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The noble Earl said: My Lords, a sunset clause may be very welcome, but the question about some parts of this Bill is whether the sun should ever rise upon them. If it does, I believe it should be greeted with the proverbial words:
On these Benches, we have always had misgivings about the anti-social behaviour order. It is a curious mixture of the criminal and the civil. In fact, one might describe it as the "genetically modified" order. It has never been popular on these Benches, but, similarly, it has never been popular in many other places. My noble friend Lord Phillips of Sudbury said last night--rather later than I care to remember--that he believed that 500 such orders had been granted nationwide. I trust that the Minister is in a position now to confirm or deny that figure. In any case, it is agreed not to be very much; indeed, the Home Secretary admitted as much on 10th July when he addressed a meeting in Committee Room 5.
The Home Secretary explained then why he had made the provision of the anti-social behaviour order in new Section 14B mandatory. He has done so because the courts do not like it and because they do not think that it is satisfactory. Therefore, with all the authority vested in him--and with all the authority vested in us, if he can get it--the Home Secretary is insisting that the courts must do it. The word "must" in legislation is always put in where we do not want it, but never put in where we do want it.
I am allergic to mandatory sentences. If they should happen to be just for the particular crime to which they are applied, they can only be so by coincidence. A good sentence should take into consideration the following: the type of crime; the aggravating or mitigating features of the particular offence--and there may be many of them; the likelihood of re-offending, or previous convictions; and the aggravating or mitigating circumstances affecting the criminal.
I shall give your Lordships one example of the sort of case where such mitigation may be necessary. A parenting order was imposed a couple of weeks ago on a mother whose son was persistently truanting from school. She said that it was particularly difficult for her to supervise his departure for school because her job began at 4.30 in the morning. I should have thought that might be a considerable mitigating circumstance. However, where you face a mandatory sentence, there can be no such thing as a mitigating circumstance.
Isolating one of those things which should make up a sentence is always unjust. Also I foresee particular difficulties with a mandatory sentence as it may affect those, whom we have mentioned many times from these Benches, who live or work outside the United Kingdom. With freedom of movement and freedom to work anywhere in the European Union, that may become steadily more common. I asked the Minister last night--and I ask him again today--to consider what happens if these provisions are applied to an employee of the European Court of Justice. I am not sure that they would like that.
The grounds in new Section 14B on which the order can be imposed are, I think, not particularly clearly worked out. The first one in subsection (2) looks all right at a glance; namely, those who have been involved in violence or disorder. At least that appears to be recognisable, which is a start. However, it is extremely rigid and it allows no room for mercy. Even there, the clarity disappears with the words,
The Minister appeared to be saying--I think that I have him right and I am sure that he will put me right if I have not--that "contributing to" meant being part of the crowd which had caused the disorder. Of course, it is awfully hard to be certain in a crowd exactly who is doing what. Can the Minister be just that little bit more specific? To be held to be contributing to violence or disorder, must one perform a criminal action, or incite others to perform a criminal action, or be an accessory before or after the fact? With those provisions, the measure should be specific enough to use. Without them, it could be extremely vague and could be applied to people whom others might consider not to have done anything wrong except be in the wrong place at the wrong time. It is an important point though it is a fine distinction. I want to know the answer rather badly.
The Minister has perfectly properly pinned his case on the argument that prevention is better than cure. So it is, if it is possible. What the Minister needs to convince us of is that there is some way in which we can differentiate those people who are likely to cause disorder from all the many thousands in a similar statistical category who are not. Many individual cases were discussed last night. I refer to that of Mr John Gummer, for example, who wondered whether when he had been an undergraduate he had taken part in activity which might make the provision apply to him. We did not get a clear answer. In many of these cases the spent conviction amendment introduced last night--which we welcome warmly--will remove the pressure. But, of course, it takes time for a conviction to become spent, and during the years before it becomes spent the principle is the same.
We discussed, for example, the case of Mr Peter Hain sprinkling tin tacks on the pitch at Twickenham. That, I imagine, is disorder within the meaning of the Bill. If the Minister tells me that it is not, I shall be interested to hear that. Clearly in Mr Hain's case the conviction is spent, and rightly so. However, if this legislation had been introduced in 1975, when his conviction was not spent, whether it would have assisted Mr Hain's rehabilitation into a respectable citizen to be caught and be subject to a banning order and reminded of past misdeeds which had faded in everyone else's memory is a question that I leave to your Lordships' consideration.
The key question is that which was asked by my noble friend Lord Phillips of Sudbury; namely, is it possible to recognise those who are likely to contribute to such disorder, or are they, in his words, "beyond prediction"? If they are beyond prediction, the measure cannot succeed. I beg to move.
Viscount Astor: My Lords, we cannot support the noble Earl in his amendment to remove new Section 14B. However, he has asked a number of extremely important questions which deserve an answer as they will certainly affect our thinking on further amendments to new Section 14B in the next group of amendments.
The Earl of Onslow: My Lords, unlike my noble friend on the Front Bench, I enthusiastically support the noble Earl, Lord Russell. The new section can be interpreted and read in the following manner: we suspect but cannot prove that someone might do something we do not like and so we are going to lock him up--"internment" is the word for it.
The whole of Irish history has been full of internment. Every single time that internment was used there were cries of, "They have the wrong chap". A feeling of injustice welled up and it was regarded as a great failure. Every time that a new Northern Ireland Minister came to office it was reputed that he used to ask his security advisers, "We know all the IRA men, why cannot we just lock them up?". The answer was always given that that could not be done without proof. All Northern Ireland Ministers failed to change the correct existing law. We are now proposing exactly the same procedure. This procedure is so abhorrent that it is difficult for me to dislike it more.
We can get away with this because there is not a great green swathe of football hooligan supporters living in Boston, Massachusetts, or in Dublin. If there were, the political damage would be seen to be great. This is why at Second Reading I said that it is easy to protect the civil liberties of the rich and the powerful; that it is easy to protect the civil liberties of those who have great friends and influence overseas. It is not easy to protect the civil liberties of the majority of these people who, as the noble Earl said, come from the disaffected, white, not very well paid, not very well educated working classes.
Their civil liberties need defending more than most because they are unpopular. It is ironic that this should be done by Liberals and old-fashioned high Tories--but that is the difference between new Labour and old Labour.
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