‘(4A)Before making a drinking banning order, a court must receive a report from an appropriate officer about the proposed subject of the order, which contains information about the subject and, in particular, about whether there is any reason to suspect that he may be—
(a)suffering from substance addiction (including alcohol dependence);
(b)a person falling within section 1 of the Mental Health Act 1983 (c. 20); or
(c)suffering from any other recognised physical or mental illness or condition which could either—
(i)affect his ability to restrict his intake of alcohol;
(ii)cause him to engage in criminal conduct while under the influence of alcohol; or
(iii)affect his ability to comply with a drinking banning order.
(4B)In subsection (5) above “an appropriate officer” means—
(a)where the proposed subject is aged 18 or over, an officer of the National Offender Management Service or a social worker of a local authority social services department, or
(b)where the proposed subject is aged under 18, a social worker of a local authority social services department or a member of a youth offending team.
(4C)If the court determines that the proposed subject of a drinking banning order may be a person falling within subsection 5(a) to (c) above, the court shall not make a drinking banning order unless satisfied, on receipt of medical evidence, that—
(a)his ability to understand and comply with the order will not be significantly restricted by reason of his being a person falling within subsection (5)(a) to (c) above; and
(b)compliance with the order, either alone or in combination to any other order or sentence to which he is subject, would not have a deleterious effect upon his mental or physical health.’.
Amendment No. 110 is a technical amendment referring to amendment No. 116. I am concerned that vulnerable people may be subject to drinking banning orders. As we have seen with antisocial behaviour orders, they could be inappropriately served on vulnerable people, such as those who have mental health issues or alcohol issues. That is a particular concern, given that orders could be applied arbitrarily or disproportionately.
Without the amendments, the orders could be used for a purpose for which they were not intended. For example, an ordinary member of society, or even a police officer, might see a person with Asperger’s syndrome or Tourette’s syndrome in a public place and think that they were being disorderly or creating some sort of disturbance that could be construed as being a subject for a drinking banning order. Of course, such an order would be totally inappropriate. I know of an example in which an alcoholic man was served with an ASBO, which has escalated to a sentence of five years. Such a situation would be inappropriate, too.
There is also the issue of whether an individual has the ability to comply with a drinking banning order. That ability might be constrained if the person had a mental health issue or was an alcoholic, for example, and such irrationality in the person would render the order arbitrary. In such cases, detention or a custodial sentence consequent on a breach—or suspected breach—of an order would, in our opinion, be contrary to article 5 of the European convention on human rights. We need to be satisfied that the court is aware of that individual’s status. The amendment would mean that the court was made aware as by right. That way, the provision would be about stopping the unlawful minority, as the Minister says, and not about punishing those who are not capable of complying with the law.
I think that I speak for all of us when I say that I am most grateful to the hon. Lady for introducing the amendment. She highlights an issue of some importance, but having looked at the matter carefully in the last day or two, I do not think that the amendment can quite have my support.
I declare an interest—I should have done so earlier—if, indeed, it is one. I have been a lawyer and sit as a part-time district judge and Crown court recorder. My work in that field has made me very familiar with the issues of mental illness in relation to courts. It is important to distinguish between two types of defendant. At the London courts where I sit—Camberwell, Bow street, Horseferry road or wherever—those who have been drunk when they have offended fall, broadly speaking, into two categories. The first is comprised of those persons whom one looks at and says, “This is hopeless; there is nothing that can be done”. Such people live on the streets, have a mental illness and are so vulnerable—that was the word that the hon. Lady used—that there is not a single sentence that a court could impose that would help in any way at all. It is as bad as that.
The second category is of people who are different from that; they are without mental illness, have offended because of alcohol and can be dealt with in a certain way. However, the hon. Lady referred to the very vulnerable, and I understand her point only too well.
I do not quite support the hon. Lady’s amendment No. 116 because its effect would be that a court would have to receive a report on the relevant person before a drinking banning order was made. In my judgment, that could be bureaucratic; the court would appear to have its hands tied. It would be considering a drinking banning order but be required to have a report. The court ought to have a wider discretion. In many cases, one would not need a report because one could summarise the nature of the defendant, who might be, to use a bit of slang, “up together” in every sense, but have offended in a way that is connected with alcohol. One could then move forward smoothly to the drink banning order if one felt that to be appropriate.
