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Jim Sheridan: If memory serves me right, in Committee, when we discussed what constitutes "disorderly" behaviour, the example that was given was six youngsters under the influence of alcohol outside someone's house. The hon. Gentleman says that such people are simply exhibiting high spirits. Would he tell a constituent who complained about such a situation that the youngsters in question were just in high spirits, or that they were being disorderly?

Mr. Malins: I say now exactly what I said in Committee. Let us consider the example of six 18-year-old youngsters who have been to a 21st birthday party and are under the influence of alcohol. [Interruption.] Let me finish this point. Let us say that there are some high spirits and that—in keeping with the example given in Committee—they were making a bit of a noise running across the road. If it is not a criminal offence, it does not deserve the sort of sanction that this Bill provides for. That is why we have the criminal law, by the way. There are many decent, high-spirited people who behave in ways that do not break the law, and as far as I am concerned, let them do so. The law is the law, and normal high spirits should not—I repeat, not—be punished by a drinking banning order, which is a very punitive measure indeed.

Jim Sheridan: Is that what the hon. Gentleman would tell his constituents?

Mr. Malins: Yes, it is. I would tell them that normal high spirits are entirely to be accepted. If the hon. Gentleman is saying that under his Government, normal high spirits should be punished by a punitive order, I disagree with him wholeheartedly.

Mr. Kevan Jones (North Durham) (Lab): Two weeks ago, a constituent came to my surgery who is being
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plagued week in, week out by a group of youngsters consuming large quantities of alcohol. The hon. Gentleman describes such behaviour as high spirits, but my constituent does not, given that she is being woken up at 2 and 3 o'clock in the morning. Are the Conservatives now happy for law-abiding people such as her to be kept awake all night by "high spirits"?

Mr. Malins: Oh dear—the hon. Gentleman misses the point altogether. The people keeping that person awake all night are almost certainly drunk and disorderly, and the police—[Interruption.] Forgive me, is the hon. Gentleman saying that those people are not disorderly?

Mr. Jones: My constituent is saying that week in, week out, she and her neighbours are being harassed by people who are perhaps not completely drunk according to the hon. Gentleman's argument, but who are clearly causing a nuisance in that neighbourhood. Is he saying that such behaviour is acceptable?

Mr. Malins: The hon. Gentleman, who was a valued member of the Committee, is not doing himself justice. If the conduct amounts to a criminal offence, it is a criminal offence. I am in no doubt that he is familiar with sections 4, 4(1)(a) and 5 of the Public Order Act 1986, and he will doubtless intervene to tell me whether he believes that they cover the situation about which he is talking. [Interruption.] Does he want to tell me what he thinks about my observation that those sections apply? Yes, he does.

Mr. Jones: Anyone can be a clever lawyer—there are too many in this place—but the point is that this Government are trying to tackle disorder on estates. Frankly, by referring to such hooligan-style behaviour as "high spirits" the hon. Gentleman shows just how out of touch he is.

Mr. Malins: The hon. Gentleman is letting himself down time and again, and I will be doing him a service if I do not give way again. I repeat: the behaviour that he is talking about is a criminal offence, and what we want is proper enforcement of the existing criminal law. We need to distinguish between criminal acts, and high spirits that do not amount to a criminal act. If such behaviour amounts to a criminal act, let those guilty of it be prosecuted; if it does not, there is no point in a harsh sanction.

Jeremy Wright: Does my hon. Friend agree that the sort of behaviour that Labour Members are describing sounds very much like antisocial behaviour? If that is so, is not an ASBO the appropriate remedy?

5 pm

Mr. Malins: My hon. Friend is right. If the behaviour is not thought by the police to warrant prosecution in a particular case, an ASBO is a relevant application.

Jim Sheridan: May I also let myself down by asking the hon. Gentleman to clarify the difference between high spirits and disorder? Will he give a practical example of what the difference is?

Mr. Malins: I shall link drunk and disorder, which is an offence. I have already said that the number of
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prosecutions is lamentably low for that offence. The hon. Gentleman must understand that there is a difference between something that is not an offence and something that is an offence.

Jim Sheridan: What is the difference?

Mr. Malins: If a person in the street is drunk—I cannot make it much simpler than that—and is then disorderly, that is an offence of being drunk and disorderly. [Interruption.] The line lies where the police and the courts—thank God, we still have the courts—choose to draw it. Genuine high spirits, which do not amount to someone being drunk and disorderly, are not a criminal offence. I hope that the hon. Gentleman understands that.

Bob Spink: Is not a material factor the regularity with which the bad behaviour takes place, which is damaging a community's quality of life? If there are high spirits on one occasion, that is one thing; if there is repeated bad behaviour in a particular area, that should be tackled by the use of ASBOs.

