Crime and Disorder Bill [Lords]

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Mr. Malins: I understand. Much of what I said a day or two ago has been cleared up by the Minister's comment that the Bill is intended to deal with criminal or sub-criminal behaviour a term that we can never define, although the Minister thinks he knows what he means by it, and I hope that we think we know what he thinks he means by it. Clearly, the Bill is not meant to deal with the kind of oddball behaviour that I referred to the other day, which goes on in any free society and which should not be stamped on.

The Minister is concerned with criminal behaviour, or something pretty well adjacent to it. Many hon. Members might ask why that could not be dealt with under existing law. Much of the conduct mentioned in the papers that were given to us overnight is, of course, criminal. However, the Minister has presented reasons for his approach this morning, and given an example in which criminal proceedings might not be appropriate. Therefore, I understand his argument, even though uncertainty remains in my mind.

It is a pity that under the Bill an isolated act of quite lawful behaviour, by which the defendant intended no harm, could result in an order being made. However, the Minister has made it clear that that is not the purpose of the measure. One hopes to goodness that no such application would ever be made. It is worrying that a policy decision would be needed whether to proceed with an anti-social behaviour order. The Minister says that the conduct that he wants to have dealt with amounts often to criminal conduct. Assuming that someone committed what appeared on the face of it to be a criminal act, the decision whether to apply for an anti-social behaviour order could be made by the local authority alone. It seems to me that the authority would not need the consent of the police; nor would it have to consult the Crown Prosecution Service. It would merely have to consult the police.

It would be possible for certain local authorities to adopt a policy towards a type of behaviour, though their staff lawyers would probably not be experienced in criminal matters, but better versed in planning law. The authorities would make policy decisions on criminal acts, without being subject to CPS guidelines, or having appropriate legal training or the necessary expertise. The result would be fortunate for those we might call the defendants in some parts of the country, where an anti-social behaviour order would be made against them for acts which elsewhere would lead to a criminal case being brought.

I should be intrigued if the Minister would confirm that so long as the person concerned abided by an anti-social behaviour order, the order would form no part of his or her record, could never be referred to by the courts as part of an antecedent history and would never have to be compulsorily disclosed on a job application form. If my hon. Friend the Member for Hertsmere and I were living in the boroughs of Hertsmere and Woking respectively, our conduct could be equally outrageous but I could walk away with a criminal record and he might not. It is the unpredictability that troubles me and I should be grateful if the Minister could deal with that. I need go no further at this stage.

I appreciated the way in which the Minister approached the various questions that we raised on Tuesday. The position is not wholly clear and I am not sure that it ever will be, but we are much better informed this morning.

11.30 am

Mr. Michael: It might be helpful if I dealt with that point. The hon. Gentleman has a remarkable talent for constructing a series of points that turn into a chain of intriguing questions that are difficult to deal with separately.

There must be consultation. The clause makes it clear that either the police or the local authority can apply for an order, but the clause states:

    "A relevant authority shall not make such an application without consulting each other relevant authority."

The intention is clear for the courts. The courts would need to be satisfied that that procedure had been followed. Local authorities must consult the police who are responsible for deciding to take criminal proceedings, and they might say that criminal proceedings were more appropriate. In some circumstances both might be appropriate.

I reiterate that an anti-social behaviour order would not be part of a criminal record. The purpose of the guidance is to iron out local variations. I am certain that the courts would deal with any of the extreme aberrations described by the hon. Member for Woking. Paragraph 3.4 of the guidance I appreciate that hon. Members will wish to look at this in detail makes it clear that the Crown Prosecution Service is not directly involved in applications for orders, but that it will be involved in prosecution for any breaches.

There is a recommendation that the CPS should be consulted in an advisory capacity when strategic discussions on the formulation of an area strategy take place on issues relating to proof of breaches such as the wording of orders, and to ensure that arrangements are in place to deal expeditiously with breaches.

As part of the local partnership to cut crime, police and local authorities may discuss the use that they might make of orders. Exceptionally, there may be occasions where the views of the CPS on an individual case are useful. If there is doubt about the intention set out by Parliament and in the guidance, it may be sensible for the local authority to ask the CPS for its opinion. Such advice would help to supplement the guidance.

Mr. Stinchcombe: I have a simple point of clarification which I hope my hon. Friend can deal with at some stage, perhaps in correspondence. The guidance is of critical importance: it directs people with wide discretion and it provides the protection that Opposition Members seek. Where is the statutory provision that empowers the Secretary of State to issue guidance and amend it, and where is the statutory provision that requires people to take it into account?

