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Lord Goodhart: My Lords, perhaps I may reply briefly to the noble Lord, Lord Renton. Whether the making of an antisocial behaviour order is justified by the defendant's behaviour--it is an issue to which my amendment goes--is a matter for the court alone at the first stage of the procedure. If and when the matter comes before members of a jury, they will have to decide what will probably be a simple factual question: whether there has been a breach of the order; and, if so, whether the defendant has a reasonable excuse for it. Therefore the concerns expressed by the noble Lord, Lord Renton, are not justified by my amendment.

The noble and learned Lord, Lord Falconer of Thoroton, gave the answer I expected and foresaw; namely, that one can rely on the discretion of the local authority, the police or the courts to ensure that unjustifiable orders are not made. That is not good enough. As I said earlier, people should not be in danger of having antisocial behaviour orders made against them under the law and then having to rely on the discretion of the local authorities, the police or the courts to avoid having the order made against them. The level of conduct which triggers the order should in itself be high enough not to make it necessary in large numbers of cases to have to rely on the discretion of the courts.

I regret to say that I believe that Clause 1 as it now stands contains a potential--I hope that it will never be more than a potential--for a serious infringement of human rights. In those circumstances, I must seek the opinion of the House.

3.53 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

17 Mar 1998 : Column 586

Their Lordships divided: Contents, 43; Not-Contents, 131.

Division No. 1


Ackner, L.
Addington, L.
Beaumont of Whitley, L.
Bellwin, L.
Brightman, L.
Calverley, L.
Cochrane of Cults, L.
Coleridge, L.
Dholakia, L.
Ezra, L.
Falkland, V.
Gainford, L.
Goodhart, L. [Teller.]
Grey, E.
Hampton, L.
Harlech, L.
Harris of Greenwich, L.
Henderson of Brompton, L.
Holderness, L.
Hooson, L.
Ilchester, E.
Lane, L.
Linklater of Butterstone, B.
Ludford, B.
McNair, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Monson, L.
Moyne, L.
Northbourne, L.
Redesdale, L.
Rochester, L.
Rodgers of Quarry Bank, L.
Russell, E.
Saltoun of Abernethy, Ly.
Shaughnessy, L.
Thomas of Gresford, L. [Teller.]
Thurso, V.
Tope, L.
Tordoff, L.
Wallace of Saltaire, L.
Williams of Crosby, B.


Acton, L.
Allenby of Megiddo, V.
Alport, L.
Amos, B.
Ampthill, L.
Annan, L.
Archer of Sandwell, L.
Balfour of Inchrye, L.
Bassam of Brighton, L.
Bath and Wells, Bp.
Berkeley, L.
Blackstone, B.
Blease, L.
Blyth, L.
Borrie, L.
Bruce of Donington, L.
Burlison, L.
Campbell of Alloway, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Charteris of Amisfield, L.
Chorley, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Craig of Radley, L.
Crook, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Diamond, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Elis-Thomas, L.
Evans of Parkside, L.
Ewing of Kirkford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Fitt, L.
Gallacher, L.
Gilbert, L.
Gladwin of Clee, L.
Glenamara, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L. [Lord Chancellor.]
Islwyn, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Putney, L.
Kennedy of The Shaws, B.
Kennet, L.
Kilbracken, L.
Kilpatrick of Kincraig, L.
Kintore, E.
Kirkhill, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
McCarthy, L.
McIntosh of Haringey, L. [Teller.]
Mason of Barnsley, L.
Merlyn-Rees, L.
Merrivale, L.
Milner of Leeds, L.
Milverton, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Montgomery of Alamein, V.
Murray of Epping Forest, L.
Nelson, E.
Nicol, B.
Palmer, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Renton, L.
Richard, L. [Lord Privy Seal.]
Sainsbury of Turville, L.
St. John of Fawsley, L.
Sewel, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Simon of Glaisdale, L.
Simon of Highbury, L.
Slim, V.
Smith of Gilmorehill, B.
Stallard, L.
Stoddart of Swindon, L.
Strabolgi, L.
Strafford, E.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tenby, V.
Varley, L.
Wallace of Coslany, L.
Weatherill, L.
Westbury, L.
Wharton, B.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

17 Mar 1998 : Column 587

4.2 p.m.

Lord Henley moved Amendment No. 5:

Page 2, line 23, leave out ("less than two") and insert ("more than five").

The noble Lord said: My Lords, this is a variation on a pair of amendments, of which I moved one and the noble Lord, Lord Goodhart, moved the other at Committee stage.

In Committee, I argued that a total discretion ought to be given to the courts in terms of how long the period specified in the order ought to last. As the Bill is drafted, the antisocial behaviour order,

    "shall have effect for a period (not less than two years)",

but no maximum is imposed. We argued that that could be left entirely to the courts and that the courts should be free to choose the length of time that they considered suitable without a minimum--or, for that matter, a maximum. The noble Lord, Lord Goodhart, suggested that it might be more appropriate that there should be a maximum figure. Therefore, I return to the matter with a variation whereby the minimum period, "not less than two years", should be deleted; but I have also specified a period not more than five years to make it clear that there is a maximum beyond which the courts should not go.

These are matters that can be left to the courts. I do not believe it is right that the court should be limited to a period greater than two years, with the possibility of removing the order with the consent of both parties as set out in subsection (9). I should be interested in hearing explanations from the Government as to why they feel that, again, not only should there be no minimum but also that there should be no maximum. I beg to move.

Lord Goodhart: My Lords, this amendment is on the lines of one that I moved in Committee. At that time I proposed a maximum period of two years. However,

17 Mar 1998 : Column 588

I said then, and I repeat, that it could well be argued that a longer maximum is justifiable. In the circumstances, I am happy to support the noble Lord's amendment.

Lord Falconer of Thoroton: My Lords, this amendment would change the nature of the antisocial behaviour order and what it is trying to achieve. We discussed this at some length during Committee when similar amendments to the clause were tabled.

We see the order as a tool to deal with a serious and escalating problem of antisocial behaviour in our communities. It is not to be used lightly. I hope that the procedures I set out in relation to the previous amendment made that clear. It is a last resort when other methods have failed. If it is not successful, as the structure of the order makes clear, the next step is the criminal law. We do not see it as a tool to deal with petty irritations, grievances or disputes between neighbours. The minimum two-year duration for an order is a mark of the seriousness with which we expect all those involved to view it. That is an important point. That includes the offender, the police, the local authority and the courts. Behaviour which does not merit a two-year order should not be dealt with in this way.

As regards the proposed five-year maximum duration for an order, I agree that an order going beyond this would only exceptionally be justified. For most cases, particularly young people, five years would be more than sufficient for such prohibitions. But I do not see any reason to limit the discretion of the courts where, exceptionally, an order is justified for a longer period. That is the line adopted for a restraining order in the Protection from Harassment Act 1997, and similar arguments apply.

I appreciate that our approach may seem severe. But we need to deal effectively with such behaviour to stamp it out. We do not underestimate the severity of the effect of such behaviour on people who are adversely affected by it. For those reasons, the Government cannot accept this amendment. I ask the noble Lord to withdraw it.

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