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

I beg to move amendment No. 74, in clause 10, page 8, line 2, leave out

'to imprisonment for a term not exceeding 51 weeks or'.

Eric Forth (Bromley & Chislehurst, Conservative)

With this it will be convenient to discuss the following:

Amendment No. 27, in clause 10, page 8, line 2, leave out '51 weeks' and insert '6 months'.  

Government amendments Nos. 75 and 76.

Amendment No. 28, in clause 10, page 8, line 7, leave out subsection (4).

Amendment No. 128, in clause 10, page 8, line 42, leave out subsection (12) and insert—

'(12) The Secretary of State must not make an order unless a draft of the order has been laid before Parliament and approved by a resolution of each House.'.

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

Amendments Nos. 74, 75 and 76 seek to remove the possibility of a custodial penalty being imposed for breach of a drinking banning order because we want to ensure that the courts use drinking banning orders where it is appropriate for them to do so. In addition to the ability of the magistrates courts to make a drinking banning order on application, the Bill also requires the courts to consider making such an order following conviction in every case in which the individual was under the influence of alcohol when the offence was committed. A high number of offences are committed while those responsible are under the influence of alcohol, and on reflection we consider that a custodial penalty purely for breach of a drinking banning order is not justified at this time, given the availability of fines and community sentences as effective deterrents.

Additionally, breach of a drinking banning order will be an aggravating factor when a court considers a sentence for any other offence committed alongside the breach. That could result in a custodial sentence. We believe that custody should be reserved for the most serious, dangerous and persistent offenders. There will still be potential for offenders to receive custodial sentences for persistent breaches of the community sentence imposed for breach of a drinking banning order.

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

If the Minister is right that custody should be reserved for the most serious and dangerous offenders, why does breach of an ASBO carry five years?

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

Breach of an ASBO can carry a custodial penalty of up to five years, because it is clearly a serious matter, but custody is not mandatory for breach of an ASBO, and in many cases, particularly where young people are concerned, community penalties have been used, with a range of other sentences. Earlier in our debate the hon. Gentleman welcomed the flexibility that the Government introduced in the Criminal Justice Act 2003, enabling a range of different community penalties to be used by judges and magistrates to target offences. Now he is trying to face both ways. He says that he welcomes a range of community penalties because he thinks that they are much more useful for targeting behaviour and getting people to change their behaviour than the old sentences of custody or a fine; yet now he says that a range of penalties for breach of a drinking banning order is not appropriate.

Breach of an ASBO will often happen after a lengthy period in which people are subjected to   violence, intimidation and harassment, which is intolerable behaviour to many of our constituents. Breach of a drinking banning order may amount to someone going into a pub from which they are excluded and carrying on visiting it as they used to. That is of a significantly different character from some breaches of the serious prohibitions in ASBOs. We are aiming for proportionate penalties for breach of a drinking banning order. If the hon. Gentleman means to say that courts should always respond to such incidents in the same way, he means to deny them that flexibility.

Custody should be reserved for serious, dangerous and persistent offenders, but it will still be available for persistent breaches of the community sentence imposed for the original breach of the drinking banning order. We do not propose to change the requirement that courts should consider making a drinking banning order following a conviction in every case. That is another point of difference from ASBOs, which are made on application or where a serious chain of events has occurred, in a persistent chronic set of circumstances. Drinking banning orders might not always be made in those circumstances. They might be made to give people a short, sharp shock. They might last for two months only. We do not think that breach of a two-month drinking banning order should necessarily result in a custodial sentence.

Jeremy Wright (Rugby & Kenilworth, Conservative)

Does the Minister accept that for persistent breaches of a longer drinking banning order it might be sensible to allow the courts the option—it is no more than that under the clause—to impose a custodial sentence? Does not she accept that, if the order is to be taken seriously, repeated breach of it over a prolonged period should carry the possibility of custody?