On the other hand, one sees cases for which a drinking banning order would be no use at all because of the extreme vulnerability of the person concerned. The other slight problem is that if one is to have a report every time one makes such an order, that will take a lot of time, and I think that the Minister will be concerned about that. Such reports nowadays are prepared by people working for what we call the probation service, although it sometimes has a new title; they are the same people working desperately hard. They are awfully underfunded and the reports can take weeks. That is a debate for another day.
How could the probation officer get in touch with the most vulnerable people so that a report could be prepared? That is a practical handling exercise. I have sat in court and asked for a report on a certain person, but the questions, “What is your mobile phone number?” and, “What is your address?” are completely irrelevant—the person has no mobile phone number, address or any method of contact. The tying together of the two parties is extremely difficult and takes a great deal of time.
The amendment tabled by the hon. Member for Hornsey and Wood Green is excellent in many ways. Importantly, it highlights, at an early stage in our deliberations, the position of the most vulnerable in our communities. Let us not be mistaken: there are many of them. However, would it not be more appropriate if the amendment No. 116 read, “Before making a drinking banning order, a court may ask for a report from an appropriate officer”? That would be an extremely sensible approach.
May I say at the outset what a pleasure it is to serve again under your chairmanship, Mr. Forth?
I declare a general interest to the Committee. [Interruption.] I shall leave the firearms bit until later. My general interest relates to alcohol. I have held a licence and am still involved with a number of bodies in the licensing trade. The Minister has had correspondence from the British Hospitality Association and others. I shall be raising that later, but I should like the Committee to know about my background.
I support the amendment tabled by my hon. Friend the Member for Hornsey and Wood Green. I was grateful to hear the words of the hon. Member for Woking about the amendments, and the general tone with which he welcomed it. I appreciate his suggestion that “may” may be more appropriate. The critical issue concerns vulnerable people, and I hope that the Government will take it on. I do not for a moment suspect that, with the limited means available to us, we have got the amendment right, but I hope that the Government will consider it.
I do not want to get into a long and sterile, if wonderfully parliamentary, debate about “may”, “shall” and so on, but my concern is that if “may” applies, “may not” also applies. The problem is that the court “may not” and the whole point of what we are seeking to do might be lost, although I agree with the hon. Gentleman that placing an obligation of yet more paperwork, when it is clear that the person being dealt with is absolutely fine, needs to be considered.
Almost my first engagement shortly after I was elected to this place was with a mental health charity in Sutherland. I have been consistently and constantly surprised at the degree of mental health problems in our society and the number of people who suffer. That touches almost every family in the country and I have personal experience of such problems. One member of my family was alcoholic but has now recovered and an in-law member of the family suffers from Tourette’s, which is an extraordinary syndrome. It is interesting to note that the disability discrimination legislation applies to Tourette’s, but none of us has found a way of implementing it.
When it comes to matters of criminal justice, we must separate people who set out with criminal intent and should be punished from those who suffer from a condition. My hon. Friend’s amendment, if not perfectly worded, certainly raises an important issue, and I hope that the Minister will consider it.
The English Bar. I hope that the Committee will not think that I am becoming part of a lawyers’ club with my hon. Friend—[Hon. Members: “Never!”] I am glad to hear that.
There was a great deal of common sense in what my hon. Friend said, drawing on his experience as a solicitor and a recorder of the Crown court. I have a lot of sympathy with what the hon. Member for Hornsey and Wood Green is trying to achieve because it is important to protect vulnerable people in such circumstances for all the reasons that she gave. I would have more sympathy with her amendment if it would give discretion to the courts. This is an area where we could trust the courts to exercise discretion as to whether there should be a report. To require a report to be prepared in every case is slightly out of proportion and would create a disproportionate work load for the National Offender Management Service and the other bodies mentioned in the amendment.
I have some sympathy with the hon. Lady’s amendment, but I think it slightly offends against common sense.
