Criminal Justice and Police Bill

HL Deb 01 May 2001 vol 625 cc560-629

3.8 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 13 [Designated public places]:

Baroness Buscombe had given notice of her intention to move Amendment No. 29: Page 7, line 16, leave out paragraph (b) and insert— (b) any area to which members of the public have or may gain access

The noble Baroness said: In rising to speak to Amendments Nos. 30 to 34, I advise the Committee that I shall not move Amendment No. 29.

[Amendment No. 29 not moved.]

Baroness Buscombe moved Amendment No. 30: Page 7, line 22, after "been" insert "or may be

The noble Baroness said: In moving Amendment No. 30, I shall speak also to Amendments Nos. 31 to 34.

A similar group of amendments was debated in another place with unsatisfactory results. The amendment seeks to increase flexibility on all sides in the hope that the on-the-spot hybrid can be workable without being too draconian for the vast majority of us who are law abiding citizens.

Amendment No. 30 seeks to bring flexibility to the use of the proposals to help local authorities respond to possible future situations. Perhaps I can give a brief example. A local authority may face a situation where, while its own football team enjoys the support of well-behaved fans, it is expecting the arrival for a fixture of a team whose fans carry a different, disruptive reputation. In that instance, our amendment would enable the local authority to respond to that fixture by designating the area surrounding the ground.

Amendment No. 31 seeks to protect the police officer who, in an instance where there is a need to act swiftly to abate an unpleasant, difficult situation, in all innocence exceeds his powers by acting in an area which is not in fact a designated public place. For example, a police officer may act in a situation where, unknown to him, the designation had recently been lifted by the local authority but the signs designating the area have not been removed.

Amendments Nos. 33 to 35 seek more flexibility to enable local authorities to meet the many different uses of public places. Public parks, for example, are regularly used these days for all kinds of activities—such as concerts and open-air theatre—which are beyond day-to-day dog-walking and sports, and, sadly, the gathering of those for whom the designated areas are intended. It would be a great shame if local authorities were unable, with relative ease and with the support of the local superintendent of police, to lift the designation on a temporary basis to allow concerts, and so forth, to take place.

Amendment No. 32 is intended to ensure proper accountability and transparency with regard to the use of the powers granted in the Bill. There is little doubt that local authorities will use many opportunities to designate areas under the Bill. Some will use a blanket approach to try to deal with the growing problem of anti-social behaviour, the "yob culture". It is questionable whether the designated areas will solve the problem, apart from alleviating it in that particular place. The underlying real problem will move and probably cause upset and unhappiness elsewhere. Unfortunately, no amount of legislation will necessarily change that. Perhaps I can briefly take time to say that a change in culture would, but, sadly, we can do nothing about that today.

Efforts on the part of police and local authorities are often hampered and compromised by mixed messages sent out to the public. A stark example is that of the killers of James Bulger. On the one hand, children and young people hear, "Let's get tough on yobs and fight the causes of crime" and then hear that young killers are rewarded with tickets to see Manchester United and with Playstations in order, we are told, to get them used to normal living. That is not normal living; it is privileged living.

Local authorities know that the problem will move, but not necessarily off their patch, in which case they will tackle the problem with multiple orders for designated areas. Our concern is to ensure that it is decided in proper open debate whether or not these areas should be designated and to ensure, so far as is practicably possible, that all layers and interests of local government are kept in the picture and are able to influence the process through their elected representatives. In addition—we believe this point is important—it is hoped that where there is proper communication and proper accountability at all levels of government, public awareness will assist in seeking across the board co-operation for these measures. Therefore, given the importance and impact that this part of the Bill is likely to have across the country, we firmly believe that only a meeting of the full council should have the power to designate areas for the purpose of the Bill. I beg to move.

3.15 p.m.

Lord Bassam of Brighton

The Government consider that Amendments Nos. 30 and 31 go too far in eroding the principle that the new police powers provided by Clause 12 should only be applied in public areas designated for this purpose by the relevant local authority.

The purpose of Clause 12 is that public drinking should be restricted only in certain circumstances. We have no wish to introduce a comprehensive ban on drinking in public, and consider that the clause powers should not be extended to all public areas. It is right that it should remain the responsibility of the locally-elected body to determine the justification for designating specific public places within its area for that purpose. In our view the amendments would undermine that important principle.

It is also right that people should be able to go about their lawful business in public places without interference, provided they are acting lawfully and causing no offence or problem to others. That is why we consider it important that the local authority decision to designate a public area should be based on evidence of the problem that this measure will seek to address. That is why we do not accept Amendment No. 30, which seeks to extend the local authority's power to designate areas which may in the future experience such problems rather than, as the Bill is presently drafted, focus the justification for the local authority's decision on evidence of an existing problem associated with anti-social public drinking.

How can the local authority know with any certainty which public places will in future experience problems? There is the potential that every public place would fall to be designated if we were to accept the amendment because there is always the possibility—remote, I accept, in some instances, but still a possibility—that any public area could experience these problems.

There is no need to attempt to cover areas which may in future experience difficulties. Local authorities will be able to make designation orders in respect of such areas should they begin to experience problems, and they will be able to do so with less bureaucracy than is the position under the existing by-law regime. It follows from that that we do not consider it appropriate to write into the Bill exceptions to the principle that the new police powers should be exercisable only in areas designated for that purpose by the relevant local authority. We would do so if we were to accept Amendment No. 31. The effect of the amendment would be almost to render the designation process unnecessary if the police could exercise the powers in any public place.

The amendments run contrary to the spirit of the Joint Committee on Human Rights in its report on its scrutiny of the Bill published on 26th April. In respect of the measures relating to alcohol consumption in public places, the committee noted that they, meet the needs of legal certainty and pursue a legitimate aim". However, the report raised the question of possible additional safeguards to ensure that these measures are not exercised in an arbitrary or disproportionate way. The specific points raised by the committee fall to be addressed within the context of the regulations to be made under Clause 13(4). But the amendments, which erode the principle that the new police powers should be exercisable only in areas designated by the local authority based on evidence of an existing rather than a possible future problem, would be inconsistent with the emphasis that the committee placed on the need for the local authority to have evidence of "a current threat" of crime and disorder, and the significance of evidence of the frequency of alcohol-related crime or disorder over a period of, say, six months.

It is the Government's view that designation orders, which will be the trigger for the powers set out in the Bill, should be made by the relevant locally-elected body and not be delegated to one council member or an official in the council employ. However, this is essentially a procedural matter and it would be more appropriate to address this point, along with other procedural issues, in the regulations to be made under Clause 13(4). Those will be made by statutory instrument and will be subject to parliamentary scrutiny.

The detailed drafting of the regulations must follow the stages of the Bill but the Government have committed themselves to consulting the Local Government Association about the detail of the regulations. That will include seeking the LGA's view on whether the regulations should specify that decisions about designation orders should be made only by the full council or whether they should allow for the possibility of delegation to a politically balanced committee of the full council.

Other relevant matters to be covered by the regulations include consultation prior to making the designation order with the police and others as appropriate to ensure that the local authority satisfies itself that the area concerned has experienced the problems associated with public drinking in order to justify the designation order; consultation with town and parish councils within the local authority areas about public places to be made the subject of designation orders and consultation with neighbouring councils where designation orders apply to places on the borders of different local authority areas. Other matters will cover publicity, including the need to ensure that such areas are clearly identified as being areas to which the powers will apply.

It will be in drafting the regulations that we shall address the issues raised by the Joint Committee on Human Rights concerning the steps that local authorities should take when deciding whether to designate a particular place for this purpose and the possible need for additional safeguards in terms of the nature of the evidence of the problem it seeks to address.

I turn to Amendment No. 32A. The Government have some sympathy with the purpose behind the amendment, which is intended to ensure that the powers of local authorities to restrict public drinking in certain circumstances are not used in an arbitrary or disproportionate way. This is an issue which was raised by the Joint Committee on Human Rights.

While the Government have sympathy with the amendment, they consider that it could be too restrictive in that local authorities should have the possibility to designate a public place which is experiencing serious problems associated with anti-social public drinking, even if these have not been continuing for as long a period as six months. Where there are such serious problems, it may be unreasonable for local people to endure the disorder or crime for such a period.

The important issue here concerns the quality of the evidence that the local authority should have before it in deciding whether to designate a public area for the purpose. This will include evidence from the police of the seriousness of the problem. Where there is a significant problem, which may not have been continuing for a period of six months but which is nevertheless causing harm to the local community, we believe that the local authority should have the option of considering whether a designation order is appropriate in the circumstances. These matters will be further addressed in regulations.

The Government consider Amendments Nos. 33, 34 and 35 to be unnecessary. It is right that the local authority's power to designate public places should be set out in such a way as to ensure that it is able to define sufficiently clearly which public areas are designated for the current purpose. The power as currently set out in the Bill will enable the local authority to achieve that. It allows the local authority to identify the place "specifically" or "by description", and that should be sufficient for most purposes. We therefore consider it unnecessary to go further, as suggested by Amendment No. 33.

In bringing these powers on to the statute book, it is also the Government's aim to simplify procedures for local authorities and to allow for greater uniformity and a comprehensive approach in all matters. Amendment No. 34, which would allow local authorities to specify that designation orders should apply only at particular times, or on particular days, would take us well away from that objective.

The amendment seems to be based on the assumption that disorder and nuisance caused by public drinking will always occur at particular times or on particular days, almost as a matter of routine. That may be true in some instances. For instance, it may often be the case that such nuisance in city-centre areas arises in the evenings or at night when the pubs and clubs are closing, and most often at weekends.

However, that will not always be the case. We consider that it is right that once a local authority designates an area because it is experiencing the public drinking problems, the restriction on public drinking and the associated police powers should apply at all times. This will ensure that the area does not end up with the unsatisfactory situation of people drinking and misbehaving in that area, knowingly, at times other than as specified, with the police powers to deal with the nuisance significantly restricted.

We do, however, accept that there may be times when it is inappropriate for a police officer to exercise the powers in a designated place. That appears to be the principle behind Amendment No. 35. But the clauses as presently drafted allow for this, and the amendment, allowing for the suspension of designation orders, is therefore unnecessary.

It will not be an offence to drink alcohol in a designated public place. The offence will be to continue to do so after being required by a police officer not to do so. There may well be circumstances when the officer, using his or her discretion, considers it appropriate not to warn the individual to stop drinking. That would be right and proper. As with many other offences, the officer's discretion will be there to be used.

Similarly, there may be times or occasions when there is an activity, perhaps a festival, which takes place in an area which is subject to a designation order and which may involve some public drinking. Where such an event is sanctioned by the local authority and the police, there will be no need for the local authority to suspend the designation order. The more straightforward approach will be for the police to agree not to exercise the powers they have for the duration of the event in question. Where the drinking is orderly, acceptable and causing no nuisance or offence, there will be no need for police officers to require anybody to stop drinking and no offence will be committed. The police will however retain their powers in these circumstances, which could be used to useful effect should proceedings at such an event get out of hand.

I have gone into some detail about the various points raised in the amendment. I have given a full response and I hope that the noble Baroness, Lady Buscombe, will feel able to withdraw it.

Lord Lester of Herne Hill

Perhaps I may speak to Amendment No. 32A, which stands in my name and that of my noble friend Lord McNally. Although the Minister has been kind enough to address the amendment, he has not yet heard anyone speak on the specific subject.

We have tabled the amendment in order to enable the views of the Joint Committee on Human Rights, referred to by the Minister, to be directly before the Committee in considering this and other parts of the Bill. I emphasise that the wording of the amendment is not that of the Select Committee but is my own attempt to reflect what the Committee will find, in particular in paragraph 19 of the report.

Perhaps I may first comment on the Select Committee. It has been in existence for fewer than four months. I am sure that my colleagues present today and who also have the privilege of serving on the committee will agree that we have managed to make effective and practical advances in our role, among other things in scrutinising legislation. We have been greatly helped by a most able chair in the form of Jean Corston MP and by some outstanding officials; the legal adviser, Professor David Feldman, and the two Clerks from each of the two Houses. It is fair to say that we have developed a spirit of joint enterprise which reaches well beyond parties and that our decisions have been unanimous.

It is good to know that the Minister and his colleagues have taken our work seriously. We were greatly helped by the written and oral evidence given by representatives from the Home Office, lead by the Minister of State, Mr Charles Clarke MP, and by the way in which the department was forthcoming in giving its reasons for the compatibility statement made by the Home Secretary on the face of the Bill: that is, its reasons for considering the Bill to be compatible with the rights guaranteed by the European Convention on Human Rights and by the Human Rights Act. I shall say that only once—I shall not repeat it—because it is right to have it on the record.

Furthermore, we have done our best in the report to be practical and well focused. It will be for Members of the Committee to judge whether this is the kind of report they find useful and we shall no doubt learn from experience in our future work or that of our successors on the committee.

We have been sparing in the issues we have addressed. We have not adopted a scatter-gun approach. We have tried to single out those few issues that are of particular importance. We have not addressed the underlying policy, the political policy, behind the legislation but have looked at it against the standards of the human rights convention.

Amendment No. 32A focuses on the principle of proportionality to be complied with in the designation of public places by local authorities under Clause 13. We are worried about the need for safeguards against abuse. There are several possible safeguards. One is to write safeguards on to the face of the Bill, which is what Amendment No. 32A seeks to do. Another is to write safeguards into the regulations. A third is to safeguard the courts which, under the Human Rights Act, have the power to review the compatibility of the statute and the regulations against the standards of Article 8, which is the right to personal privacy and private life in the Human Rights Act and the convention.

The Select Committee pointed out that the width of the power as it stands in the Bill is open to abuse. It expressed the hope that steps will be taken to reduce the risk that aggrieved persons would feel the need to challenge the decisions in court. We pointed out that in evidence the Minister accepted the need for the Government to monitor the use of the power and we expressed the hope that the method of monitoring would enable the Government to ensure that the powers were being used in a proportionate way.

Obviously, this is a probing amendment, but perhaps I may probe the matter a little further in the light of the Minister's very helpful answer. The real question is whether in drafting the regulations the Government accept that it is necessary to include adequate safeguards of proportionality to make sure that the lawful power is not used to excess and that the recent history of the area will play a significant role in the decision to designate. We do not seek to place an arbitrary requirement on local authorities to make designation a mathematical or quantitative analysis of how many incidents have occurred in an area, or to set out a fixed time-limit which must expire before an order can be considered redundant. But we need some assurance that the principles set out in our report will be reflected in the regulations. We all trust the Government—famous last words—to be able to translate the principles into practice in the regulations, and we have to approve those regulations affirmatively. However, if the Minister can give some assurance as to the principle, not the detail, that will meet the needs of the committee and this amendment.

3.30 p.m.

Lord Windlesham

There is a marked contrast between this part of the Bill and the debates which we had yesterday on the first part which dealt with fixed penalty notices. Without repeating what was said then, the concept of a fixed penalty notice is fundamentally misconceived, offends against the principles of justice and is unlikely to achieve its objectives. But that was yesterday's debate. The Committee has moved on to consider new powers to combat what is acknowledged as a widespread social evil. There is no doubt that excessive consumption of alcohol in public places is often a menace and is only too easily recognisable, but, as so often when dealing with the unpredictabilities of human nature, the problem lies in how best to counter it. Where should the line be drawn between behaviour that is simply offensive and unacceptable to many people who are affected by it and the point at which legal intervention is justified?

There is nothing new in legal restrictions on excess drinking. The entire licensing system—local magistrates, by-laws and so on—is of long standing, but the question now is whether there is scope for further statutory intervention to combat excess consumption in public places; and, if so, what measures are most likely to be practicable and proportionate to the scale of the offensive behaviour. This follows the theme of the contribution of the noble Lord, Lord Lester.

The main provision is the power to make orders designating specified public places as alcohol-free zones. That is an ambitious objective. The second is a power for senior police officers to make a closure order in respect of certain licensed premises for a period of up to 24 hours.

The Committee is indebted to the noble Lord, Lord Lester, for drawing attention to the report of the Joint Committee on Human Rights, of which he is a distinguished and highly informed member. That report was published as recently as last week. Welcome though it is, it is a matter of regret that the report of a Joint Committee set up several months ago, which has been working diligently for a considerable period, is able to be published—I know not whether the fault lies with the committee or those to whom it delivered its report—only on 23rd April, after the lengthy proceedings on this Bill had been completed in the House of Commons. It was therefore impossible for the other place to take account of the findings of the Joint Committee. But, as the noble Lord, Lord Lester, said, the report lays down a number of guidelines which can be of great value and usefulness to us as we complete our consideration of this Bill.

Perhaps I may say to the noble Lord on the Front Bench that it was welcome to me and, I am sure, other Members of the Committee that in answer to the first amendment the Minister referred several times to the contents of the Joint Committee's first report. Therefore, it is unnecessary at this stage to reiterate what he has already said. However, we shall be vigilant.

Lord Goldsmith

Also as a member of the Joint Committee on Human Rights I should like to speak particularly to Amendment No. 32A. First, I should like to make one observation on the remarks of the noble Lord, Lord Windlesham. I associate myself with the remarks of the noble Lord, Lord Lester, about the pleasure and privilege of being involved in the Joint Committee. In those cases where the committee decides that it wants to scrutinise particular legislation, its new challenge is to decide how that will fit into the parliamentary timetable.

I am very glad that we were able to produce a report before Committee stage in this House. In all the circumstances of the establishment of that committee, it was not possible for it to complete any work before another place completed its deliberations, but I hope that at least the report as it stands is of benefit to this Committee as it considers the Bill.

The particular point on which I wish to touch is that which is covered by Amendment No. 32A. The background is very straightforward. It is not the job of the Joint Committee to determine policy or second guess it; that is a matter for Parliament. There was a very strong endorsement of the policy, particularly by the noble Lord, Lord McNally, yesterday evening, in that in the interests of all of us it is important that certain public -places which in the past have been associated with disorder and drinking should be made alcohol free. In that way we can all enjoy the centre of Brighton or, in my particular case, Liverpool, to which the noble Lord, Lord McNally, referred yesterday.

As I understand the report, the committee does not take the view that the clause as drafted is incompatible with the Act. If the legislation is enacted in that form, it will be compatible. The point is a rather different one. A power is being granted and, as in the case of so many powers, it is possible that it can be abused and used in an inappropriate circumstance. What kind of inappropriate circumstance? One sees the conditions in Clause 13(2). I believe that the critical point is the designation of places which have been associated with nuisance or disorder and the consumption of alcohol. That is not intended as a punishment for the owner of a shopping mall or a person who is in charge of a particular public place. As I understand it, it is intended as a way to prevent disorder in the future.