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

I have set out why the penalties should be community penalties and fines. If the community penalties are breached there is the prospect of custody. We must ensure that punishments in our criminal justice system are proportionate to the mischief with which we want to deal. What we are considering is significantly different from the serious and persistent antisocial behaviour that would be subject to an antisocial behaviour order. Therefore it is appropriate to tell people that, if they appear in court for breaching a drinking banning order, a community penalty—possibly a quite severe one—will be imposed, and that breaching that order carries the prospect of custody, giving people the sense that the punishment will be ratcheted up for any breaches that take place. That should be sufficient and appropriate to change the behaviour, which we want the legislation to promote. It is not simply about punishing people, but about getting them to change their behaviour in the first place.

Jeremy Wright (Rugby & Kenilworth, Conservative)

Assuming that the offender responds to community punishment properly but still continues to breach the drinking banning order, how will he be dissuaded from continuing the drinking behaviour that the order seeks to address?  

Sitting suspended for a Division in the House.

On resuming—

Jim Sheridan (Paisley & Renfrewshire North, Labour)

On a point of order, Mr. Forth. Given the interference and the irresponsible and unruly behaviour that came from outside the Room earlier on, is it within your influence to move such people on if that situation occurs in the future? Although it may not have been a crime, it nonetheless interfered with the proceedings of this House.

Eric Forth (Bromley & Chislehurst, Conservative)

I was also conscious of the disturbance, and I considered suspending the Committee. However, I felt that it was probably in the interests of business to proceed, and we managed to do so. I shall raise the point with the appropriate authorities, however, because the disturbance was unseemly to say the least, and most inconsiderate to those of us who are trying to do our job. I thank the hon. Gentleman for his comments. They are certainly duly noted.

The Committee is in the process of considering Government amendment No. 74 together with the others in that group. Has the Minister concluded?

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

I was about to respond to the hon. Member for Rugby and Kenilworth (Jeremy Wright), but as he is no longer in his seat, all I want to place on the record is that the situation he set out, in which somebody complies fully with their community penalty and still continues to breach their drinking banning order, is unlikely to occur. We would have the opportunity to return to community penalties and fines, so the situation he set out is unrealistic.

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

My hon. Friend the Member for Rugby and Kenilworth made a telling intervention, and I am proud to congratulate him on it. He asked why in a very bad case of breach we could not give the courts the discretion to issue as their final, if rarely used, punishment a term of imprisonment. It is extraordinary, bare-faced cheek that the Government do not explain their reasoning.

The Government published a Bill earlier this year with a flagship policy. What was it? It is the drinking banning order. They then set out in the Bill that anyone who breaches an order will be liable to 51 weeks' imprisonment. That is what they thought in January, February, March, April, May, June and July, and they must have had some reason to think it. What on earth was the reason behind the complete and utter U-turn on policy? There must be some reasoning for it.

Presumably, there may be in this Room persons who had something to do with the drafting of the Bill, or with the advice given to the Minister. The advice was plain: it is important to have a custodial sentence as one option open to the court. None of us would disagree with that proposition.

On Second Reading the Minister could well have stood up and argued before the House of Commons that the possibility of a custodial sentence was essential   as one of the punishments. The Minister would have happily deployed that argument a few months ago. I should like her to deploy it again, and then to tell us how and why she has changed her mind. My hon. Friend in his excellent intervention suggested that we should by all means keep custody as one possibility to be used not straight away but in a case in which there are continued, flagrant breaches of an order.

If I may say so gently, the Minister put up a very poor argument—I am not sure whether she drafted it herself—about the difference between sentencing powers in relation to the breach of an ASBO and those in relation to the breach of a drink banning order.

Stephen McCabe (Birmingham, Hall Green, Labour)

I am curious to know how the hon. Gentleman reconciles his current comments with those he made earlier. He told us then that the order was outrageous, that it could taint an individual's character and that it drew an unacceptable parallel with criminality. Now he is saying that the very order he feels so strongly about could be used as a vehicle for putting someone in prison. How does he reconcile those positions?

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

I suggest that the hon. Gentleman reads Hansard. I said no such thing.