Mr. Malins: My hon. Friend is right. I cannot make the point to Labour Members more clearly than I have. If there is an offence under the Public Order Act 1986 or under any other legislation, it should be prosecuted. If there is no offence, there should be no prosecution. We must never forget, as my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) has said, that there is the availability of the ASBO, which if granted—

Mr. Kevan Jones: The Opposition were against ASBOs.

Mr. Malins: The hon. Gentleman was not, I think, a member of the Committee that considered that Bill, so he is not able to say that. If an ASBO is made and it is breached, that can result in a custodial sentence.

First, the reality is that we have a huge amount of alcohol-related violence, and it is becoming worse by the month under the Government. Secondly, there is no doubt that there is a huge amount of existing law relating to drunken violence that is not being enforced by the police. Thirdly, an ASBO covers the process that the Government want to include in their new Bill. We need only to amend the ASBO legislation to permit orders to be made for a shorter period of three months. In one fell swoop we would overcome the Minister's apparent objection in Committee.

The Minister must understand that the purpose of the orders is to ban people from purchasing, or attempting to purchase, alcohol rather than entering premises that may have a particular licence. I know that the hon. Member for Hornsey and Wood Green (Lynne Featherstone) will be making her comments on behalf of the Liberal Democrats on amendment No. 28. I have much sympathy with that amendment and I hope to be able to respond to her as the debate progresses.

Lynne Featherstone : I shall speak to amendments Nos. 28 and 30 and comment on other amendments in the group. With the permission of the House, Mr. Deputy Speaker, I shall probably put amendment No. 28 to a vote at the appropriate time.
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Amendment No. 28 is an attempt to ensure that a drinking banning order is not applied inappropriately—a point that, to some extent, we discussed in Committee. There are cases where an individual, through a number of conditions, is rendered incapable not just of complying with an order, but of understanding it. In such cases, a person may suffer from substance addiction, including alcohol dependency, or have a mental condition such as Asperger's syndrome or Tourette's syndrome.

The amendment that we tabled in Committee stated that a court "must" have a report on each individual who appears before it. The Minister argued that the paperwork involved would create too heavy a bureaucracy and delays would occur. She said that drinking banning orders were meant to be a quick and effective punishment without being as cumbersome or severe as antisocial behaviour orders, which carry a much longer and more severe penalty.

As suggested by the hon. Member for Woking (Mr. Malins) in Committee, the amendment now says that courts "may" ask for a medical report so that they can be satisfied that the individual can understand and comply with a drinking banning order. I was persuaded by the Minister's argument about bureaucracy, and she offered to include in the guidance the need to consider asking for a medical report. On reflection, however, I decided that simply to place it in guidance is not enough of a safeguard for an individual who is thus incapacitated. I have modified the amendment to put the measure on the face of the Bill to ensure that all courts and advocates refer to it and recognise its relevance.

Guidance for mental health problems is used to support antisocial behaviour order legislation, but it has not worked. One does not have to look far to find examples of ASBOs being served inappropriately. The British Institute for Brain Injured Children provided me with many examples, one of which in particular stuck in my mind. A 14-year-old boy was given an ASBO that included a curfew. He had to stick to it, but he had a mental age below that of a seven-year-old and could not tell the time. The boy and his family needed help to deal with their problems, and an ASBO was inappropriate in enabling them to receive guidance and support.

With the amendment changed to "may" instead of "must"—I hope that the Minister is in a good mood—the judiciary would be able to avoid using a drinking banning order inappropriately while ensuring that the process was still quick. A doctor or GP should also be able to give their opinion to a court to speed that process further. If drinking banning orders are to work in the way envisaged by the Government, they should be swift procedures, more akin to parents grounding their naughty children. It should be a short punishment that is not meant to last a lifetime but to shock them into realising the error of their ways. We need to be sure that the vulnerable are adequately and properly protected.

Amendment No. 30 returns to the issue of publicising individuals who are subject to a drinking banning order. The Government want to disapply the blanket ban on the publication of names and photographs of defendants under 18. We think that that contravenes the United Nations convention on the rights of the child. That is applied to the criminal law, and we are considering the civil law, but such publication would break with the spirit of the convention. We want to protect young people.
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I was surprised by the Minister's view in Committee that it was appropriate to put photos and names in the press. She argued that if I wanted the measure enforced, I should be happy with that, because the more publicity that names and faces received, the more likely it would be that the individual would be recognised going into an area where he should not be. However, it would be far more appropriate to give that information to interested parties, such as licensees, local authorities and police, rather than pillorying those people in the press.

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