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5 Nov 2009 : Column 460

Schedule 4 : General licensing conditions relating to alcohol

Amendment 63

Moved by Lord West of Spithead

63: Schedule 4, page 154, line 26, leave out paragraph 3

Amendment 63 agreed.

Amendment 64 not moved.

Amendment 65

Moved by Lord West of Spithead

65: Schedule 4, page 157, line 29, leave out paragraph 6

Amendment 65 agreed.

Amendment 66 not moved.

Clause 34 : Injunctions to prevent gang-related violence

Amendment 67

Moved by Baroness Miller of Chilthorne Domer

67: Clause 34, page 30, line 5, leave out "for either or both of the following purposes"

Baroness Miller of Chilthorne Domer: My Lords, we move to the provisions for injunctions to be imposed on people who may be part of a gang that intends to carry out violence-in the Government's terms. The point of Amendments 67 and 68 is to explore further the issue we touched on in Committee. The Bill provides that an injunction can be imposed on an individual for their own protection. We questioned that at the time and we were not happy with the Minister's response. The Government are making a big departure if they impose injunctions on people in order to protect them. We have a perfectly good system of statementing people for their own protection when they are not capable of making a decision, but this is quite different, because these people are capable of doing so. Although the Government's intentions may be good-I am not underplaying the issue of gangs and gang violence at all-that is a very big step. The nanny state is saying, for example, "I am going to look after you by confining you to your house".

Amendment 69 is prompted by the remarks of the noble and learned Lord, Lord Mackay of Clashfern, about definitions in the Bill. He made interesting contributions about "threat of violence" and "intention of violence". The amendment attempts to get away from the concept of violence and suggests that a more reasonable definition of "gang" might be a group of people formed for the purposes of carrying out criminal activity, which could well include violence. We are interested to explore further, even at this stage, whether the Government have got their definitions correct. We have deep concerns about this part of the Bill. I beg to move.

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Lord Skelmersdale: My Lords, I seem to have spent most of the afternoon arguing against the miscellaneous points made by the noble Baroness, Lady Miller. I am glad on this occasion to be able to support her-in part, anyway.

Notwithstanding the government amendments, for which I thank the Minister, I have a great deal of sympathy for the noble Baroness's concerns. I agree with her that the novelty of imposing constraints on adults for their own protection makes a measure of post-legislative scrutiny a necessity. I share her dislike of the Government's definition of a gang, although, as I said in Committee, I would prefer her alternative to specifically mention anti-social behaviour.

Those weaknesses could easily lead to two equally unattractive outcomes. The injunctions may turn out to be impossible to implement and subject to legal challenge. Alternatively, the lack of detail in the drafting of Clause 34 will tempt police forces to use injunctions inappropriately, either applying them to innocent bystanders or using them in place of arresting and then charging serious criminals who should be prosecuted for a criminal offence.

As to what level of post-legislative scrutiny would be appropriate, I do not quite gel with the noble Baroness, but almost. We all know that there is a problem with gang violence in some communities in this country and that the police certainly need the proper tools to tackle that. We want the Government to take steps to improve the provisions once any failings had become apparent, not just give up and return to the current, clearly inadequate, situation.

One year is far too little time to see how the injunctions work. Not only can they be imposed for as long as two years in the first instance, but I sincerely hope that there will not be so many taken out as to give enough examples of their operation in the first year to allow the Government to conduct a proper review. We would therefore prefer a review of how the injunctions are working after, say, three years. Such a review should be made public and laid before Parliament in order for a proper debate to be held with all the evidence to hand. With that speech, I hope the noble Baroness will feel able to give me at least half marks.

Baroness Howe of Idlicote: My Lords, I support the amendments. Clearly we have growing concerns about anti-social behaviour and the activities of gangs, but I agree with the noble Baroness that it is odd to apply a restriction for their own safety on someone who is the subject of such an attack. Given that we are concerned about that growing area and that it is felt that anti-social behaviour orders have been used indiscriminately and inappropriately, if the measure goes through, I support the idea of a review of how the Government's ideas are working out in practice. That might give us hope that anti-social behaviour orders, if they are still in existence in the future, are used for sensible occurrences. I support the amendment and I hope the Minister will satisfy everyone who has spoken.

Lord West of Spithead: My Lords, a number of amendments have been proposed to Part 4 on gang injunctions. Before I turn to them, I should like to

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thank noble Lords for the constructive debate that we had in Committee. I have, as promised, returned today with amendments on issues raised in Committee and I thank the noble Lord, Lord Skelmersdale, for his thanks for that. The noble Baroness, Lady Miller, has also tabled an amendment, to which we will return later, relating to a sunset-type clause on the gangs provisions in Part 4. This idea seems to me to have a great deal of merit and I intend to take it away and fully consider it. I agree in principle with the idea of some kind of formal review and will return with amendments to this effect at Third Reading.