Mr. Michael: The guidance does not require a statutory provision. There are sometimes legal requirements on the Secretary of State to issue guidance. In other words, the legislation is not implemented until that guidance is in place. We made it clear that we would issue guidance and publish it as quickly as possible to enable the House to consider it and examine the details of the intended use of such orders. That is why we have presented the draft now. I emphasise that it is only a first draft. I should be happy to consider and respond to any matters that hon. Members might like to raise.

I hope that we shall deal satisfactorily with the major issues in our debate, but I am happy to consider further points.

Mr. Clappison: I should perhaps have begun by welcoming you to the Chair, Mr. O'Hara. On Tuesday, I said that I was delighted to serve under you, and I express the same delight today.

I am pleased by the form if not the content of the Minister's response. We are considering serious issues, to which the Minister provided a full and considered response. However, several matters remain outstanding.

The Minister's comments justified many of the later amendments that we have tabled. He said that the orders should not be used primarily in neighbours' disputes. We have tabled an amendment about that. I do not want to stray out of order; therefore we shall return to the matter later. That also applies to discrimination. The Government promised in the consultation paper that the Bill would include an anti-discrimination provision.

We discussed human rights issues on Tuesday. I do not want to speak for the distinguished academics from whose document I quoted, but I suspect that they would not be entirely satisfied with the Minister's comments today. They may welcome what has been said about legal aid, as will members of the legal profession. I declare an interest as a member of the Bar. I do not know whether the fat cats will see the measure as an opportunity to get more cream, but it is more likely to provide semi-skimmed or skimmed milk! The hon. Member for West Lancashire (Mr. Pickthall) is very interested in fat cats. He has managed to restrain himself from asking questions about the extra provision of legal aid.

The Minister's comments about a provision in another place for a defence by an individual of being able to show that his behaviour was reasonable in all circumstances will not allay all the anxieties that have been expressed, especially as the individual will bear the burden of proof. We shall return to that point, which is not the real bone of contention between the Government and the academics.

The academics are worried about the sweeping definition of anti-social behaviour, the standard of proof and the legal procedures, which provide an opportunity for the defendant to test the evidence against him. We shall also return to that point later.

It is inevitable that we should return to the definitiion of behaviour that will justify or qualify for an order. We read the consultation paper with interest. In its completed form, it will be available as guidance for councils and police authorities when they consider whether to apply for orders. However, it will not be available to the courts. They may hear about the Minister's comments today, but when applications are made to the courts, they will not have the benefit of the guidance.

Many magistrates have expressed anxiety about operating the provisions of the Bill, and about how they will know what constitutes the anti-social behaviour that they are supposed to tackle. They are worried about the width of the definition. Nothing in the Bill will assist them. Anti-social behaviour is defined in the Bill entirely by reference to its effects. The Minister referred to previous legislation, but that was always qualified by definition of the behaviour that was to be covered. The type of behaviour that the Public Order Act 1986 covered was spelt out in that measure. A magistrate who has to deliberate on an application for one of these orders will find no guidance in the Bill about the type of behaviour that he is supposed to be considering.

We appreciate that the Government's intention is to deal with behaviour that is mainly criminal if I may paraphrase the Minister's words but there is nothing to exclude an application for an order relating to non-criminal behaviour. The Minister referred to the need for evidence and said that the behaviour should form part of a pattern. However, the important matter is whether the acts are criminal or non-criminal. Non-criminal behaviour could be brought within the ambit of the orders. An order could be applied for, and granted, against behaviour that was entirely lawful under criminal law or, indeed, under civil law, when used to obtain a civil remedy.

With masterly understatement, my hon. Friend the Member for Woking said that he was still a little dissatisfied with some aspects of the Bill. He originally described the Bill as a dog's breakfast and as a piece of pick 'n' mix legislation. That was not entirely wide of the mark.

The Minister made some important remarks about juveniles, which were also included in the guidance.[Mr. Clappison] However, I was not aware that the Government had stated that there would be restrictions on applications regarding juveniles. There is no mention of that matter in their consultation paper. Paragraph 24 of the paper stated:

    "It is proposed that a community safety order would be available against any person over the age of criminal responsibility."

There is no suggestion that there would be qualifications on such orders.

 
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