Perhaps I should declare an interest because I live in Hackney where junkies and alcoholics hang around the streets all the time, so I am self-interested. Although I appreciate the thinking behind the hon. Lady’s amendment, I suspect that she is referring precisely to people with alcohol, drug and low-level mental health problems.
On one hand, there is an issue about the social support, care and aftercare we offer to people, but the reality is that if I went back to Middleton road in Dalston and said, “Yes, Hazel Blears is bringing in a drink banning order but, no, she cannot get rid of the alcoholics who hang around at the end of the road every day”, people would ask what the point was.
The two amendments tabled by the hon. Member for Hornsey and Wood Green would introduce a new requirement—I stress “requirement”—before a drinking banning order could be made because it would require the court to obtain a report. That is the point that the hon. Member for Woking made. Let me set out the purpose of the drinking banning order. We aim to deal with the widespread problem of binge drinking on Friday and Saturday nights not only in town and city centres, but in many rural market towns and on suburban estates, where people often gain access to alcohol from off-licences, as well as from pubs and clubs. The order is aimed at such excessive behaviour, which every one of us will have witnessed for ourselves if we have been out in the early hours in our local communities—in the interests of research, I am sure. I know that I have witnessed such behaviour.
We are trying to ensure that there is a change in behaviour. The orders are intended to apply for a minimum of two months, which is a relatively short period, to make people face up to the behaviour in which they have been indulging. The vast majority of people who indulge in binge drinking on Friday and Saturday nights go out deliberately to get as drunk as they can. Many of them hold down pretty reasonable jobs during the week and do not necessarily fall into the category of vulnerable alcoholics, although I am not saying that there is not a small minority of such people. The vast majority of people behave quite properly when they are sober, when they go to work and when they are with their families. On Friday and Saturday nights, however, something happens to them under the influence of huge amounts of alcohol, and we then see disorderly behaviour, which often veers into violent crime. That is what the drinking banning orders are aimed at; they are intended as a short sharp shock to make people confront their behaviour.
Some of the conditions that we envisage in the orders would relate to not going into certain pubs, and it ought to be possible to comply with such conditions. We are simply trying to protect decent people who want to enjoy a good night out drinking with their friends on a Friday or Saturday night without being met by the prospect of people careering around the streets in a complete state of alcohol disarray and indulging in the behaviour that we have seen all too often. I should make it clear to the Committee that the orders are aimed at such excessive behaviour.
The nature of binge drinking is, of course, a debate for later, but the Minister has outlined a scenario. What is wrong with a combination of the good enforcement of existing law and antisocial behaviour orders?
ASBOs are for a minimum of two years and are designed to attack a range of more complex antisocial behaviour than simply the problems that arise from binge drinking. We have provided for the drinking banning order to apply from a minimum of two months—where somebody just needs to be confronted—to a maximum of two years. It is therefore a different kind of order, which is specifically focused and targeted.
Let me deal now with the issue of vulnerable people, which was raised by the hon. Member for Hornsey and Wood Green. There may be isolated individuals with mental health problems and the difficulties outlined by the hon. Member for Caithness, Sutherland and Easter Ross, and there is no reason why we cannot deal with those issues in guidance, rather than in the Bill. I draw Members’ attention to the guidance that we have issued on ASBOs, which already provides that local authorities are under a duty under the National Health Service and Community Care Act 1990 to assess any person who might be in need of community care services. If there is any evidence to suggest that a person who will be the subject of an order has drug, alcohol or mental health problems, the local authority is under a duty to provide support. The guidance that we have issued under the Anti-social Behaviour Act 2003 says that those who are collecting evidence to apply for the order should, in parallel, consider what support might be necessary.
I am particularly conscious of such issues in the case of young people. Drinking banning orders are also different from ASBOs because they do not apply to youngsters aged between 10 and 16, but only to those aged 16 or above, and that is a key difference. None the less, some 16 and 17-year-olds might be vulnerable, and there is no reason why the youth offending team and the local authority should not get together to see whether support needs to be provided and then to put it in place. We can provide for that in guidance, rather than making provision in the Bill.
