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In his letter to my noble friend Lord Thomas of Gresford, the Minister gave an example of
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“In early 2008, the police were receiving various complaints about the individual’s behaviour from his neighbours who had reported that he was often very drunk and had been acting in an extremely threatening way to them. In particular, one neighbour reported to the police that he often banged on people’s doors in the neighbourhood in the middle of the night and shouted threats of violence. The police had also received complaints from the owner of the local pub who said that the individual’s behaviour had dramatically worsened over recent months and he was often ejected from the pub for provoking fights with other drinkers ... Over the last few months, the man’s behaviour had concerned public authorities enough to conclude that he now posed a risk of serious violent harm. We would want a Violent Offender Order to be an available tool to protect the public from the risk of serious violence”.
I acknowledge that it is always difficult when giving examples, but that was given in a letter to justify the circumstances of someone who had had a conviction in the past but had not had one in the intervening 15 years. Prima facie, there appear to be a number of specific crimes in that example, such as acting in a threatening way towards neighbours, banging on people’s doors in the middle of the night, shouting threats of violence and being ejected from a pub for provoking fights with others. That leads to a profound concern. In an earlier debate when the Minister gave an example of someone being punched at a trade union meeting, the noble Earl, Lord Onslow, said that if it is a crime, it is a crime. It should be treated as such and we should not use the back door of civil procedure to try in some way to get round the provisions of the criminal law.
Why would the authorities use the violent offender order rather than go down the route of criminal procedure? They may be concerned that they would not have sufficient evidence. I read the exchanges in Committee on 5 March, when the most reverend Primate the Archbishop of York said:
“Either a crime has been committed or it has not. If it has not been committed, for heaven’s sake what are these orders for?”.—[Official Report, 5/3/08; col. 1173.]
He was saying the criminal law was the place to deal with this.
In response, the Minister said:
“We are talking about going into a pub and people saying that a crime has been committed and being prepared to talk about it. However, I am afraid that there are areas in our country where people will not do that. People will not come forward, as they are scared”.—[Official Report, 5/3/08; col. 1173.]
I recognise that that is a legitimate concern, but he is basically saying that there might not be any evidence to prosecute a crime, so the civil procedure will be used which does not necessarily have the requirements of the criminal law to establish that a person should be convicted. Perhaps a later amendment might address that.
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The other possibility is that an argument might be made that drunkenness in the middle of the night might not attract the kind of penalty or sentence that could possibly be applied by a restriction attached to a violent offender order. I find that disturbing as well because it would mean that rather than having the appropriate punishment that would follow from conviction for a specific crime, a more restrictive order on behaviour could be imposed. We are going dangerously close to a breach of Article 7 of the European Convention on Human Rights because we are talking about people who have been convicted in the past having an additional punishment added at a later date.
The other fundamental reason why I am concerned about circumstances where someone has led a life that has not attracted a conviction for a lengthy period of time and where no crime has been committed is that it opens the door to broadening this beyond people who have been convicted in the past. In response to the previous debate, the noble Lord, Lord West, referred to the importance of not exposing the public to the risk of violent harm. He did not qualify his response, but a risk under these orders is a risk of violent harm from someone who has already been convicted of a serious criminal offence as set out in the Bill. If a pattern of behaviour by A, who had a conviction 20 years ago, justifies a violent offender order, how long will it be before a Government come back to Parliament and say, “We’ve already got it for someone who committed an offence and was convicted 20 years ago—for the sake of argument—why shouldn’t it also apply to people who have never committed an offence?”? If in two identical patterns of behaviour one can attract a violent offender order and the other cannot, I can imagine a Minister standing up in future to say that that is illogical and therefore violent offender orders should be extended to people who have never had a criminal conviction. At that stage, we would be imposing restrictions on people who have not committed an offence in the past and who have not committed one then. Giving any Government or public authority the power to impose restrictions on people when no offence has been committed is a very worrying development. I do not think it is beyond imagination that at some stage in future someone could make that argument. We should not be putting in place building blocks for a further encroachment on civil liberties in future. On those grounds, I beg to move.
Lord Kingsland: My Lords, we support the amendment tabled by the noble Lord, Lord Wallace, for one simple reason. There must be some limit to the time following the serving of a sentence when a VOO can be imposed. If there is no limit, for the rest of someone’s life—it could be 20 or 30 years—there is always the possibility that a penalty might be imposed; not for committing another offence but simply because of an assertion that there is a real risk that he might commit some other offence. That is fundamentally wrong.