The amendment in the name of the noble Lord, Lord Lester, is intended to ensure that the attention of the local authority which makes the order is focused on the purpose of the power and has regard to past evidence in regard to drinking to determine the degree of risk that in the future there will be disorder again. My noble friend the Minister has already made the point that six months might look like an artificial period. I do not believe that the committee intended its recommendation to amount to any kind of statement that this power should be limited to cases where one can say that there has been one, two or three incidents within the past six, 12 or 18 months. Indeed, one can imagine circumstances where disorder and drinking are associated with a particular event which perhaps happens once every one or two years.

The real point is to ensure that local authorities look at the evidence in order to see that they are designating an appropriate place. There are different ways of so doing. I am grateful to the noble Lord, Lord Lester, for tabling the amendment because it enables one to raise that issue. But, fundamentally, so long as there is a recognised safeguard and some way of ensuring that the power is used properly, it is an entirely appropriate provision.

I add one comment on the amendment proposed by the noble Baroness, Lady Buscombe. It would not be appropriate for a police officer to be able to require someone to give up their glass of wine or beer where the place was not designated as an alcohol-free zone, even if it was entirely reasonable for the police officer to believe that it still was, because if the person did not give up their drink the consequence would be that that person could be guilty of a criminal offence. The important point in those circumstances is that the person should not be guilty of a criminal offence if the police officer has made a mistake. It may be a reasonable mistake. There may be no reason to discipline the police officer or anything of that kind, but the person should not be guilty of an offence. I do not support the amendment. Perhaps the noble Baroness will not press it.

Baroness Buscombe

I thank the Minister for his response. We have had an interesting debate on this subject from all parts of the Committee. I thank in particular my noble friend Lord Windlesham for his support in reaffirming the point that it is important to consider, as the noble Lord, Lord Lester, said, the proportionality in relation to the way these measures are used by local authorities and by the police.

I accept for the most part what the Minister said. I thank him for the reassurances he has given in relation to the proposed statutory instruments which will make express reference to publicity and to the way that these designated areas will be implemented, so that their effect will be communicated to everyone.

I have one question for the Minister in relation to the notices that will go up in relation to these designated public places. The noble Lord made absolutely clear that mere drinking in a designated public place will not necessarily be an offence. It will only be one if an individual refuses, when asked or pressed by a police officer, to surrender that alcohol. Will that be made clear on the notices? I ask the question because it is tremendously important that the public understand where they stand in relation to their behaviour in a designated public place, particularly as we have been questioning the matter in this House and it was questioned in another place. That is extraordinarily important.

Lord Lester of Herne Hill

Before I have to decide what to do about Amendment No. 32A, can the Minister indicate whether the Government will ensure that the regulations meet the principle of proportionality? That is to meet the point raised by the noble Lord, Lord Goldsmith, myself and others.

3.45 p.m.

Lord Bassam of Brighton

I thought I would enable the noble Baroness, Lady Buscombe, to consider her position first before taking the point raised by the noble Lord, Lord Lester. We have probably gone a little out of order.

To answer the question of the noble Baroness, yes, we would expect that information to be made plain on the notices. I expect that any sensible local authority would want to give considerable publicity to the designation of an area. Certainly, if I were the leader of the local council—I have held such a position—I would want to see it widely advertised in local newspapers and perhaps even in the council's own news outlets, newspapers and newsletters. It is obviously in the interests of law enforcement and compliance that everyone knows exactly where they stand.

Perhaps I may turn to the points made by the noble Lord, Lord Lester, in his very helpful contribution. In my earlier comments when I looked at the particular amendment I said that obviously these matters would be further addressed by regulations to be made under Clause 13(4). Those statutory instruments will be subject to parliamentary scrutiny. That will in part satisfy one of the noble Lord's concerns; that your Lordships' House and another place will have the opportunity to ensure that in debating these matters it is made plain to the local authorities that when they are deciding whether to designate a particular place they will need to be aware, as the Joint Committee said in its recommendations in paragraph 20, first, of the need for evidence of a current threat which makes the designation of that place appropriate and necessary"; and, secondly, of the need to take particular note of evidence about the frequency of occasions of alcohol-related disorder or crime in the area over the period of six months starting before the decision is taken". In all those circumstances the local authority will want to be—to use my favourite word—"proportionate" in its approach.

I can confirm that Clause 13(2) requires the local authority to be satisfied that there is a history of nuisance or annoyance to the public associated with alcohol consumption. The regulations will require careful consultation with the police, the local authorities and others. No doubt locally they will have to consult with the local licensed victuallers' association, pub owners, managers and so on. I hope that with those assurances— picking up on the important points made to my honourable friend Charles Clarke in another place on this matter and the points made at the committee—we have satisfied any residual human rights concerns. Having answered those points and the point raised by the noble Baroness, I trust that your Lordships and the noble Baroness will not press the amendments.

Baroness Buscombe

I thank the Minister for his response. While there are some areas that I would have liked to have pushed further, I accept what he has said today. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 to 35 not moved.]

Clause 13 agreed to.

Clauses 14 to 16 agreed to.

[Amendment No. 36 not moved.]

Clause 17 [Closure of certain licensed premises due to disorder or disturbance]:

Lord Cope of Berkeley moved Amendment No. 37: Page 9, line 12, after "or' insert "and related to

The noble Lord said: We now move into the next group of clauses regarding the closure of pubs and other licensed premises by the police in cases of disorder. These are unlike powers we have previously discussed in a number of senses. Not least, these are essentially short-term closures in response to disorder as opposed to the designation of a public place for at least a matter of months, if not more or less for ever. Therefore, there is a different character to these clauses.

The Bill sets out three instances where pubs may be closed: first, where there is likely to be disorder; secondly, where there is disorder; and, thirdly—this is a slightly different category—where there is disturbance through excessive noise. I shall come back to the noise point when we come to the next group of amendments.

The power to allow the police to stop a person doing business when he does not want to stop is a draconian one. Of course, when there is disorder, either in the pub or in the area round about, publicans may wish to close voluntarily. Quite a number of businesses in London are closed today because of the expected disturbances and no doubt more have closed in the course of the day. But those are voluntary closures where the businesses in question decide that it is better for them, in the light of what is expected to happen, to close. We all respect that. However, the proposed power is not of that character. This is the police forcing the business to close because of disorder even though it does not wish to do so, with obvious effects on the business itself, the owners and proprietors of the business and also the staff and the customers of the licensed premises.

We therefore thought it right to give some consideration to the precise nature of the provisions. In paragraphs (a) and (b) of new Section 179A(1) the Bill refers to the closure being necessary in the interests of public safety. In Amendment No. 37 we suggest that it might be better if the power were attached to disorder involving the premises in question. In Amendments Nos. 38 and 39 we are asking whether closing the pub will really help. If the police are to force someone to shut his business, it seems right that consideration should be given to the fact that closing the pub will help with the matter. The Bill refers to disorder "in the vicinity", which is a vague term. The Bill as drafted concerns only present disorder or future expected disorder. It does not concern past disorder in an area or in particular premises. We are dealing essentially with a short-term power.

The other amendments in the group concern the appeal that can follow to the licensing justices. If the police initially close the business, that is their decision and is, comparatively speaking, short-term. They can then go to the licensing justices to seek to ensure that the closure persists for a while. Amendment No. 39C seeks to ensure that if the matter comes before the justices the publican will have the opportunity to be heard on the issue of the closure and whether it should be allowed to continue. That seems only fair. Amendment No. 39B suggests that, in order to permit the publican to have that opportunity, he should be given at least three hours' notice. That is not wry long, but we are talking, after all, about a short-term situation and a short-term renewal of the closure order.

The other three amendments concern the way in which the licensing justices are to pursue their role in this instance. During the previous debate, my noble friend Lord Windlesham referred to the fact that the role of magistrates in these matters is longstanding and respected; but not for much longer it seems. We read rumours that tomorrow the Government are to publish a document stating that they have now decided to do away with the powers of licensing justices and give them to local authorities. If that is so, all these clauses will need to be changed, even though we have not yet passed them, in order to institute some other system of appeal to local authorities. It would be helpful if the Minister could tell us more about that as it clearly bears on the Bill. It is a pity to be passing legislation that will be made redundant almost as soon as we have passed it. But there we are. That seems to be the position we are in.

Incidentally, the proposals apparently seem likely to suggest that licensed premises could apply to be open around the clock. That would have profound effects and could make these clauses and the powers contained in them much more important, not least the powers relating to noise, to which I shall return in a later debate. At the moment, late night licences are extremely difficult to obtain from the licensing justices. Those who obtain such licences feel that they must behave extremely well so as not to lose them. In the West End of London, there has been considerable investment in such premises. That investment has benefited from the fact that the licences have been quite difficult to obtain. That has also been an important factor in cleaning up the West End. Those holding the licences feel nervous, given their rarity value and their important investment value.

If that increase in the number of hours were to happen, the clauses could become all the more important, which makes it all the more necessary that we consider the wording of the tough powers that we are being asked to give to the police. I beg to move.

4 p.m.

Lord Bassam of Brighton

This is a large group of amendments. I shall try to deal with each of the amendments carefully in turn. Perhaps I may begin with Amendment No. 37. The Government do not believe that a restriction of this nature is appropriate. The police should not be prevented from taking effective action to protect the public from possible injury in cases where the closure of premises is necessary to defuse the threat of disorder, irrespective of the cause of that trouble.

The amendment may be prompted by a concern that a closure order could be made merely because there was a threat of disorder in the vicinity of the premises, even though the potential disorder was entirely unrelated to those premises and outside the control of a licensee. However, I hope to persuade the noble Lord that that is a groundless fear. An order closing premises under the new Section 179A could be made only if the closure is necessary in the interests of public safety. There is, therefore, already a causal link between the closure and the disorder. In other words, any likely disorder would inevitably create the threat to public safety, and closure of the premises must be necessary—let me emphasise "necessary"—in the interests of public safety. It follows that the closure of those premises must impact on the threat caused by the likely disorder. In consequence, the pub and the disorder must be connected, and because of that I would argue that Amendment No. 37 is not necessary.

I shall turn now to Amendments Nos. 38 and 39. This closure power has been designed generally so that the police may use it only if the disorder on or in the vicinity of the premises causes a threat of possible injury to members of the public and it is necessary, in the interests of public safety, to close that particular premises. We consider that the form of words used already sets a high threshold which must be met before a closure order can be made. But the effect of this amendment would be to make the threshold even harder to meet. Under those circumstances, closure would be possible only if the police officer believed that the disorder would in fact be encouraged or aggravated by the premises remaining open.

It would not be appropriate to limit this power—which would be the effect of these amendments—to situations where the closure of the premises would depend on whether the disorder would continue or be aggravated without weight being given as to whether the safety of the public, including innocent customers, would be affected. For those reasons, I do not feel able to support these two amendments.

Amendments Nos. 39B and 39C were proposed in another place and were debated quite fully. They reflect anxieties in the licensed trade that there are no procedures set down on the face of the Bill which require that the licensee should be notified of the hearing before the relevant justices or that they should have a right to make representations to the court on the issue of closure. However, again, we feel that the amendments are not necessary.

The relevant justices at the initial hearing will operate according to normal magistrates' courts procedures and in accordance with human rights law. I am confident that the licensee or manager served with a closure order will be notified by the court about the time and place of the hearing. They will have the right to appear before the justices, if that is what they wish to do, to be legally represented and, most importantly, to make legal representations.

Our concern has been that, in the interests of all, these proceedings should be expedited as quickly as possible. That is why a single justice will suffice and why the best and swiftest means of notifying the licensee has been left to the court to decide. This allows the court the maximum flexibility. It will cut down the need for any police extensions and put the matter in the hands of the justices as swiftly as possible.

I believe that this is entirely in the best interests of the licensed trade. New Section 179F(5) is a failsafe device intended to allow the Secretary of State to make regulations on procedural matters if any justifiable concerns arise about the practices adopted by the courts or if the courts themselves consider that they need additional and exceptional procedures to be set down. However, I do not expect such regulations to be needed. As I have said, I am confident that the courts will establish just and fair proceedings in this context. I would therefore suggest that these two amendments should not be pressed.

In our view, Amendment No. 39D would have a very imprecise and confusing effect. Section 188 of the 1964 Act enables the police, where riot or tumult is anticipated in an area, to seek an order from local justices closing licensed premises within the area where the riot or tumult is expected for any period of time that the justices think fit. These powers can be used to deal only with especially serious instances in which widespread disorder is anticipated.

Section 188 orders could be for any length of time and not necessarily to the next licensing sessions. It is by no means clear to us that the licensing justices acting at the next licensing sessions could overturn such an order. Such orders should not be made save for the period in which the riot or tumult is expected, so how should this relate to closures, which focus on excessive noise and disturbance and thus have little or nothing to do with disorder?

Finally, there is no system of appeal enshrined in the 1964 Act which addresses orders made under Section 188, but there is a system of appeals set out in Section 179G against decisions made by the relevant justices under Section 179B. We feel strongly that the amendment would be a recipe for confusion by attempting to overlay one set of specific court powers on others in a way which was never intended by the original legislators and which deal with quite different matters.

An order can be made only by the relevant justices under Section 179B(3)(b) if they have considered the issues set out in Section 179B(4)(a) or (b). These set out specific tests which make it clear that closure should be necessary in the interests of public safety or should be necessary to ensure that no disturbance is or is likely to be caused to the public by excessive noise. The power is limited by having force only until the licensing justices consider the matter, and any order made may be appealed. This is a tightly drawn section which extends the court's powers only to the extent necessary to protect the public. For those reasons, we feel that it is important that it should be both clear and precise.

Amendment No. 40 would restrict the relevant justices, at the first stage of scrutiny of the police closure order, to making an order which relates only to the opening or closing of the affected premises. We believe that the restriction imposed by this amendment is not appropriate. The justices should have the discretion, as part of the options available to them in subsection (3) of Section 179B, not only to decide whether the premises should be closed or reopened, but also to impose other supplementary conditions if they decide that certain measures can be taken by the licensee to prevent the disorder or disturbance from occurring in the future.

Amendment No. 41 would introduce a form of words which is less precise than the existing version. The purpose of subsection (4) is to set out the factors to be considered by the justices in ordering the premises to be closed or to remain so. As presently drafted, the words at the start of subsection (4) make it clear that the conditions for closure should be considered only when the justices are considering whether to keep the premises closed. We believe that our current version is more precise and, again, we think that the amendment would be inappropriate.

As regards Amendment No. 44B, in cases where the relevant justices decide to keep the premises closed, I understand the concerns being expressed among those in the licensed trade that the revocation hearing before the justices should follow as quickly as possible. However, there is good reason for a minimum gap of 14 days.

First, under Section 179E(4), the licensing justices must give notice seven days before the commencement of the licensing sessions concerned of the grounds on which they propose to revoke the licence or of their reasons for attaching any conditions to it. Thus the licensing justices must have time to give initial consideration to the matter and then give seven days' notice.

It is important to emphasise that this is in part to ensure fairness to the licensee by allowing his or her legal representatives time to prepare a case defending their position. It should also be understood that a revocation hearing will not focus only on the single incident which might have led to the serving of a closure order. The hearing will need to examine the full licensing history relating to the premises over a period of perhaps up to three years, or since it was last renewed or granted. The chief executive to the licensing justices will have to prepare those records and, of course, the police will need to prepare their material on the premises over that time frame.

In those circumstances, balance is required. We would argue that 14 days is a sensible period, while being sufficiently speedy to ensure fairness to the licensee, whose business may be losing income.

Finally, let me emphasise that the relevant justices have authority to keep the premises closed during this period only if they consider it necessary in the interests of public safety or to prevent further disturbance to the public. For those reasons, I hope that Amendment No. 44 will not be pressed.

The noble Lord raised one or two more general issues in relation to licensing and possible forthcoming announcements. We are likely to announce our view on licensing reform in the future. The Home Secretary has been considering responses to the White Paper. His announcement will include a decision as to whether control of liquor licensing should be given to local authorities or to magistrates. I can say no more than that. Many of these matters were flagged up carefully in the White Paper and I am afraid that the Committee will have to await future announcements. I am sure that Members will wait with baited breath.

Lord Cope of Berkeley

I certainly shall not hold my breath until we get these announcements; they have been some months in arriving. I noticed that they are still described by the Minister as "possible forthcoming announcements". Quite frankly, it is not satisfactory that we should be altering all this detail in the licensing laws when much of the basis on which it rests—notably the licensing justices—is likely to be removed within a few months.

Collectively, in Parliament we do a great deal of fiddling about with legislation. If we passed less legislation less frequently—legislation which was more connected with itself—it would be to the benefit of the country. However, that is an observation which is not immediately related to these amendments, although they will be very much affected by what is likely to be announced. As usual, Parliament is in the position at the moment where all that has happened is that we have read it in the newspapers. No doubt we shall have more authoritative announcements in due course.

In relation to Amendments Nos. 39B and 39C, the Minister was reassuring about the procedures to be followed. In the light of the decisions in Pepper v. Hart, his statement that the pub and the disorder must be connected seems to achieve much of what we were trying to achieve in the earlier amendments in this group.

As I said, these are quite draconian powers. One can think of some pubs which are never likely to be affected by them and others which may be. I remember that many years ago the Craddock Arms was the first pub I ever went into. That pub is unlikely to be affected by these provisions. It may he that others share that distinction, but I can think of a few others that will be affected. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

Lord Cope of Berkeley moved Amendment No. 39A: Page 9, line 20, at end insert— () A closure order may only he made on the grounds specified in subsection (1)(c) if the senior police officer has given notice to the licensee that he intends to make the order, and the licensee has failed to take appropriate action to quell the disturbance.

The noble Lord said: The amendment brings me to the third of the three reasons why a policeman may make a closure order on a pub temporarily under these powers; that is, because a disturbance is being caused to the public by excessive noise from the premises themselves. Clearly, this is directly related to the licensed premises in question and to the noise obviously emitted from those premises. It is related to the pub and the people within the pub who are creating the disturbance.

Again, the power that the police have to close it is quite fierce. This modest amendment suggests that, when it is a question of a closure on noise grounds, the police must have told the licensee that they intended to make such an order and must have given him a period in which to quell the disturbance, in which to put his own house in order. It is always better if the licensee and his staff can deal with the matter rather than having the police intervene. If the police intervene, it weakens the authority of the licensee for the future in some respects. It is better if he or she is able to deal with the situation, hence our suggestion in this modest amendment that a warning should be given and that the licensee should have an opportunity to quell the disturbance. I beg to move.

