Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Walmsley: I thank the noble Baroness for her attempts to set our minds at rest. I am afraid that she has not succeeded. I also thank other noble Lords who supported my case, in particular the noble Lord, Lord Wedderburn.

On Amendment No. 10, I thank the noble Baroness for her reassurances about what reasonable force means in relation to children. I wonder if she can tell us whether there will be guidance about that for the officers in question. On Amendments Nos. 11 and 12, the Minister says that this is just a range of sentences. My concern is that if we give sentencers a range of sentences, eventually they will use it. A six-month custodial sentence for a young person committing the crime of simply being somewhere is disproportionate. The law should impose penalties which are proportionate to the crime; but this does not.

As for the argument about whether this is the whole range of sentences available or whether we can have community sentences, what we are concerned about is that the Bill says, "either (a) or (b)". It does not say that it is the maximum or the only set of responses. We must not be slaves to the parliamentary draftsmen. We are supposed to be law makers in this place, and it is their job to enable us to put into the penal code what it is that Parliament decides to do. As we develop other types of sentence such as restorative justice, community sentences and who knows what in future, how many hundred years will it take parliamentary draftsmen to catch up in terms of wording legislation?

I suspect that the reason why the Government want to have this sort of provision in the Bill is that it sounds like being tough on crime. That is a very easy way of not dealing with the problem. We need to be effective on crime. Banging up a young person for six months for being in some premises is not an effective way of dealing with crime. Although I am sure that we will come back to it, for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Closure of premises: offences]:

[Amendments Nos. 11 and 12 not moved.]

Clause 4 agreed to.

Clause 5 [Extension and discharge of closure order]:

[Amendments Nos. 13 to 15 not moved.]

11 Sept 2003 : Column 455

Lord Dixon-Smith moved Amendment No. 16:

    Page 5, line 25, at end insert—

"but failure to effect service shall not invalidate the proceedings and shall not prevent a hearing taking place"

The noble Lord said: Clause 5 deals with both extension and discharge of a closure order. I must admit that the clause itself causes me a bit of confusion, but perhaps I should deal with my Amendment No. 16 before I come to my complaint about the clause. Both of these actions can take place if, under subsection (9),

    "a summons is issued in accordance with subsection (3) or (7)"—

one for extension and the other for extinguishment—

    "a notice stating the date, time and place at which the complaint will be heard must be served on—

    (a) the persons to whom the summons is directed . . .

    (b) the persons mentioned in subsection (6)(c) and (d) . . .

    (c) such constable as the justice thinks appropriate (unless he is the complainant);

    (d) the local authority (unless they are the complainant)".

The question is whether the proceedings would be valid if any of those people did not actually receive the summons. There may be occasions when the proceedings should go ahead as a matter of urgency, particularly in an instance of an application for extension. It would be in the interests of someone who might be summonsed to be, shall we say, obscurely hidden away somewhere so that the summons could not arise so that the hearing could not take place. We tabled the amendment, which I believe is reasonable, in order to explore that little issue. Obviously, every effort should be made to ensure that everyone affected should receive a summons and know what is taking place. I am not sure that it should necessarily invalidate the proceedings if they have not been so served with the summons, particularly if they might be suspected of deliberately avoiding receiving it.

I find the clause rather difficult. A person who wishes to extend a closure order must complain to the court. That is fair enough. I understand that complaint in this instance must be a legal term. It becomes more odd if a person wishes to apply to have an order extinguished—complaint still has to be made to the court. The same terminology is used. In complaining to the court, one is, in effect, complaining about the complainant—that is why I am complaining about the whole lot.

This is merely a drafting peccadillo. In one sense, I can understand why the two processes are in the same clause. But, for the sake of clarity, it would have been preferable for the Bill to be drafted so that one clause dealt with extension of a closure order and a second clause dealt with discharge of a closure order. Then I should have nothing about which to complain. The amendment has a serious point, as does my complaint about the clause. I beg to move.

