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Lord Thomas of Gresford: The fundamental problem with ASBOs and this new drinking banning order is that they are sought as civil orders. This means that a different standard of proof applies and orders can be made on the basis of hearsay evidence. Tittle-tattle from the neighbours has been sufficient to found an ASBO on—and anonymous tittle-tattle at that.
The problem that has arisen with ASBOs is that they have criminalised conduct that is not otherwise criminal. Since the breach of an ASBO—whatever prohibition may be in it—is a criminal offence, people have been sent to prison for up to five years for doing things for which they would not face a criminal charge initially. That has been the weakness and the problem behind the orders. I am concerned that drinking banning orders should not have that fatal flaw in them.
The proposed insertion of the word "appropriate", which alters parliamentary counsel's drafting, is not a criticism of parliamentary counsel, who I have no doubt will never look at this Bill again once it has been passed; it will give a guideline to magistrates or to the
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county court judge, whose job it is to impose the order in the first place. For the judge to have before him the word "appropriate"—the direction that that order must be appropriate—is important.
It might be easy for a person seeking an order to paint such a picture that the tribunal thinks, "Well, it is necessary to do something about this; it is necessary to impose this, that and the other prohibition". I would like to see a check on that thought process, so that the judge has to ask himself, "Is what I am setting out in this order appropriate?" "Appropriate" is an important word and I will return to it at a later stage of this Bill.
Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Bassam, for his answer, even though it did not take us very much, if at all, further. I made it clear at the beginning that my amendments are probing and I stand by that. They were intended to tease out from the Government the extent of prohibitions. I have failed singularly in that, in a sense, because the Minister was kind enough to say that I had given interesting examples in Amendment No. 3 and that they were of a type that the court could properly consider. He said that he would expect the court to look at all the circumstances of the offence and the individual. That raises the very question that was addressed by the noble Lord, Lord Thomas of Gresford—the hybridity of this matter, whereby we are talking about offences in one breath and a civil order in the other. That is an unhappy hybridity.
The whole point of my amendments was that I was trying to ask the Government what else could be given as guidance today, with regard to what would properly come within this provision. The noble Lord, Lord Thomas, was seeking to do much the same thing by imposing the requirement of appropriateness with his amendment. I was trying to tease out some guidance about what might be appropriate for our future debates.
The Minister says that the Bill already allows for what I was seeking to achieve. Of course it does; the Bill allows for just about anything on this earth to be done, within human rights legislation, of course. That is why I find it unsatisfactory that the noble Lord should say that patience is to be rewarded and the guidance will make it clear—the Minister nods sagely. Well, when? The Bill came to this House on 15 November, I think. That is a heck of a long while ago. Before further stages, we will be asking the Minister and his Bill team what progress they have made on guidance. It is a matter that we will return to time and again throughout the Bill. We will be particularly keen to get some idea of that guidance, because without it we will find that little has been achieved between the start of the Bill's passage in another place last June and its completion some time in June this year. Against that background, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved Amendment No. 2:
The noble Lord said: Amendment No. 2 deals with another vagueness in Clause 1. The order may impose any prohibition on the subject which is necessary for the purpose of protecting other persons from "criminal or disorderly conduct". That expression is used in a disjunctive way to separate two different types of conduct—criminal and disorderly.
Criminal conduct is conduct punishable as a criminal offence by the courts. In terms of public order, we are already familiar, as I said a moment ago, with the concept of a person being guilty of the criminal offence of drunk and disorderly or of urinating in the street. Criminal offences arising out of a breach of public order are widespread: criminal damage; the use of threats of violence; harassment, including racial harassment; vandalism; the spreading of graffiti; the possession of dangerous dogs; and public disturbances. All those are criminal offences. So one has to ask the Minister: what disorderly conduct is not criminal? How do you distinguish between them? As Amendment No. 49, which is grouped with my amendments, suggests, does it mean conduct which is not in,
Is it something that is done privately? Is conduct disorderly when nobody can see it? If we start introducing drinking banning orders for what somebody does when nobody can see it, we are going an awful long way towards interfering in people's lives.
In the amendments that I have tabled, I have sought to get away from this disjunctive phrase "criminal or disorderly". "Criminal and disorderly" might be better, but simply to leave it as "criminal conduct" would, in my view, be a better foundation for the imposition of orders of this type. I beg to move.
Viscount Bridgeman: I should like to speak to Amendment No. 49 in this group. I am grateful to the noble Lord, Lord Thomas, for having flagged this up for me. Like Amendment No. 2, it probes the necessity for introducing new legislation to tackle drunk and disorderly behaviour in this way. The matter was debated at some length in another place, and the answers there were unsatisfactory.