4.15 p.m.

Lord Bassam of Brighton

If the noble Lord, Lord Cope, lets me know where the Craddock Arms is, at the conclusion of these deliberations on licensing matters I shall happily ensure that a pint is drawn at my expense. I should love to be able to take the noble Lord to my own first watering hole but, sadly, the village has suffered two pub closures—one of which is the Red Lion—and so I cannot make the invitation in return.

The amendment would inevitably mean that the public would be exposed to a longer period of disturbance before the police could take action. Although well intentioned in spirit, in practice it would mean that the police must first visit the premises and warn the licensee about excessive noise. The police would then have to wait for some unspecified period—there is nothing in the amendment that sets out how long they would have to wait—during which time the licensee would make his attempt to eradicate the disturbance.

Licensees are well aware of their responsibilities to their neighbours and of the requirements of the Environmental Protection Act 1990 and the Noise Act 1996 not to create excessive noise nuisance. Where the noise nuisance is the result of equipment such as music amplifiers, it can be seized. But there is a gap in the law where noise is caused by people. There is usually a long gap before action can be taken to end the nuisance, and residents who simply want a peaceful night's sleep often have to endure these problems for a very long time indeed.

The purpose of Section 179A(1)(c) is to produce an instant solution. Building in delay is simply not sensible. I have no doubt that the police will, in practice, give licensees warnings and opportunities to reduce noise levels rather than embroil themselves in the protracted court proceedings described in the remainder of Clause 17. However, they must, in our view, have the power to move swiftly to end serious disturbances to the general public. For those reasons we feel that we must resist the amendment.

Lord Cope of Berkeley

The location of the Craddock Arms is a very exclusive piece of information; it is not shared by all that many people. I should have to take advice before passing it on more widely in case it should lead to a disturbance.

I take the Minister's point about delay in quelling the noise. We deliberately did not suggest any period of time in the amendment, which would have left it open for the police to say, "We will give you five minutes to quell the disturbance", or whatever period they felt appropriate in the circumstances. I take the Minister's point and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39B to 41 not moved.]

Lord Cope of Berkeley moved Amendment No. 41A: Page 11, line 16, after "a" insert "single

The noble Lord said: We move on now to the part of the Bill which deals with what happens at the end of the 24 hours. I explained that the intention is—in the case of either disorder or noise—that the police should close a business for 24 hours only in response to an immediate difficulty. But the Bill provides that the closure can be extended. Under the Bill, the police can go on closing premises, day after day after day, for a long period of time until the justices are brought into the situation and a longer term decision can be taken.

I believe that, generally speaking, the disorder will have blown over in a day or two, or even more quickly if it is related to the pub and the pub is shut. The likelihood is that it will he over in a matter of minutes when people have had time to disperse—unless the closure makes the situation more difficult in which case it may continue for an hour or two. The chances of the disorder continuing for a number of days seem remote and in such a case the justices have power to deal with it.

We therefore suggest that the police should be able to put the pub out of business for 24 hours initially, as suggested by the Bill, and for only one extension period. The same point is covered by both amendments. The proposal does not mean that the pub has to reopen after 48 hours, because the powers of the justices exist; but it limits slightly the draconian nature of the police powers. I beg to move.

Lord Bassam of Brighton

Proposed new Section 179C permits the responsible senior police officer to extend a closure order for up to 24 hours in the circumstances described on an unlimited number of occasions. However, under proposed new Section 179B(1) the senior police officer is under a duty to apply to the relevant justices as soon as is reasonably practicable after the coming into force of a closure order for them to consider it or any extension. Similarly, under proposed new Section 179B(2) the relevant justices are under a duty to consider the matter as soon as is reasonably practicable. The fact that one justice will suffice gives real flexibility to move at speed. So the occasions on which the police will need to exercise their powers under new Section 179C more than once will be rare, although not impossible.

We cannot foresee every possible difficulty that might arise for the courts, particularly around national holidays or where, for example, a justice who has undertaken to make himself available falls ill. It would be wrong in circumstances where the police believed that the premises being open constituted a danger to public safety if they could not act to continue the closure pending efforts by the courts to overcome their difficulties.

We can well understand the anxiety of the licensed trade that the police might use their powers to extend closure orders repeatedly without court involvement, but that simply will not happen. I am also aware that many in the trade do not realise that when an order for the extension of a closure is made, the police must meet the same tests as apply when they make a closure order initially. This is no simple right to extend the order. The tests which the senior police officer must meet in proposed new Section 179C do not represent a simple hurdle, and the duties on the police and the justices will ensure that the matter proceeds speedily to a resolution. We must, however, allow for exceptional circumstances, and the amendments must be resisted on that basis.

Lord Cope of Berkeley

The Minister has explained the Government's position clearly. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41B not moved.]

The Deputy Chairman of Committees (Baroness Lockwood)

I must point out to the Committee that if Amendment No. 42 is agreed to, I cannot call Amendment No. 43 under the pre-emption rule.

Lord Cope of Berkeley moved Amendment No. 42: Page 15, leave out lines 7 to 28.

The noble Lord said: It is suggested that with this amendment we should discuss Amendment No. 43 and also Amendment No. 44, which deals with a slightly separate point.

Amendments Nos. 42 and 43 relate to the fact that under the provision in proposed new Section 179I the police are to be exempt from liability for damages. I made the point at the beginning of our debate on this group of amendments that we are giving the police a very strong power. It will have considerable effects on a business and on the employees of that business if it is closed for a length of time. Even if the closure lasts only a day, that period of time is still important; if it continues for a number of days the matter becomes progressively more important.

The fact that in no circumstances can the police—an individual officer, the chief constable or the police generally—be held responsible for any of the financial consequences of the closure offers tremendous protection for the police but tremendous exposure, as it were, for the licensed trade. Amendment No. 43 merely suggests that if the closure has been made in "bad faith", as suggested in the Bill, the possibility of claims for damages might arise. I am not quite sure what "bad faith" means in practical terms in law. We suggest the addition of the words, "disproportionate use of force". We are talking about a time when there is trouble in an area and when damage can be caused if the police use force disproportionately. It seems to me that it should at least be possible to award damages against the police and in favour of the person to whom the damage has been done.

Amendment No. 44 deals with an unrelated point, but it is convenient to discuss it under this grouping. Proposed new Section 179J concerns offences by a body corporate and makes clear that where an offence has been committed by a body corporate the directors, managers, secretaries and other officers can be held to be liable and can, if necessary, be punished: that is, if the act has been committed with their consent or connivance or is a result of their neglect. It is a small drafting point; however, it seems to us that a wilful omission on the part of a director or other person might also give rise to a potential claim. That is the provision that Amendment No. 44 attempts to insert. I beg to move.

Lord Bassam of Brighton

We believe that the police should be able to use the closure power in good faith in the interests of public safety and the community generally without fear of claims for compensation for any commercial or other monetary losses resulting from a closure. However, under the relevant provisions, this immunity would not cover cases where the police acted in bad faith or where their action was found to be unlawful under the Human Rights Act. So it is a limited immunity, which is not without precedent. A similar immunity was granted by Parliament to the Financial Services Authority under the Financial Services Act 2000.

Prior to introducing this provision, the closure powers were discussed carefully with the police service. Senior police officers were concerned that officers might hesitate to use the powers if they felt that they could become embroiled in legal action to recover losses. It would be quite wrong for there to be hesitation where public protection is an issue. Such fears could defeat the object of this clause; namely, giving the police an option to take quick action in appropriate cases to protect the public.

Turning to Amendment No. 43, the use of disproportionate force by the police would be covered by the existing condition contained in subsection (3)(b) of proposed new Section 179I: that the immunity does not apply to actions which are unlawful under Section 6(1) of the Human Rights Act. This provides that it is unlawful for a public authority to act in a way which is incompatible with a convention right. In any circumstances where the police used excessive or unnecessary force when exercising the closure power under this clause, they would, almost by definition, be breaching an individual's right to the peaceful enjoyment of his possessions under Article 1 of Protocol 1 of the European Convention on Human Rights. For that reason, we do not believe that this amendment is either necessary or required.

As regards Amendment No. 44, we believe that the existing provision in new Section 179J of the 1964 Act—namely, that the designated officer would be liable if he were at fault because of "connivance" or "neglect"—is sufficient to cover cases where that person had wilfully failed to act. The wording of new Section 179J is widely used in other statutes. I believe that it is well understood by the courts. Provisions relating to offences by bodies corporate in substantially identical terms appear in, for example, Section 273 of the Transport Act 2000, Section 400 of the Financial Services and Markets Act 2000 and Section 39 of the Vehicles (Crime) Act 2001, as well as in Clause 26 of this Bill. Using different wording to achieve essentially the same ends would merely throw doubt upon those other provisions. For those reasons, we believe that the amendment is unnecessary. Therefore, with those explanations, I hope that the noble Lord will feel able to withdraw all of his amendments.

4.30 p.m.

Lord Lester of Herne Hill

I have a certain sympathy with this amendment, although I believe that the problem it seeks to explore is probably dealt with, as the Minister indicated, in a very complicated way. Perhaps I may briefly explain my difficulties about this exemption from liability as it stands.

As is well known, there is a general problem in English administrative law. If a public authority—whether the police or anyone else—abuses its powers in a way that causes direct economic or financial loss, English law, unlike the law of most other civilised countries, especially those in Europe, gives no right for damages. We have a very strange principle in English law in general. The remedy is to obtain a "stop it" order; in other words, an order quashing a decision or preventing a similar decision from being taken again. But the luckless victim who suffers financial or economic loss (in this case in respect of property), does not have a right under English administrative law to compensation. Some judges have pointed out what unfair results that situation can create, and how the remedies seem to be the wrong way round. Very often, compensation matters more than the draconian remedy of, say, a quashing order.

The exemption from damages in proceedings for judicial review—which is what I have just been talking about—or for the tort of negligence, or even for misfeasance in public office—which is, basically, bad faith in exercising one's public powers—would, on the face of it, be a very startling exemption. Certainly, if it went beyond property, it would be most likely to breach the right of access to courts under the European human rights convention. Indeed, there are cases such as Osman, Tinnelly and another now pending before the European Court, which are all concerned with that issue.

However, the Government have obviously been advised that they cannot keep such a broad exemption. Therefore, as I understand it, they have clawed back the position from a blanket exemption by means of subsection (3) of new Section 1791, which says that the exemption will not apply, if the act or omission is shown to have been in bad faith", or if the immunity would, prevent an award of damages made in respect of an act or omission on the ground", that it would breach the Human Rights Act 1998.

As I understand it, it works as follows. There is a right to property in Article 1 of Protocol 1 to the Human Rights Act. If there were an unnecessary interference with that right to property by the exercise of the closure powers, there would a breach of the human rights convention and of Section 6 of the Human Rights Act. It would mean that the police officer would have acted tortiously in breach of the Section 6 duty, and a direct action could be brought against his superior for damages under Section 7 of the Human Rights Act. Although the Chancellor of the Exchequer has been successful in ensuring that only mean damages awards will normally be given, and has sought to do so in the way that the Human Rights Act is drafted—he is probably right in having done that—there will, nevertheless, still be the right to recover compensation for an abuse of power involving an interference with the fundamental rights and enjoyment of one's property.

If it had been left to me, I certainly should not have drafted such a provision in this way because one would have to go through the process that I just outlined and unpick it—deconstruct it—to understand what is really happening. I see that the Minister is not indicating any disagreement with me in this respect. Therefore, if my understanding is correct and that is roughly the position, I am satisfied that the immunity will not go wider than is necessary in this particular case.

The Minister referred to the immunity given to the Financial Services Authority under a separate statute. I believe that I advised at the time that that immunity might well go too far if it were abused. However, that provision does not have the same kind of built-in safeguards as those provided by this Bill. I hope that I have given a helpful, not obfuscating, explanation.

Lord Cope of Berkeley

As far as I am concerned, that explanation is entirely helpful. It is difficult to come to this House on any day without learning something. Indeed, one sometimes learns a good deal; for example, that "bad faith" turns out to be misfeasance. The net result of both the Minister's and the noble Lord's speech is that I wish to seek leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 and 44 not moved.]

Lord Cope of Berkeley moved Amendment No. 44A: Page 16, line 5, after "to" insert "open and

The noble Lord said: This amendment relates to a small point concerning the definition of "a manager". The Bill says that a manager is someone who can "close the premises". However, many people can close premises; it seems to me that the manager is the person who can open them. That is exactly what the amendment suggests. I beg to move.

Lord Bassam of Brighton

I shall try to make my response almost as brief as the noble Lord's introduction. Licensed premises are legitimate business concerns. So long as their licence is in force and no closure order or extension of it exists, they may open within permitted hours as set out in the Licensing Act 1964. The only authority relevant to Clause 17 is the authority to close the premises, making the person an "appropriate person" on whom to serve closure orders. Therefore, it is wholly unnecessary to re-define "a manager" in the manner suggested in the amendment. I trust that the noble Lord will feel able to withdraw his amendment.

Lord Cope of Berkeley

I thought that the amendment contained a useful suggestion. Nevertheless, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 44B not moved.]

Lord Cope of Berkeley moved Amendment No. 44C: Page 16, line 26, leave out ", or is supplied with,

The noble Lord said: This is another modest looking amendment, but one which would have slightly more consequences. The position under the Bill is that if a pub or other premises are closed, the manager, or any member of the staff, cannot supply either food or drink in the normal way; in other words, beer, and so on, cannot be sold on the premises.

Nevertheless, the manager and his family may want to continue to eat there if the closure goes on for any length of time. It is in order under the Bill for the manager to supply his family with food that would otherwise have been sold in the restaurant. However, the Bill does not allow the manager to supply food to anyone else. The manager may wish to give a policeman a cup of tea. He may have people in his household to whom he is not related; who are not members of his family but nevertheless are in his household. For example, he may have a partner rather than a wife. I do not believe that a partner would count as a member of his family.

As I say, other people may live in the household who are not related to the manager. There is also the question of his staff. Under the Bill the manager cannot feed any staff who remain on the premises in the hope that they will be reopened. My amendment seeks to allow the manager to continue to supply—but not to sell—any item of food or drink to the persons I have mentioned. I do not propose that he should be allowed to sell those items or continue to run his business. However, the amendment would allow him to give a cup of tea to a policeman. I beg to move.

4.45 p.m.

Lord Bassam of Brighton

I hope that the landlord would be able to give a policeman a cup of tea. I am not unsympathetic to the intention behind the amendment. However, at present the relevant premises would be considered to be open if any person other than the licensee or the manager or their family entered on to the premises and purchased or was supplied with any item of food or drink or any item normally sold there. The amendment would enable a licensee or manager of the premises to supply food and drink but not sell it.

That is not at all unreasonable. It is, after all, commercial trading that is at issue. I am sure that the noble Lord intends that that licensee should be able to supply personal friends with food and drink or a "copper with a cuppa", as it were, perhaps in a private part of the premises, and perhaps supply a cup of tea to a builder or electrician or other workmen working on the premises. However, sadly, I believe that the amendment would drive a hole through the enforcement provisions included in the clause.

Four people eating a quiet meal together in the private residential areas of the premises may be acceptable, but what about 30 people drinking in the bar behind locked doors? The police would have to decide whether those on the premises had been given their drinks for free. Those present could have paid either by ticket prior to entry or in the normal way across the bar. How could the police acquire the necessary evidence if customers and licensee conspired to tell the same tale? How could the police prove that that was trade rather than a private party?

To make this amendment would, therefore, create a serious loophole in Clause 17. The licensee could continue trading behind closed doors after service of a closure order in the way in which so-called "lock-ins" occur now. For those reasons I must resist the amendment.

In enforcing this aspect of the closure arrangements, we shall need to rely on the good sense and experience of the police and the courts. A quiet dinner party or drink in the residential parts of the premises are unlikely to attract police attention and, if they did, I am sure that the police in their usual pragmatic and no nonsense fashion would be unlikely to pursue a prosecution. As the White Paper, Time for Reform, published last year, indicated, we shall issue guidance to the police on the use of the new powers. I am confident that we shall be able to address the question of when premises should be regarded as being open when we issue that guidance. I hope that with those reassurances the noble Lord will feel able to withdraw the amendment.

The Earl of Sandwich

Before the Minister sits down, is it not the case that under present licensing laws the "after hours" rules, as it were, extend beyond the family of the licensee to all his known friends? Could not that be included in the amendment?

Lord Bassam of Brighton

I suppose that it could. However, as I said, we must rely on the good sense of the police. That is what we are trying to foster and encourage through the guidance. The noble Earl makes a valid point to consider in those circumstances.

Lord Cope of Berkeley

I have every confidence in the good sense of the police the vast majority of the time. However, it is not satisfactory that the Government are, as I understand the Minister's reply, making it strictly speaking illegal for the landlord to supply food or drink to someone who is not a member of his family even if that person lives on the premises and even if it is unlikely that the police will prosecute a landlord in such circumstances. That does not seem to me a satisfactory way in which to leave the law. We shall need to give further consideration to the matter between now and whatever subsequent stages of the Bill take place. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Closure notices]:

Lord Davies of Oldham moved Amendment No. 45: Page 17, line 3, after "being.' insert ", or within the last 24 hours have been,

The noble Lord said: In moving Amendment No. 45, I wish to speak also to Amendments Nos. 47 to 51 and 53. The effect of these amendments is to clarify that the power contained in Clause 19 to issue closure notices can be used against premises which, to the satisfaction of the police or the local authority, have been used for the unlicensed sale of intoxicating liquor at some time within the previous 24 hours.

As presently drafted, the provisions in the relevant subsections of Clause 19 could be interpreted as meaning that a closure notice could be issued only if the use of the premises for the unlicensed sale of intoxicating liquor had continued up until the serving of that notice. This restricted effect was not intended, especially as it would not cover cases where the use is not continuing when the police or the local authority wish to serve their notice, although it has occurred in the previous 24 hours and is more than likely to recur at a later date.

The purpose of the measures in Clauses 19 to 28 is to allow action to be taken against particular premises where there is either continuing offending or previous offending within the past 24 hours. These amendments, therefore, make technical changes which confirm that action may be taken where the illegal use has taken place within a previous period of 24 hours. I beg to move.

On Question, amendment agreed to.