What I do not want is a sense in the courts that drinking banning orders will be complicated and that the courts will have to get a range of reports on every single case. I want the courts to use these orders proactively when they have someone in front of them. If they think that these orders can really help to change the culture of binge drinking, I want them on the case, looking at the tools that they have and using these orders. In the isolated cases in which people need extra support, it can be provided. The police must consult the local authority when they are going to make the application. That is the point at which, if those issues are raised, it will be necessary to see whether support should be included.
What the Minister has said goes a long way to dealing with the problem that we have raised. I am sure that my hon. Friend the Member for Hornsey and Wood Green will take into account everything that the Minister has said. She mentioned the word “guidance”. Clearly, good guidance would obviate the need to include a provision in the Bill. Will such guidance be available to the Committee before we finish our deliberations? If not, at what point in the progress of the Bill will we be able to see it?
I am not able to give that assurance. I can certainly assure the hon. Gentleman that guidance will be prepared on how the drinking banning orders should proceed. That will, I am sure, largely mirror the guidance on antisocial behaviour orders.
The Minister responded to my hon. Friend the Member for Woking by saying that an ASBO would be inappropriate because of the two-year period. However, I am sure that you, Mr. Forth, will have spotted that clause 1(5) states:
“A drinking banning order has effect for ... not more than two years”.
I can envisage a scenario in which someone might be banned for 22 months under the proposed order. The difference between that and my hon. Friend’s suggestion would be a mere eight weeks. Will the Minister reflect on the fact that using existing law is often better than creating new law?
I entirely accept that where provisions exist we should use them, and that we should promote new law to deal with new circumstances. I thought that I had made it clear that there are significant differences between antisocial behaviour orders and drinking banning orders. Antisocial behaviour orders can be imposed from the age of 10. They often deal with a complex sequence of antisocial behaviour. The new orders are aimed specifically at drinking. The minimum period for an antisocial behaviour order is two years. The minimum for a drinking banning order is two months.
The maximum is two years. I do not accept the hon. Gentleman’s contention that every drinking banning order should be for two years. A drinking banning order that is in force for six months may well suffice. If someone who loves to go to the pub with their friends on a Friday and Saturday night is banned from doing so for three months, that may be sufficient to persuade them to think “Next time I go out with my friends I will not get in that state again and cause that kind of crime and disorder.”
I am sure that the Minister is right to say that antisocial behaviour orders cover a wide variety of types of behaviour and can cover complex situations. She has described a very specific situation as regards drinking—in which someone goes out, drinks too much, and causes trouble. Yet orders can be made for a wide range of periods—from two months to two years. What sort of factors does the Minister think should determine the length of a banning order?
I am grateful to the hon. Member for Woking for making it clear that I was speaking with reference to the most vulnerable people. I am sure that the Minister would agree that ASBOs have been served on vulnerable people, which was not the intention. The Liberal Democrats want to create protection against that. I do not want to overdo things and tie the hands of the courts, and on later clauses I shall deal with the matter of giving them more discretion than the Bill perhaps does.
We in Hornsey and Wood Green share with the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) the desire to clear our streets and make them walkable and safe for ordinary law-abiding citizens, but I do not think that that conflicts at all with the protection of the most vulnerable people.
In view of what the Minister said about guidance, and on the understanding that it will go some way to addressing my concerns, I beg to ask to leave to withdraw the amendment.
With this it will be convenient to discuss the following amendments:
No. 111, in clause 1, page 1, line 9, after ‘is’, insert
‘appropriate in all the circumstances, and’.
No. 169, in clause 1, page 1, line 11, at end insert
‘and may impose conditions requiring the subject to take steps necessary to rehabilitate the subject’.
No. 113, in clause 1, page 1, line 12, leave out ‘must’ and insert ‘may’.
No. 114, in clause 1, page 1, line 13, after ‘considers’, insert ‘appropriate and’.
I shall speak to amendments Nos. 4 and 169, both of which cover the same theme. We have all realised by now that a drink banning order has the effect of banning a person from certain activities. In one sense, that is the beginning and end of the matter—it goes no further. The order will not deal with education or improvement of the defendant’s character. The purpose of my amendment is to enable the court, when making a drink banning order banning a defendant from doing something, to impose on the defendant a requirement to rehabilitate himself or herself, to take appropriate counselling to improve his or her position.
