Clause 8 - Interim orders
Violent Crime Reduction Bill
5:15 pm

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I beg to move amendment No. 68, in clause 8, page 6, line 43, leave out subsection (3) and insert—

'(3) Where this section applies by virtue of subsection (1)(a), an application for an interim order against an individual—

(a) may be made without notice being given to that individual, and

(b) may be heard in the absence of that individual.'.

Eric Forth (Bromley and Chislehurst, Conservative)

With this it will be convenient to discuss the following:

Amendment No. 23, in clause 8, page 6, line 43, after 'may', insert 'not'.

Amendment No. 22, in clause 8, page 6, line 44, leave out from 'made' to end of line 44 and insert

'after the expiry of 24 hours following notice in writing being served on the individual.'.

Amendment No. 123, in clause 8, page 6, line 44, at end insert—

'(3A) But an interim order shall not take effect until the subject of the order has been served with a copy of the order.'.

Government amendments Nos. 69 to 73.

Amendment No. 24, in clause 8, page 7, line 15, leave out subsection (7).

Amendment No. 124, in clause 8, page 7, line 22, at end insert—

'(7A) Before renewing an interim order under this section, the court must be satisfied that it is just so to do. In considering whether it is just so to do, the court must consider—

(a) the seriousness of the conduct alleged;

(b) any evidential or other difficulties experienced by the applicant; and

(c) whether the effect of the renewal will be to rob the final proceedings of their significance.'.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I hope that the amendments will not detain the Committee long. The Government amendments clarify the procedure for applications for interim orders made without notice, and make it clear that applications can be heard in the absence of the individual concerned. The hon. Member for Woking referred to the matter in an earlier debate.

The Government amendments also correct a minor drafting error, and they remove the reference to an application for an ex parte interim order on conviction. The latter is unnecessary, because unlike the procedure for antisocial behaviour orders, the court must consider making a drinking banning order on conviction, and no application is made or required.

Criminal courts can convict and sentence in the absence of the defendant—or, in the case of a civil order, the respondent—and will be able to make an interim drinking banning order on conviction, regardless of whether the defendant is present in court. Applications for ex parte interim orders are necessary only in the context of free-standing applications, not for applications on conviction.  

Permission for an application for an interim order without notice may be given only when the court or clerk is satisfied that it is necessary for the application to be made without the individual concerned receiving notice, and an amendment will be made to allow for that. I hope that those minor and technical Government amendments clarify the position on ex parte interim orders.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

I shall speak first to amendments Nos. 23 and 22, in my name, and shall go on to discuss amendment No. 124. I believe that the hon. Member for Hornsey and Wood Green intends to speak to some of the amendments in the group, including amendments Nos. 123 and 124.

Clause 8 is important because it deals with interim orders, which are related to free-standing applications to the magistrates court for drinking banning orders. The measures and clauses in the Bill require some consultation between relevant authorities such as the police, the local authority and various officers, rather than members, of the local authority. As I said in an earlier debate, the problem with that scenario is the potential for delay, to which the Minister gave her answer as best she could.

I assume that in clause 8 an interim order means what it would mean in normal legal terms—an order that could be made in a great hurry, when speed was of the essence. That is an odd concept to put against the concept of taking one's time—[Interruption.] Forgive me, Mr. Forth. I am distracted by constant noises outside in the Corridor, as I imagine we all are. The concept that I have just described seems odd when one considers that there will inevitably be delays with county court applications and appeals to the High Court.

Clause 8(3), for which I see no justification, troubles me. It states:

''An application for an interim order against an individual may be made without notice being given to that individual.''

I ask myself why on earth an individual should not have notice of the application. I appreciate that in some court proceedings, such as domestic violence proceedings, there is a need for immediate action. Take a case in which a husband or wife is assaulting their spouse on a daily basis—[Interruption.] Really, Mr. Forth, I am finding it hard to continue, because of the constant comings and goings of other people in and out of the Room, and the immense noise outside.