Baroness Buscombe moved Amendment No. 46: Page 17, line 4, after "liquor" insert "or the supply or sale or offering to supply or sell any controlled drug

The noble Baroness said: In moving Amendment No. 46, I wish to speak also to Amendment No. 52. Clause 19 of the Bill deals with the closure of unlicensed premises. Our amendment is intended to use this important opportunity to tackle an insidious, all too common problem whereby such premises are used for the illegal supply and sale of drugs. That the premises are unlicensed for the sale of intoxicating liquor may not by itself be the problem.

My honourable friend in another place, the Member for Surrey Heath, Mr Nick Hawkins MP, gave the sad example of Leah Betts to illustrate that premises may be unlicensed and yet supply and sell the illegal drug Ecstasy. In that case the effects were made far worse, and in the case of Leah Betts fatal, by the drinking of water. In other words, it does not matter whether the premises are licensed for alcohol. If drugs are present, there is an inherent problem.

Given the tough powers in the Bill to close unlicensed premises, we believe that it does not make sense to leave this amendment out of the Bill. When a similar amendment was debated in another place the Minister argued that it would apply in a small number of cases. But will the Minister now tell us whether that is an adequate reason for not supporting it? Murder does not take place on a day-by-day basis but we still see fit to legislate against it.

Amendment No. 52 is a simple amendment. It removes the discretionary power of local authorities and police to cancel a closure notice and instead makes it a responsibility of the local authority and/or the police to cancel a closure notice when the circumstances permit. I beg to move.

Lord Bassam of Brighton

As the noble Baroness said, Amendment No. 46 was put forward by the Opposition during the Bill's passage in another place. As explained then by my honourable friend the Parliamentary Secretary to the Lord Chancellor's Department, the provisions in Clauses 19 to 28 address a separate and different problem from that presented by drugs dens or crack houses. There are several reasons why Clause 19 is not the right approach to this aspect of the drugs problem.

First, unlike the sale of drugs, the sale of alcohol in this country is legal if it is licensed or permitted by some of the exceptions made under licensing law. The problem with unlicensed drinking dens is that innocent tourists and other members of the public will have no idea that the sale of alcohol in these clubs is illegal. The clubs are more often than not confused with legitimate outlets. Innocent people are often attracted to the clubs by people in the street brazenly advertising the premises. The advertising is often blatant because the owner or operator, sometimes living abroad, does not fear police action in arresting his staff or confiscating the alcohol on the premises. The profits are so high that the premises will often be restaffed and restocked within days. The Bill provides a solution by ensuring that the premises cannot be used once a closure order has been made by the courts.

Premises being used for the sale of drugs are unlikely to advertise their existence and as such do not attract innocent members of the public or innocent tourists. People frequenting such premises know they are acting criminally and taking the very serious risk of involving themselves with drugs—perhaps even in the tragic circumstances to which the noble Baroness drew attention. Drugs dens are very often in residential accommodation, which raises quite different issues from drinking dens. We shall come to that point later. If premises are closed down and boarded up, there may be residents to re-house. The property will very often be owned by the local authority, a housing association or an innocent landlord who knows very little of his tenants' activities. Major criminals controlling drugs distribution networks will rarely own, lease or rent premises at which drugs are sold and used in this way. So the amendment misses its target, and would potentially hurt innocent parties who own or control the properties rather than the people making money out of others' misery.

When the police move in and arrest those working in these illegal drinking dens, it is often impossible to track down the owner of the property to take action against him. So he profits while his staff are prosecuted. These provisions give the police and local authority a means of protecting the public and preventing the absentee owner or organiser from generating more profit.

Clauses 19 to 28 are a measured response to a very particular problem which the police indicate is focused on the West End of London. The solution in the Bill is equally sharply targeted and perhaps the only comparable situation is that in connection with some illegal sex establishments.

Amendment No. 52 is clearly well intended but again, I think, misunderstands the purpose that the closure notice serves. As explained on government amendments to Clause 19, the unlawful use of these premises as drinking dens will almost certainly be brought to an abrupt halt when raided by the police. The staff would be arrested and the stock seized. However, experience shows that the criminals behind these enterprises will restaff and restock the premises and at a point in the future resume the illegal use of the premises.

The closure notice will therefore almost invariably be served when illegal trading on the premises has ceased. The closure notice does not close the premises down. It puts the operators on notice that if the illegal trade resumes, the police or the local authority will seek a closure order from the courts. So if the police or local authority were required to cancel a closure notice if the circumstances described in subsections (1) and (2) no longer applied, the entire scheme would be undermined. As I said, at the point in time when any closure notice is served the circumstances described in subsections (1) and (2) will have ended. The task is to prevent them resuming.

I hope that the noble Baroness will not feel it necessary to press the amendment.

Baroness Buscombe

I thank the Minister for his response. I accept what he said. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendments Nos. 47 to 51: Page 17, line 8, after "being insert ", or within the last 24 hours have been. Page 17, line 13, leave out "being Page 17, line 13, leave out from "premises" to end of line 16. Page 17, line 27, leave out "being Page 17, line 36, at end insert "or (as the case may be) does not recur

On Question, amendments agreed to.

[Amendment No. 52 not moved.]

Lord Davies of Oldham moved Amendment No. 53: Page 18, line 2, leave out "being

On Question, amendment agreed to.

Clause 19, as amended, agreed to.

Clauses 20 and 21 agreed to.

Clause 22 [Termination of closure orders by constable or local authority]:

[Amendments Nos. 54 and 55 not moved.]

Clause 22 agreed to.

Clauses 23 to 28 agreed to.

Clause 29 [Confiscation of alcohol containers from young persons]:

Lord Cope of Berkeley moved Amendment No. 56: Page 23, line 15, at end insert "or any item containing such liquor

The noble Lord said: In moving the amendment, I speak also to Amendment No. 57. The amendments relate to the Confiscation of Alcohol (Young Persons) Act 1997, commonly known as the "Bob Spink Act" because he was the Member of Parliament, and one of my honourable friends, who introduced the Bill in another place.

The purpose of the clause is narrow, as is the objective of the amendment. It is to ensure that if alcohol is confiscated it includes the container in which it is found. Amendment No. 57 raises the question of whether a sealed container should also be confiscated. If a youth is drinking from a can of beer and has another in his pocket, the police can confiscate the can from which he is drinking but not the one in his pocket. That is not a satisfactory arrangement.

The clause gets round what I think of as "The Merchant of Venice" point. Part of the action of that Shakespearean play concerns whether, when taking flesh, one is permitted to take blood at the same time. How to take the alcohol without taking away the tin in which it is contained is a similar dilemma m some respects. I am taking the issue a little further and suggesting that the tin in the offender's pocket—which he has not yet started, but will the moment the policeman turns round—should also be subject to confiscation, under the terms of the Act. I beg to move.

5 p.m.

Lord Bassam of Brighton

The Home Office briefing does not deal with "The Merchant of Venice". I understand the problem that the noble Lord mentioned, but he may acknowledge that we also see a problem. We have some sympathy with the purpose behind the amendments, which would amend the Confiscation of Alcohol (Young Persons) Act 1997 to give the police a power to confiscate alcohol in a sealed or open container from those under 18 in any public place. However, that would create a distinction between the powers of the police in respect of young people and adults. Clause 13 explicitly precludes the confiscation of sealed containers from adults.

The Government are keen on measures that will help to reduce the problem of under-age drinking, but we are concerned that the extension of police powers to confiscate alcohol in sealed containers may be disproportionate to the purpose of the clauses and of the original Act, both of which focus police powers for confiscation on circumstances in which there is a reasonable suspicion that the alcohol will be consumed by a person under 18 or by any person in a designated public place under Clause 12.

The police will reasonably have such a suspicion if the alcohol container has been opened, but the case becomes less clear if it is sealed. We feel that there would be disputes about whether the alcohol was to be consumed in the public place or to be lawfully consumed elsewhere. Clause 12 will enable the police to prevent public drinking and to move individuals on. The confiscation powers in the 1997 Act apply to persons over 18 if the officer has a suspicion that the alcohol will be consumed by a person under 18. The amendments would allow for the confiscation of sealed containers in those circumstances. That would inevitably lead to more disputes about the individual's intentions and would probably be open to challenge.

For those reasons, the Government do not support the amendments and consider that the clause should stand as drafted to achieve consistency between the powers provided by the Bill, which will apply to juveniles and adults alike, and those provided by the 1997 Act, which apply only to those under 18.

I accept that that does not entirely cover the noble Lord's point, which he has made well, but giving a power to confiscate closed or sealed containers would probably create a bigger problem than he envisages.

Lord Cope of Berkeley

This time I was going to rely on the good sense of the police to decide whether to confiscate a sealed container, whereas earlier the Minister was trying to do so. I would not want Clauses 29 and 12 to be inconsistent and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 57 not moved.]

Clause 29 agreed to.

Clause 30 [Sale of intoxicating liquor to a person under eighteen]:

Lord Cope of Berkeley moved Amendment No. 58: Page 23, line 29, after "for" insert "written

The noble Lord said: We now move to the question of establishing the age of young people who seek to buy alcohol in a pub or other licensed premises. The idea behind the amendments is that some form of proof of age card is the best way forward. We all know that it is sometimes difficult to tell the age of a young person and to be sure whether they are entitled to buy liquor. That problem arises in both directions. As well as under-age people attempting to buy liquor, sometimes young people who are of an age to buy liquor may be thought to look younger than they are and may be refused a drink, which can be embarrassing for them, given the sensitivity of young people to these matters.

Proof of age cards are one method of getting round that problem. They have been widely used unofficially in recent years. They seem to be extremely helpful. A number of them are in fairly wide circulation, including the brewers' "Validate UK" card and the Portman Group's "Prove It!" card, while others circulate on a local basis.

Having a large number of different cards circulating makes it more difficult for the publican or his staff to rely on them. The suggestion incorporated in the amendments, particularly Amendment No. 62, is that the Secretary of State should do his best to select ones that he thinks are satisfactory and well run. Bar staff could then rely on those cards.

We are not suggesting a national identity card or anything compulsory. The cards are currently voluntary, but they are widely carried. Those of the appropriate age feel that it is an advantage to carry them and they are a great assistance to bar staff and a great help in enforcing the particularly difficult but important distinction that the law attempts to make between young persons of a similar age.

The amendments are not necessarily perfectly drafted. I am not relying on that. However, it would be valuable to hear the Government's thinking on proof of age cards. I think that such cards, on a voluntary basis, have a contribution to make and that it would be better made if the cards had a more official character on the general lines suggested in the amendments. I beg to move.

The Earl of Sandwich

I support the noble Lord, Lord Cope, in his reasonable amendments. Perhaps the Minister can explain how the Government have departed from previous thinking on the subject.

Lord Davies of Oldham

This is an interesting debate. I recognise the tentative way in which the noble Lord, Lord Cope, expressed his view of the validity of the amendments. I shall not rest too heavily on the precision of the drafting. I shall deal with the main issues in the amendments, which were also tabled by the Opposition in another place.

Clause 30 imposes a duty on persons selling intoxicating liquor in licensed premises to take positive steps to ensure that they do not sell to those under age. The intention is to place on all staff in on-licensed and off-licensed premises an obligation to satisfy themselves, before selling or serving alcohol, that customers are not under the age of 18. In appropriate cases, they would be required to ask young customers to provide proof of age.

The clause amends the defence available in Section 169A(2) of the Licensing Act 1964 to a person who is charged with the offence of selling intoxicating liquor to a person under 18 in licensed premises. Currently, the defence in that section would be effective if the defendant could prove that he had no reason to suspect that the customer was under the age of 18. That is a relatively low obligation which does not require the taking of positive steps to check the age of the customer.

Clause 30(1) increases the obligation so that the defendant would have to prove, first, that he believed that the customer was not under 18, and, secondly, that either he had taken all reasonable steps to establish the customer's age or that no one could reasonably have suspected from the customer's appearance that he was under 18.

Under the first part of new Section 169A(2)(b), the defendant will be deemed to have taken "all reasonable steps" if he asked the customer for evidence of his age. However, if the prosecution proves that the evidence of age was such that no reasonable person would have been convinced by it, the defence would fail.

The effect of the second part of new Section 169A(2)(b) is that staff in licensed premises will not be under an obligation to ask for proof of age if the appearance of the customer is such that no one could reasonably have suspected that he was under 18. That means, for example, that I would not expect my local publican to challenge me when I enter his bar. It also provides a defence to bona fide staff who are confronted with such an abnormally old-looking 17 year-old that no one would reasonably have suspected that he or she was under age.

However, we recognise that the closer an individual is to the age of 18 the finer the judgments will become. A judgment as to whether the defendant's view was reasonable would be made in an objective test in accordance with what a reasonable person would have thought in the same situation. That is an important change. An existing subjective test becomes an objective one.

Amendment No. 58 would affect the defence which staff in licensed premises may put forward if charged with selling alcohol to a minor. I hope that my pronunciation is accurate and that people recognise that I am talking about those under the age of 18 and not "miners"; otherwise, I should be in serious trouble with many people whom I know very well.

The "all reasonable steps" defence would be viable if the defendant had asked the minor for written evidence of his age. This could, for example, cover a birth certificate, which is written evidence but is far from proof of age. "Proof of age" necessarily implies three things: a photograph to match the face of the purchaser; a date of birth on the same document; and a document of some credibility bearing the first two items.

Therefore, the evidence has several components, not all of which, as in the case of photographs, could be described as "written". In those circumstances, I hope that the noble Lord will recognise why his amendment, as it stands, cannot be accepted.

Amendments Nos. 59 and 62 seek to introduce a system whereby the Secretary of State would prescribe either one or several proof of age cards which, if produced by the customer, could then be used as evidence to support the "all reasonable steps" defence. The Secretary of State cannot sensibly prescribe certain existing proof of age cards in the way that the amendment suggests.

The reason is one of practicality. Tens of millions of tourists visit this country every year and many, of course, are youngsters. Some will want to eat, drink and enjoy themselves in our pubs and restaurants and buy from our off-licences. If we prescribe certain cards, an 18 year-old Canadian who dutifully presents a perfectly valid Canadian national identity card may well be refused service. While we strongly support many of the existing proof of age card schemes, such as the "Prove It", "Validate" and "Citizen Card" schemes, it would simply not be practical to prescribe every form of ID, photo-driving licence and proof of age card from every country that might be acceptable.

As the clause stands, it becomes a matter for the courts to decide on the evidence whether the proof of age seen was such that it would have deceived a reasonable person. In those circumstances, I hope that the noble Lord will not press these three amendments.

We consider Amendment No. 60, which concerns obvious forgeries, to be unnecessary. The current wording of Clause 30 ensures that a person will be treated as having taken all necessary steps only if the evidence produced would have convinced a reasonable person. That is a clear and objective test which the courts will understand fully. In cases where the purported evidence clearly did not belong to the young person producing it, or where the evidence was an obvious forgery, the defence would fail.

In any event, forgery is not the main problem in relation to these cards. Many existing cards are produced to a very high standard and are not easily forged. The main problem concerns children who use lost, stolen and borrowed cards. Very often, the faces do not match the cards and the users rely on retailers being casual and inattentive. The clause will certainly penalise those who are casual or inattentive about the law on sales to minors. However, those who accept their responsibilities properly have nothing to fear from these provisions. I hope that the noble Lord will not press the amendment.

Amendment No. 61 presupposes that the Secretary of State should issue guidance about proof of age cards. The Intoxicating Liquor (Sales to Persons under Eighteen) Act 1923 first prohibited the sale to or purchase by persons under the age of 18 of alcohol. That measure has been with us for a very long time, and we are not placing an entirely new duty on licensees. The position should be relatively simple. If a licensee has any doubt whatever about the age of a potential purchaser, then no sale should be made. It really is as simple as that. Indeed, the British Institute of Innkeeping provides that advice in its courses for licensees who seek national qualifications.

The ultimate responsibility cannot be abdicated by the licensing trade. The judgment must be made by staff in licensed premises who are presented with a potential customer bearing a card purportedly showing his or her age. They must decide whether the card is genuine, forged or wrongfully held. Ultimately, they must decide whether the purchaser is at least 18 years of age and, if they are not completely confident, they should refuse to sell. Therefore, again, I hope that this amendment will not be pressed.

I mention in general terms that cards which have validity and which are recognised and encouraged can be strengthened. In that respect, I believe that the Government will prove one dimension to be helpful. The DfEE "Connexions Card" for 16 to 19 year-olds who are in education may have a role to play in supplementing the existing voluntary cards, photo-driving licences and passports currently in use because they clearly bear the age of the young person concerned. Those cards, bearing people's ages, will become available to, and be in the possession of, a large number of young people over the age of 18 who are entitled to drink as well as, of course, being available to those under that age.

I emphasise that we recognise the points that have been made by the Opposition in proposing these amendments. However, we are unable to accept them because the issues are already covered by the Bill as drafted.

5.15 p.m.

Lord Thomas of Gresford

I hope that members of the Committee will permit me to say that I consider these provisions to be daft. The proposal, as the Minister said, involves an objective test relating to the belief of the licensee or bar staff who are charged with serving intoxicating liquor to a person who is under 18. How on earth is a court to determine objectively that nobody could reasonably have suspected from a customer's appearance that he or she was under 18? Is it assumed that that person will be summoned to court and asked to dress as he or she was on the particular night and, if a young lady is involved, will she be asked to make herself up in the same way so that the court can come to an objective view of the licensee's belief? The proposal would cause an awful lot of trouble if it ever came to court. At least the opposition amendments propose a way of enabling a court to ascertain whether what has been done by the person serving the customer is correct. To that degree I support the amendment.

Lord Cope of Berkeley

I am grateful for the support that the ideas in the amendment have received. I am disappointed by the Minister's rather dismissive attitude to the possibility of proof of age cards. As the noble Lord, Lord Thomas, hinted just now, the powers of make-up are remarkable—I have observed that occasionally in the course of my life! That makes it extremely difficult for bar staff.

I recognise that the Government are taking a short step towards my amendment with the proposal involving the Connexions card. However, that by definition would apply only to those in education and it will, as it were, be a substitute in this regard for a student union card.

The Minister's response was not at all satisfactory. We shall certainly return to this matter not necessarily in relation to this Bill but in the course of further discussions about the way in which to progress licensing laws. Proof of age cards may not be perfect, but they are the best approach in this difficult area. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 59 to 62 not moved.]

Clause 30 agreed to.

Clause 31 agreed to.

Clause 32 [Drunkenness or disorder on licensed premises]:

Lord Cope of Berkeley moved Amendment No. 63: Page 24, leave out lines 31 to 35.

