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The Government have sought to explain to both Houses that numerous recent statutes refer to both crime and disorder, including the Serious Organised Crime and Police Act 2005, the Licensing Act 2003 and the Anti-social Behaviour Act 2003. The Crime and Disorder Act 1998 refers to both crime and disorder as distinct concepts. The courts have demonstrated that they are perfectly capable of deciding what does, and what does not, constitute “disorderly behaviour”.
It is important that we do not remove the word “disorderly” from the Bill. We should not lose sight of the aim of this new measure, which is to help achieve a culture change in binge drinking, to discourage unacceptable alcohol-fuelled behaviour, to deal appropriately with such behaviour when it occurs and to protect people from harm caused by alcohol-related disorderly behaviour.
We understand that there is a difference between us. We do not accept the noble Lord’s argument. We think that we have the balance about right on this offence. We know that similar anti-social behaviour measures work well and that there is widespread public support for them. I therefore suggest that the noble Lord withdraw the amendment.
Lord Thomas of Gresford: My Lords, I think it was the late, lamented Linda Smith who said that you can’t take ASBOs away from people—it’s the only qualification some of them are going to get. I can see that the DBO comes into that category. It is poor in principle that the Government confuse civil and criminal procedures in relation to both ASBOs and these new drinking banning orders. It is important that criminal behaviour, which carries a public stigma, should be clearly distinguished from other behaviour which—although it may not appeal to everyone and may appear disorderly to some; if it is not criminal—should not be punished as if it were a crime.
I have made my point twice, and made it extensively. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved AmendmentNo. 2:
The noble Lord said: My Lords, Clause 1(3) states:
“The prohibitions imposed by such an order must include such prohibition as the court making it considers necessary, for
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or a club premises licence. The purpose of this small amendment is to provide a check to the magistrates or to the county court where the order is made, not to impose excessive restrictions upon an individual. The use of the word appropriate in the amendment is intended as guidance to the decision taker that it is not enough to impose a simple ban and that it must be considered in all the surrounding circumstances. I beg to move.
Lord Bassam of Brighton: My Lords, the amendment seeks to tighten the prohibitions that can be imposed by a drinking banning order. The same amendment was proposed in Committee. Clause 1(3) states that prohibitions by such an order must include such prohibition as the court making it considers necessary on the subject entering licensed premises.
I recognise from our discussion of the amendment in Committee that the noble Lord was seeking to provide guidance to magistrates or the county court on the appropriateness of an order. His intention is to require the court to consider whether the terms of the order are appropriate.
Such a test before a prohibition could be included in an order is unnecessary, because if a prohibition were inappropriate it could not be necessary. I would expect the courts to consider in every case the appropriateness of an order and any proposed prohibition. The drinking banning order guidance that will be published to accompany the measure will make clear the circumstances in which certain prohibitions would be inappropriate. Some of the areas where prohibitions should not be proposed are already provided for in the Bill. I have also given a commitment to this House to include others in guidance—for example, prohibitions should not be imposed if they would prevent an individual taking his child to a place where he may receive medical treatment. Some of those issues were discussed along those lines at an earlier stage. Therefore, I believe that the amendment is unnecessary and I hope that the noble Lord will withdraw it.
Lord Thomas of Gresford: My Lords, I am glad to hear that guidance is to be given to magistrates and the county courts on the circumstances in which an order such as this would be made. In the light of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved AmendmentNo. 3:
“(4A) Before making a drinking banning order, a court must receive a report from an appropriate officer about the proposed subject of the order, which contains information about the subject and, in particular, about whether there is any reason to suspect that he may be-
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(4C) If the court determines that the proposed subject of a drinking banning order may be a person falling within subsection (4A)(a) to (c), the court shall not make a drinking banning order unless satisfied, on receipt of medical evidence, that-
The noble Lord said: My Lords, this amendment was put forward in Committee. At that time, I understood that the Minister was somewhat favourable to the idea that, before making a drinking banning order, reports should be made to the decision-maker, whether the magistrates or the county court judge. I have repeated it in the hope that I might hear a little more from the Minister on this subject. Again, I look for an assurance that the need for reports will be contained in guidance. If I get that assurance, I shall not pursue this matter further. I beg to move.
Lord Bassam of Brighton: My Lords, I hope that I can reassure the noble Lord and I shall take a little time dealing with his amendment for that very purpose.