Amendments 67 and 68 relate to the use of injunctions for the protection of the respondent. We have to remember that it is not just the target gang members who fall victim to reprisal gang attacks; Letisha Shakespeare, Charlene Ellis and Rhys Jones are tragic examples that that is not the case. Where the police have intelligence of likely reprisal attacks, such as in Birmingham and Liverpool, with these injunctions they could restrict the movements of the likely target and manage the risk posed to the community. In Committee, I mentioned the case of someone who, amazingly, kept putting themselves in harm's way. It is hard to understand why people do that, but they do.

Protecting the individual on the injunction from gang-related violence also protects the community. Restricting the movements of a gang member who is a target for other gangs will protect innocent community members by preventing gang-related violence. I accept that injunctions will most likely be sought to prevent a gang member from engaging in gang-related violence. However, it is not always possible for it to work in this way, given the reality of gang conflict. I understand the nervousness about this, but we have to face the practicalities and realities. It may not be possible to identify all the likely offenders to the relevant standard of proof. In these situations, it is much quicker, more practical, safer and better for the community to remove the target than to remove the large group of potential offenders.

Amendment 69 would require the police force or local authority applying for an injunction to show that the person against whom the injunction was sought had committed violence within a group which was formed for the purpose of criminal activity or which had engaged in criminal activity together. I consider it very unlikely that a gang would have a written constitution of its aims, which would probably be required for a court to be satisfied under paragraph (a) in the amendment. It would also be extremely difficult to prove that a group of people had got together for the specific purpose of committing criminal acts.

It therefore seems to me that these amendments would render the provisions completely unworkable, as injunctions could not be obtained against the large majority of gang members whom we would wish to target.

I understand that this is a tricky issue and that we have a responsibility to do everything possible to ensure that these provisions cannot be used against innocent individuals or groups. The Government take this responsibility extremely seriously and I can assure your Lordships that we have considered the matter at

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great length. As the legislation stands, I consider that this process will allow injunctions to be obtained only against the individuals whom we are targeting. I do not believe that ASBOs can be used in place of these provisions or that these provisions will be used in place of the criminal law. In addition, we remain committed to providing in guidance any further possible clarification on targeting the provisions. For these reasons, I ask that these amendments should not be pressed.

I turn to the amendments proposed by the Government. We were initially resistant to placing a limit on the length of prohibitions or requirements that could be imposed by the courts, as we considered that the courts were best placed to decide on a case-by-case basis the appropriate length of time for an injunction and its prohibitions and requirements. However, having considered the weight of arguments made during our extremely productive debates in Committee, I propose government Amendments 70, 73 and 76, which have the effect of limiting injunctions to a maximum period of two years. These amendments will work in conjunction with the amendments that I am proposing that will introduce a mandatory annual review where an injunction lasts in excess of one year, to ensure that the respondent is afforded a greater degree of legal certainty when they are given an injunction.

Amendments 71, 72 and 77 require the court to set an annual review hearing where prohibitions or requirements are in place for longer than that one year. I propose these amendments in response to concerns that restrictive prohibitions could conceivably have been placed on an individual for an indefinite period; that should not be the case. Again, that was well argued by noble Lords in Committee. They are made in conjunction with the amendments I propose that limit the injunctions to two years and provide a good reinforcement of Clause 41(2), which makes it clear that a respondent is entitled to apply to the court for their injunction to be varied or discharged.

Amendment 78 proposes to insert a new subsection (2A) into Clause 47, which would require the Secretary of State to consult the Lord Chief Justice and any other relevant persons prior to the publication of guidance when it is issued or revised. As I made clear in our Committee debates, we very much agree with the principle that those with an interest in these matters should be consulted in the course of writing the guidance that is to be issued. Given some of the areas that the guidance is to address, we agree that it is particularly important for the Lord Chief Justice of England and Wales to be consulted, so that position is named in the amendment. I am grateful to noble Lords for convincing me of the case for these government amendments, and I commend them to the House.

4.30 pm

Baroness Miller of Chilthorne Domer: Although there are three distinct groups on the Marshalled List, it has been helpful to hear the Government's conclusion to the debate even before we get to Amendment 79. I am grateful to the noble Lord, Lord Skelmersdale, for his support in that conclusion, which is that we need

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to have a review. I think that will speed up our debate on Amendment 79. I appreciate that he thinks that 12 months is too short and that three years would be a better time period. I heard what the Minister said, that if the injunctions can last two years then, again, 12 months would be too short.

The Government have been helpful with their own amendments because at least they give a firm limit, which is one of the things that we were worried about-the fact that these were so open-ended. As the Government have promised to come back with something on Amendment 79, I beg leave to withdraw the amendment.

Amendment 67 withdrawn.

Amendments 68 and 69 not moved.

Clause 36 : Contents of injunctions: supplemental

Amendments 70 to 78

Moved by Lord West of Spithead

70: Clause 36, page 31, line 8, leave out subsection (2) and insert-

"(2) The injunction may not include a prohibition or requirement that has effect after the end of the period of 2 years beginning with the day on which the injunction is granted ("the injunction date")."