Lord Phillips of Sudbury: As one who, in his early life, had to serve lots of summonses on lots of people, I perhaps got a fellow feeling for at least part of the sentiment underlying the amendment. In passing this legislation, we do not want to lumber the police and

11 Sept 2003 : Column 456

courts generally with a set of formal requirements that are formidably impractical on occasion. Although I do not sign up wholly to the wording of Amendment No. 16, there are issues to be considered. The amendment would add a provision to Clause 5(9), which lists those who must be served with a summons deriving from the clause. Included are persons mentioned in subsection (6)(d). Subsection (6) states:

    "Any of the following persons may make a complaint to an appropriate justice of the peace",

including, in subsection (6)(d),

    "a person who has an interest in the closed premises".

That phrase,

    "an interest in the . . . premises",

crops up in several places; namely, Clause 1(2)(b) and Clause 2(6)(c). The Ministers' officials have helped me inform the House that there is no definition of the phrase,

    "has an interest in the closed premises".

Reasonably, they say that that gives flexibility so that, according to particular circumstances, one will not get trapped by a tight definition.

On the other hand, as regards the practical issue of who is to be served, one's mind must be made up as to who are persons who may "have an interest in the premises", especially where the provisions state that those would be persons interested who were not served originally. That is a formidable impediment to the practical application of this subsection. There may be an explanation that I have not foreseen. If there is not, I commend to the Minister that we review that. The last thing that we want is to legislate a set of so-called protections for the public that are unworkable.

Lord Elton: Perhaps I may raise a point which perhaps I ought to have asked as regards Clause 1, but it is relevant here. There is a similarly formidable list of places where notices of intention have to be affixed and served in Clause 1. I wonder whether a failure to meet any of those five requirements would render further proceedings invalid.

12.45 p.m.

Lord Avebury: Could the Minister tell us whether a person who was formerly a lodger in a premises would be taken to have had an interest in the premises? Obviously he does not have a pecuniary interest, but he was living there. He has an interest—in the ordinary English use of the word—because, presumably, he was forced to look for somewhere else to live at the time when the closure notice was made. He might wish to return. Is he one of the recipients on whom the notice has to be served? Will that not create rather a lot of difficulties?

Baroness Scotland of Asthal: I believe that I shall be able to explain how we think this will work to the satisfaction of all Members of the Committee. Turning to the noble Lord, Lord Dixon-Smith, first, I understand that he has an anxiety about whether these cases would be defeated for non-service. The noble Lord will know that, in the ordinary way, service of summonses will

11 Sept 2003 : Column 457

usually be effected by post. Personal service of the summons is not required. If the parties then choose not to attend any hearing, that will not prevent or invalidate the proceedings. However, I thank the noble Lord for raising the point because I know that it is one that might have caused others some difficulty. From what the noble Lord says, I know that he accepts it is right and proper that any person who may have a proper interest should be notified about it.

The noble Lord, Lord Phillips of Sudbury is right to say that we have left the phrase "interest in" in order to have a certain amount of flexibility. The noble Lord will know that there are various different forms of tenure; namely, local authority, owner occupier, registered social landlord, and so forth. Therefore, it would be wrong simply to list all those just in case one, by some misadventure, missed off someone who had a proper interest.

We hope to confirm the range of those who should be included in appropriate guidance. The only reason for not defining it in the Bill is to give the greatest breadth. Noble Lords will know, having gone with me through the Commonhold and Leasehold Reform Bill, that there is to be a new tenure introduced of commonhold tenancies. If we were to make the list now they may or may not be included, and there may be further changes. This is a way of appropriately dealing with that.

We touched on this earlier. I should like to remind your Lordships that before a closure order is made pursuant to Clause 1(2)(b),

    "reasonable steps have been taken to establish the identity of any person who lives on the premises or who has control of or responsibility for or an interest in the premises".

That is when the original order is made. Therefore, in relation to each premises, before the original order is made there should be clarity as to who has, or had, interest in the property.

I turn now to the point raised by the noble Lord, Lord Elton. The aim of Clause 1(6) is to ensure that those resident in a property are aware of the action being taken against the property. That is not unreasonable and it is perfectly proper.

Next Section Back to Table of Contents Lords Hansard Home Page