The amendment would introduce further safeguards to the process of making a drinking banning order. It would mean that any court considering making an order must first receive a report from an appropriate person on the subject’s mental and physical health and on whether he or she has any substance addictions. As the noble Lord said, we have discussed this amendment before, and I assure the House that the Government understand the terms in which it has been tabled. We have also considered the matter further, as I said we would and as the noble Lord alluded to, but we concluded that an amendment was unnecessary, and I shall expand on why we believe that to be the case.
There are two main routes for seeking a drinking banning order. The first is on application to the magistrates’ court. Prior to making such an application, there is a statutory consultation phase. The police would need to consult the local authority,
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It should be at that stage that an individual’s vulnerability is considered—that is, before an application is made. If the individual is considered to be vulnerable, such as suffering from alcohol addiction or mental health problems, an assessment can be made of his or her circumstances. I have previously mentioned to the House that local authorities have a duty to do that under the National Health Service and Community Care Act 1990. Where appropriate, the necessary alternative support should therefore be provided under the duty of that Act.
Therefore, for drinking banning orders made on application, it is unlikely that an order will be sought for someone suffering from alcohol addiction or mental health problems. In our view, such issues should be identified at an early stage prior to making any application. Where the court has concerns that a drinking banning order may not be appropriate due to an individual’s vulnerability, it can of course decide against an order or seek a report of its own volition.
The second main route where an individual could be subject to an order is on conviction in criminal proceedings. In such cases, the individual is before the court for a criminal offence. The individual’s vulnerability—if the court needs to consider that as an issue—is likely to have been considered in relation to the main offence. It is open to the court to seek a report on its own volition in that respect. In that case, such a report could be a factor in the consideration of a drinking banning order, which would be post-conviction. Therefore, again in this respect, the amendment is unnecessary.
3.30 pm
The noble Lord, Lord Thomas of Gresford, asked in Committee, on 26 April at col. 165 of the Official Report, whether it is intended that drinking banning orders will be applied to rough sleepers who are alcohol dependent or drug dependent. I think my earlier points cover that issue. However, with respect to individuals who are dependent on drugs, I can tell noble Lords that drugs do not come within the conditions that have to be reached to apply for a drinking banning order. Those conditions, as set out in the Bill, are that the individual has engaged in criminal or disorderly conduct while under the influence of alcohol and that an order is necessary to protect others from further conduct by him of that kind while he is under the influence of drink. So we do not foresee an application being made for a drinking banning order where the individual is solely under the influence of drugs.
With regard to rough sleepers who are alcohol dependent, drinking banning orders are unlikely to be suitable for someone who has an alcohol addiction problem and this should be identified at an early stage, as I made clear earlier. However, with regard to rough sleepers, noble Lords will want to be aware that in 2003 local authorities were required to develop and put in place homelessness strategies. Under those, they were obliged to take into consideration the needs
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We would expect rough sleepers to be assisted under existing arrangements rather than being given a drinking banning order unless it was appropriate to do so. Although I cannot give an assurance, as the noble Lord requested in Committee, that guidance will provide that a judge must consider whether a report is necessary and call for it, I can give an assurance, as I have done to date, that these issues will be very carefully mapped out and covered in guidance on drinking banning orders. Those issues will be dealt with very clearly and carefully in guidance so that the courts are well aware of what they need to do when considering such issues. I hope that, having heard that assurance, the noble Lord will be encouraged to withdraw the amendment.
Lord Thomas of Gresford: My Lords, I am grateful for the very full reply which the Minister has put forward to meet our concerns about the vulnerability of people who might be subjected to drinking banning orders. He has rightly covered the position of drug users and rough sleepers. It seems to me that rough sleepers in particular are inappropriate people to be made subject to such orders because they would be incapable of keeping them and would very quickly end up committing the criminal offences which I have discussed with your Lordships. I am sorry that the wise words of the Minister will not be official guidance, but I hope that much of what he says will find its way—and I see that he nods—into the instructions given to chief police officers and to local authorities when such orders are being contemplated. I hope that no circumstance will arise when inappropriate drinking banning orders are made. On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Orders on an application to magistrates' court]:
Lord Thomas of Gresford moved AmendmentNo. 4:
The noble Lord said: My Lords, I apologise to your Lordships for rising to my feet so much on this matter. We are concerned that applications can be made for individuals who are aged 16 or over. Ever since 1933, the courts have drawn a distinction between adults and juveniles under the age of 18—at first it was under the age of 17 but that age has been raised. It is regrettable that again a route to a criminal conviction is opened up to juveniles in this age group. I will no doubt be unable to convince the Government of that, but I put it forward again as a matter of
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Lord Campbell of Alloway: My Lords, if a court has to consider, some guidance ought to be given about how it should consider. I think that this is necessary. I would have supported the first amendments but I was engaged by the noble Lord, Lord Bach, outside the Chamber.
