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Baroness Park of Monmouth: My Lords, I read recently that there had been a case in a church somewhere in London where an attack was made by young local Muslims on members of the congregation and above all the clergyman officiating, outside the church, on the grounds that it ought to be a mosque. I raise that only because I entirely support the right reverend Prelate in feeling that we should not get rid of this provision without substituting something

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positive in its place, because there must be other incidents like that one, and no religion should be deprived of the possibility of conducting its affairs peacefully and without danger.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): My Lords, I am delighted that the noble Lord, Lord Avebury, who has been such a champion of the amendment, has managed to get here in time for our debate today. His amendment was very well moved by the noble Lord, Lord Thomas of Gresford. We had a rather truncated debate on this amendment when it was debated at the end of a very long debate on blasphemy in Committee, and I certainly will not reiterate what I said then. Clause 77 provides the backdrop to the amendment. I am very grateful for the contribution made by the right reverend Prelate the Bishop of Newcastle and for the way in which he presented the argument, which is by and large the argument of the Government.

I indicated in Committee that some religious offences might appear anachronistic and unnecessary, but there is evidence that at least some continue to be of useful application in modern society, and that is particularly the case in respect of the statute that the noble Lord proposes to repeal. The noble Lord, Lord Thomas of Gresford, was right when he listed the occasions on which prosecutions have been brought. It is correct that they are infrequent, but nevertheless this Easter the police made use of Section 2 of the ECJ Act 1860 to charge two individuals who interrupted an address by the most reverend Primate the Archbishop of Canterbury in Canterbury Cathedral. I am aware that the charges were subsequently dropped, but on that evidence it can scarcely be held to be an obsolete provision.

There is some uncertainty about the scope of the legislation in some respects. I agree with the right reverend Prelate that it is worth noting that the 1860 Act does not expressly exclude the protection of non-Christian places of worship, and it is useful in that respect. It is something that we should certainly bear in mind. Although caveats were expressed by the Select Committee in 2003, it also addressed a larger truth—one which we very much agree with in principle—that those of religious faith deserve special protection and the best protection that the law will allow, for the reason that the right reverend Prelate mentioned. Those places are hallowed; they are places of worship and they are special places where we conduct our rites of religious observation. In this connection, the statute that the noble Lord seeks to remove affords a particular remedy for a particular kind of mischief, and it continues to be of practical value to the police and prosecuting authorities.

This is not intended as any means of comfort, but to understand from where the 1860 Act derived its legitimacy, I went back to find that the Act that it replaced was the Brawling Act 1551. The 1860 Act offers a much more liberal interpretation than the Act it replaced. I thought that the House might like to know how the law is by nature progressive. The Brawling Act 1551 provided that anyone drawing a weapon or striking someone with a weapon in a church or churchyard

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should have one of his ears cut off. If he was a habitual offender, with no ears left, he was to be branded on the cheek with a hot iron in the shape of the letter F for fray-maker and fighter. Naturally, he was also excommunicated, which went with the territory. The law has made some progress in this respect.

I say to the right reverend Prelate in particular that the Government will certainly keep the law in this area under review. For the time being, we believe that the legislation should remain on the statute book. I hope that on that basis the noble Lord, Lord Thomas of Gresford, will be able to withdraw his amendment.

6.15 pm

Lord Thomas of Gresford: My Lords, one only has to think of the history of Henry VIII to wish that there had been at that time someone of the stature and position of the noble Lord, Lord Ramsbotham, to ensure that nothing untoward occurred to those who were in prison.

I very much welcome the speech made by the right reverend Prelate the Bishop of Newcastle. One thing he said that struck a chord with me was that churches open their doors to all comers. That was the case in my youth, but sadly in modern times very many churches remain locked unless some member of the congregation is prepared to be there to receive visitors. It is a reflection of our times that that occurs. I want the right reverend Prelate and other noble Lords to appreciate that I do not come to this with any desire to lessen the protection that there should be to religious property and to religious artefacts. I simply reiterate that current legislation that is much more readily used is available. It is the sort of thing that police officers carrying out their duties would understand very much more than going back to the Ecclesiastical Courts Jurisdiction Act 1860, which I doubt features very highly in their training schedules when they become police constables.