71: Clause 36, page 31, line 12, leave out "a review hearing on a specified date" and insert "one or more review hearings on a specified date or dates"

72: Clause 36, page 31, line 13, at end insert-

"(3A) If any prohibition or requirement in the injunction is to have effect after the end of the period of 1 year beginning with the injunction date, the court must order the applicant and the respondent to attend a review hearing on a specified date within the last 4 weeks of the 1 year period (whether or not the court orders them to attend any other review hearings)."

73: Clause 40, page 32, line 24, leave out from beginning to "an" in line 26

74: Clause 41, page 32, line 30, leave out from "if" to end of line 31 and insert "-

(a) an application without notice is made by virtue of section 39, and

(b) the proceedings are adjourned (otherwise than at a full hearing within the meaning of that section)."

75: Clause 41, page 32, line 35, leave out paragraph (a)

76: Clause 42, page 33, line 11, at end insert-

"(2A) The power to vary an injunction includes power to-

(a) include an additional prohibition or requirement in the injunction;

(b) extend the period for which a prohibition or requirement in the injunction has effect (subject to section 36(2));

(c) attach a power of arrest or extend the period for which a power of arrest attached to the injunction has effect."

77: Clause 42, page 33, line 11, at end insert-

"(2B) Section 36(3A) does not apply where an injunction is varied to include a prohibition or requirement which is to have effect as mentioned in that provision but the variation is made within (or at any time after) the period of 4 weeks mentioned in it."

78: Clause 47, page 34, line 30, at end insert-

"(2A) Before issuing or revising any guidance under this section the Secretary of State must consult the Lord Chief Justice of England and Wales and such other persons as the Secretary of State thinks appropriate."

Amendments 70 to 78 agreed.

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Amendment 79

Moved by Baroness Miller of Chilthorne Domer

79: After Clause 49, insert the following new Clause-

"Duration of sections 34 to 49

(1) Except so far as otherwise provided under this section, sections 34 to 49 expire at the end of the period of 12 months beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that those sections-

(a) are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection; but

(b) are to continue in force after that time for a period not exceeding one year.

(3) No order may be made by the Secretary of State under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House."

Baroness Miller of Chilthorne Domer: The Government have acknowledged the importance of a review of the provisions in this part of the Bill. The powers go far beyond ASBOs, being almost equivalent to the control orders introduced under terrorism legislation. If injunctions of that strength are to be made against UK citizens-who, we must remember, may not have committed a crime-we need a formal review, reference to which should be in the Bill. I shall look forward to what the Government have promised to come back with at Third Reading, because we could not allow this sort of thing to pass without Parliament having the ability to look it and to say whether the injunction was right, almost right or far beyond what we need. That is exactly what a review would do. I beg to move.

Lord Skelmersdale: My Lords, I rather thought that Amendment 79 was grouped with the previous amendments. Therefore, I do not intend to add anything else.

Lord West of Spithead: My Lords, I think that some of us are working off a reissue of the groupings list; I thought that that was the case as well. However, we accept the amendment in principle. We shall go away and produce something for Third Reading along the lines that I have already set out. On that basis, I ask the noble Baroness to withdraw her amendment.

Baroness Miller of Chilthorne Domer: I am pleased to await Third Reading. I beg leave to withdraw the amendment.

Amendment 79 withdrawn.

Amendment 79A

Moved by Lord Bradshaw

79A: After Clause 50, insert the following new Clause-

"Confiscation orders by magistrates' courts

The Secetary of State shall, within 12 months of this Act being passed, lay an order before Parliament to bring section 97 of the Serious Organised Crime and Police Act 2005 (c. 15) (confiscation orders by magistrates' courts) into effect."

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Lord Bradshaw: My Lords, we need not delay ourselves here very long, because I believe that the Government have more or less conceded this amendment, which was moved in Committee. I wish to add only that when magistrates levy a fine, they are able to exercise a power to attach earnings. Unfortunately, I do not think that magistrates have a similar power for confiscation orders and must have regard to the resources at the disposal of the defendant. If the person is fined, the magistrates will fix a sum-it may be only a small and continuing amount-to be used to compensate whoever is wronged. Will the Minister therefore consider once again the power to attach earnings being allowed to JPs who deal with confiscation orders? I beg to move.

Lord West of Spithead: My Lords, I thank the noble Lord, Lord Bradshaw, for explaining to me in more detail what exactly he was after with the amendment. As he said, we debated this matter in Committee last month. I apologised then for the delay in bringing the order into effect-he was absolutely right that there had been delays. I also explained the background and gave an assurance that appropriate action was now being taken.

I can assure the noble Lord that Home Office officials are working with the Attorney-General's office, the prosecution agencies, Her Majesty's Courts Service and the National Policing Improvement Agency on the practical aspects of giving powers to magistrates' courts to make confiscation orders by way of an order under Section 97 of the 2005 Act. Work is progressing on the drafting of the order as well. It is our very firm aim to lay an order under Section 97, certainly within the 12-month period envisaged by the amendment and, if possible, even sooner than that. I take his point that this has not been done as swiftly as it should have been done-but we are now doing that.

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