That has occupied 30 seconds; now I will carry on. There are emergency cases, when people need to apply to court for a ruling overnight without notice. A spouse might need to apply within one hour—to go to the court straight away and seek an injunction. In such cases, there is no time to give notice to the respondent, as it might be vital that the court grant the application in a matter of hours. That is the point—that immediate protection is needed. That is an interim order in matrimonial proceedings, but why is there an interim order in the Bill? What is so urgent? If the police believe the defendant to be guilty of a criminal offence, he or she will have been arrested and might be in custody. If so, why should not that person receive notice of an interim application? It is easy to arrange,   and it is natural justice to give notice of proceedings to someone who might be affected by them.

If, on the other hand, the police have charged the defendant in the criminal proceedings and released him on bail to an address in, say, Somerset, the position is plainly not so acute that an interim application must be made. If it were, no doubt the person would have been in custody. I am therefore at a loss to know why there are no provisions saying that the Government may, by all means, make an application for an interim order, but stating that they must give notice to the individual concerned.

Amendment No. 22 follows amendment No. 23 by saying that an application can be made if 24 hours' notice is given and served on the individual concerned, because at least that individual would then have some form of notification that an application was about to be made.

Amendment No. 24 would remove subsection (7). I am concerned about the renewal of interim orders. When an interim order is made in relation to, for example, a case of matrimonial violence, the courts are extremely careful not to renew orders indefinitely without holding a substantive hearing. After all, an interim order is meant to be a very short-term sticking plaster before the main application is properly heard. That would make sense to anyone. I am therefore concerned, as are many others who have expressed their views to me, that an interim order can be renewed once, or more than once. How often could that be? Could it be renewed on one, two, three, four or five occasions? Will the Minister explain at some length her thinking about the need for a statute that permits renewed applications to be made—and, what is more, without any notice being given to the respondent to the application?

Lynne Featherstone (Shadow Minister, Home Affairs; Hornsey and Wood Green, Liberal Democrat)

Amendment No. 123 is very similar to the amendments tabled by the hon. Member for Woking. It is totally reasonable in certain circumstances to make an order without notice, but it is not reasonable to make that order without the person concerned being made aware of it. If the Government will not accept the amendment, it would be good if they would say that every possible means would be used to serve such a notice, because to advance an order without notice being served seems to be against the principles of natural justice.

Amendment No. 124 is very similar to amendment No. 24, tabled by the hon. Member for Woking. It too seeks to insert at the end of line 22 provisions relating to the seriousness of the conduct and the nature of the renewals to prevent abuse of an interim order. Without a higher threshold, there could be any number of renewals and any number of reasons for those renewals. One must be careful, because an interim order might be renewed so many times that it would rob the final significance of any court proceedings. I would welcome clarification from the Minister on what limit there might be on the number of times that an interim order could be renewed. I do not believe that difficulties of evidence can be used ad infinitum as a reason for continual renewal, which might simply be   a reflection of poor performance. The individual should not suffer as a result of the poor performance of the authorities.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

The amendments tabled by the hon. Member for Woking would require 24 hours' notice before an application for an interim drinking banning order could be made. I understand his argument, but there may well be rare occasions on which someone's behaviour is so out of control that immediate action must be taken. After all, we are talking about people whose behaviour is criminal or disorderly as a result of alcohol and who are causing problems to the rest of the community, so immediate action will need to be taken, albeit on rare occasions.

One of the prohibitions under a drinking banning order could, for example, be not associating with certain other persons, their regular drinking companions, to prevent them from going out and causing the sort of mayhem in which they have been involved. Again, there might well be occasions when an immediate interim order is necessary; I invite hon. Members to consider some of the applications that have been made for antisocial behaviour orders.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

We are all aware that it might sometimes be essential to issue an order quickly or, indeed, immediately, but how does it follow that the person subject to the application should not be served notice? The two are completely different points. I apologise for intervening at such length, but if the conduct is of such gravity that an emergency application is clearly required, the person must have committed a criminal offence, unless the Minister tells me otherwise, and will have been remanded in custody or bailed. In any event, it is still possible and desirable to give notice.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I agree that it is desirable that people be given notice in most circumstances.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

In all circumstances.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

No. Our law recognises that it is right to make ex parte orders in certain circumstances. People who have been subjected to appalling behaviour by an individual might well be intimidated and harassed or otherwise contacted by that individual, and it might be necessary to make an ex parte order to protect those people from intimidation and harassment by the person who is the subject of the order. I am sure that the hon. Gentleman is aware of many other situations like that. We must retain the ability to make an ex parte interim order on the admittedly rare occasions when it is necessary to do so. Denying the courts the ability to make such orders would tie their hands unnecessarily when we want them to use the powers in the most effective way.