The noble Lord said: I find proposed new Section 172A(2) extraordinary and, frankly, rather offensive. It requires that if someone is drunk in a pub or other licensed premises and the bar staff fail to control him, and if the bar staff finish up in court, the bar staff somehow have to prove that they "took all reasonable steps" to prevent drunkenness in the premises. The burden of proof is reversed. The prosecution will not have to prove that the bar staff permitted drunkenness; that will be fairly obvious if the drunkenness was had enough.

Somehow or other the bar staff have to prove that they took all reasonable steps. That is not a sensible reversal of the burden of proof. It will be extremely difficult for bar staff to live up to this burden of proof in court. We are dealing, after all, with a pub, club or other licensed premises in which by definition there are drunken people—or at least one drunken person. However, when there is one drunken person there is often more than one. Bar staff attempt to deal with such situations. Explaining all of that later in court and imposing the reverse burden of proof on the poor bar staff—whether the manager or the more junior staff, including perhaps a barmaid and others who were serving—will be extremely difficult.

This is a very onerous provision. Bar staff, managers and others have a duty, which we all accept, to do their best to prevent drunkenness and to take proper action. They do so in the interests of having a well-run pub. It is not to a pub's advantage if there are many completely drunk people making life difficult for other customers, who are trying to enjoy a quiet drink. It is the duty of staff—and, to a certain extent, customers—to do their best to prevent drunkenness; that is also in the interests of all staff. Reversing the burden of proof and attempting to give the necessary explanations later in court will be very difficult. I beg to move.

Lord Lester of Herne Hill

The Joint Committee on Human Rights considered Clause 32. Our views on it appear in paragraphs 31 and 32 of our report. I shall sum up our position.

We sympathised with what the Minister told us; namely, that, the nature of the licensed industry has changed significantly over a period, away from a large number of individual licensees and publicans to a number of major organisations who employ and retain staff to run their pubs and clubs, and so on. We think that there needs to be absolute clarity in the legal rights and responsibilities. There should not be an argument that so and so was not the licensee and therefore has no responsibility". We also welcomed the Minister's commitment to legal certainty. We said: We consider that certainty could be further enhanced by revisiting the definition of the offence". We referred to the archaic language that is used in that context and to the phrase, any violent quarrelsome or riotous conduct". Although "quarrelsome conduct" might not disfigure the proceedings of this House, one can imagine heated arguments in a public house between political opponents being defined in that way.

We said that such language was, not self-evidently in tune with the requirements of legal certainly in an era of human rights. We consider that the clause engages the right of patrons of bars to freedom of expression under Article 10 of the convention. We observed: In the course of his oral evidence to the Committee, the Minister accepted that imposing a legal duty on bar staff to remove a person for quarrelsome conduct could indirectly interfere with that person's right to freedom of expression, and that even the word 'drunkenness' might not be as certain as had originally been thought, despite having been in", old legislation. We said: We are therefore glad to learn that the Government arc reviewing the whole of liquor licensing law". We recognised that one could not expect that to be done simply in this Bill. We expressed the, hope that the opportunity will be taken to ensure that adequate legal certainty and proportionality can be achieved in the definition of criminal offences. In the meantime, it is important"— this deals with the point raised by the noble Lord, Lord Cope— that bar staff are not unfairly treated, and in particular that clause 32 is operated in a way which respects the Government's intention, as expressed to us, that expulsion from licensed premises will be reserved for seriously disruptive or threatening individuals"'. Elsewhere in our report, we argued that the classic problem of the reverse onus of proof did not arise. I hope that that adequately summarises our views and that the Minister will respond to those concerns.

5.30 p.m.

Lord Renton

I warmly support what my noble friend Lord Cope of Berkeley said in moving this amendment. We must be careful to ensure that the burden of proof remains on the prosecution. To say that, merely because one person gets drunk or seems to be drunk, the burden of proof shifts and the onus is upon the barman or proprietor to prove that everything had been done to prevent that drunkenness, is neither feasible nor just. I hope that the Government will consider this point carefully.

Lord Carlisle of Bucklow

I had intended to mention on clause stand part those matters raised by the noble Lord, Lord Lester, on this amendment, though with respect to the noble Lord they go slightly wider than this amendment.

I should like the Minister who is to reply—I am sure with his normal courtesy to this Chamber—to give us a clear and simple definition of "quarrelsome behaviour". That is the test which apparently this clause lays down of a criminal offence potentially to be committed by someone who is helping to hand out drinks in a busy public house.

The clause states: A relevant person shall not permit … quarrelsome … conduct to take place in licensed premises". If the bar person contravenes that provision he shall be liable to a fine. It is therefore vitally important that we should be able to tell that person, working in that public house, what is meant by "quarrelsome conduct".

I see the noble Lord, Lord Goldsmith, sitting on the other side of the Chamber. If we enter a public house and choose to have a disagreement about our political affiliations, are we indulging in quarrelsome conduct or are we merely having an argument? Where is the line to be drawn? One person's quarrelsome conduct may be an expression of opinion with which somebody else totally agrees. Before we make phrases like "quarrelsome conduct" criminal offences, it is important that the Minister gives a clear definition to the courts to enable them to say whether or not a person is committing an offence if he allows the behaviour to occur.

Earl Russell

I extend a warm welcome to the report of the human rights committee. It is an extremely valuable innovation for this House. It will save a lot of time and unnecessary argument. It will add a lot of weight to necessary argument and, in cases such as this, it will narrow a potential ramified argument down to a definable and useful point. It is a welcome development. I congratulate my noble friend, the Government and all those concerned on the setting up of the committee.

But the problem of the clause is a little wider, as the noble Lord, Lord Carlisle of Bucklow, suggested. What are reasonable steps for a person in authority in a bar may depend on how careless that person is of their own safety. Authority over a bar, like authority over a bus, in the last resort depends on consent. Authority stretched too far may destroy consent.

I am told this used to be a maxim in the American army: never give an order which is not going to be obeyed. I hope the Minister will concede, with the case of Pepper v. Hart in mind, that the requirement of reasonableness does not require anything further. Also, can the Minister tell me of any bar, in any country, in any century, where quarrelsome conduct has not taken place?

Lord Goldsmith

This debate ranges wide and I rise not to pick a quarrel with the noble Lord, Lord Carlisle of Bucklow, but to pick an argument with him.

Two points have been raised, but in relation to both of them what is relevant is what this clause is doing in the context in which it arises. As I understand it, the present licensing law imposes upon licensees of premises the obligation, not to permit drunkenness or any violent, quarrelsome or riotous conduct". The clause adds another category of person to that obligation, that category being those who are not the licensee but who cannot be said to be the agent of the licensee. Case law demonstrates that certain people—managers and employees—may not be agents of the licensee and therefore, if drunkenness is permitted, without this clause nobody would be responsible.

It is right that the Committee should consider the language. For myself, I feel that in the context of, violent, quarrelsome or riotous conduct", it is clear what is meant. Most people would recognise "quarrelsome conduct" when they see it in the context of, violent, quarrelsome or riotous conduct". But my honourable friend Mr Charles Clarke told us that there is an intention to review the legislation in relation to licensing. That was an important statement to make. That is the right time at which to review and revisit all of these questions, otherwise the difficulty would be that it would not be sufficient to put this new prohibition on one category in specific words; it would be necessary to go back to the existing legislation and try to adjust that.

That is the point the noble Lord, Lord Carlisle, raises on this amendment, but by way of an observation on clause stand part. I do not know the answer to the question but I hope that my noble friend will be able to say whether the reverse onus which appears in proposed Section 172A(2) is in fact the same provision as that which applies at the moment in relation to licensees. If that is right, it means that no change is taking place.

In any event I make this observation. The onus is not on the defendant to demonstrate all of the requirements. The words state: If … it is proved that any person was drunk". So the onus of proving that the person was drunk, which is the start, remains entirely on the prosecution. The only proof required from the defendant is that the defendant took reasonable steps to prevent that drunkenness. What does that mean? I am sure that the noble Earl is right in saying that "reasonable" means "reasonable"; it does not mean all possible steps. In the circumstances of someone who is found drunk in a pub, there is a limit to the number of steps that can be taken—not to serve him any more drink when he appears to be drunk and to try to get him to leave. I do not regard it as a great obligation to prove that. If the clause had gone so far as to say that if anyone is found in a pub the licensee has to prove that they are not drunk, that would be going too far. As it stands, this is on the right side of the line and therefore I do not support the amendment.

Lord Bassam of Brighton

A number of useful points have been made. The Government's perspective is quite clear. We take the view that Section 172 is a necessary modernisation of the 1964 Act. I can confirm that the interpretation of my noble friend Lord Goldsmith is correct; that is, that the reversed onus on bar staff is the same as that currently on licensees. His interpretation is entirely accurate and it makes sense that that is the case.

We are arguing for modernisation of the Act in this section. There is an irony which I think Members of the Committee have clearly spotted; that is, we are seeking to put into legislation wording which dates back to 1872. It has certainly been the case since 1872 that it is an offence for a licensee to permit drunkenness or any violent, quarrelsome or riotous conduct on his premises. This act of modernisation is reliant upon some rather old and quaint language. Nevertheless it is modernisation which makes things proportionate and right in the circumstances.

It is the duty of a licensee to preserve good order on the premises. That duty goes back to the days of Henry III. I was not around at that time but I can believe that that was the case and am prepared to take it as given. The offence is currently contained in Section 172 of the 1964 Act. The existing Section 174 of that Act gives the licensee power to refuse to admit drunks and the disorderly or to expel them from the premises.

Modern operating practice in pubs and other licensed premises often involves a manager operating the premises and the licensee being generally absent. It is therefore important that managers should be under the same duty as any licensee to prevent drunkenness, preserve good order and have the same powers to expel those who are drunk and cause problems for good and orderly customers. New Section 172A would do exactly that. Drunkenness in licensed premises must be deterred. Those responsible for running licensed premises have known for several centuries that the law puts them under a duty not to permit drunkenness. Levels of public drunkenness in licensed premises are a significant public concern.

We argue that Amendment No. 63 would create an inconsistency between the rights of any manager and the rights of any licence holder operating a pub in similar circumstances. The burden on the prosecution in trying virtually identical offences would differ between one person and another. That would be wholly unfair, improper, inconsistent and plainly wrong.

There may be circumstances and concerns that a drunk could be present without the licensee's or manager's knowledge. However, because the offence is one of permitting drunkenness—I am sure that the Committee will agree that permission implies a degree of knowledge—a licensee or manager could riot be convicted of this offence unless a drunk had been present in his premises and the licensee or manager had known about it.

A natural defence to mount when prosecuted under these sections is that all reasonable steps were taken to prevent the drunkenness. But it must be remembered that under Section 174 of the 1964 Act the licensee or manager has powers to expel the offending drunk from the premises and the right to require police assistance to that end. The police are under a statutory duty to provide the necessary assistance. That is well-established law which the courts well understand.

If the prosecution is able to establish beyond reasonable doubt that a drunk or drunks were present on the licensed premises, the burden shifts to the defence, who must prove, on balance of probability, that they had taken all reasonable steps to prevent the drunk's presence. In our view that is not an unreasonable or unfair proposition. As I have said, the courts have a great deal of experience in dealing with the issues arising.

The noble Earl, Lord Russell, was right to commend the Joint Committee on Human Rights for its work in this field. Had he been here earlier—I am sure he was detained on important business—he would have heard the noble Lord, Lord Lester, put exactly that argument, and valuably so. As I said earlier, we are grateful to the joint committee for its observations on this piece of legislation. It is a valuable innovation which has been well received. That committee observed that we are reviewing the whole of our liquor licensing laws. I would argue that in those circumstances we should perhaps consider modernisation, not just of the powers and duties but also the wording of the legislation. That is the proper place for that to be done, not in this piece of legislation, which is wide-ranging in its intent.

The noble Earl, Lord Russell, said that there is probably not a pub in the world where there has not been a quarrel of some sort, but we are not attempting to restrict people's rights to disputation. We are attempting to focus on the "quarrelsome" argument, which is associated with drunkenness and violence. I rely on the Oxford English Dictionary for an interpretation. It states that the word quarrelsome means "inclined to quarrel". It goes further with the word "quarrel" and includes this definition, which is plain: contend violently, break off friendly relations, become inimicable or hostile". It is in those terms that this piece of legislation and this wording are understood.

5.45 p.m.

Lord Lester of Herne Hill

I thank the Minister for giving way. If one takes a certain current dispute in a particular political party between its leader and two of its members, I fully accept that the quarrelsome nature of what is happening there is not akin to violence, and if they all met in a public house—

Lord Bassam of Brighton

If it might lead to violence it is best to do it over a drink.

Lord Lester of Herne Hill

Does the Minister agree—I think he does—with the noble Lord, Lord Goldsmith, that the word "quarrelsome" takes its colour, if I can use that word in the context of what I have just said, from the other words and has an association of violence? Therefore, when the Joint Committee on Human Rights urges that in the interval before the licensing law is amended, the prosecutorial function—which is not the responsibility of the Government—but nevertheless the Government's intention would be that it would be reserved for seriously disruptive or threatening individuals where drunkenness or violence was associated with the quarrelsome behaviour and nothing less than that. I believe that is the question which my noble friend Lord Russell also raised.

Lord Bassam of Brighton

The noble Lord has been most helpful. It is in precisely those terms that we were thinking. I believe that the word needs to be understood in context. That is our case and that is why we are satisfied with what we have set out in the legislation. It is for all those reasons that we feel the need to resist the amendment.

Lord Renton

I believe that the Minister has overlooked a variation in human capacities. The trouble is that no two people are quite the same so far as concerns the effect upon them of alcohol. A man who has just had one pint of beer may ask for another. Judging by his behaviour then, it may be quite reasonable to give him another pint. However, because of his own physical limitation, the second pint may make him drunk. Is the barman to be prosecuted and the burden of proof upon him to be shifted simply because he did not anticipate the possibility that he might be a man who got drunk on a second pint?

Those are the sort of circumstances which unfortunately the Government must anticipate and which are difficult. If there is doubt in such matters, surely the burden of proof should remain on the prosecution and not be shifted to an innocent barman.

Lord Cope of Berkeley

The discussion has been widened from the amendment. Perhaps I may address the wider point. It came as a slight surprise to me to realise that pubs were not supposed to be quarrelsome places. I have met a good few people in my time who go to the pub for a good argument. That is part of the attraction of the place. I suspect that it is also part of the attraction of people—

Lord Bassam of Brighton

The noble Lord is certainly enhancing the quality of his experience in the Craddock Arms every time he gets up and speaks about public houses.

Lord Cope of Berkeley

That is another matter. I have never met anyone there who went for a good argument. There are other places where some people go for a good argument. Some people try to get elected to Parliament because they like a good argument but others find it easier just to go to the pub. Therefore, it is curious that the provision appears in the legislation.

We are, however, told that a review is forthcoming and that the wording will be considered. That brings me back to the amendment, which also needs consideration. The Minister's principal defence was given to him by the noble Lord, Lord Goldsmith: that is, the reverse onus of proof is the same in the Bill as regards the bar staff as it is in existing legislation as regards the licensee. I take that point on board. However, it was not much help to say that the burden of proof is only partly reversed. Someone has to be drunk in the first place and the bar staff do not enter into proof of whether the individual was drunk.

I believe that the reversing of the onus of proof needs to be rethought in the context of rethinking licensing law. Clearly, it is sensible that the same burden should apply to the licensee and to the staff.

Lord Lester of Herne Hill

I am grateful to the noble Lord for giving way. I want to ask him to clarify one issue. Is it not the case that under the clause as it stands the burden is on the prosecution always to prove that the relevant person has not knowingly permitted drunkenness or any violent conduct? That is the ultimate burden of proof on the prosecution.

However, as is often the case with criminal offences, the burden is then shared. While that ultimate burden remains to a criminal standard of certainty, if circumstances are such that it is fair to require the person to demonstrate that he took reasonable steps he can do so. Is that not the way it works? Is that not fairly common in the criminal law as a shared burden? Therefore, the provision is not an extreme classic reverse onus of proof.

Lord Cope of Berkeley

I accept that it is not a total reversal of proof because the onus of proving that someone was drunk remains with the prosecution. As regards whether the relevant person permitted the drunkenness, he must go through the business of proving that he took all reasonable steps. The burden of proving that lies with him.

It is sensible that the same should be required to be proved as regards the licensee, the manager and staff. Therefore, I hope that when considering the wording as a result of the review that element will be taken into account in addition to our discussion relating to the word "quarrelsome" and so forth.

Finally, I sincerely welcome the report of the Joint Committee on Human Rights, which was introduced into the discussion after I had spoken. The timing of the report was raised. Of course it was inconvenient to another place that it was not published until after its consideration of the Bill. However, the committee is new and is only just getting going but it must make arrangements to report as often as possible and in time for both Houses to consider its recommendations.

I was interested to see that the committee in its report drew attention to the fact that it is important that bar staff are not unfairly treated. That seems to me to go exactly to the point of the amendment. It is put in a relatively modest way—not in a direct way— but that is in accordance with the self-denying ordinance referred to by the noble Lord, Lord Lester. He pointed out that the committee had done its best to confine itself to human rights points and others to which it was particularly directed, not to wider policy points. That is entirely proper. Its duty is to look at the obligations under the different statutes, conventions and so forth and ascertain whether the Bill is in accordance with them. That it did.

However, it took the opportunity to refer to the point made indirectly in my amendment. But given the fact that the matter is to be reviewed, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

Clause 33 [Power to make travel restriction orders]:

The Deputy Chairman of Committees (Baroness Gardner of Parkes)

If Amendment No. 64 is agreed to, I cannot call Amendment No. 64A because of pre-emption.

Baroness Buscombe moved Amendment No. 64: Page 25, line 39, leave out subsection (1).

The noble Baroness said: Amendment No. 64 has been tabled to reflect the concerns of the Joint Committee on Human Rights in its first report. In that report, the Joint Committee sets out its concerns regarding Clause 33(1) and Clause 35(3). Chapter 3 of Part 1 of the Bill sets out provisions for dealing with crime and disorder. Clause 33 gives powers to the courts via the Secretary of State to make travel restriction orders for certain offenders who have committed serious offences.

While we would want to support that power if used sensibly and if targeted properly, we are concerned that the Government have acted outside their authority under the terms of the interpretation of the Human Rights Act and/or our international treaty obligations.