We can have an argument about what the limitation period should be. We believe that 10 years is an adequate time. For that reason we are strongly with the noble Lord, Lord Wallace.
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7.15 pm
The Earl of Onslow: My Lords, it is a dangerous start to think that one can just apply these orders, which, whatever the Government say, are a punishment because any restriction on someone’s liberty is a punishment, basically on suspicion for as long as one likes. That cannot be right. It goes against every single tradition of the liberty of the subject, which for time immemorial we and our ancestors have fought for. It is so precious that we should resist any encroachments on it with all the power that we have. I support what the noble Lord, Lord Wallace, said.
Lord Thomas of Gresford: My Lords, it is time we got round to some clarity of thinking. We are not going to have magistrates’ courts any more; we are going to have magistrates’ and risk managers’ courts. When you go to the Crown Court, you turn right if it is suggested that you have committed an offence or left to the risk manager. There will be a judge in the court and a risk manager who specialises in this sort of thing. The risk manager will not be concerned with whether you have committed an offence but with whether you might possibly, at some time in future, commit an offence.
The point my noble friend was making was that using this type of civil procedure, which is extraneous to the criminal justice system of this country, means that a policeman can go into the witness box and say, “Three or four people came up to me in this pub and said that X was threatening. They are not prepared to come along and tell you themselves. They are not prepared to face cross-examination, but I am giving you hearsay evidence, which under the civil procedure I am entitled to do, that this person is a risk to society”. That is removing from the picture the complainant who refuses to be identified and replacing him. I suppose we will soon have risk manager’s officers, like coroner’s officers, who will go around the country picking up rumours from here and there and bringing people before the risk managers for them to be subject to this sort of regime.
It is not a light regime: the order can last from two years to five years. Fortunately, as a result of the amendment we have just passed, the restrictions have some limitation placed on them, but not necessarily a great deal. Let us think where we are taking the criminal justice system. My noble friend’s amendment at least removes from that risk people who committed offences 10 years ago, who would be regarded as rehabilitated in every other aspect of the criminal justice system. We are here week after week talking about rehabilitation. That is what we want prisons to do and we hope that they will have some effect. However, under this legislation because of risk management a person’s past can be brought up and orders made when he has not committed an offence. I wholly support my noble friend’s amendment.
Lord Bassam of Brighton: My Lords, Amendments Nos. 99DA, 99DB and 99DC amend the definition of a qualifying offender for a violent offender order to include only those individuals who completed their custodial sentence or their hospital or supervision order within 10 years of the application date. Noble
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Violent offender orders are intended—
The Earl of Onslow: My Lords, the noble Lord looked pained then. He is here to answer questions from Members of the House, not to look pained. He talked about “the man who is a risk”. What is being alleged is that we will include the man who is, on hearsay evidence, thought to be a risk. There is a very major difference between the two.
Lord Bassam of Brighton: My Lords, I understand the point about hearsay evidence, but a current risk assessment must be undertaken. That is part of the process.
Violent offender orders are intended to protect the public from individuals who are considered to pose a risk of serious violent harm. We know that risk is a highly dynamic and complex concept, presenting itself in different ways, depending on the risky individual and the context in which he or she may be operating. For example, we have already discussed today how the risk of serious violent harm may be targeted at a specific individual or at the wider public. We also know that in some circumstances an individual may commit a violent crime once and never present a risk of serious violent harm again. In other cases, an individual’s risk level may fluctuate over time depending on a variety of influences.
What does all that tell us? Simply that our approach to risk management must be sufficiently flexible to allow for those nuances and complexities. Violent offender orders, as currently provided for, give us exactly that flexibility. They allow the court to target management and supervision to the specific risk of the individual and to the quite proper needs of the public. Let us be very clear that violent offender orders will only ever be made on the basis of an up-to-date risk assessment and only when the risk of an individual in the present day is considered to be sufficiently high to warrant further management or supervision. Whether an individual completed their sentence two years ago or 20 years ago is therefore, arguably, irrelevant. All that matters in this consideration is current risk.
