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Lord Thomas of Gresford : I have indicated that I oppose Clause 8. At this stage, I should like to hear the reasons for requiring an interim order. Such orders are to last only for a limited period unless renewed. Renewal is another problem, as it looks as if they can be renewed without much difficulty. Why should it be thought necessary to make an order without notice or service and "heard in the absence of the individual"? What machinery do the Government have in mind for serving the order on the individual and what is the position if he breaches that order while knowing nothing about it? For example, the order may prohibit
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him from entering a particular public house, which may be his local. He may go there every night for a week until someone gets around to serving this order on him. So, the reasons why an interim order is required—and how the difficulties of non-service and non-appearance are dealt with—are matters which I hope to have answered at this stage.
Lord Bassam of Brighton: The court can, of course, make an interim drinking banning order if it thinks it necessary to take immediate action to stop the problems that are being caused by the criminal or disorderly conduct of an individual while under the influence of alcohol before the application for a drinking banning order can be fully determined. To be able to take action as speedily as possible is the primary reason for approaching matters through the interim drinking banning order. Subsequently, a full application would be made and considered. From memory, I think that such an application has to be made within four weeks, but I may need to be corrected on that.
Amendment No. 30 seeks to ensure that where an application for an interim order is made without notice a copy of the order is served personally on the individual by an officer of that court. That seems an entirely reasonable amendment, on the face of it. Court procedures for applying for or making an interim order would in any event be set out in magistrates' courts rules, while those for the county court would be set out in civil procedure rules. There is thus no need to specify in the Bill how those orders are to be served. They are already covered in court rules, which will specify precisely how a copy of the order is to be served. For that reason, we resist the amendment.
Viscount Bridgeman: I am grateful to the Minister. I shall need to look carefully at his reply in the context of the procedures and of his honourable friend's remarks in another place. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bridgeman moved Amendment No. 31:
"(4) Permission of the court is required for the making or hearing of an application in accordance with subsection (3)."
The noble Viscount said: This amendment ensures that it is the court and not the justices' clerk that has to give permission for an application to be heard without notice. It is my understanding that the role of justices' clerks is primarily an advisory one, along with some case management responsibilities. Given the potential risk of injustice for someone to be made subject to one of these orders in their absence and without notice, it seems more appropriate that this decision be taken by the magistrates themselves rather than it being delegated to the justices' clerk. The purpose of the amendment is not to make any criticism of the role of justices' clerks, but merely to guarantee that questions
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of this seriousness should be treated as judicial decisions, not as merely administrative ones. I beg to move.
Lord Thomas of Gresford: I entirely support Amendment No. 31. It concerns the same problem with the interim orders to which I have already referred and I shall not repeat myself.
Lord Bassam of Brighton: The amendment would replace Clause 8(4). That provides that provision for the making or hearing of an application for an interim order must be made by the court, for proceedings in the county court, or the justices' clerk for applications to a magistrates' court. Instead, the amendment proposes that permission of a court be required for interim orders for those made without notice or in the absence of the individual.
However, the amendment does not reflect the different court procedures that should be adopted in the magistrates' court from the county court, where permissions are required for the making or hearing of an application or for an interim banning order. That difference needs to be specified in the Bill. For that reason, we cannot encourage the Committee to press the amendments.
Viscount Bridgeman: I shall consider carefully what the Minister says. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 32:
On Question, amendment agreed to.
Viscount Bridgeman moved Amendment No. 33:
"( ) The Secretary of State must issue guidance setting out factors that the court should have regard to in determining whether applications for the renewal of orders under this section should be granted."
The noble Viscount said: This amendment, standing in my name and that of my noble friend Lady Anelay, relates to applications to renew interim orders. As the Bill stands, there are no limitations on the number of times for which an interim drink banning order can be renewed; nor is there any specific threshold or test set out for the granting of such a renewal, beyond the general test of whether it is just to do so, set out in Clause 8(2). That leaves it open to the courts to continue to renew interim orders without a final hearing ever taking place.
Without any specific limitations or thresholds, the applicant—probably the local authority—might find it convenient to invite the courts to use the renewal mechanism repeatedly rather than have a final hearing. This would in effect be an abuse of the interim order process. It would seem sensible to try to limit the use of the renewal mechanism, thus ensuring that the
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onus is placed on the applicant to gather the necessary evidence and have the matter dealt with properly at a final hearing as soon as possible. It might well be that a four-week interim order is necessary to allow evidential difficulties to be overcome, but that should not be used as a cloak for inefficiency on the applicant authority's part.
In another place, the Minister said at col. 89 of the Official Report of Standing Committee B on 18 October that she would "consider any guidance" that the Government might issue to cover this point about renewals. Is any such guidance likely to be issued? If so, what might be contained in such guidance? I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Viscount for setting out his concerns. I agree with him: it would be wrong if a series of interim banning orders were activated at the behest of the police or the local authority in the way in which he suggests. As he says, that would be an abuse of process. I think that he said that it would be a cloak for inefficiency, which is a pretty precise description.
The amendment would require guidance to set out the factors to which the court should have regard when deciding whether applications for renewal of an interim order should be granted. I can offer this much assurance: we will produce guidance on drinking banning orders, which will have to be supplemented, where necessary, by court rules. Clearly, they will need to address that issue. I cannot tell the noble Viscount this evening exactly how we will do it, but it is on our "to do" list and I assure him that it is something that we will need to cover, because we want those matters to be brought before the court in an efficient and expeditious fashion.
We do not want authorities to get into the habit of using a lazy process; we want to be as rigorous as possible. It is right that the interim process should be exactly that and that authorities are obliged fully to satisfy the court by making a proper application for a permanent drinking banning order. We will need to address that issue in the way in which I described. For those reasons, I hope that the noble Viscount will feel able to withdraw his amendment.
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