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Lord Henley: I shall speak very briefly to my amendment, which is grouped with Amendment No. 18. The noble Lord, Lord Williams, stated earlier that there were occasions when, with the consent of both parties, as set out in Clause 8, it would be possible to discharge the order. Our amendment takes that just a little further. It is self-explanatory. It makes it clear that, where there are exceptional circumstances the court shall be able to discharge the order without the consent of both parties. As a safeguard we have made it clear that we believe that the court should state its reasons on such occasions. I hope that the noble Lord follows the reasoning behind our amendment. I shall be very interested to hear his response when he responds to the amendment of the noble Lord, Lord Goodhart.
The Earl of Onslow: When the noble Lord, Lord Goodhart, spoke something immediately came to mind. It is bound to be much easier for a police authority or a local authority not to give consent because that involves making a decision which may then be proved wrong. People in all walks of life tend to take that view. It seems to be wrong that somebody who has reformed, grown up, changed his name to Mostyn Onslow, and is behaving well, should not be allowed to show that to
The Earl of Mar and Kellie: I support my noble friend's amendment. I began by thinking that the antisocial behaviour order was unsupervised. On the face of the Bill it remains as such, because there is nothing in it about supervision by an officer of the local authority. It is becoming quite clear that there needs to be a review system. Clearly, how can a request for discharge of an order be brought forward without formal consultation?
Are the Government to establish a formal review process? If so, will that be specified on the face of the Bill or in guidance? It will certainly be necessary. I have another question. The Bill refers to the "parties". Does that mean the defendant and the complainant or the defendant and the local authority? Can that point be clarified?
Lord Williams of Mostyn: As I said earlier, the word "parties" refers to the applicant authority on the one hand and the defendant on the other. The whole scheme is designed to avoid the individual who is harassed, alarmed or distressed having to be the complainant or party.
I have to resist both amendments. We believe that there are some misconceptions here. No prosecutor is involved. The noble Lord, Lord Goodhart, referred to the prosecutor, but there is no such beast. The Bill as drafted allows for an order to be discharged if both sides agree. There may well be circumstances in which that would be sensible. After all, these are local remedies. I accept entirely what the noble Earl says about the likelihood of such acts being committed by young males. But let us suppose that a teenager goes away to college where he is growing up and maturing. He may move to a different area. That is the kind of change which fundamentally affects the basis of the order. In those circumstances, we would expect there to be no difficulties in discharging the order, but we do not believe that we should go further than that.
The order is not a penalty. There is no prosecutor. The order prohibits antisocial behaviour only. It does not interfere in the defendant's everyday lawful and socially acceptable activities. There is no criminal record implication. All that the defendant knows, and is made to understand, is that he has behaved in such a way that the powers of the court are attached to him. If he ceases his wrong activity, there is no sanction at all. There is no interference with his personal liberty. We do not want to give the signal that the order bans activity which will become acceptable in time. Flexibility is built in so that both parties can agree for an order to be discharged.
I turn now to Amendment No. 19 in the name of the noble Lord, Lord Henley, which relates to exceptional circumstances. There is a danger that a cottage industry may grow up relating to the discharge of orders. That would benefit the legal profession, but no one else.
Lord Henley: I am sure that the noble Lord will accept that occasionally an order can go further than telling an individual that he must not behave unlawfully. We have referred to occasions when it might be suitable for an order to exclude an individual from given areas. Does the noble Lord accept that that makes things somewhat different in relation to his summing up of this amendment as opposed to the position of a court telling an individual that he cannot do certain things and that he cannot behave illegally?
Lord Williams of Mostyn: I do not--because of the nature of the order and the nature of the facilities and protection built into the provisions. The police have to be satisfied. They have to consult the local authority and vice versa. The court has to be satisfied about the nature of the order it is making. An order can be varied if circumstances change, but there is no criminal record implication. It is a serious step that will be taken by a court only if it is really necessary in the public interest. We do not think that there is any analogy with mandatory sentences. This power is intended to be severe, but it is also intended to be appropriate. We cannot accept these amendments.
The Earl of Mar and Kellie: I thank the noble Lord for reclarifying the point about the two parties. That leads me to ask a further question. I think that we have established that the local authority will have to review a case before seeking a discharge. Will the local authority be required to contact the original complainants and will they be required to give their consent to the local authority seeking a discharge of such an order?
Lord Williams of Mostyn: That is the sort of problem which is likely to be addressed by local authorities using their discretion on the one hand. It is also likely to be part of the consultation programme about the production of guidelines, to which my noble and learned friend the Solicitor-General referred earlier.
Lord Dholakia: Does the Minister accept that making an order is ultimately a judicial decision taken by magistrates and that it is therefore right and proper that the magistrates or the court should discharge the
Lord Williams of Mostyn: I entirely agree. We have looked at this with due seriousness. As the noble Lord indicated, it is the magistrates who impose an order and ultimately it must be the magistrates who reach a conclusion about its discharge. We say that both parties must consent. Both parties do not have to consent to variation, but both do have to consent to discharge. We think that that is reasonable.
The Earl of Onslow: I do not like to disagree with the noble Lord, Lord Williams, because much of what he says seems reasonable. However, it seems totally unfair that if the magistrates say, "This chap has grown up; he is reasonable; it is now time that the order was discharged", a policeman or a local authority officer, for perfectly normal reasons of self-protection--because they will feel safer if they say no--has the power to veto the discharge. There is then no way that the magistrates can say that they think that discharging the order is right. It seems wrong that somebody should have the power to veto a court's decision just because he does not like it and is covering himself.
We should trust the magistrates. We trust them with lots of other things. So why can we not trust them to say, "Yes, this person is behaving; he has now grown up; there is no further reason for the order and were it not for the fact that the police are worried we would discharge it?" I find that hard to believe, yet mostly I have considerable sympathy with the Bill.
Lord Williams of Mostyn: I am sorry to be repetitious, but this is an order of, in one sense, last resort before the use of criminal sanctions. It is intended to be serious. It is not intended to be an easy let-out. It is not intended that any court should be able to impose an order thinking, "By the way, this can be reduced without the agreement of the applicant authority." We are quite firm on this point. We believe that we must approach the matter firmly and resolutely. I am sorry to say, without discourtesy, that we do not intend to give way on the amendments. Much thought has been given to these provisions because the problem has been approached and attacked in a number of different ways in different amendments. We are satisfied that we have got it right. We may not have, but we are morally certain we have.
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