Government Amendment No. 99A, which we discussed earlier, makes that as clear as possible in the Bill. We need to be able to manage any current risk of serious violent harm, regardless of how it presents itself. That is why we remain unwilling to restrict the definition of a qualifying offender to those who have completed their sentence within the past 10 years, as to do that would mean that we would be unable to manage and supervise individuals whom we know are capable of committing a serious violent offence and who continue to or again present such a risk. It would be highly inappropriate knowingly to leave the public exposed to the risk of serious violent harm. It is for those reasons that we continue to resist the amendments. I urge the noble Lord to withdraw his amendment.
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Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his reply. I am not persuaded by the points that he advanced. As has been said by other contributors to this debate, there is a period beyond which—the very word rehabilitation was used—it might be reasonable to ask that rehabilitation be allowed to take place.
In his reply, the Minister bore out the concern that I expressed towards the end of my remarks. He said that it does not matter whether the conviction was two years ago, 10 years ago or 20 years ago. It is not much of a step from that to say that there never was a conviction but that there is a pattern of behaviour that is giving risk. We are going down a very slippery road and I do not believe that this House should be providing a building block for a future Administration to take us to the foot of the slippery slope. I therefore wish to test the opinion of the House on this matter.
7.24 pm
On Question, Whether the said amendment (No. 99DA) shall be agreed to?
Their Lordships divided: Contents, 95; Not-Contents, 107.
Addington, L.
Alderdice, L.
Anelay of St Johns, B.
Ashcroft, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bramall, L.
Bridgeman, V.
Brougham and Vaux, L.
Browne of Belmont, L.
Burnett, L.
Buscombe, B.
Butler-Sloss, B.
Cathcart, E.
Cope of Berkeley, L.
Cotter, L.
Craigavon, V.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Falkner of Margravine, B.
Fookes, B.
Geddes, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanningfield, L.
Harries of Pentregarth, L.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hurd of Westwell, L.
Hylton, L.
Jones of Cheltenham, L.
Kilclooney, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lucas, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mancroft, L.
Marlesford, L.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Monson, L.
Morrow, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
Onslow, E.
Park of Monmouth, B.
Pilkington of Oxenford, L.
Razzall, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rowe-Beddoe, L.
Russell-Johnston, L.
Seccombe, B. [Teller]
Sheikh, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tonge, B.
Tope, L.
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Trimble, L.
Tyler, L.
Ullswater, V.
Verma, B.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Williams of Crosby, B.
Acton, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bilston, L.
Blackstone, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falkender, B.
Farrington of Ribbleton, B.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Moonie, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Vadera, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitty, L.
Wilkins, B.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
7.34 pm
[Amendments Nos. 99DB and 99DC not moved.]
Clause 98 [Applications for violent offender orders]:
Lord Hunt of Kings Heath moved Amendment No. 99E:
On Question, amendment agreed to.
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Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.35 pm.
Motion accordingly, and, on Question, Motion agreed to.
Consumer Protection from Unfair Trading Regulations 2008
7.35 pm
Lord Tunnicliffe rose to move, That the draft regulations laid before the House on 3 March be approved.
The noble Lord said: My Lords, I shall also speak to the Business Protection from Misleading Marketing Regulations 2008. Both sets of regulations implement EC directives and are being made under Section 2(2) of the European Communities Act 1972.
The consumer protection regulations implement the unfair commercial practices directive. The regulations prohibit traders in all sectors from engaging in unfair commercial practices with consumers. Commercial practices are acts or omissions by a trader directly connected to the promotion, sale or supply of products to or from consumers. The regulations will operate flexibly to catch unfair practices. At their heart is a prohibition on the use of unfair commercial practices. A commercial practice is unfair if it amounts to conduct below a level that may be expected towards consumers in accordance with honest market practice or good faith. This is intended to act as safety-net protection for all consumers.
This broad category of unfair commercial practices is supplemented with more specific categories concerning misleading actions and omissions and aggressive practices. The vast majority of practices that would be considered unfair would fall under these provisions. For a practice to be unfair under these rules, it must harm, or be likely to harm, the economic interests of the average consumer—in effect, they make a choice that they would not otherwise have made.
The normal benchmark for determining the likely effect of a practice is the average consumer. However, where a practice is targeted at particular groups of consumers, or is likely to adversely affect the economic behaviour of only a clearly identifiable group of vulnerable consumers in a way that the trader could reasonably foresee, the average member of this group is the one who becomes the benchmark against which the effect of the practice will be assessed.
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