Stephen McCabe (Birmingham, Hall Green, Labour)

I think that the hon. Gentleman did.

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

I venture to suggest that the hon. Gentleman needs to listen carefully to what I say; we shall talk about it again. I never said that the order was outrageous. I said that because of the serious nature of such an order, which is made in a criminal court, it is appropriate that a person might be entitled to legal aid, given the possible stain on their character. That has nothing to do with the point in question at the moment.

How can the Minister say that prison must be retained for the most serious and dangerous offenders? I think that that is what she said. Is she living in the real world? Let us consider serious and dangerous offenders. I mentioned a while ago that I had been involved in a case where someone had breached an ASBO. They had been banned from entering a London borough—I forget which; it may have been Greenwich—and they had entered it. That is all. They had not done anything rotten while they were there; they just entered it. It may well be that the Minister is going to try to persuade us that that is a most serious and dangerous thing to do, but when it came before the court and a custodial sentence was imposed there was no successful appeal. It was thought to be a perfectly proper approach. This was not a serious or dangerous person, but someone who had breached an ASBO. Such a breach carries a sentence of five years on indictment.

No distinction is made between the two cases, and to do a complete volte face on the issue of custody is quite extraordinary. At the end of the day, the breach of a drink banning order can be very serious because it is a direct flouting of a court's order. It is akin to contempt of court. Let it happen once and perhaps the court can impose a fine or a community penalty. Let it happen twice and perhaps the court can ratchet up to another community penalty. But if it happens three,   four or five times, why should the court not have the ability to impose a custodial sentence in an extreme case?

The Minister has disappointed us on that aspect. She has a duty to tell us this afternoon in the clearest language why she could and would have advanced an argument in May or June, which she would have then described as compelling, that the breach of a drink banning order should carry a custodial sentence, when only a matter of weeks later she tells us that there are compelling arguments why there should be no custodial sentence. What has changed in the world? If the Minister wants to tell us what has changed since June, she can do so. The Government's own Bill said that we should have a custodial sentence. Now they have changed their mind, and we need to know the reasons why.

I turn to amendments Nos. 28 and 128. Amendment No. 128 is important because I refer to subsection (12) which deals with the ability of the Secretary of State to make an order exercisable by statutory instrument. This takes us to the procedures of the House of Commons and it seems that we are talking about subsection (6), which says:

''The Secretary of State may by order provide that a person of a description specified in the order can bring proceedings for an offence under subsection (1)''.

That is quite a serious and weighty burden on someone. The House of Commons should have a good opportunity to consider what order may be made under the subsection and to debate it.

Amendment No. 28 relates to conditional discharge. I want to know whether I am right in saying that if a person is guilty of an offence—that is to say, is in breach of a drinking banning order—the court is prohibited from imposing a conditional discharge as a punishment. If the court is prohibited from doing so, I want to know why. The punishment is regularly used by the courts. The defendant is granted a conditional discharge for, say, six months. That means that if they do not offend in those six months, they will hear no more about it, but if they do offend, they will be charged and sentenced not only for that offence but for the breach of the conditional discharge. Why is a conditional discharge apparently removed from the options available to the court under this clause?

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

I welcome Government amendment No. 74. I would be interested to understand the Minister's change of heart, because that would indicate her thinking. However, at least there is now a logic to the argument that she has been making about this being a less-than-criminal offence. When we know what is involved, disorder may not be the severest of offences, and I understood that breaching a drinking banning order was to be a lesser offence. It is therefore right that there should not be a custodial sentence. I welcome a community sentence.

Amendment No. 128 is intended to deal with a situation in which too much power is placed in the   hands of the Secretary of State. Many aspects of the Bill seem to have needed rethinking, adjusting or redrafting, and there have been so many amendments that it is of the utmost importance that the Government should not simply use statutory instruments to make changes. The clause would allow the Secretary of State to keep adding to the list without any further substantive monitoring of changes made. It would be beneficial for no such order to be made unless a draft had been laid before Parliament and approved by a resolution of each House.