Take the example of a defendant who may have a drink problem and who may have committed a crime connected with alcohol. Merely banning that person from entering pubs does not, in itself, go far enough. I am sure that the Committee is not familiar with a most interesting parallel, which is the precedent in the drink-driving laws for a requirement, or an educational aspect of a sentence. Under that legislation, if someone is caught over the limit and pleads guilty or is convicted, they face an automatic 12-month driving ban. The limits of 35 micrograms for breath and 80 millilitres for blood have been around for a long time. Of course, someone who considerably exceeded the limits would get a much longer ban. Bans tend to vary: the minimum is 12 months but they could go to 24 or 36 months. It does not matter what hardship the defendant suffers—that is tough luck. One cannot help the defendant, much as one would like to.
What has happened to change that? A pilot scheme began some time ago and has now been extended, as far as I know, throughout the London courts. After a district judge or magistrate says to a defendant, “You’ve pleaded guilty to this offence of drink-driving. You are now disqualified for 12 months”, they are now permitted also to say, “If you wish to pay a fee for a drink-driving rehabilitation course and complete the course properly, one quarter of your ban will automatically be taken away.” A defendant with a 12-month ban is given the option—it is not compulsory—to say, “Yes, please. I would like to go on the course.” I know from experience and from what people have told me that the courses are effective. The defendants pay a sum of money for serious counselling, group therapy and other like-minded approaches. The programme is very significant indeed, and there is great take-up.
An interesting point is that because the appropriate amount to be deducted from the sentence is one quarter, it is becoming common among those of us who sentence to be extremely careful about the original length of the ban. I once made the mistake of banning someone for 15 months, and we had to adjourn the court to work out a quarter of 15—it took a day to do so. It is now almost axiomatic to ban for either 12 or 16 months, with a straight face, to enable the ban to come down from, for example, 16 to 12.
The point is that there is help for defendants. For some who drive drunk, the offence is a one-off—they do not need help—but others who drive drunk would like help, and can get it. The education argument is met extremely simply by the addition of the word “requirement” after “prohibition” so that the provision would read: “may impose any prohibition or requirement”.
The sentencing policy of the courts has become most interesting under this Government. I do not like to pay a backhanded compliment, but there is some anecdotal evidence that the vast number of community orders that have been made under section 177 of the Criminal Justice Act 2003 have given the courts a certain flexibility to mix and match different types of sentences. In the good—or bad—old days, a probation order simply meant that one was on probation, which meant no more or less than keeping in touch with the probation officer, receiving visits, making visits and telling the probation officer of changes of address. That was the end of the story. Now the position is very different. There are a vast number of imaginative courses and programmes, from anger management to drink control, that the courts can include in a sentence. That is an important aspect of the idea of placing a requirement on a defendant under a drinking banning order.
I am interested in the hon. Gentleman’s amendment and the argument that he is developing. This issue relates closely to road safety. Some members of the Committee were involved in discussing the Road Safety Bill in the last Session of the last Parliament. The idea that education, as well as enforcement, is critical, raises the question of whether the education side should be compulsory rather than voluntary. I wonder whether he would like to develop that thought. Should education, as well as enforcement, be a compulsory part of what we seek to do?
The hon. Gentleman makes a most interesting point. Of course there are cost and time implications, but I venture to suggest that we are moving gently in that direction. We are moving from a position in which a drink-drive defendant is able to go on a course to, in time, one in which he or she might be required to do so. There is much to be said for that, providing that that punishment—if one likes to call it that—is used with sensitivity and in the right cases.
A week or two ago, I found myself in a seaside town not too far from Preston. I was not there for any particular reason—except to play golf at Royal Lytham and St. Annes, but that is another story. During the course of a fascinating week, I had an interesting meeting with Alcohol Concern, a group that takes a real interest in the matters that we are debating. I am not going to go into detail, but it is keen—properly so—to include in the Bill mechanisms to deal with the education of defendants and cut their propensity to drink.