This is really about a desire to ensure that the law is evenly enforced against people and not to diminish the protection to those concerned. I was pleased to hear the right reverend Prelate say that the Church of England has accepted that this should apply to multi-faith congregations and ministers. No doubt, if we keep on raising this issue, we will encourage the Government or a Government to bring forward legislation that will carry out some sensible and rational amendment of the law along the lines that the Select Committee on Religious Offences thought correct in its report.

This is not a matter that I propose to press further at this stage. This is another step on the way, in airing the subject and in receiving a response from the church and from the Government, towards some sensible amendment of the law at a future date. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 [Violent offender orders]:

Lord Kingsland moved Amendment No. 95B:

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The noble Lord said: My Lords, we now come to a new topic in the Bill. Much has been said both on Second Reading and in Committee about the unsatisfactory legal status of VOOs and, in particular, about the confusion between the civil and criminal principles that they engender. I do not propose to reignite that debate at this late stage in the proceedings, so I shall address the reasons for our amendments as briefly as I can.

On the amendment that I am moving, the Government have conceded that there should be some indication in the Bill of what a VOO might comprise. We welcome that concession but think that it does not go far enough. We believe that there should be a clear and detailed, if not wholly exhaustive, list of what receiving a VOO implies, amendable by an affirmative order. A good example of our thinking is given in Section 1(4) of the Prevention of Terrorism Act 2005, where there is a list that, if not exhaustive, nevertheless contains specific provisions. That is the kind of thing that we have in mind for the VOO section in the Bill.

On a separate matter, the Government have their Amendment No. 101A and we are particularly concerned about subsection (2)(d) of the proposed new clause—the limitation on,

We disagree with the power to impose a VOO to prevent a person from associating with a specified group or organisation. The freedom to associate is a fundamental right, as the Government know well from their political history. If the Government consider that some groups pose a risk of serious violent harm to public safety, they should take appropriate steps.

Much has been said in your Lordships’ House on whether VOOs exceed the limit of civil preventive orders and are punishments. Without a clear indication of what a VOO is or is not, the danger of straying into the area of punishment becomes that much more likely. I beg to move.

Lord Wallace of Tankerness: My Lords, I acknowledge the fact that the Government have come forward with their own amendment that seeks to put some meat on to the bones of what the restrictions, conditions or prohibitions might be, which are referred to in the originating clause which creates the VOO. I also welcome the fact that the noble Lord, Lord Kingsland, has moved his amendment. In many respects there is a difficult choice, because there certainly is merit in having a list, because circumstances are being addressed to protect the public in the United Kingdom from the risk of serious violent harm. A wide measure of protection is being sought and, in doing that, magistrates to whom an application is made might also be tempted in response to impose restrictions, prohibitions or conditions that could be far-reaching in their application. Indeed, as the noble Lord said in moving his amendment, that could cross the fine line between what constitutes a preventive measure or an additional punishment.

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At times there is a temptation to say that we should not be too definitive because circumstances may well arise where, if you have a definitive list of conditions that could be attached, something more obvious and appropriate could not be done. But in establishing this type of order, there is merit in making clear and precise what the magistrates may attach as a condition—particularly given that the amendment of the noble Lord, Lord Kingsland, allows for the list to be amended by order. Therefore, that problem could be addressed if a glaring omission emerged.

I am concerned also that the government amendment, as the noble Lord, Lord Kingsland, indicated, refers to a prohibition about associating with any specified group or organisation. That could go too far and there may be legitimate reasons for a person to wish to associate—perhaps to go to a trade union meeting and find that for some reason, because of the information presented to a magistrate, he or she was not allowed to. Addressing a specific problem should not be brought in under the guise of a VOO.

