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Lord Williams of Mostyn: I shall respond to both Amendments Nos. 16 and 17. In answer to the specific question of the noble Viscount, Lord Bledisloe, there is no power at the moment for an interim order. There are two answers to the problem. First, since we have the original filter that a private individual complainant cannot make use of this procedure and it has to go through the local authority and the police first, one would expect the necessity for interim orders to be limited. However, I am bound to say that the noble Viscount raised an interesting question and I undertake to give thought to it.

On the substance of Amendments Nos. 16 and 17, perhaps I may explain how we view the order. We have included in the clause a minimum duration of two years to emphasise the very serious nature of the order. A number of noble Lords have been good enough to support the Government's stance in recognising the problem and also rightly indicating that it is a novel step and a serious action which affects the individual and therefore ought to be marked with a minimum duration which will indicate to the appropriate authorities--the local authority and the police--how they are to deal with these matters. In other words, this tells them not to seek orders lightly or for trivial incidents but where there is a real problem in a particular locality. In many ways they are a last resort before criminal sanctions.

Replying specifically to the noble Earl, it is important that the minimum duration is not set in stone. He will see that the order can be varied before the end of the period. What we have done is to introduce flexibility within our overall scheme. Under Clause 1(7) the applicant--the local authority or the police--or the defendant,

"may apply by complaint to the court ... for it to be varied or discharged by a further order".

So we have the flexibility there. There is variation or discharge by a further order. Subsection (8) states that no order,

"shall be discharged before the end of the period of two years beginning with the date of service of the order",

except with the consent of both parties. It is important to bear in mind that the parties there referred to are the applicant and the defendant. So it is not the individual complainant, as it were, who has the right to agree or disagree.

Lord Henley: If the noble Lord is seeking flexibility, rather than pursuing the amendments that we have

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pursued, might it not be better to follow the line that his colleagues north of the Border are suggesting? I refer him to Clause 20(7), which states:

"An order to which this subsection applies-- (a) shall have effect for a period specified in the order or indefinitely",

which seems to give the courts there the absolute flexibility which the noble Lord seeks and certainly far more than he is giving to the courts in England under the provisions for England.

Lord Williams of Mostyn: The difference between practice north and south of the Border is that, historically, we have dealt with these problems differently. We have scrupulously gone out to consultation within our jurisdiction--I say that without disrespect to the former Lord Advocate--and it received wide support. Views differed north of the Border particularly vis-a-vis the respective involvement of the police authority and the local authority. What we have here is a scheme that gives a minimum duration of two years. In other words, it is saying to the police, to the local authority and to the court, "Do not use this tool except in circumstances where it is manifestly justifiable".

Circumstances may change. The noble Earl was good enough to say that at least two Members present in your Lordships' House had grown up to be mature and were no longer yobbish.

A noble Lord: Only two?

Lord Williams of Mostyn: Only two were mentioned. It was a very discreet separation of the sheep from the goats.

After the two-year order has been imposed, with these indicators specifically relevant to them--in other words, one is saying to the applying authority "this is serious"; one is saying to the court and the defendant that it is serious and reflecting to the local community that all relevant participants are taking its seriously--if appropriate, then the applying authority and the defendant, can go to court and agree on a limitation of time. I repeat, if the defendant refrains from antisocial behaviour of such seriousness that it has justified intervention and court sanction, he will have no criminal record and the obligation only to behave lawfully. That is the virtue of having a civil order.

The minimum duration is not a burden on any individual unless he or she wishes to restart the previous pattern of activity. As I said a moment or two ago, we consulted widely on the proposed two-year minimum duration and received widespread support. We believe it to be an important part of the order. I stress that if a court does not believe that a case has been made out for the minimum period of time, it is better not to make an order at all.

As regards Amendment No. 17, I repeat what I said earlier in response to the noble Lord, Lord Henley, and his general review of Clause 1. This is not a tool to deal with petty irritations, grievances or disputes between neighbours. The minimum duration is a mark of

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seriousness. We believe that everyone will understand that our scheme is intended to be a serious remedy for a serious problem. There is flexibility, but that lies within the scheme that we have set. It may seem harsh and severe, but I believe that it will not be such in practice. We cannot accept either of these amendments.

Lord Henley: I thank the noble Lord for that point. I shall look carefully at what he has said. I am grateful for his reaction to the noble Viscount, Lord Bledisloe, and his point about interim orders.

I have one further point to make on my amendment. Let us assume that abuse has taken place and all the appropriate procedures have been gone through; the local authority and the police have consulted each other. They then go to court and establish a case for making such an order, with the evidence pointing to the fact that such an order should be made. However, there is one exception: that the court does not feel that the matter is serious enough to warrant a two-year provision. I believe that the local authority would find it very difficult to persuade the public that this was not a nonsense. Every aspect of the procedure has been satisfied, with the one exception that the court is not satisfied that an order should be for as long as two years. The court would not have a discretion to make such an order for one year.

I ask the noble Lord to think very carefully about that point between now and another stage of the Bill. As I said, I do not intend to press this amendment tonight. The noble Lord, Lord Goodhart, might have other views about his own amendment. This is a matter to which we shall need to return, particularly in the light of the rather different provision in Scotland where the courts have been entrusted with greater flexibility. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Lord Goodhart moved Amendment No. 18:

Page 2, line 25, leave out subsection (8).

The noble Lord said: The purpose of this amendment is to delete subsection (8) of Clause 1 which requires that the local authority or the chief officer of police, shall, in effect, have a veto over the discharge of any antisocial behaviour order within the period of two years from the date when it is made.

I can see that if an antisocial behaviour order is made for a minimum of two years, it could be argued that there should not be a power at all to discharge it before the end of that period. No doubt the Government have appreciated--as I am sure all Members of the Committee have--that there may be circumstances in which a defendant has shown a substantial change in his behaviour before the expiration of the order. It may be that a young tearaway against whom an order was made has settled down, has a steady girlfriend and a steady job, and is a respectable citizen. In those circumstances it is right that it should be possible to return to the court to ask for the order to be discharged.

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In such situations why should it not be for the court to decide whether the discharge is justified? Why should the council or the chief officer of the police have a veto? It is wrong that the prosecutor should have a veto over the exercise of the court's discretion in many circumstances. In particular, it is contrary to the principle that the prosecution does not involve itself with sentencing. For that reason, if for no other, I wish this power of veto to be removed.

I wonder how far the Government have appreciated another problem. The power of veto will create problems for a local authority or chief officer of police. It will clearly be their duty to consider whether to consent to the discharge of the order. Again, that duty will clearly be subject to judicial review. Is it really desirable that this duty should be imposed on a local authority or the chief officer of police? Would it not be better that, as on the original application, the local authority or chief officer of police should put before the court any evidence it or he has to show that the order is still needed and that it or he should be entitled to cross-examine the subject of the order on his evidence, which he is putting forward to show that the order is not needed?

Therefore, it may well be a considerable improvement to remove this veto and simply to make the applicants to the order, and the subject of the order, free to put forward the case for or against discharge in exactly the same way as they were free to put forward their case for or against the making of the additional order. I beg to move.

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