I had a helpful chat with Helen Symons, the press and parliamentary officer at Alcohol Concern, who spoke to me of a number of arrest and referral schemes and of alcohol intervention in the youth justice system and the criminal justice system generally. Now is not the moment to go into the details, because I want to probe the Government on the issue and ask whether they will take away my message, but there is no doubt that counselling sessions—following an immediate intervention from the criminal justice system that requires a person to go on a referral course and take advice and counselling—have proved quite successful, particularly with some young people. That is another aspect of the point about education that I am making in the amendment.
I shall bring my remarks to a close by saying that the evidence is mounting that those who find themselves before a court for an offence relating to alcohol should, as well as being punished if that is appropriate, be in receipt of some form of serious education or counselling. It is not always appropriate, but that kind of approach can sometimes help some people. I lost count of the number of defendants whom I used to represent who came out of court after a sentence and said, “Okay, I’ve been punished, but how on earth am I going to be helped?” That is one of the principal purposes behind my amendment, which would include a requirement rather than just a prohibition.
I welcome the amendment. It raises an important point. Banning the activity can never be the answer. Rehabilitation and education is the only way forward if people are not to reoffend in the same manner, and if they are to learn the error of their ways constructively.
I am pleased that the hon. Member for Woking raised the issue of drink-driving. The drink-driving laws, with the safety belt laws, are two of the best examples of legislation that achieved what the Government want to achieve now—a change in the culture. It is no longer socially acceptable to drink and drive, and these days one would not dream of driving off without one’s seat belt on. In both cases, the reason for success was a massive effort with enforcement, campaigning and education. I hope that the Minister will take up the message that by dealing with and improving the situation rather than banning, the amendment would be a useful adjunct to the legislation.
Hon. Members have made some important points, but I take issue with the hon. Member for Hornsey and Wood Green when she says that banning can never be the answer. I do not say that banning is the complete answer, but I challenge the hon. Lady and her party. They have a history of opposing all our antisocial behaviour legislation, and saying that tough enforcement was not the way forward. During the past couple of years, our constituents have told us that they want to see enforcement used in cases of poor behaviour.
There must be a twin-track approach of enforcement and support, but if the Liberal Democrats are not prepared to support some of the enforcement measures, they put themselves in the position not of protecting the decent law-abiding majority, but of veering off to protecting the interests of the lawless minority. I hope that the hon. Lady is not positioning her party in that way.
I am grateful to the Minister for giving me the opportunity to correct myself. I meant to say “total banning”, and I make it clear that we support the intention of the legislation. We seek only to make the legislation more effective through our amendments.
I am delighted. The whole Bill is about changing behaviour, and the fact that the Liberal Democrats are giving us a perfect example of changed behaviour is of great assistance to all of us.
The hon. Member for Woking raised some important issues about the drinking banning orders, but a couple of technical difficulties mean that the orders are not four-square with the situations that he outlined in terms of people’s convictions.
The drinking banning orders are civil orders; they are not criminal penalties. It is important that we maintain their status as civil orders, because that means we can use hearsay evidence and professional police officers for evidence. Witnesses who are intimidated will not necessarily have to come forward and face the repercussions that we know that they face in a range of antisocial behaviour situations. It is important that we maintain the integrity of the drinking banning order as a civil order.
When there is a conviction, it is, of course, open to the court to direct a mandatory course of action involving rehabilitation, education, drug support and drink support. The hon. Gentleman referred to a punishment and a sentence, but we are in different legal territory, because we are talking about a civil order.
There are human rights implications, and the hon. Lady raised human rights issues. We cannot mandate a person to have treatment if they are not receptive to it. If they do not want to take it up, we cannot take matters forward without a criminal penalty and the ability of the courts to compel. It is important to retain the status of the orders as civil orders.
In accordance with our policy on all such matters, this is about enforcement and support. In the context of antisocial behaviour orders, we recently gave courts the ability to make individual support orders for juveniles aged 10 to 17, to try to address the causes of antisocial behaviour. Such an order may provide for referral to alcohol and drug support services and anger management courses, and we might be able to consider something similar without undermining the civil nature of the drinking banning order. We have also recently introduced a drug order for adults who have a drug problem that is causing antisocial behaviour. Clearly, we want to ensure that there are provisions for tough enforcement.