While we have talked about the generality of restrictive conditions—“You can’t go there”, or “You can’t associate with X”, or “You’ve got to be at home by a particular time”—my understanding of the clause is that the word “condition” could impose a positive obligation. For example, there may be an obligation to undergo a particular course of treatment or inform the police if you were taking up a personal relationship with a particular person. That goes too far by imposing that kind of obligation through a civil procedure. Therefore, we should hem in and make clearer and more precise what magistrates might attach as conditions when we are taking a significant step by establishing these orders in the first place, and we should progress with a degree of caution. My noble friends will be minded to support the amendment of the noble Lord, Lord Kingsland, if he should test the opinion of the House.

The Earl of Onslow: My Lords, I support my noble friend Lord Kingsland. He may consider that to be either a relief or a surprise, judging by some of the things that I said earlier. These violent offender orders are viewed with considerable distaste by the Joint Committee on Human Rights. However, small the VOOs are, they remain a punishment; because if you say to someone that you may not do something, that is a punishment. We also thought that the standard of proof required was not high enough. We will come to that later.

I accept what other noble Lords have said—that the Government have gone a little down the way to help, for which I thank them—but they need encouragement to go a little further. In other words, my noble friend Lord Kingsland’s version is considerably clearer and better. The whole concept is more closely defined in his amendment than in the Government’s, which seems to have leaks at the edges. I shall certainly support my noble friend.

Baroness Stern: My Lords, I, too, support the amendment, although all of us on the Joint Committee on Human Rights would rather that none of this was

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in the Bill and that violent offender orders were taken away to be rethought. The Joint Committee noted with some satisfaction that the Government have tabled an amendment that provides an indicative list of provisions, but the committee stated that an exhaustive list would be much better from a human rights perspective, because that would ensure certainty. An indicative list means that anything else can be added. Therefore, as these orders go forward, those who are likely to be subject to them will have no certainty.

The Joint Committee feels also that the examples in the Government’s amendment are very wide and have a potential to interfere substantially with an individual’s private, family or home life—referred to in Article 8 of the convention on human rights. The committee is clear that an exhaustive list would be preferable and wonders how the conditions in the Government’s amendment are compatible with that article. No doubt, the Minister will tell us why, but, certainly from the perspective of the Joint Committee on Human Rights, the amendment of the noble Lord, Lord Kingsland, is a step forward.

Lord Lloyd of Berwick: My Lords, I support the amendment in the name of the noble Lord, Lord Kingsland, in preference to that tabled by the Government, mainly because of the inclusion in the government amendment of paragraph (d), which provides for restrictions,

I find that much too wide and rather objectionable. My only objection to the amendment in the name of the noble Lord, Lord Kingsland, is the reference to the ability of the Secretary of State to amend the subsection. However, balancing the two, I still prefer his amendment to the Government’s.

6.30 pm

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, as has been noted, Amendments Nos. 95B and 101AA provide an exhaustive list of the prohibitions, restrictions or conditions that could be imposed as part of a violent offender order. The amendments would mean that the court and the magistrates could not impose a condition that was not included within this list. Therefore, the very people who know the local conditions and all the circumstances would not have any flexibility and might not be able to target the risk management—and this is to do with risk management—effectively to the needs of the individual or for the protection of the public.

As has been said, government Amendments Nos. 101A and 105A provide an indicative list of the prohibitions, restrictions or conditions—not punishments—that could be imposed as part of a violent offender order. The amendments will mean that the court has an indication of the types of conditions that could be imposed as part of an order, but the list is not exhaustive and so leaves it with that degree of flexibility.

Violent offender orders are intended to protect the public from individuals who are considered to pose a risk of serious violent harm. We have on previous occasions in this House considered this concept of

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risk and therefore understand it to be highly dynamic and complex, presenting itself in various different ways in different places and at different times. Because of this, we know that there is no one-size-fits-all approach to risk management. Instead, management and supervision must always be targeted to the specific risk and the specific case—the risky individual, the context in which they are operating and the risk that they present.

