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Lord Thomas of Gresford: The noble Baroness, Lady Anelay, has done the Committee a singular service in pointing out two problems that arise. First, what does Clause 1 cover? Secondly, how do we avoid its breadth being tested in the courts? The structure of Clause 1 indicates that a drinking banning order is one that prohibits the individual against whom it is made from doing the things described or specified in the order. There is obviously no limitation involved in Clause 1(1). Clause 1(2) gives a broad discretion to impose any prohibition which is,

"necessary for the purpose of protecting other persons from criminal or disorderly conduct by the subject while he is under the influence of alcohol".

What does the phrase "while he is under the influence of alcohol" mean? In the criminal law we are familiar with the concept of a person being "drunk and disorderly". Whether a person is drunk does not take a great deal of describing. However, "under the influence of alcohol" is a much vaguer term and does not involve the question of whether a person has been disinhibited by the effects of alcohol. So it is a very vague expression. What is the difference between being drunk—a concept already punished by the criminal law—and being under the influence of alcohol?

The next issue that arises is whether the prohibition order can contain a prohibition on a person's conduct when he is sober. The order is necessary for the purposes of protecting other persons from criminal conduct by the subject "while he is under the influence of alcohol". Supposing he is sober? Does he breach the order if he goes into a public house when he is sober if he is prohibited from doing so under Clause 1(3) when he is under the influence of alcohol? It is clearly a very important question. If a man goes into a pub sober, and then becomes drunk inside, has he breached a prohibition which prevents him "entering" licensed premises—"entering" is the word used in Clause 1(3)—when he is under the influence of drink?
 
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Divisional court, here we come: more money for lawyers for sorting out precisely what is the purport of that subsection.

The purpose of the Conservative amendments, as the noble Baroness, Lady Anelay, said, is to flush out what sort of prohibition the Government have in mind. My Amendment No. 4 has the same purpose: to insert the word "appropriate" before "necessary" in Clause 1(3) to make sure at least that the prohibitions contained in a drinking banning order have something to do with drinking. We are all familiar now with the way in which ASBOs have been used. They have covered a variety of conduct which must go far beyond that in the minds of those who originally framed the legislation. They have been used to ban people from wearing caps, from keeping pigs or geese, from playing records of classical music and from sunbathing in a thong. All sorts of peculiar things have been banned by ASBOs, and we are at least entitled to know what is to be the extent of a drinking banning order as set out in Clause 1. I await the Minister's reply with interest.

Lord Waddington: I am sure I am not alone in being disappointed that the Statement made by the Home Secretary in another place has not been repeated here. It is appropriate to say just a few words about the appalling scandal revealed in the papers today, if only because we are now invited to discuss in Committee a Bill the title of which suggests that the Government are acting to reduce violent crime. It is quite ridiculous to suggest that the appalling scandal revealed in the papers is merely a failure on the part of officials to identify and consider for removal foreign criminals reaching the end of their sentences. Murderers, rapists, paedophiles, drug importers and other dangerous and violent offenders are on our streets because of the virtual abandonment of immigration control by this Government. That has resulted in hundreds of thousands of illegal immigrants entering Britain, which in turn has resulted in a staggering increase in the number of foreign nationals in our gaols. If this is not a resignation matter, will the Minister please tell us in what circumstances the Home Secretary would think it right to resign?

Lord Bassam of Brighton: Before I turn to the content of the amendments, I want to record my thanks to the noble Baroness for speaking to me earlier about her intention to raise the issue of the Home Secretary's Statement. I am grateful for her comments and like everyone else I await with interest the content of the amendments, which I am sure the noble Baroness will endeavour to ensure are within the scope of the Bill. They will be the subject for debate on another day. It is not appropriate for me to comment on the Statement; that is not what is in front of us, although obviously I respect the views of the noble Lord on the matter. I would have expected him to express them very forcefully. He is entitled to do so. However, this afternoon we are here to discuss this Bill, one that is a product of our policy: our determination to do all we can to ensure that there is a
 
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proper legal framework to counter violent crime on our streets. That is exactly what this series of practical measures is designed to do.

I am also grateful to the noble Baroness and to noble Lords on the Liberal Democrat Benches for the practical expression of their support for the Bill and its intentions when it received its Second Reading in this House. I hope that our debates can be framed in what I have detected as a positive and pragmatic approach to a piece of legislation which has great merit in terms of the policy lying behind it. It is the kind of Bill with which noble Lords in this House will probably deal in a practical and hardnosed way, as they do quite properly when considering practical measures brought before the House which have a fair degree of support in the House.

I turn to the amendment moved by the noble Baroness and spoken to by the noble Lord, Lord Thomas of Gresford. Amendment No. 1 is probing in nature and seeks to redefine a drinking banning order as being one that prohibits the individual against whom it is made from doing the things specified rather than described in the order.

In our view, the proposed amendment, although probative, is unnecessary and fails to add anything to the content of the wording of the Bill. For those reasons, I hope the noble Baroness will not press the amendment.

As I am sure all noble Lords understand, Clause 1 introduces a new civil order—a drinking banning order—which will be available to protect persons and property from criminal or disorderly conduct by an individual while he is under the influence of alcohol. A drinking banning order could impose any prohibition on an individual that a court considers necessary to protect others against such conduct. This includes prohibitions with regard to an individual entering premises that sell alcohol and club premises that can supply alcohol to members and guests.

Amendment No. 3 would allow a drinking banning order to include prohibitions preventing an individual from coming within 10 metres of premises licensed to sell alcohol which have been specified by the court, or from associating with certain individuals. It is an interesting example, but the Bill already allows the courts to impose such prohibitions as it considers necessary. The example given by the noble Baroness is of a type that the court could quite properly consider but, in our view, there is no need to specify the type of prohibitions that the amendment proposes.

We would expect the court to look at the circumstances of the offence to which the drinking banning order relates, and at the individual on whom the court is considering imposing a drinking banning order, to see what the prohibition could usefully cover. Seeking to constrain this in any way on the face of the Bill would not be practical and workable.

Amendments Nos. 4 and 5 in the name of the noble Lord, Lord Thomas of Gresford, seek, in spirit, to tighten the circumstances in which prohibitions can be imposed by a drinking banning order. I understand
 
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why that is the case. The amendments seek to add a test of appropriateness before a prohibition can be included in an order. In our view, this is unnecessary because, if a prohibition is inappropriate, it could not be necessary. The amendments would also alter parliamentary counsel's drafting but would not add anything by doing so.

If the intention is to ensure that the prohibitions included in an order take into account the circumstances of an individual and the impact that the order will have on him in going about his lawful, everyday business and so on, I can assure the Committee that we would expect the court to consider, in any event, the appropriateness of an order and any proposed prohibition in each and every case. The guidance will be all important in this regard. This, of course, will be published to accompany the measure and will make clear the circumstances in which prohibitions are inappropriate—for example, where they would prevent a person from accessing his place of work or an educational establishment. I know that there are other amendments that seek to address those issues, to which we shall come later.

I am grateful for the amendments, which have been valuable. Having heard what I have said, however, I hope that the noble Baroness and the noble Lord will feel able to withdraw or not move their amendments today.

The noble Baroness referred to some anti-social behaviour order cases. I heard what she said but, in our view, such cases do not necessarily break new ground. Any order that prevents someone from committing an act of anti-social behaviour could perhaps be too broad, but the prohibitions will have to be tailored to the circumstances of the individual. That is the general rubric and the way in which we intend to approach matters, given the powers set out in the Bill. I trust that the noble Baroness and the noble Lord will feel content to withdraw or not move their amendments.

4 pm

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