Some drinking banning order cases will not be particularly complex. An otherwise respectable person may have become completely drunk, got into trouble and committed an offence. It is entirely appropriate to have a three-month banning order to stop them doing it again. However, I am keen to explore the possibility of support in more complex cases that involve other issues. As I said, I cannot accept the amendments, as they would undermine the civil nature of the orders, but I undertake to consider parallels with the way in which we deal with antisocial behaviour orders through individual support. We try to ensure that referrals are provided for the minority of people who need support services and education to reinforce the behaviour change that we want to achieve with the orders. I undertake to consider the matter and return to it in due course, but for now I ask that the amendment be withdrawn.
This has been a helpful and comprehensive debate, and I am grateful to the Minister for her response. I am not entirely sure that I would go so far as to agree with her about the distinction between criminal and civil status for drinking banning orders. We shall discuss this later, but to all intents and purposes we are dealing with a criminal issue here. Under clause 5, the court can and will make a drinking banning order following, for example, a conviction for assault occasioning actual bodily harm. The offence has all the trappings of the criminal arena.
Furthermore, even the civil application under clause 2 to a magistrates court has a certain criminal flavour to it, as the proceedings are heard in a magistrates court, and under clause 3 they are heard in the county court. However, the Minister’s response has been helpful, and I shall not ask my hon. Friends to join me in voting for the amendment, but beg to ask leave to withdraw it.
With this it will be convenient to discuss the following amendments:
No. 6, in clause 2, page 2, line 35, leave out ‘or disorderly’.
No. 16, in clause 3, page 3, line 21, leave out ‘ or disorderly’.
No. 17, in clause 3, page 3, line 40, leave out ‘or disorderly’.
No. 122, in clause 7, page 6, line 2, leave out ‘or disorderly’.
No. 129, in clause 11, page 9, line 43, leave out ‘or disorderly’.
These amendments are similar if not identical in nature. Amendment No. 5 would omit the words “or disorderly”, and further amendments in the group would omit those words elsewhere in the Bill. As the amendments take the same approach, I shall not speak to them individually.
I wonder whether members of the Committee shared my concern when they first read subsection (2). It is worth reading out, although I gently suggest to the Minister that the words are complete nonsense. It says that a drinking banning order
“may impose any prohibition on the subject which is necessary for the purpose of protecting other persons”— so far, so good—
“from criminal or disorderly conduct by the subject while he is under the influence of alcohol.”
The continual reference to “criminal or disorderly” conduct completely stumps me. I managed to run the subsection past several of my friends in the judiciary, and they too are utterly stumped by that phrase. There is no definition whatever of the word “disorderly” in the Bill. In the context of alcohol, being drunk and disorderly is a crime, so when one comes across this absurd phrase “criminal or disorderly conduct”, one is bound to ask: what is lawful disorderly conduct when under the influence of alcohol? Let us be blunt, and ask the Minister to be absolutely specific.
First, there is the criminal offence of being drunk, which is under-prosecuted, if I may say so, but that is just a personal view. The second very relevant offence, which we shall come to in due course when we debate the full panoply of offences with which someone under the influence of drink may be charged—there are many more, which I shall talk about later—is the offence of being drunk and disorderly. That is not simply drunk—I have come across people in the street many times who were simply drunk but extremely pleasant—but drunk in a way that means it is a criminal offence. Equally, I have come across people many times who were drunk and disorderly, and there it is; the criminal offence is put into those brackets. Of course, if it is worse than that, one moves up the scale to public order offences.
Let us re-examine subsection (2), bearing in mind what I have just said about this criminal offence of being drunk and disorderly. Let us pause to ask ourselves, and the Minister, what the difference is between being drunk and being under the influence of alcohol. Can one imagine a court considering a proposed drinking banning order—I cannot think why the court would not give out another punishment to someone who was drunk and disorderly, because it is entitled to do so—because that is the law, saying, “We are going to have to consider issuing a drink banning order because we take the view that this man was engaging in criminal behaviour?” All right, we can live with that, but, hang on a minute, what happens if the court says, “How do we know that he was drunk?” “No,” says the clerk to the justices, “You don’t have to worry about whether he was drunk. He was merely under the influence of alcohol.” What does that mean? Will the Minister set out specifically where this or any other statute gives the definition in law of being under the influence of alcohol, and how that is distinguished from being drunk?