The Joint Committee stated: We therefore draw the attention of each House to these clauses, which we do not believe to be compatible as they stand with the international obligations of the United Kingdom under the ICCPR [the International Covenant on Civil and Political Rights]. The provisions should make it clear that travel restriction orders are to be made only when they serve a legitimate aim under Article 12.3 of the ICCPR, and are proportionate to that aim. The provision should also make it clear that orders are to be suspended or revoked when they no longer serve a legitimate aim or are not, for the time being, proportionate to such a legitimate aim". We consider that Clause 33(1) and Clause 35(3) should be amended in order to secure compliance with the ICCPR.

The ICCPR provides that: Everyone shall be free to leave any country, including his own Obviously, a passport is needed to exercise this right. As I understand it, the concerns raised by the committee are in relation to the discretionary nature of the order as well as the essence of the order; any impact that might have on the family of the offender; and the offender's right to a family life.

In making an order under Clause 33, the committee believed that future intent and likely foreign travel should be expressly stated. We could spend many hours discussing the merits of all of these matters, the needs to balance rights with obligations and the need to balance public protection and individual liberty, but that must be for another day. However, I have two issues that I want to raise with the Minister.

First, when the Minister made the statement printed on the front of the Bill attesting to the fact that the Bill was compatible with the convention rights, was he aware of any concerns which the Joint Committee might have? Can he tell us what legal advice he took to ensure that his statement was correct and will that advice be published?

Secondly, do the Government agree with the findings of the Joint Committee and what plans do they have to amend the Bill and rectify these possible breaches of our obligations under the International Covenant on Civil and Political Rights? I beg to move.

6 p.m.

Lord Lester of Herne Hill

I rise to speak to Amendments Nos. 64A, 66A and 67A which are grouped with this amendment. The noble Baroness, Lady Buscombe, is incorrect in one very important respect. Although we are glad that the noble Baroness referred to the report of the Select Committee on Human Rights, if she reads it carefully she will see that there is no question of any breach of the European Convention on Human Rights or the Human Rights Act, which gives direct effect to convention rights The problem is more subtle but just as important; namely, there is a possible breach of the International Covenant on Civil and Political Rights, which is a different international treaty that has not been given direct effect in our courts.

The problem which concerns the committee is that a British judge has no authority to apply the provisions of the international covenant when giving effect to the very wide powers conferred by Chapter 3 of the Bill in imposing travel restrictions on drug trafficking offenders. That is why the amendments in my name and that of my noble friend Lord McNally, to which I have referred, seek to give effect to the Select Committee's observations, not by leaving out the whole of the relevant part of the clause as the noble Baroness's amendment would do, but instead by introducing necessary amendments.

Amendment No. 64 would insert at the end of subsection (1) of Clause 33 the test of proportionality in relation to the power to make a travel restriction order. Amendment No. 66A would do the same thing in respect of Clause 35 for the revocation or suspension of a travel restriction order, and Amendment No. 67A would do the same in the appropriate place. In each case the criminal court shall determine, whether the order remains appropriate and necessary to protect national security, public order, public health or morals or the rights and freedoms of others". That is what the international covenant requires. Unless the Government make some such change to the legislation, a serious gap will remain and the domestic courts will not be able to give effect to the covenant rights.

There are additional protocols to the International Convention on Human Rights, in particular the fourth one, which have not yet been signed or ratified by the United Kingdom. If they were ratified and given domestic effect they would incorporate the equivalent of the covenant rights into domestic law. It is precisely because that could not happen at the moment that the Joint Select Committee took a particularly serious view of the gap and wished to draw it to the attention of both Houses. I very much hope that other Members of the Committee who participated will be able to amplify what I have said. I do not deal with the detailed reasoning in the report, which everyone can read for himself or herself.

Lord Carlisle of Bucklow

I have tabled a series of amendments dealing with this part of the Bill in the hope that the Committee will have the opportunity to learn from the Minister the purpose of the proposed new power and how he sees it working in practice. Yesterday in the course of Committee stage my noble friend Lord Cope said that in many ways this measure was a ragbag of a Bill. When one has a Bill which covers, understandably, many different issues and matters, the trouble is that one may possibly introduce, as I suggest is being introduced into this clause, a new power—perhaps a penalty of an important nature—without the Committee having adequate time to consider that which is proposed.

The Committee is considering the proposed power of the court to implement a travel restriction. I looked to see what had been said about it in this Chamber. In the whole of the Second Reading this part of the Bill was covered by one sentence. The Minister said that, Clauses 33 to 37 will be an effective tool in restricting the activities of those who deal in drugs".—[Official Report, 2/4/01; col. 656.] If one looks at the Explanatory Notes, this measure is described as a sentencing option. If one considers the explanation given in answer to the questions posed by the Joint Committee on Human Rights, in general terms it is said that it is a sentencing option which also has preventive intentions.

The proposal in Clause 33 is of major importance. It requires a court when dealing with any case involving drug trafficking, where it imposes a sentence of four years or more, to consider whether it is appropriate for the sentence to include the making of a travel restriction order; and, if it does not consider that it is appropriate, to state its reasons. I believe that that implies a presumption that a court when imposing a sentence of four years or more for a drug trafficking offence will think it right, or will be required, to make a travel restriction order.

It has been said by the Home Office that the whole purpose of taking the limit of four years is to distinguish between those which are serious drug trafficking offences and those which are not. Therefore, this new power will be limited to what can be described as serious drug importation or drug trafficking offences. With great respect, I do not believe that to be so. While it is true that four years has always been accepted as the appropriate distinction between short and long-term sentences, the vast majority of cases where people are convicted of importing or supplying Class A drugs are likely to attract a sentence of more than four years' imprisonment.

If one considers the case of Aramah, which the Attorney-General knows well, it has been said that for major cases of importation the appropriate sentence is one of at least 10 years. In that case it was said that seldom would the courts consider a sentence of less than five years for supplying Class A drugs. I declare an interest as a former member of the Court of Appeal of the Channel Islands. The court placed the starting point for dealing in, or the importation of, Class A drugs far above the limit of four years as the dividing line between "serious" and "not serious" as suggested in this Bill. The reality is that in the vast majority of cases which involve either the importation or supply of Class A drugs the courts will be expected to add to the sentences that they pass a travel restriction order. What is that travel restriction order? It is the removal of an individual's passport for a minimum of two years and for an undisclosed maximum, which, presumably, is for life.

At the time of sentencing, on what basis will a court decide that such an order is appropriate? I accept that everything possible which is "an effective tool"—to use the Minister's own phrase—must be done to fight the horror of drug importation and drug supply. I accept that at the moment in this country drugs form a large proportion of serious crime, but we must be clear that that which we are proposing will have some effect.

I ask the Minister—this is clearly relevant, as the noble Lord, Lord Lester, has said, to the human rights issue—is the purpose of the power preventive? If so, it may well be within the international obligations. Or is it meant to be a purely punitive power? As I understand the matter, Mr Clarke has said it is really both.

What happens? A person charged as a courier on a major drugs importation appears before the court. He receives a sentence of six years. That means that he may come out at any time after three years. Let us assume that he serves two-thirds of his sentence and comes out after four years. On what basis is the court at the time of sentencing to decide that it is part of a punishment to require that he is unable to leave the country after he has completed the period of his sentence? Personally, I do not like the idea of attempting to impose conditions on an individual's freedom which go beyond the overall period of the sentence imposed by the judge at the time of the hearing which is considered appropriate for the seriousness of the offence.

Suppose we believe it is possible that people may change their minds and may—even on the basis that it was not worth the candle—decide to give up drug trafficking. We say, "Well, you have served your sentence". The man says, "I want to get away from my old associates. The best way is to start a new life elsewhere". Are we going to prevent him from doing so because he is not allowed to leave the country for some unlimited period of years? What if he decides to go straight and he joins a company and is required to work in Europe? Does he have to say, "I am terribly sorry, I can not go and work in Europe because I am still subject, although I have completed my sentence, to a travel restriction order which prevents me from going abroad"?

There are real practical questions that need to be asked and answered as to the intention of the proposal and how it will work in practice. The Minister may say, "But of course there are powers that if a person changes his mind any travel restriction imposed by the judge at the time of the imposition of the sentence can be suspended or removed". But let us be clear; the travel restriction cannot be removed unless the man has served the minimum period of two years beyond the period when he comes out of prison. There is no power for him to go elsewhere in those two years.

So far as concerns suspension, the restriction can only be suspended—it is set out in Clause 35(3)—if in fact there are, exceptional circumstances … that justify the suspension on compassionate grounds". We all know that "exceptional circumstances" is a phrase that has been interpreted very narrowly by the courts. It is difficult to see what would cover the phrase "to allow a person's travel restriction to be suspended on the basis of exceptional circumstances of a compassionate nature". Therefore, there are issues that need to be raised before we pass this new power. Are we satisfied that it is a preventive measure? Is it otherwise merely a punitive one? Is our climate really so bad that it is a penalty to have to stay here after one has completed one's period of imprisonment? If it is merely punitive, what is its effect in practice on someone who may wish genuinely to break away from his previous life? Those are the kind of issues that have not yet been addressed in introducing this power. I apologise to the Committee for speaking too long.

6.15 p.m.

Baroness Mallalieu

I share the anxieties raised by the noble Lord, Lord Carlisle of Bucklow. I, too, am troubled about these provisions. In certain circumstances the ability to make a travel restriction order may have value. But the clauses, as currently drafted, are insufficiently targeted and are likely to have unintended consequences of the kind that the noble Lord has indicated.

If the purpose of these measures is to prevent further offences, why are they not confined to those involved in importation, or at least offences which have some foreign element? It is quite clear that the definition of "drug trafficking offences" also includes those involved in production and supply in this country— in other words, no foreign element at all—and therefore the removal of the passport need have absolutely no connection with offences committed in the past.

If the intention is purely one of punishment, why is the provision then consigned simply to drug trafficking offences and those who have received sentences of four years? If the removal of the passport is a legitimate punishment for a crime of that nature, presumably there are other offences too of equal gravity which also might enjoy the same sentencing option. I am unhappy for the reason that it is not clear from the way these measures are set out what the Government intend. It is, however, clear that a judge will be required to consider this option and, if he decides that it is not appropriate, to give his reasons why.

If punishment is the intention—we understand that that is part of it—how does that lie with the concept of rehabilitation? The unintended consequences which the noble Lord, Lord Carlisle, has referred to are clear: someone may want to make a new life abroad; someone may want to take legitimate work abroad; or someone may want simply to resume family life which presumably on occasions involves a holiday abroad. None of those situations appears to qualify under the requirement for compassionate grounds before the passport can be restored under Clause 35(3).

Therefore, I ask the Minister to give us some further help about the circumstances in which it is intended that these orders shall be used, and also to allay, if he can, the concerns raised by the noble Lord, Lord Carlisle, and which trouble more than a few Members of the Committee.

Lord Windlesham

There are many novelties in the Bill that bear on the integrity of the criminal process. Was I alone in the Committee when my heart sank when the noble Lord, Lord Bassam, justified some of the earlier changes on the grounds that they were modernisation? The criminal process depends on some enduring principles that should be preserved from the changing fashions of the day. Clause 33 and the clauses that are linked to it are a dangerous oddity. The way that a legal system treats some of the least desirable persons within its jurisdiction is a test of a civilised society. Yet here we have a legislative requirement imposed on a criminal court to add a travel restriction order to any sentence of imprisonment of at least four years in duration for trafficking in Class A drugs.

As such, it is not surprising that the proposal attracted the attention of the Joint Committee on Human Rights. In its first report published only very recently—and not before the House of Commons had considered the Bill—the proposal took up three closely printed pages. The Joint Committee on Human Rights stated on page XVII of its report: We therefore draw the attention of each House to these clauses, which we do not believe to be compatible as they stand with the international obligations of the United Kingdom under the ICCPR. The provisions should make it clear that travel restriction orders are to be made only when they serve a legitimate aim under Article 12.3 of the ICCPR, and are proportionate to that aim. The provisions should also make it clear that orders are to be suspended or revoked when they no longer serve a legitimate aim or are not, for the time being, proportionate to such a legitimate aim. We consider that clause 33(1) and clause 35(3) should be amended in order to secure compliance with the ICCPR". The question we must ask in this Committee is whether the Government are proposing to amend Clauses 33 to 37 in response to the concerns expressed by the Joint Committee and in the light of the powerful speeches they have heard in this debate, not least from their own Back Benches in the speech eloquently delivered by the noble Baroness, Lady Mallalieu.

Lord Goldsmith

The report of the Joint Committee has rightly provoked debate about this important and potentially wide power. I start by recognising that one of the most difficult problems faced by any government at the moment is dealing with the scourge of drugs, which are corroding our society and are particularly affecting, it is sad to say, the young. Weapons in the armoury to combat drugs and serious drug offenders are important. None the less, the provisions as they stand give rise to the questions that have been raised from all sides of the Committee.

The noble Lord, Lord Carlisle, put his finger on the point by saying that one has to be clear about the purpose of the provisions. If they are there to prevent further offences—my honourable friend the Minister, Mr Clarke, gave good evidence that there are international connections in important drug offences—the Bill needs to be capable of being applied in that way. If, on the other hand, the purpose is punishment, I look at it as someone who might, as a Recorder, have to exercise these powers. My concern—I look to my noble friend the Minister for assistance—is as follows. If I have taken the view that the right period to restrict the liberty of a defendant, having regard to the offences that he committed, is five, six or seven years—it may be 10 or 12—how do I judge what is the appropriate additional period of restriction of liberty to add? If it appears to me that an extra period of five years of restriction of liberty is appropriate, what does that do to the sentence I had in mind?

That does not mean that the proposed power should not be taken. It means that we should look very carefully at how the power is to be exercised and the way in which it is to be put forward. I recognise that the Joint Committee report has arrived quite late on the Government's desk and that the Government will need some time—I hope that they have had some time—to consider exactly the right way to deal with it. I wish to draw attention to two provisions, the first of which was mentioned by my noble friend Lady Mallalieu. The first provision states that if a court does not impose a travel restriction order it must give reasons. Many courts would interpret that as a presumption that a travel restriction order must be imposed in all cases unless there is a good reason for not doing so. I should be grateful to hear from my noble friend the Minister whether that is the intention. The second provision states that there is no power to suspend except in closely circumscribed circumstances, which may not correspond with our international obligations.

Finally, I turn to our international obligations. It is important to recognise that what the committee was concerned with was not a potential breach of the Human Rights Act but of a different international obligation—the international covenant. That has two important consequences. First, it does not make the Bill incompatible in terms of thecompatibility statement signed by the Minister. There is nothing wrong with that statement. It is not affected by this point. Therefore, the noble Lord, Lord Lester, was right, with respect to the noble Baroness, Lady Buscombe, to say that the question she put to the Minister was not an appropriate one in the sense that the answer is that his certificate was perfectly proper.

Secondly, under the Human Rights Act—this point needs to he developed—the courts have an obligation to interpret legislation in a way that is, so far as possible, consistent with our obligations under the European Convention. Therefore, if we pass legislation that is a little vague, we can still rely on the courts to apply it in a way that will be consistent. That obligation does not exist—or does not exist in the same strong form—in relation to other international obligations. The courts will still attempt to construe legislation in a way that is consistent with our international obligations, but it is not as strong an obligation as that which is in the Human Rights Act.

While the fight against drugs is an important government objective, the questions raised in relation to these provisions need to be further examined.

Lord Thomas of Gresford

Perhaps I may speak to Amendments Nos. 65 and 67. I shall merely repeat what has already been so eloquently expressed by the noble Lord, Lord Carlisle, and other speakers, particularly speakers from the Government Benches.

What we are all seeking here is a way in which this power, if granted, can be constrained and limited to appropriate cases. As the noble Baroness, Lady Mallalieu, pointed out, not every case involves a defendant who has been engaged in the international smuggling of drugs. Many defendants come before the courts who have had nothing to do with international drug trafficking, although it is prevalent and is the original source of the drugs.

The amendments that we have put forward are designed to remind the court passing sentence that the purpose is not to punish, but to prevent further criminal activity. That is enshrined in Amendment No. 65. So far as concerns Amendment No. 67, it is impossible for a sentencing court to determine today what will be the circumstances of an individual in 10, 15 or 20 years' time; that is, after he has served a long sentence of imprisonment. It may be that during the period of that imprisonment, he has been rehabilitated. He may have attended courses and may come out with an entirely fresh view, wishing now to engage in the ordinary circumstances of family life. That may involve taking a foreign holiday. As the noble Lord, Lord Carlisle, pointed out, he may wish to work abroad. All these are matters which should be taken into account by the court when deciding whether such an order should be lifted at the end of the period of imprisonment.

That is the purpose of the amendments which we have put forward. By and large, we support all that has been said during the course of the debate on this grouping.

6.30 p.m.

Lord Bassam of Brighton

This has been an important discussion. Again, it proves the validity of the work undertaken by the Joint Committee on Human Rights. Certainly some of the points which have been so well developed during the course of this debate are reflected in the report from the committee, as were certain points made in earlier deliberations, although not in quite the same context. These are important matters for our consideration. In working through the group of amendments, I shall attempt to respond to as many of those points as I can.

I shall deal first with Amendment No. 64. It is the Government's clear intention that the travel restriction order should been seen as part of a package and be regarded as an innovative way—football disorder legislation aside—of providing a further sentencing option. It adds to the range of powers made available to the courts to deal with drug trafficking offenders who have been sentenced to a period of imprisonment of four years or more. In other words, it applies to those who have been sentenced for very serious offences. That is an important point.

My noble friend Lord Goldsmith spoke of the scourge of drugs. Indeed this is concerned with the scourge of drugs and addresses the ways in which very serious drugs offences are dealt with. Travel restriction orders would make it much more difficult for drug traffickers to travel overseas. We contend that the application of this part of the sentence would go a long way towards disrupting their activities.

Travel restriction orders are intended as a specific measure to deal with drug traffickers and are not intended to apply to any other offenders. They are a measure targeted specifically on those who traffic in drugs in order to make it more difficult for them to travel overseas, thereby helping to prevent and disrupt drug trafficking.

In relation to Amendment No. 64A, I should like to address the concerns quite properly raised in this Committee and also by the Joint Committee on Human Rights in respect of these clauses. In the case of travel restriction orders, the joint committee finds the Bill as drafted to be incompatible with the United Kingdom's obligations under Article 12 of the United Nations International Covenant on Civil and Political Rights. I am grateful to those noble Lords who in a sense added a corrective judgment to the view of the noble Baroness, Lady Buscombe, who quite rightly put her point of view. However, I think that the noble Lord, Lord Lester, and my noble friend Lord Goldsmith were right in their interpretation.