I am grateful to the noble Lord, Lord Kingsland, for what I consider to be a constructive amendment. It made us think about the issue, which is why we came up with our amendment. However, because of the simple fact that there is no single solution to risk management, I do not think that it would be appropriate to introduce an exhaustive list of conditions that could be imposed as part of a violent offender order. Violent offender orders as currently provided for allow the court—I have a lot of respect for our courts and their ability to make these judgments—to exercise their discretion and to impose only those conditions that would directly address the specific risk of serious violent harm that an individual is considered to pose. I am sure that noble Lords will agree that we must not encourage a situation in which a court feels that it has to impose blanket conditions on an individual that do not actually address the problems with that individual or manage the risk that they pose. I do not believe that this would help the individual in respect of whom the order is being made or help the public. The magistrates and the court would have the necessary flexibility to tailor this exactly for the protection of the public and, in a sense, to help the person involved and prevent him from getting into further difficulty; the conditions should be tailored.

I am content to provide an indicative list of conditions that I believe will guide and support the courts to apply fair and appropriate conditions as part of violent offender orders. I found over the years when I was dispensing summary punishment that it was much more useful within a ship or an establishment to have guidance rather than to have specific things laid down; one achieved a better result in the end. Therefore, I am unwilling to introduce an exhaustive list and I beg the noble Lord to acknowledge the reasoning for that.

I will need to think about the question of association. I read the provision to mean that, if Fred Bloggs hates trade unionists and keeps going to trade union meetings and punching people, we could say that we did not want him to go to trade union meetings at such-and-such a town hall on such-and-such an occasion. However, I accept and understand the wider concern, which I will take away and think about.

The Earl of Onslow: My Lords, surely if somebody goes to a trades union meeting and goes around punching people, he gets convicted of a crime. Is that not better than giving him a civil order? Many of us prefer criminals to be tried and sentenced for what they have done wrong rather than to have prevention orders or VOOs applied against them.

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Lord West of Spithead: My Lords, perhaps I could explain this a bit better. It is always dangerous to give examples, but I see this as applying to someone who has a history of going around punching trade unionists because he hates them. He has been punished for that but has now come out of prison and started being abusive, going to meetings and causing trouble, although not to the extent that the police would be able to take action. We know from his past history that he can be extremely violent; indeed, he was in prison because he did something very violent and damaged someone. The aim of this is to prevent him from being in a position where he will damage and injure someone. There is always a danger in giving examples, but that is how I see this.

If someone has done something and one can get all the evidence against him, clearly one takes him to court and punishes him properly. However, this is about risk management; it is about trying to prevent something before it happens. This has occurred in a number of areas. For example, the sexual offences prevention orders have been found to be extremely valuable in preventing offences happening. How much better to do that—it protects the public and in a way looks after the man involved—than to wait for an offence and then to have to punish the man and send him to prison.

Lord Thomas of Gresford: My Lords, does the noble Lord accept that this Government have moved the goalposts? Magistrates’ courts are no longer concerned with crime and punishment; they are concerned with managing risk. What training do they have to manage risk? He is suggesting an unknown list of conditions that they might impose—a shopping list, which may include polishing the decks for all we know. I respectfully suggest that this is not an appropriate way for courts of law to have to act. Managing risk is not what they are for. The Government do not seem to understand that.

Lord West of Spithead: My Lords, I am afraid I have to disagree with the noble Lord. I think that this is an extremely good thing for them to be able to do. How much better it would be if we could stop offences happening because of the skill and expertise of the courts rather than having to put people in prison. I believe that we have too many people in prison and I would rather not send them there. I would rather stop things before they happen, and this is an example of where that can be done. Therefore, I am afraid that I disagree with the noble Lord. I believe that, because of courts’ experience in other areas, they are well able to exercise this judgment and I think that they would do it extremely well, as they have in relation to the sexual offences prevention orders. We have had football barring orders for a number of years and those have been extremely valuable. They have stopped people committing crimes and protected members of the public, which surely is what we are trying to do. On that basis, I urge the noble Lord to acknowledge the reasoning behind the government amendments and to withdraw his own amendment.

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