There is also the question of being disorderly. The clause appears to permit a drinking banning order to be issued when someone is simply not guilty of any criminal offence whatever, but is guilty only of apparently disorderly conduct while under the influence of alcohol. Where is disorderly conduct defined? Can the Minister think of any disorderly conduct that is not already covered by law? Can she give me an example of someone whom she thinks is disorderly, and can she say what she means by that?
If the Minister says that certain conduct would constitute disorderly conduct, I can tell her that that is already covered by law. It will be very difficult for the courts to consider the whole issue of whether someone is drunk or under the influence and whether they are behaving in a criminal or disorderly manner. I repeat that in the context of alcohol, being drunk and disorderly is already a crime, so will the Minister give us a few examples of lawful disorderly conduct.
I hope that I have started what should be a constructive debate.
The amendment, small though it appears to be, goes to the heart of much of the Bill. One reason for my particular support for the Bill is that, as my hon. Friend the Member for Hackney, North and Stoke Newington said, it chimes with the common-sense experience of most of our constituents. Judges and Conservative and Liberal Democrat MPs might not understand what disorderly conduct is, but I think that the vast majority of the public understand exactly what it is, and want it dealt with. Part of the point of the Bill is to provide a range of police powers to deal with a variety of situations that all our constituents recognise and want stopped.
It is not just criminal behaviour that causes problems. We had that argument, from beginning to end, with ASBOs. It is not criminal behaviour that creates misery in the lives of the vast majority of our constituents. Some—too many—are sadly the victims of serious crimes. However, for many people antisocial behaviour and disorder on the streets affect their lifestyles and quality of life and, if they are not dealt with, lead to serious crime.
The hon. Lady is making a good contribution, but she begs the question. Can she give us, if she says that we are talking about non-criminal conduct, half a dozen examples of non-criminal conduct—
However, I shall give an example on the disorderly point. I am conscious of the fact that in Committee the Minister must take great care in describing the types of crimes or events that the Bill might refer to, but, fortunately, I am not under that restriction, and will deal with such an example. The broad principle is that the argument is the same one that we had about ASBOs.
I seem to remember that my right hon. Friend the present Foreign Secretary, when he was Home Secretary, entered into discussion about sub-criminal behaviour that did not fulfil the criminal test but which was none the less was a problem to be dealt with. The success of ASBOs clearly shows that everyone understands that disorder in the street that may not be criminal or with which the police choose to deal in a different way is at the heart of public concerns.
Our constituents want this stuff dealt with and they want it dealt with quickly, which is why the range of measures and sanctions that the Bill provides is also important. The Liberal Democrats must understand that. One cannot will the end and not will the means. If we want to stop disorderly behaviour, we must deal with it. At some point we must stop understanding and start stopping it. That is what the Bill is aimed at.
I am interested in the hon. Lady’s argument. One of our duties here and in the other place is to ensure that the Bills that we pass say what they are meant to say. We cannot pass legislation that the courts will interpret as embodying an entirely different intention from the one that we thought it embodied. If, therefore, it is intended to pass legislation about conduct, there is a simple way to do so, which is to remove the words “criminal or disorderly” so that the provision refers simply to the person’s conduct. That would suit what the hon. Lady is looking for, and I should support it.
Actually, it would not, because there is an important point about putting in the “criminal or disorderly”. There is a real issue for the public. Our legislation has to do lots of things; Government measures have to deal with lots of issues, such as people who have problems with alcohol, or mental health problems, and people who are out on the streets—we had a rough sleepers programme to deal with that. We have to deal with the type of nuisance, and worse, that blights our town centres—it certainly blights Northampton town centre—on Friday and Saturday nights, week in and week out, damaging town centre commerce and people’s quality of life, and precipitating real problems with crime. Our legislation must be capable of being implemented, and deal with the public—