The Government have examined the views of the joint committee carefully; we take them seriously. We do not consider that the Bill's provisions are incompatible with our obligations under the article. Rights such as that set out in Article 12.2 of the covenant, Everyone shall be free to leave any country, including his own", are not absolute under the covenant. That point has been made by many Members of the Committee in the past. Indeed, the noble Lord, Lord Lester, has made the same point in the course of other debates. Article 12.3 confirms that such rights are subject to restrictions provided by law as are necessary to protect, among other things, public order, public health or morals or the rights and freedoms of others.

Countries do have a degree of latitude in determining and developing their social and criminal policies. That much at least is now well established. Travel bans of the kind envisaged in the Bill, which are imposed at a court's discretion in respect of individuals convicted of drug trafficking, are considered to be an appropriate, justifiable and, I would argue, proportionate way of punishing those activities, while at the same time helping to ensure that they are not repeated; namely, that they are prevented.

Lord Lester of Herne Hill

I wonder whether the noble Lord will bear with me if I seek further to clarify the position here? He is quite right to say—the joint committee also pointed this out—that the right to travel is not absolute and this is a question of striking a fair balance between ends and means. However, if he is not willing to accept any of the proposed amendments, can he explain to the Committee how the sentencing judge is to know what are the legitimate aims of the power? Furthermore, where is the direction to the judge which he can use to assess the proportionality of the means to achieve those ends?

If one looks at the relevant clause, is it not the case at the moment that it is literally standard-less; namely, it does not guide the judge either as regards ends or means in the way that is required by the covenant. Is the Minister also aware that in the footnote to the main text of the report, attention was also drawn to the general comments made by the Human Rights Committee, a quasi-judicial body. It explained clearly that the very essence of the right must not be impaired, that the relationship between right and restriction must not be reversed and that the laws authorising the application of the restriction should use precise criteria and may not confer unfettered discretion on those charged with their execution.

Perhaps I may ask the Minister this question. How on earth can this standard clause be said to comply with the standards required by the International Covenant on Civil and Political Rights?

Lord Bassam of Brighton

I shall refer the noble Lord in part to the draft legislation as it stands. What the court will have to consider is whether in the circumstances it would be appropriate for the sentence imposed in regard to the offence to include the making of a travel restriction order. That is enshrined in subsection (2)(a). In other words, the court will know the circumstances behind the offence. It will have background knowledge of the circumstances which have brought a particular offender before the court. The judge will be able to understand the context in which the conviction and penalty are sought. In those circumstances, the court will have to form a judgment as regards the appropriateness of making such an order.

If it is the case that the trafficker is, as it were, an international operator, drawing part of his strength from being involved in an international web of drug trafficking, I believe that one could argue validly that this order-making power would be appropriate in those circumstances. Clearly if a history is attached to the criminal activity, a reasonable argument could be sustained that it is most appropriate.

Lord Lester of Herne Hill

Obviously this is very important to the Committee. The word "appropriate" goes to the legitimacy of an aim. But the clause does not use the well known word "necessary"; it does not guide the judge on proportionality. Is the Minister saying that the intention behind this clause and other related clauses is that the judge should apply the principle of proportionality to ensure that the power is used only to the extent necessary to meet a pressing social need? If that is the Government's position, will they please reconsider the language of the clause in order to steer the judge in that direction?

Lord Bassam of Brighton

I understand the noble Lord's point and I can see where he is coming from. I would expect a judge to be reasonable—I am sure that most people would expect a judge to be reasonable—and proportionate in his application of that part of the sentence. However, it does not necessarily follow that we need to revisit the wording of the legislation as it is currently drafted.

Lord Goldsmith

When the Minister was giving evidence to the Joint Committee, he was asked about the possibility of guidance to judges. My noble friend may be intending to deal with this. It is mentioned in the first special report of the committee, which is not the same as the report which contains our conclusions. At page 60, question 35, the Minister said in answer to a question from the noble Lord, Lord Lester: I agree with your fundamental point which is should there be proper guidance about the inter-relationship between this law and the relevant international documents for judges…I completely agree with that and that needs to be the case. If it is helpful to give the commitment to the Committee that I will work with my colleagues and other government departments to achieve that, I am happy to give that commitment this afternoon". My noble friend may have been going on to deal with that, but some Members of the Committee would like to know where that particular issue has gone. It may at least go some way—perhaps more—to answer the point raised by the noble Lord, Lord Lester, and others in the Committee.

Lord Bassam of Brighton

I am grateful to my noble friend for his intervention. I had marked precisely that point at paragraph 42 in the Joint Committee's report. Clearly, the commitment given by my honourable friend Charles Clarke at the Committee hearing is an important one. There is no doubt that guidance will be paramount in these matters, not least because of the Minister's commitment to ensuring that the relevant international documents for judges on proportionality should be visited and understood and those points met. That was a most helpful intervention and I am most grateful to my noble friend for it. I hope that that answers the point of the noble Lord, Lord Lester.

Lord Thomas of Gresford

Perhaps I may ask a question along similar lines. Is it intended that a judge should be told that in cases which do not have an international element a travel restriction order ought not to be imposed? Or is it the Government's intention that there should be a presumption that the court should make a travel restriction order if it is imposing a sentence of more than four years for drug trafficking, and only in special circumstances—which the judge is required to state—should it not?

Lord Bassam of Brighton

I was coming to that point, which I believe the noble Lord, Lord Carlisle, also raised. I shall deal with it now. There is no presumption that an order should be made. There is an obligation on the court to consider making an order where it convicts of a drug trafficking offence and sentences to four years or more. So it is not a presumption; it is a consideration in those circumstances.

Lord Carlisle of Bucklow

As the noble Lord, Lord Goldsmith, said as well, the very wording at the moment is that if the court determines that an order is not so appropriate it is required to state its reasons for not making a travel restriction order. Those of us who are in practice know that that means there is a presumption that the court is likely to make an order. Is the Minister not prepared at least to look at those words again?

Lord Bassam of Brighton

I thought I was making it plain that there was no presumption; that there should be a consideration at that point. I was about to say that a court should only make an order where it is appropriate in all the circumstances to do so. It is plainly and obviously open to the court not to do so but, in declining to take that option—as I said earlier, it is a sentencing option as a part of a package—it should provide its reasons for not doing so.

The intervention of the noble Lord, Lord Carlisle, has further prompted me to say that we will, of course, review—as we always do—the finer detail of the wording. If it can be improved in some way I am happy to ensure that it is. I shall need to consider and reflect further on the matter.

Perhaps I may now develop the argument that I was making before the very helpful interventions. I do not believe that anyone would suggest that the rights under Article 12 would override, for example, a prison sentence and that serving prisoners are entitled to travel abroad. A travel restriction order—which forms part of the original sentence and commences on release from custody—is, I think one could argue, a much less severe restriction of personal freedom. In the Government's view, it is a legitimate restriction imposed in accordance with Article 12.3 of the covenant.

I do not believe that adding an extract from Article 12.3 of the covenant—which I think even the best of draftsmen would concede is, of necessity, expressed in very general terms—would assist a court in deciding whether or not it was appropriate to make a travel restriction order in all the circumstances of the individual case it was considering.

Amendment No. 65 would require the courts to have regard to whether a travel restriction order would be likely to deter re-offending. The Government intend that such orders should be an effective and useful new sentencing tool. To this end, we intend to leave it to the discretion of the court to decide in serious cases of drug trafficking whether a travel restriction order is an appropriate penalty. That must be quite properly for the court.

The judgment that we wish the courts to make is set out in lines four to five of Clause 33 of the Bill; namely, whether a travel restriction order, in all the circumstances of the individual case, is an appropriate sentencing option. This requires a broader sentencing judgment than that suggested by Amendment No. 65, which would require the court to speculate unreasonably.

Similarly, the Government are not suggesting that the mere imposition of a travel restriction order will necessarily prevent re-offending. Again, I do not see how a court could reasonably be asked to make such an assessment. It would be mere speculation. In our view, the amendment would also limit the courts applying travel restriction orders where they consider this to be an appropriate punitive sanction.

As I said earlier, overseas travel is a common prerequisite for drug trafficking offences, and it is right that the court should have the option of punishing those who abuse the freedom to travel with an appropriate sanction.

Lord Lester of Herne Hill

I promise not to intervene again on this issue but, if I may, I should like to make one last attempt. The Minister has repeatedly referred to the judge deciding what is appropriate. The problem is that what is appropriate—unless it is interpreted to mean what is necessary to meet a pressing need—does not include the principle of proportionality. I do not understand how the Minister can answer the question put by the noble Lord, Lord Goldsmith, about exactly how the judges are to be guided in a legally binding way as to the international obligation on proportionality unless the wording of the Bill is amended. I do not understand how the guidance can be anything other than something written in water so far as concerns a sentencing judge unless it is embodied in legislation. Therefore, please will the Minister and his colleagues consider ways of modifying the language so that at least the principle of proportionality can be put before the judge without necessarily slavishly writing in the text of the international treaty itself?

Lord Windlesham

It may help the Minister if I make a suggestion. He is not going to convince the House, although he is doing his best and no doubt has a lot more to say. Will he be good enough to report this debate to the Home Secretary? Mr Straw was good enough to come and meet members of all parties before the Second Reading debate. He assured us that the views of the House would be given careful attention. I believe I am right in saying that no concession has been made in the course of these lengthy debates. Now, as the Minister must recognise, there is all-party criticism of the provision. I have been in the Minister's position; I know that he cannot go against his brief. However, would it shorten the proceedings if he were simply to say, without any commitment, that he will raise this matter personally with the Home Secretary and see whether he is willing to give it consideration?

Lord Bassam of Brighton

I am sure that both noble Lords are trying to be helpful. I shall try to be positive in my response. First, perhaps I may pick up the point made by the noble Lord, Lord Lester. As I confirmed earlier, there will be guidance on these matters. I understand the temptation to attempt to deal with them on the face of the Bill. It is a temptation for each and every legislator. However, it is not always possible. We are dealing with complex notions of proportionality. I believe that these matters can safely be left to guidance. Although I fully respect and understand the noble Lord's point, that would be the more appropriate course. There will be guidance on these powers and it will include a reference to the rights under the covenant, together with many other relevant factors which will have to be expressed and taken into account in deciding on an appropriate sentence.

The noble Lord, Lord Windlesham, was, as ever, courteous and helpful in his intervention. I can assure the noble Lord that my right honourable friend the Home Secretary reads our debates in Hansard with great alacrity and interest. I shall no doubt feel obliged, having listened to the noble Lord's wise words, to report to the Home Secretary the serious and important issues that have been raised. I know that he will take a close personal interest in the points raised in the Joint Committee report.

Before turning to the remaining amendments, perhaps I may conclude my remarks on the points that have been raised. The Government believe that in the cases of individuals convicted of drug trafficking offences whose lifestyle involves frequent overseas travel for pleasure or other purposes, the imposition of a travel restriction order may be a very effective element in the overall punishment as well as an appropriate and justifiable way of preventing further unlawful activity. So, as my honourable friend in another place, Charles Clarke, has said in other circumstances, this combines the preventive and the punitive. The preventive is what we are after here.

In reference to Amendment No. 66A I have outlined why we reject the conclusion of a reference to Article 12(3).

Amendment No. 67 would enable the courts to suspend the prohibition imposed by a travel restriction order not only on compassionate grounds but also on grounds of a major change in the circumstances of the offender. Suspension is intended to cover circumstances where overseas travel is needed for urgent exceptional compassionate reasons whenever that need might arise after the restriction order takes effect.

This amendment would weaken these provisions. That needs to be understood. The Government believe that the applicable test should be that of "exceptional" circumstances, not merely a major change in other circumstances. For that reason, the Government cannot accept the amendment. We believe that Clause 35 properly balances the need to respond appropriately in genuine exceptional compassionate circumstances with the desire to operate an effective sentencing tool. That is the point from which I began my comments in response to the observations made.

The noble Lord, Lord Carlisle, raised the issue of how frequently we expect such orders to be made—at least, I understood that to be the point on which he was inviting me to comment. This is a discretionary power. Ultimately it will be for the courts to determine how frequently it is used. Our estimate, based on 1998 sentencing data, is that the number of offenders liable to such a ban under these proposals will be in the region of 300 to 400. It is not a large number, but it is significant. It indicates the level of seriousness with which we are attempting to deal in adding this provision as part of the armoury of preventive, effective and punitive restrictions on people's ability to exercise one of those freedoms when they are released from custody.

The noble Baroness, Lady Buscombe, asked for the Government's legal advice to be provided. There is a long tradition of confidentiality, as I am sure the noble Baroness is aware. It is not our practice to publish our legal advice. Colleagues of the noble Baroness, many of whom have had experience in government, will remind her of that point. However, I can assure her that the provision of both the ECHR and the ICCPR were carefully taken into consideration in preparing the provisions in the Bill. That is an important consideration.

I hope that I have dealt with the concerns raised. I apologise if I have not dealt with every single detail. I know that not all Members of the Committee will be entirely convinced of the Government's case. But we have given this matter very careful consideration. We want to see this as part of a package of measures available to the courts. We see this power being used in extreme and profound circumstances, where we believe it will have a long-term and beneficial impact on drug related criminality of a serious kind. We recognise the important issues raised in the deliberations of the Joint Committee on Human Rights. Notwithstanding the important observations that have been made, we resist the amendments.

Lord Carlisle of Bucklow

Before the Minister sits down, will he consider one matter? He said repeatedly in reply to the noble Lord, Lord Lester, that it is the Government's intention that guidance will be issued to the judges as to how the new power is to be used. In view of the separation of powers, how will either the executive or Parliament give guidance to the judges unless it is on the basis of the words in the Bill? That is the point that the noble Lord, Lord Lester, was making. If guidance is to be issued in the manner the Minister has suggested, surely he should at least agree at this stage to consider taking the matter back to the Home Office for a decision as to whether a change of wording is needed in the clauses to indicate to the judges the wishes of Parliament in the appropriate way; namely, through the wording of the statute.

7 p.m.

Lord Bassam of Brighton

There is every good reason for me to take away the contents of this important debate because it has tended to widen the scope of the issue. I sense that there is an acceptance that this is, if you like, the broadening of the range of options available for sentencing. Noble Lords focused precisely on that point. I am, therefore, happy to take away the contents of the debate and to ensure that further reflection is given to the points that have been raised.

However, I should point out to the noble Lord that I drew attention to Clause 33(2)(a). It is within the context of the court considering the appropriateness of this penalty for preventive and punitive reasons that the guidance will be issued. I believe that we can at least trust the executive to offer wise words in deciding what is "appropriateness". I suppose that that returns us to the issue raised by the noble Lord, Lord Lester, about proportionality. Obviously, those issues need to be carefully linked.

Lord Thomas of Gresford

As explained in recent years by the Minister on the Floor of the House, the sentencing judge normally obtains guidance as to how to sentence, first, from decisions of the Court of Appeal in which principles are set out in the interpretation of legislation; and, secondly, from the words of the Act of Parliament. I did not receive a direct answer to my question as to whether there is a presumption that this power is to be exercised in the ordinary case, save in special circumstances that must be outlined.

However, what I did hear from the Minister—it is something that I am sure every counsel mitigating in a case involving drug trafficking will use—is that this power is to be used in "extreme and profound circumstances". I should like that phrase to be underlined three times because that is the expression that the Minister used. Does the noble Lord wish to stick with those words because, from what he has said, that is the guidance that any sentencing judge will take? Alternatively, will he accept reasonable amendments to the Bill as put forward by my noble friend Lord Lester, as well as, it is to be hoped, ourselves and others? Surely it would be far better to have the matter expressed in proper parliamentary language than for counsel to be saying, "Well, when he introduced this power, the Minister, Lord Bassam, said that it was to be used only in extreme and profound circumstances".

Lord Bassam of Brighton

I take the advice offered by the noble Lord to heart. However, I believe that I made the case that such "extreme and profound" circumstances are those where there is a real prospect that the convicted person will be involved in international drug smuggling or in a major crime; and, indeed, may well be a real live "Mr Big". Where it is plain that someone is profoundly involved in major drug-running businesses, we believe that it is important to have this potential power to restrain him from travelling abroad.

It is worth reminding the noble Lord that this is a discretionary power. I thought that I made that plain when I went through the issue of presumption. I should like to make it plain again that there is no presumption that an order should be made. If there is any doubt, I have now made it clear for the record repeatedly: a court will make an order only where it is appropriate to do so. The "appropriateness" is the most important consideration.

Lord Lester of Herne Hill

I shall now break my promise. I have been provoked by the discussion to intervene. Surely the noble Lord, Lord Carlisle, is completely right to say that there is a principle of our constitution under the separation of powers that Parliament makes the law but the courts interpret and apply the law. Here the Minister is asking Parliament to give the courts a statutory power and a duty. The noble Lord said that both he and his colleagues propose to advise judges about how that power is to be exercised.

It is no good relying upon the wretched case of Pepper vHart, which I wish I had never won. I am afraid that that disfigures our proceedings and those of the courts and allows what Ministers say here to be treated in some sense as relevant to the law of the land. It is not relevant. All that is relevant is what is in the Act of Parliament. It is no use the Minister saying that he is to give guidance to the judges. Unless directed by the Lord Chief Justice or by Parliament, the judges would be acting improperly if they were to follow that guidance in their sentencing functions. Therefore, I beg the noble Lord to take away the debate and put the language of the Bill into a proper form in terms of legal certainty, as well as proportionality.

Lord Bassam of Brighton

As ever, the noble Lord is clever in bringing the issue to the fore. I understand very well the point that he makes. As I said earlier in response to the noble Lords, Lord Carlisle and Lord Windlesham, we shall certainly reflect upon the debate. I said so without commitment. However, I believe that the noble Lord, Lord Lester, would accept that there are many areas of law where codes of practice and guidance are given outside the legislation. The legislation provides for the guidance or codes of practice to be made available. Clearly there is an understanding that the courts will interpret the legislation in that light. The noble Lord referred to Pepper v Hart. Yes, that is the case. I can understand the noble Lord's regret. But what we say in Parliament is clearly important and has a bearing on such matters.

I conclude by returning to the point made by the noble Lord, Lord Thomas of Gresford. The power that we are talking about is available only in serious circumstances—that is to say, conviction for a drug-trafficking offence with a sentence of four years' imprisonment. Those are very serious circumstances. Where a major crime is involved, perhaps one of international proportions, where very large quantities of drugs are being shifted into this country, thus ruining the lives of countless thousands of people and destroying the communities that are very much at the heart of our inner-city areas, we are simply arguing that it is entirely appropriate for the courts to have the opportunity to use the discretionary power that we are placing in the Bill. Those are the important issues, some are political and some are juridical. Nevertheless, they are important matters in the context of all issues raised by the Joint Committee on Human Rights.