The question is essentially about the adequacy of existing legislation, a theme which runs right through the Bill. This is not the first time it has been raised. Clause 1(2) says that an order may be imposed to protect persons from "criminal or disorderly conduct" by the subject, as the noble Lord, Lord Thomas, has said. This raises the question: what conduct is disorderly but is not also criminal? There are already plenty of public order offences on the statute book that address the problem of drunk and disorderly behaviour. The main point is this: if the conduct is tantamount to committing a criminal offence, it should be dealt with as such. Section 5 of the Public Order Act makes it an offence if a person uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, but adds a proviso that it has
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to be within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. All our amendment would do is remove the proviso. In doing so, it shows that pretty much any behaviour—for example, high spirits—might pass the threshold for a drinking banning order.
Will the Minister provide an example of unacceptable conduct that is disorderly but not criminal? If he can provide such an example, why is the Public Order Act not being amended to catch such behaviour? I suspect that the reason why no such example will be forthcoming is that the Public Order Act already adequately covers the behaviour that most reasonable people would find unacceptable. If this is the case, DBOs are being introduced as a substitute for arrests and the Minister should come clean about it. No doubt, the police are overwhelmed in town centres on Friday and Saturday nights and do not have the resources to arrest people who in theory are committing an offence. We should then debate police resources and getting enough police officers on the ground to deal with criminal conduct appropriately rather than maintain a pretence that the problem can be addressed by giving more powers to the courts to deal with alcohol-fuelled disorder.
Lord Bassam of Brighton: I am grateful to both noble Lords for their attention to this part of the Bill. I shall turn first to the amendment spoken to by the noble Viscount, Lord Bridgeman, and then come back to the amendments in the name of the noble Lord, Lord Thomas of Gresford. Amendment No. 49 proposes that,
"'disorderly conduct' should include conduct that does not occur within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".
In a sense, the amendment would add a gloss to the term "disorderly conduct", making it clear that disorderly conduct which took place outside the hearing or sight of anyone likely to be caused distress, but which was perhaps captured on CCTV or witnessed by a police officer, would lead to a drinking banning order. We agree that such behaviour could be capable of leading to such an order, but the amendment is unnecessary. The ordinary meaning of "disorder" would in our view encompass such behaviour.
The amendments of the noble Lord, Lord Thomas of Gresford, would have the effect of restricting the circumstances in which an individual can be given a drinking banning order to engagement in criminal, but not disorderly, conduct. I know that the noble Lord has a sincerely held view about anti-social behaviour orders, which he does not like because of the way in which they are phrased and their civil nature, but one has to recognise that there are occasions and instances where it is hard to suggest that an act is criminal but to deny that it is anti-social and causes people distress, nervousness and alarm. Such an act is not always describable as a form of criminal activity. The noble Lord might want to consider also that his amendments would restrict the possible drinking
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banning order prohibitions to those necessary to protect other persons from criminal, but not disorderly, conduct.
The Government are committed to tackling all aspects of alcohol-related and alcohol-fuelled crime and disorder. Noble Lords will be aware that alcohol misuse is a concern to many people in our communities and that behaviour of that sort may take the form of anti-social behaviour, which, as I have said previously, is not criminal in nature but can nevertheless have a significant and negative impact on many individuals in many of our communities. For that reason, this issue needs to be addressed, and there is substantial public support for our doing so.
Numerous recent statutes refer to both crime and disorder, including the Serious Organised Crime and Police Act 2005, the Licensing Act 2003 and the Anti-social Behaviour Act 2003. In addition, key provisions of the Crime and Disorder Act 1998 refer to "crime" and "disorder" as distinct concepts. This Bill enables courts separately to consider making a drinking banning order following conviction in criminal proceedings where the offender was under the influence of alcohol when the offence was committed.
It does not seem to be entirely appropriate, in line with our policy or in keeping with recent legislation to retain both crime and disorder in the drinking banning order provisions. It is important that we do not seek to restrict the circumstances in which an individual can be given a drinking banning order to criminal but not disorderly conduct.
I was asked for examples of what might constitute disorderly conduct but might not necessarily be caught by the criminal law. Activities such as causing a noise nuisance and disturbance, kicking dustbins late at night, setting off fireworks at an inappropriate time or shouting or swearing in the street could be considered disorderly conduct, but might not necessarily, depending on the circumstances, be a criminal offence. Those are the kinds of thing that would be commonly considered in those terms. I hope that noble Lords will feel able to withdraw or not move the amendments having heard what I have had to say on the subject.
4.15 pm
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