The amendment tabled by the hon. Member for Hornsey and Wood Green would require an interim order not to take effect until someone had been served with a copy of that order. I understand her point. Court orders are generally put into effect when they are made, but clearly someone needs to be notified that the prohibitions are in place if they are to abide by them. It is not appropriate to include that in the Bill,   but I am happy to consider that position to see whether we can set out the need to serve someone personally, and to consider any guidance that we can issue to ensure that we cover the point that the hon. Lady made.

Amendment No. 24 would prevent the court from renewing interim orders. The provision provides that interim orders can be renewed for a period of four weeks, and there is no limit on renewal because it is a matter for the courts to determine. They will have the evidence in front of them and will see whether it is necessary to renew the order. Our experience with the antisocial behaviour legislation is that the courts are pretty keen to scrutinise the evidence before them. They do not make these orders lightly or in a way that does not reflect the evidence, and it is important that they should have that flexibility without us legislating specifically that the order can be renewed only once, twice or three times. Again, the courts will be very conscious that they are making orders that carry prohibitions and that affect the way in which people lead their lives, and they will not want to extend the orders unnecessarily without proceeding to a full hearing.

Amendment No. 124 talks about the orders being renewed only

''if it is just to do so''.

That is exactly what the courts are there to do. They consider the evidence, the degree of seriousness and appropriateness, and proportionality. That is exactly the sort of balancing test that they carry out every day. They will issue an order if the evidence fulfils the criteria, but they will not issue one if it does not. The addition of the words

''if it is just to do so''

would pre-empt the proper role of the courts in this process. I have no doubt that they will scrutinise these matters extremely carefully. The amendments are therefore unnecessary, and I ask the hon. Members to withdraw them.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

Strictly speaking, as I have not pressed my amendment to a vote, there is no question of my withdrawing it. I shall simply say a few more words and we shall not vote on the matter. Has the Minister consulted widely with the judiciary on this issue? That is a serious question. I once asked another Minister whether he or she had consulted with the district judges, magistrates courts and Crown court judges before introducing legislation, and the answer was no, but that that would be done in future. Has the right hon. Lady consulted with the district judge bench, the lay bench and the Crown court bench on this clause? I ask because a senior judge wrote to me some time ago to express deep concern about the fact that an application could proceed without notice, and saying that some effort should surely be made to give notice to the person affected. If a person cannot be traced to give notice, how will the order be served after it has been made? Those are fair questions and the Minister has not answered them.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I can reassure the hon. Gentleman that the draft Bill was sent to the Lord Chief Justice on behalf of the judiciary, that we are consulting the   judiciary on guidance and that we keep in regular contact. Clearly, we would take note of any substantive points that the judiciary as a whole might want to make to us about the practical application of the provisions of the Bill. It is drafted in accordance with the way in which courts normally view such matters—for ex parte applications, for renewals and for interim orders. The courts will consider the evidence and they should have the discretion and the flexibility to make appropriate orders in all circumstances.

Lynne Featherstone (Shadow Minister, Home Affairs; Hornsey and Wood Green, Liberal Democrat)

I am reassured by the Minister's faith in the judiciary, albeit a faith not shared by the Prime Minister.

Amendment agreed to.

Amendments made: No. 69, in clause 8, page 7, line 1, after 'making', insert 'or hearing'.

No. 70, in clause 8, page 7, line 3, leave out

'or before the Crown Court or'.

No. 71, in clause 8, page 7, line 5, leave out

'or of proceedings in such a court'.

No. 72, in clause 8, page 7, line 8, after 'satisfied', insert '(a)'.

No. 73, in clause 8, page 7, line 9, at end insert—

'(b) that it is not necessary for the application to be heard in the presence of the individual.'.—[Hazel Blears.]

Clause 8, as amended, ordered to stand part of the Bill.