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Lord Mackay of Drumadoon: My Lords, I am obviously not surprised at the burden of the noble and learned Lord's reply in the light of the letter which he helpfully sent to me. However, I regret to say that I remain unpersuaded by his argument. The noble and learned Lord said at one stage that, if interim orders were permitted, it might lead to an undue burden being placed on the courts. I have two observations to make in that respect.

First, as I have sat here for several hours listening to discussion about these orders, both in the English and the Scottish context, my clear understanding of the Government's policy is that such orders should only be resorted to by a local authority as a last resort. Indeed, they should only be resorted to after careful examination of the factual situation and after the efforts of police and local authority representatives to try to reach an accommodation between neighbours or individuals who are upsetting or offending each other have failed. It is only as a last resort, before criminal action is resorted to, that such an application should be brought.

If my assumption is correct, I would be most surprised if local authorities in Scotland were to bring a long succession of interim orders which had no prospect of success. On the contrary, one would expect--if the procedure is followed in the way the Government wish--that they would do so only if there was a strong argument for an interim order to be pronounced.

My second observation is that if the Government bring legislation onto the statute book, it is incumbent upon them to provide the courts with the resources to deal with the extra litigation to which such legislation may give rise. I feel strongly about this matter. I do not wish to allow this measure to pass without testing the opinion of the House on my amendment.

9.40 p.m.

On Question, Whether the said amendment (No. 46) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 76.

Division No. 4


Anelay of St. Johns, B. [Teller.]
Blatch, B.
Brougham and Vaux, L.
Byford, B. [Teller.]
Cochrane of Cults, L.
Crathorne, L.
Dean of Harptree, L.
Elliott of Morpeth, L.
Harmar-Nicholls, L.
Henley, L.
HolmPatrick, L.
Lucas of Chilworth, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Mountevans, L.
Northesk, E.
Perry of Southwark, B.
Renton of Mount Harry, L.
Soulsby of Swaffham Prior, L.
Stodart of Leaston, L.


Acton, L.
Amos, B.
Archer of Sandwell, L.
Blackstone, B.
Blease, L.
Borrie, L.
Brooke of Alverthorpe, L.
Brooks of Tremorfa, L.
Burlison, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Clinton-Davis, L.
Cocks of Hartcliffe, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, 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.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Judd, L.
Kennedy of The Shaws, B.
Kilbracken, L.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L. [Teller.]
Merlyn-Rees, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Murray of Epping Forest, L.
Nicol, B.
Pitkeathley, B.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L. [Lord Privy Seal.]
Sewel, L.
Simon, V.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Macclesfield, L.
Varley, L.
Watson of Invergowrie, L.
Whitty, 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 671

9.47 p.m.

Lord Hardie moved Amendment No. 47:

Page 15, line 20, at end insert--
("( ) Nothing in this section shall prevent a local authority from instituting any legal proceedings otherwise than under this section against any person in relation to any anti-social act or conduct.").

The noble and learned Lord said: My Lords, this amendment makes it clear that the existence of the antisocial behaviour order mechanism does not affect the power of local authorities to make use of other remedies available to them to tackle antisocial behaviour.

I understand, for example, that Dundee City Council has successfully used interdict against some of its own tenants. The council will no doubt find the antisocial behaviour order mechanism useful where the behaviour of owner occupiers or of tenants of other landlords is in question. It may also find it helpful in circumstances where the court may not accept that the authority has the necessary right and interest to seek interdict.

But we do not intend that the existence of such orders should prevent or cast any doubt on a council's power to use existing common law remedies in cases where these are appropriate.

17 Mar 1998 : Column 672

This amendment puts the matter beyond any doubt. I beg to move.

Lord Mackay of Drumadoon: My Lords, I am happy to indicate from these Benches that we support the amendment. The last thing anyone would wish is that the provisions relating to antisocial behaviour orders should in any way inhibit local authorities or anyone else from prosecuting legal remedies that are available to them. I therefore support Amendment No. 47.

On Question, amendment agreed to.

[Amendment No. 48 not moved.]

Lord Mackay of Drumadoon moved manuscript Amendment No. 48A:

Page 15, line 27, at end insert--
("( ) A constable may arrest without warrant a person whom he reasonably suspects of doing, or having done, anything prohibited by an anti-social behaviour order.").

The noble and learned Lord said: My Lords, perhaps I should explain how this manuscript amendment comes to exist. It is a replacement for Amendment No. 53, which, as the result of an error that I made in intimating the amendment to the Public Bill Office, was tabled against Clause 19 as opposed to Clause 18.

The purpose of the amendment is to give to police officers (to "a constable") power to arrest without warrant a person whom he reasonably suspects of doing or having done anything prohibited by an antisocial behaviour order. This issue was discussed in Committee. On further consideration, I have again brought forward an amendment.

My concern is along these lines. If a person who is the subject of an antisocial behaviour order commits a criminal offence, and there is corroborative evidence of such an offence, he can be arrested, reported to the procurator fiscal and placed before the court for prosecution. However, there may be other situations where that course of action is not possible. On the one hand, the act that he may do may not constitute a criminal offence on its own, whether at common law or under any statute. In such circumstances there is obviously no possibility of a police officer being able to arrest or detain the offender against whom the antisocial behaviour order has been pronounced. Another alternative is where it is obvious to the police officer when he arrives on the scene that there is no possible source of corroboration for the complaint from the person who has been the victim of antisocial behaviour by the defender who is the subject of the antisocial behaviour order.

It is in the public interest that in either of those situations a power of arrest should exist and be available to a police officer to use if he deems it appropriate, confronted as he may be in the middle of the night or early in the morning by a very tense, unpleasant and difficult situation.

In Clause 19 the Government acknowledge that there may be scope for arresting someone who has apparently acted in breach of a sex offender order in such circumstances. In the Matrimonial Homes (Family

17 Mar 1998 : Column 673

Protection) (Scotland) Act 1981 Parliament recognised that it was appropriate to give such powers of arrest to police officers to deal with those subject to matrimonial interdicts, as they are sometimes referred to. When the Scottish Affairs Committee of another place reported in July last year on an investigation which it carried out into housing and antisocial behaviour, it made a number of recommendations, including one that powers of arrest should be available in interdict cases where there was violence, or a threat of violence, or a significant risk of harm, to persons who had sought or were protected by an interdict.

The previous government accepted the recommendations of that all-party committee which, by the very nature of the political composition of the other place as regards Scotland, even in the previous parliament had more Labour members than members of any other party. The government response stated:

    "The Government note the Committee's recommendation that legislation should be introduced to empower the courts to attach a power of arrest to interdicts directed against persons who use or threaten violence against their neighbours. The Government accept the case for attaching a power of arrest to interdicts in the circumstances outlined and will consult interested parties on how this should be done".

Therefore the principle of having such power of arrest was acknowledged. I suggest that the principle applies to the subject matter of Clause 18. It is for that reason that I beg to move manuscript Amendment No. 48A.

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