Lord Bassam of Brighton: My Lords, perhaps I should talk to the noble Lord, Lord Bach, about that, or a drinking banning order—but no!
The noble Lord, Lord Thomas of Gresford, is right that he will not be able to persuade me, and for good reason. Noble Lords will have heard similar arguments put before and, as I have explained before, our consultation paper Drinking Responsibly proposed that drinking banning orders should apply to those aged 16 years or older. That basically reflects published evidence from the Prime Minister’s Strategy Unit, in the alcohol harm reduction strategy’s Interim Analytical Report, that those aged 16 to 24 are more likely than all other age groups to binge drink. The British Crime Survey tells us that, in alcohol-related assaults, offenders generally tended to be aged 16 or older. The noble Lord, Lord Thomas, generously accepted that that is an important point.
Findings on underage drinking in the 2004 Offending Crime and Justice Survey, published on2 June 2006, provide further evidence in support of setting the age at 16 and above. The survey looked at the prevalence and patterns of underage drinking and the link between underage drinking and offending and disorderly behaviour. It found that 59 per cent of 16 to 17 year-olds reported having tried to buy alcohol from pubs and bars and just under half—47 per cent—from shops in the past 12 months, and most had been successful on at least one occasion. The survey also reported that those who drank alcohol once a week or more committed a disproportionate volume of crime.
The Government believe that raising the age at which an order can apply to 18 does not address the real problem of underage drinking and would enable young people to escape the consequences of their actions. Indeed, the amendment fails to recognise that an order may be appropriate to protect other persons from this type of conduct. I would therefore not want to undermine the use of drinking banning orders by restricting them to those aged over 18.
Amendment No. 11 would limit fines for breach of a drinking banning order to those aged 18 and over. As I explained in Committee, I cannot see the benefit of the proposed amendment. It would mean that those aged under 18 would not be punished for breaching an order, and I do not think that that is a desirable position. I do not want to see anything that undermines the effectiveness of drinking banning orders. These amendments would do that, and I urge the noble Lord not to press them this afternoon.
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Lord Thomas of Gresford: My Lords, this is another issue on which we will not agree. The policy of my party is to protect young people, and that is what has led to the next amendments that I will move. I am sorry that there is a breach of that principle by these clauses. However, I appreciate that it would be fruitless to take the matter any further. I therefore beg leave to withdraw the amendment.
Clause 4 [Orders in county court proceedings]:
[Amendments Nos. 6 and 7 not moved.]
Clause 7 [Supplementary provision about orders on conviction]:
Lord Thomas of Gresford moved AmendmentNo. 8:
The noble Lord said: My Lords, at this stage the House might have expected to have heard from the noble Baroness, Lady Anelay, but since she has not moved Amendment No. 6, it is me again.
This is the “name and shame” part of the Bill. The idea is not simply to make an order, but to publicise it in the press and, I presume, by photographs and posters, if necessary. That may be appropriate for an adult, but we do not think it is appropriate for juveniles.
I have already referred to the Children and Young Persons Act 1933. In that Act, significant restrictions were placed on the report of proceedings in which children and young people were concerned. Your Lordships will be aware that even in the most serious cases, the identity of young people was protected both at charge and after conviction. Only with charges such as murder or rape does the judge permit the identity of a person under 18 to be disclosed to the press. That being the case, why do we have the change in the Bill?
I was looking to see what was said about publicity in 1932, when the Children and Young Persons Act passed through the House. I could not find the precise passage where it was discussed, but to give your Lordships some idea of the position at the time, the Act abolished the whipping of young people. That received a certain amount of opposition in your Lordships' House. My noble friend the Earl of Glasgow’s forebear, the then Earl of Glasgow, said:
- “whipping would be a better thing for a boy than being sent to prison. I am quite sure that the noble Viscount”—
that is Philip Snowden, for the benefit of Members opposite—
- “himself would never have reached the high position he has reached in the estimation of his countrymen if it had not been for castigation in his youth. What is there against whipping? They say that it has a hardening effect, but when I look round your Lordships' House—and I doubt that there is any one of your Lordships who has not been whipped at some time of his life—I see no sign of that hardening process among your Lordships”.—[Official Report, 26/5/32; col. 486.]
I think I can say the same thing today.
That was the climate in 1932 and in that climate it was decided that it was inappropriate for young people to be subject to publicity and to have their
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