby, B.
NOT-CONTENTS
Acton, L.	Davies of Oldham, L.
Amos, B.	Dean of Beswick, L.
Archer of Sandwell, L.	Dean of Thornton-le-Fylde, B
Blackstone, B.	Desai, L.
Blease, L.	Dixon, L.
Borrie, L.	Dormand of Easington, L.
Brooke of Alverthorpe, L.	Dubs, L.
Burlison, L.	Elis-Thomas, L.
Carmichael of Kelvingrove, L.	Evans of Parkside, L.
Carter. L.[Teller.]	Falconer of Thoroton, L.
Clinton-Davis, L.	Farrington of Ribbleton, B.
Cocks of Hartcliffe, L.	Gallacher, L.
Colville of Culross. V.	Gilbert, L.
Darcy de Knayth. B.	Gordon of Strathblane, L.
Davies of Coity. L.	Gould of Potternewton, B.

Graham of Edmonton, L.	Montague of Oxford, L.
Grenfell, L.	Murray of Epping Forest, L.
Hardie, L.	Napier and Ettrick. L.
Hardy of Wath,L.	Nicol, B.
Haskel, L.	Palmer, L.
Hattersley, L.	Pitkeathley, B.
Hayman. B.	Prys-Davies, L.
Hilton of Eggardon, B.	Puttnam, L.
Hogg of Cumbemauld. L.	Ramsay of Cartvalc. B.
Hollis of Heigham, B.	Randall of St, Budeaux, L.
Howie of Troon.L.	Rendell of Babergh, B.
Hoyle, L.	Renwick of Clifton, L.
Hughes of Woodside, L.	Richard, L. [Lord Privy Seal.]
Hunt of Kings Heath, L.	Sewel, L.
Irvine of Lairg, L. [Lord Chancellor ]	Shepherd, L.
	Simon, V.
Islwyn, L.	Simon of Highbury, L.
	Smith of Gilmorehill, B.
Janner of Braunstone, L.	Stoddart of Swindon, L.
Jay of Paddington, B.	Stone of Blackheath, L.
Jenkins of Putney, L.	Symons of Vemham Dean. B
Kilbracken, L.	Taylor of Blackburn, L.
Kilmarnock, L.	Tenby, V.
Lockwood, B.	Thomas of Macclesfield, L.
Lofthouse of Pontefract, L.	Walker of Doncaster. L.
McIntosh of Haringey, L. [Teller.]	Watson of Invergowrie, L,.
	Wharton, B.
Masham of Ilton, B.	Whitty, L.
Merlyn-Rees, L.	Williams of Moslyn. L.
Molloy, L.	Winston. L.
Monkswell. L.	Young of Old Scone. B.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Hoyle

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again not before 8.40 p.m.

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