Baroness Buscombe

I shall be brief. I believe that I speak on behalf of all Members of the Committee when I say that there is no question of any of us wanting to prevent provisions, or measures, that are intended to fight the illegal trafficking of drugs. The debate has highlighted the difficulties of how the powers envisaged in these clauses will be used. We have heard extensive arguments from noble Lords, especially from my noble friends Lord Carlisle and Lord Windlesham. The points that they made are tremendously important.

There are clearly questions that still remain outstanding, particularly in relation to the point about guidance for judges. My noble friend Lord Windlesham was right when he politely put it to the Minister that he should draw this debate to the attention of the Secretary of State and take him carefully through the points that have been raised. There are a number of issues that are plainly fundamental to the clauses. In the circumstances, We shall consider such issues with care in the hope that we can return to them on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 64A and 65 not moved.]

On Question, Whether Clause 33 shall stand part of the Bill?

Lord Carlisle of Bucklow

I made the remarks I wished to make during the course of the debate. I do not propose to speak to individual clauses.

Clause 33 agreed to.

Clause 34 [Meaning of "drug trafficking offence"]

On Question, Whether Clause 34 shall stand part of the Bill?

Lord Carlisle of Bucklow

I spoke to the clause in the earlier debate. As I said, I do not wish to speak to individual clauses.

Clause 34 agreed to.

Clause 35 [Revocation and suspension of a travel restriction order]:

[Amendment No. 66 had been withdrawn from the Marshalled List.]

[Amendments Nos. 66A to 67A not moved.]

Clause 35 agreed to.

Clause 36 [Offences of contravening orders]:

Clause 36 agreed to.

Clause 37 [Saving for powers to remove a person from the United Kingdom]:

Clause 37 agreed to.

7.15 p.m.

Lord Bassam of Brighton moved Amendment No. 68: After Clause 37, insert the following new clause— Permitting use of controlled drugs on premises For paragraph (d) of section 8 of the Misuse of Drugs Act 1971 (c. 38) (offence of knowingly permitting cannabis, cannabis resin or prepared opium to be smoked on premises) there shall be substituted— (d) administering or using a controlled drug which is unlawfully in any person's possession at or immediately before the time when it is administered or used."

The noble Lord said: In moving Amendment No. 68, I wish to speak also to Amendment No 146. These amendments are closely related. I wish to explain why the Government oppose the new clause in the name of the noble Lord, Lord Cope, the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Buscombe.

The amendment to Section 8 of the Misuse of Drugs Act 1971 tabled in my name would have the effect of strengthening police powers to prosecute those occupiers or other persons concerned in the management of premises who knowingly permit the illicit use of controlled drugs on their premises. Section 8(d) of the Misuse of Drugs Act currently makes such persons liable to prosecution if they knowingly permit the smoking of cannabis or opium on their premises. The new power resulting from the proposed substitution of paragraph (d) will extend this liability to the illicit use of all controlled drugs, including, and in particular, crack cocaine. It is therefore a far more comprehensive amendment than that proposed in respect of paragraphs (c) and (d), for it is not just crack cocaine that is used on such premises.

The amendment to Clause 139 of the Bill (Amendment No. 146) is consequential to the Government's amendment. Section 8 of the Misuse of Drugs Act 1971 extends to the United Kingdom. Amendment No. 146 ensures that the extent of the amendment is the same.

The Government believe that the amendment we propose to Section 8 will facilitate police action against closed drug markets such as crack houses. I hope that it will receive general support and I know that calls for such a change have been made by Members of both Houses from all parties.

Under the Misuse of Drugs Act 1971, it is currently an offence for the occupier or manager of premises knowingly to allow illegal drugs to be produced or supplied on those premises. But liability in respect of the use of illegal drugs extends only to the smoking of cannabis or opium. This very much reflects the drug misuse patterns that prevailed at the time the Act was introduced.

Police enforcement success against open street dealing in drugs has led to greater use of "closed" drug markets such as crack houses. Such closed markets present particular challenges for the police, especially with regard to the gathering of evidence sufficient to sustain a prosecution.

The Government have considered measures which would best assist police enforcement and concluded that an amendment to extend Section 8 to the use of all illegal drugs on premises is appropriate—it is not just crack cocaine that is used on such premises. The amendment will assist police enforcement in that where charges of supply or even possession cannot be laid, any evidence on the premises of the drugs themselves or drug paraphernalia discarded there could help construct a charge that the premises had been used for drug taking purposes.

Crack houses are simply one example of closed drug markets. Crack cocaine is highly addictive and users often have to turn to crime to feed their habit. This can be highly destructive for the communities in which such establishments take hold. Making the owners or those concerned in the management of such establishments liable to prosecution will strengthen the police's hands in tackling the problem. The change is supported by the police. The Government are nevertheless mindful that such provision should not go forward without consideration of the need for certain very important safeguards.

Successive governments have undertaken to review Section 8 of the 1971 Act to consider whether its scope should be extended to the use of all controlled drugs. The sticking point has always been the need to incorporate a balancing protection for parents, housing authorities and those in the voluntary and treatment sectors who work with drug misusers. In particular, it is recognised that, in extending the police powers under Section 8, nothing must jeopardise the partnership approach and co-operation that tackling drug misuse self-evidently requires.

The Government have considered whether it would be possible to provide some form of statutory defence under Section 8 but have concluded that this would not be workable as it would serve to confuse the law and be likely to hinder legitimate prosecutions. The issue of guidance in the form of a Home Office circular, agreed with the police and Crown Prosecution Service and upon which relevant government departments and key outside interests would be consulted, is judged to be the best way to proceed. This consultation process would take account of the views of the voluntary, treatment and housing sectors. A commencement order bringing the change to Section 8 into force would not be laid until the guidance was ready to be issued.

We shall ensure that those lawfully entitled to possess controlled drugs will not be affected and we shall issue Home Office guidance agreed with the police and departments with an interest, to ensure that any valid concerns of the voluntary, treatment and housing sectors are addressed.

I hope that the Committee will agree that it is preferable to deal with all controlled drugs in this amendment rather than only with crack cocaine, as in the Opposition Amendment No. 97. I should also say that that amendment is technically defective in that crack cocaine is not a controlled drug under the terms of the 1971 Act. It is simply one form of a substance for which the correct technical term is "cocaine". I believe I am right in saying that it is a derivative. I propose that the measures in my name stand part of the Bill. I beg to move.

Baroness Buscombe

I speak to government Amendments Nos. 68 and 146 and also to our Amendment No. 97. I accept what the Minister said about the difference between the amendment that we tabled on crack cocaine and that of the Government which contains a wider power. We are pleased that the Government are now responding to strong pressure from Her Majesty's Opposition to amend Section 8 of the Misuse of Drugs Act 1971 with regard to an arrestable offence.

These amendments represent the closing of a frustrating, glaring loophole in the law given the now sadly prevalent use of crack cocaine by illegal drug users. Indeed, on 23rd January my noble friend Lady Hanham laid down a challenge to the Government to crack down on crack houses. We were pleased that the Minister was grateful to her for "drawing this out usefully".

In an earlier debate, the noble Lord, Lord Windlesham, alluded to the depressing excuse of the Government in using the word "modernisation" to justify some aspects of the Bill. I suggest that the amendments respond to one of the rare occasions when the word "modernisation" is right. It responds to a problem about which I had not heard a few years ago but is now prevalent and should be dealt with. We are pleased to support the amendment.

Lord Bassam of Brighton

There appears to be an outbreak of cross-party agreement on this. I am delighted that that is the case. It would be remiss of me if I did not pay tribute not only to the noble Baroness, Lady Buscombe, but also to the noble Baroness, Lady Hanham, who made a forceful case. She and others have made representations to the Home Secretary. Representations have come from many sides. As I intimated at the time, there was a great deal of sympathy for the point that she made. We have had some further consultations with the police. They see value in amending the law in the way in which we have brought forward the amendments. I hope that it aids and abets law enforcement in this field. No one should underestimate the evil contained in these crack houses. Anything that can be done to mitigate and confront that evil should be done. For that reason, the Government are persuaded that this is the right way forward.

On Question, amendment agreed to.

Clauses 38 to 40 agreed to.

Clause 41 [Police directions stopping the harassment etc of a person in his home]:

Lord Phillips of Sudbury moved Amendment No. 69: Page 33, line 22, leave out "("the victim")" and insert -("the target")

The noble Lord said: Two amendments in this grouping are advanced by Her Majesty's principal Opposition.

Clause 41 is a vital clause in the Bill; some might think it the most important. In many ways, one might prefer to see Clause 41 dropped. But in the spirit of constructive engagement, this group of amendments seeks to improve the clause by inserting safeguards against misuse of its wide powers.

There is widespread misunderstanding of the extent of present police powers and, hence, of the need for this new power. In particular, we have the Public Order Act 1986. Section 4A, which was introduced in the 1994 legislation, stipulates that threatening, abusive or insulting behaviour which actually or is likely to cause harassment, alarm or distress shall, if there is an intention to do that, be an offence. Section 5 of the Public Order Act 1986 has the same provision save that for a prosecution under Section 5 there is no need for there to be any intention to cause harassment, alarm or distress. Clause 41 of the Bill goes a step further. It creates an offence not only where there is no intention of causing harassment, alarm or distress but in circumstances where the person charged has not used any threatening, abusive or insulting words or behaviour.

The extent of the misunderstanding of the present law seems to extend to the Government themselves. For example, the Home Office Minister, Charles Clarke, said in the House of Commons Standing Committee on 6th March that the powers under Clause 41, would be available to deal with the mobs who have, in recent times, gathered outside the homes of supposed sex offenders … in an attempt to drive them out of their homes". However, Section 5 of the existing Public Order Act provides the necessary police powers to deal with such cases. A mob trying to drive someone out of his home would by definition be using, threatening, abusive or insulting words or behaviour, or disorderly behaviour".

Later in the same debate, Mr Clarke said that Clause 41 might apply to investigative journalists. We should be extremely careful about legislation which would discourage bold journalism in the public interest. There is little enough of it these days. If one tries to fine tune control of the free press one does so invariably at the price of diminishing their freedom. Mr Clarke claimed that Clause 41 would not make it unlawful for journalists to engage in what he called "a classic doorstep". He went on to say that doorstepping, can sometimes be difficult and problematic for the people concerned, but would obviously not be unlawful because harassment, alarm and distress would not arise".

How can one police that fine line? The distinction that Mr Clarke attempted to make with regard to doorstep journalism begs the question. Someone who is guilty of a concealed fraud, for example, might well become justifiably alarmed or distressed by the presence of a determined journalist who is going to stick it out until the fraudster leaves his or her house and can be confronted.

Let us imagine that the grossly defrauded pensioners of the Mirror newspapers had had an inkling of their misfortune while Robert Maxwell was alive. A bit of investigative journalism would have helped then, would it not? Let us imagine that they tipped up at the entrance to Hedington Hall with placards saying, "Pay us our pensions". I believe that that would have been caught under Clause 41. They would be in the vicinity of Mr Maxwell's dwelling. They would be there for the purpose of representing to Mr Maxwell and his neighbours that he should pay their pensions. In the early days it would not have been apparent that Maxwell and his colleagues were guilty of fraud. If the police had had a call from Mr Maxwell saying that the presence of the people at his gate was causing him embarrassment and distress, the police would have felt obliged to act on that; and a policeman may have arrived and told the pensioners to take their posters half a mile away. The wicked will always be the first to utilise legislation of this kind to their advantage if they have half a chance.

What about President Pinochet? Would the objectors have been caught by Clause 41? What about protesters in the vicinity of Nos. 10 and 11 Downing Street?

As no doubt did many other Peers, I received a briefing on Clause 41 from the Countryside Alliance. It stated that recent history proves the sad necessity of these new powers, and gave 10 recent examples of that need. Yet every such example involves violence in respect of which a plethora of existing law provides remedies. Raising one's fist, let alone lowering it, brings into play an offence of assault. The only exception among the 10 examples given by the Countryside Alliance was the one which simply referred, without giving details, to "the homes of shareholders in the company which were targeted". The Public Order Act should and does deal with that.

The problem is that there are insufficient police to ensure compliance with existing law so that new and more draconian laws are introduced in terrorem. As presently drafted, we believe that Clause 41 is dangerously wide. That belief was reinforced in a letter written to me as recently as last Friday on behalf of the noble Lord, Lord Bassam of Brighton, in answer to a query I raised at a meeting last week with Jack Straw. The letter states that the requirements of Clause 41, mean that there should be no question of the police being able to disperse groups of protesters who are innocently and peacefully expressing their views". Yet that is manifestly not the case.

I refer back to my example of the Mirror pensioners. Their innocence would be beyond question. Indeed, they would be the victims in the case of doorstepping one of the Maxwells. That they were peaceful in expressing their views would not help them either. As Clause 41 is drafted, there would be no protection against their being moved away. Because Clause 41 requires no intent to cause harassment, alarm or distress on the part of the so-called victim, requires no threatening, abusive or insulting words or behaviour on the part of the protesters, and needs no objective or actual harassment or alarm or distress by the protester, it is a dangerously wide clause. All it requires is that the bobby on the beat reasonably believes that the mere presence of protestors is likely to cause alarm or distress. The constable's view of that likelihood will have been formed by the fact that he is acting on a complaint.

All that stands in the way of a group of innocent and peaceful protestors being prevented from exercising their age-old democratic rights by Clause 41 is the discretion of a hard-pressed policeman who—I emphasise this point—is likely to arrive at the scene of the protest believing that the legislation requires him to take the view that Mr Maxwell, or whoever called the police, is already a victim.

The police officer will exercise his judgment, not on criminal law tests but, first, on the balance of probabilities and, secondly, on a likelihood—as low a threshold as the law provides. That is all that will preserve a fundamental and ancient liberty. The complexities of Clause 41 make me wonder whether any bobby on the beat who does not have a law degree will be able to make much sense of it.

Before leaving the Home Office letter, I cannot resist pointing out that the Home Office also misunderstands the scope of the existing law. The letter specifically refers to the possibility that the protestors might, start taking photographs of his"— the target's— children". It is far-fetched to believe that a commonsense Bench of magistrates would not quickly exercise their discretion in such a case to interpret such an act as constituting threatening behaviour, because the implications of photographing a child in such circumstances—the Home Office letter deals with animal rights protestors—are likely to carry a threat, which need not be verbal.

The most important amendment in the group is Amendment No. 77, which would insert a defence against a conviction under Clause 41 if the accused can, prove that his conduct was reasonable". That does no more than replicate the defence available under Sections 4A and 5 of the Public Order Act 1986, which deals with more serious cases.

No criminal statute should be tendentious in its language. The clause calls the person against whom a protest is being made—usually the person who will have called the police— a victim. That prejudges the situation. Because the hearing of any charge under Clause 41 will mainly be about whether the accused has victimised the complainant, it is wholly inappropriate to start by calling the complainant a victim. Amendment No. 69 would change that wording. It is notable that the Public Order Act 1986 and the Protection from Harassment Act 1997, which provides another remedy for those who are harassed, studiously avoid such prejudicial language, referring simply to a "person". The only exception of which I am aware is Section 5 of the 1997 Act, which deals with restraining orders, but only against someone who has already been convicted, so the word is aptly used.

Amendment No. 72 would leave out the words, by his presence or otherwise". The Minister may be able to satisfy us that they are essential words, but I do not understand their significance and they clutter an already highly complicated clause.

Amendments Nos. 73 and 76 would insert the word "serious". They would raise the threshold of severity of the harassment, alarm or distress necessary before a policeman can give directions. That would provide some practical protection against inadvertent misuse of that wide power.

Amendment No. 75 would insert the word "reasonably" in subsection (2). That would discourage arbitrary and unreasonable directions being given by a constable. That is desirable—and, indeed, necessary. As the clause stands, the only check on the directions to be given is a purely subjective one—namely, what the constable thinks necessary in the circumstances.

I apologise for having spoken at length but Clause 41 could have a considerable long-term impact on grassroots democracy in this country. It is ironic that we are debating it on the day of the anti-capitalism march. It was introduced late in the Commons in response to the specific case of the Huntingdon laboratories. We are in danger of giving the new power inadequate scrutiny. As Liberty has said of the clause: The nearly automatic reaction to such problems is to get, out the statute book and pencil a few more powers for the police and to create a few more criminal offences". As Simon Hughes said in the other place, the Bill, tilts the balance between the liberty of the citizen and the power of the state. It is another ratchet in the direction of the state".—[Official Report, Commons, 14/3/01; col. 1116.]

When the Home Secretary kindly agreed to meet Members of this House, he concluded his remarks on Clause 41 with the assurance that one could rely on the police to deal with these matters fairly and reasonably. Although that is generally true, it cannot universally be so. If it was, we would not need all the safeguards of our criminal law and process. In these matters, we in this House in particular, insulated as we are from popular clamour, have a clear duty of far-sighted caution on such difficult but vital matters. I beg to move.

Lord Renton

The noble Lord, Lord Phillips of Sudbury, has spoken at well justified length on 10 amendments to Clause 41. This group of amendments deserves a great deal of discussion, which would last a long time. It is normal for the main business of the day to be adjourned at half past seven and any other business to be taken during the following hour. There is an Unstarred Question on the Order Paper and I see noble Lords in the Chamber who may be waiting to deal with it. I therefore respectfully suggest that, instead of continuing with this discussion on Clause 41, we should adjourn for dinner. It happens that on a Tuesday night we have a better dinner than on other nights in your Lordships' House but that is not the sole reason for my suggestion. We have had some strenuous discussions and the noble Lord, Lord Bassam, appears to have left the Chamber. I now see him returning. I hoped for his sake that he had left. I respectfully beg to suggest that further discussions on the Bill be adjourned for the dinner break.

Lord Davies of Oldham

I am grateful to the noble Lord for that intervention. I had anticipated that the debate on these amendments would be somewhat protracted, but we reached the group at an awkward time and I was not sure that everybody was present for the next item of business on the agenda. Starting early might have caused some embarrassment to the House. I have just seen an approving nod from the noble Lord, Lord Phillips, who would be most disadvantaged by an adjournment at this stage. He has spoken eloquently, but we shall have to respond to his eloquence somewhat later than we would otherwise do. He appears to approve of the noble Lord's suggestion, so I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.40 p.m.

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

House resumed.