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Baroness Amos: I thank my noble and learned friend for his reply. I am reassured by the commitment to consultation and to publishing guidance. I in no way wish to add or create a further layer of bureaucracy. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 31:
The noble Lord said: This is a probing amendment. The powers in subsections (3) and (4) of Clause 2 are extremely wide. But there must be some limit to the nature of the orders which a court can make. What limits do the Government envisage? It surely cannot be right to make an order, for example, which prevents the subject of the order from going into a public place. That would amount to house arrest, which clearly would not be an acceptable application of the power to make an order.
My amendment is intended to ensure that the subject cannot be prevented from obtaining or holding a job unless that job is itself inappropriate because of the nature of the offence--for example, a paedophile obtaining a job in a school. The purpose of the amendment is to ensure that an order cannot prevent the subject of the order from going shopping, going to see the doctor, or doing all the other things that are reasonably necessary in the course of leading an ordinary life.
The answer to the problem may be that when the Human Rights Bill comes into force, Clause 2(3) and (4)of the Crime and Disorder Bill will have to be interpreted as being compatible with the right to liberty under Article 5 of the European Convention on Human Rights. If so, it would follow that an order could be made only in so far as it contained restrictions that were themselves compatible with Article 5. Do the Government accept that that is so? If they do, that would satisfy the purpose of the amendment. I beg to move.
Lord Williams of Mostyn: I entirely accept both propositions put by the noble Lord, Lord Goodhart. The aim of the sex offender orders is to prevent further offences, not to interfere except where absolutely necessary in a defendant's life. I am sure that, in making the orders, the courts will be well aware of that principle. We intend to set out guidance along those lines to accompany the order.
It is very difficult, as the noble Lord implied, to produce definitions on a general basis. For instance, one looks at:
The second principle put forward by the noble Lord was how the proposal would tie in with the European Convention on Human Rights. We believe that interference with personal rights and individual freedoms without real necessity could easily be struck down as contrary to the European Convention. To divert for a moment, that is going to be one of the significant and glorious effects of incorporation. I have always suggested, and believed, that the simple headline, "Bringing rights home", does not do justice to the concept which I know the noble Lord so fully supports.
I hope that in this very short reply I have been able to satisfy the noble Lord, Lord Goodhart. The officials in the Box provide such service as would shame Rolls-Royce at Crewe and have reminded me that the Rehabilitation of Offenders Act has no application to Clause 2--which will save research and a first-class stamp.
Lord Elton: I thank the noble Lord for that reply. Is any help to be given to the courts to avoid the endless cases that would otherwise flow to test their orders against the Convention when it becomes part of our statute law?
I see from Clause 96 that there is no precise date for this part of the Bill coming into effect. I do not know whether it has been decided yet; it is to be at a date decided by the Minister. It would be interesting to know when the measure is expected to come into effect, and whether there are to be guidelines. The noble Lord's noble friend has already mentioned that some guidance will be brought forward in due time. I presume that that will be before the coming into effect of this Bill as an Act of Parliament. Is there any prospect of any guidance to the courts? I speak as a layman, but magistrates, with due respect, are to some extent laymen themselves. It is important--is it not?--that we should avoid endless referrals of magistrates' decisions eventually to the European authorities.
Lord Williams of Mostyn: The noble Lord raises two questions: one spoken, and one consequential. It has not been decided as to when the commencement date will be, in respect of the noble Lord's specific question. Of course, the commencement date of the Human Rights Act has also not been decided.
My right honourable friend the Home Secretary has said that a large amount of funding is to be put to judicial training. Inevitably there will be queries and questions, significantly we believe in the criminal courts--we believe that the major activity on ECHR is likely to be in the criminal courts. There will obviously be guidance. We work together very happily with the senior judiciary and very productively with the Magistrates' Association. I take the noble Lord's point absolutely. There has to be training; there have to be guidelines and guidance. As I think we have demonstrated, we believe in constructive co-operation and inquiry with those who will have these tasks. We accept that all orders made in this context will have to comply with the European Convention on Human Rights. I happily re-emphasise that nothing in Clause 2 detracts from that proposition.
The Earl of Mar and Kellie: At the beginning of Clause 2 it states:
Lord Williams of Mostyn: First, I suggest that that is much too general a question. The guidance will follow consultation. I believe that, if there is to be consultation, the consultation should take place before the guidance is given. In specific answer to the noble Earl's question, it will depend on the circumstances. For instance, if a well known convicted and potentially dangerous paedophile is lurking around a school yard and the local constable notices that, in a sense--though I am not sure that the label is particularly helpful--the police will be proactive. If the local beat constable does not notice but
Lord Goodhart: In view of the most helpful reply by the noble Lord, Lord Williams of Mostyn, on Amendment No. 31, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 32:
The noble Lord said: This amendment is grouped with Amendments Nos. 33 and 34, which raise a slightly different point. Amendment No. 32 raises the question of whether there should be a minimum time limit for sex offender orders. That question was also raised in the debate on the antisocial behaviour order in respect of Clause 1. Unlike the case of the antisocial behaviour order, I do not seek a maximum time limit for a sex offender order. There may well be cases where it is necessary for the order to remain in force for many years because of the unquestionable tendency of paedophiles and other sex offenders to re-offend. There may be some cases where even a five-year order may be excessive. This is so particularly with young people, in whom great changes in behaviour are possible over quite short periods. The court has a discretion as to whether to make an order at all. Why should it not have a discretion as to the length of the order? I would be less concerned about the minimum time limit if the court had independent power under subsection (6) to grant an early discharge from the order where the circumstances justified it.
Amendments Nos. 33 and 34 raise the same point as was raised in connection with the antisocial behaviour order; namely, the restriction on the court's power to discharge an order before the expiration of the five-year period without the consent of the chief officer of police. The effect of this is to transfer the power to grant early discharge from the court to the chief officer. The court cannot give a discharge if the chief officer does not agree. Equally, it is unlikely to refuse to discharge the order if the chief officer of police does agree to a discharge.
I repeat briefly the arguments that I raised before. First, it is contrary to the principle that sentencing should be a matter for the court and not for the parties to the proceedings. Secondly, a decision of the chief officer of police in these circumstances cannot be arbitrary. He will be under a duty to consider whether to give consent to the discharge. Refusal of consent would therefore be subject to judicial review, which I do not believe would be in the interests of the police. I suggest that here again it would be much more appropriate for the court to have a discretion after hearing the arguments placed before it by the parties for and against the discharge of the order. I beg to move.
Page 3, line 18, at end insert--
("( ) No order under subsection (4) above shall deprive the defendant of the right to seek and undertake employment (other than employment of a type which is inappropriate having regard to the nature of the offences in question) or of access to facilities which are reasonably required in the normal course of life.").10 p.m.
"employment of a type which is inappropriate having regard to the nature of the offences in question".
Some employment is quite easily categorised--for instance, working in childcare services or areas of that sort. I have had these problems in discussion with the NSPCC in the past. What does one say about a taxi driver? His employer may well have a contract for delivering children to the local school, or perhaps disabled children to special residential accommodation; or a bus driver similarly; or perhaps a cafe proprietor--which may not present a problem in general, but the cafe may be visited by vulnerable small children who hang about there, which may be a problem. We are very much aware of the difficulty.
"If it appears to a chief officer of police that the following conditions are fulfilled..."
The conditions laid down are that the person be a sex offender and that he has acted in an unacceptable way. We have talked about guidance. Will the guidance be that the chief officer of police and the police force should be proactive in promoting such an order or will they have to wait until members of the public complain that a person is acting unacceptably?
Page 3, line 19, leave out ("(not less than five years)").
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