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

The hon. Member for Woking is making heavy weather of this issue. As I said before, drinking banning orders can range from two months to two years. In some cases, it will be necessary to give people a short, sharp shock about their behaviour, and custody is not appropriate in those cases. Something like 342,000 offences are committed under the influence of alcohol. We are keeping the provision that states that where there is a conviction for an offence committed under the influence of alcohol, the courts must consider making a drinking banning order, and there are therefore likely to be far more drinking banning orders than antisocial behaviour orders. That is quite right when these problems are plaguing a community.

As I have said on several occasions, I want the courts to use orders proactively and say, ''We have a person in front of us. They committed an assault when drunk. In addition to the penalty for that assault, we want to make a drinking banning order to stop them going in the pubs where they have been going for the last few weeks and drinking far too much, which resulted in the kind of violence that we saw.'' We therefore want to ensure that the penalties are proportionate and that we are not in territory where the courts will resile from using the orders because they feel that they are too draconian. We want the orders to be as flexible as possible, in terms not just of the prohibitions that they include and the length of time that they last, but of the penalties for breaching them. I ask hon. Members to think seriously about this matter. In pushing for custody, the hon. Gentleman is not looking at the—

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

The Minister misunderstands the point.

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

I understand the point, but the hon. Gentleman is making incredibly heavy weather of it. He wants custody to be an option. The option of community penalties and fines, and a range of community sentences that he has welcomed, are perfectly sufficient. Community orders can be a big imposition on people's lifestyle, as they have to make some restoration for the damage that they have caused. If the community penalty is breached and the person is brought back to court, he can face custody; and if there is another conviction, the fact that he has breached the drinking banning order would be an aggravating factor when sentencing. There are a number of ways in which sentences can be taken seriously.  

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

The Minister does herself a disservice. She should not say that I am pressing for custody. When she reflects upon that comment, she will realise that it is wholly inappropriate. At no stage have I pressed for custody. It is important to think before one speaks. I did not press for custody; I pressed for the option to be open to the court. That is all. Will the Minister please tell us why something that was thought proper in June this year—custody—is thought improper in October?

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

I think that I have given a proper explanation. Something like 342,000 offences could be subject to drinking banning orders. I accept that the hon. Gentleman was not pressing for custody in every case, but he wanted the option to be open to the courts. I have explained why other community penalties should be sufficient to bring people up sharply by confronting them with the consequences of their behaviour.

The hon. Gentleman spoke to amendment No. 28; that, too, shows that he is trying to face in two directions. That amendment would provide the option of a conditional discharge as a penalty for breaching a drinking banning order. A conditional discharge does not send out the message that sanctions will follow the breach of such orders. We have adopted a good middle way—if I dare use such a phrase.

When a drinking banning order is breached, the penalty is a community sentence or a fine. A conditional discharge is far too light a penalty; people will not be seen as facing any sort of sanction for breaching an order. Equally, custody is not appropriate if people have merely breached a community penalty. We have tried to adopt a reasonable, proportionate and moderate way of dealing with such matters, and ensuring that the penalties are appropriate.

Amendment No. 28 would mean that those who broke a drinking banning order—those who had conducted themselves in a criminal or disorderly way as a result of their alcohol-fuelled behaviour, which had caused problems for others—would face the prospect of a conditional discharge. That does not sent out the right message. It says that a drinking banning order is a matter of little consequence. I seek to persuade the hon. Gentleman not to press his amendment; if he does, I ask the Committee to vote against it. It will not reinforce the authority of the court.

The amendments of the hon. Member for Hornsey and Wood Green say that regulations should be made under the affirmative rather than the negative procedure. It would not be a good use of parliamentary time to ask that all orders of that nature should be debated. Orders made under clause 10(6) could extend the range of persons who can apply for a drinking banning order. It is entirely appropriate for that sort of order to be subject to the negative resolution procedure. If hon. Members felt strongly about the matter, they could pray against the order and then debate it. That is the appropriate way to proceed.  

Question put, That the amendment be made:—

The Committee divided: Ayes 12, Noes 4.