Clause 4 - Variation or discharge of orders
Violent Crime Reduction Bill
5:00 pm

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

I beg to move amendment No. 19, in clause 4, page 4, line 10, at end insert

'and cannot be made until the expiry of one quarter of the period of the order.'.

Eric Forth (Bromley and Chislehurst, Conservative)

With this it will be convenient to discuss amendment No. 183, in clause 4, page 4, line 14, leave out paragraph (a) and insert—

'(a) the court is satisfied that there has been a change in circumstances such that either the order is no longer necessary, or that it is no longer appropriate, or both; or'.

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

Amendment No. 19 deals with the important issue of a variation or discharge of a drinking banning order. Indeed, the clause is headed ''Variation or discharge of orders under section 2 or 3''. The purpose of my amendment—and amendment No. 183 is along similar lines, to some extent, referring as it does to the court's being

''satisfied that there has been a change in circumstances''—

is to tease out the Minister's further thoughts on the issue of variation and discharge. Under subsection (6), a drinking banning order cannot be discharged less than halfway through. I am not entirely sure that that is appropriate. There should be more flexibility about discharge, hence my amendment No. 183.

What about variation? It seems that under the Bill anyone can apply for a variation of the order at any stage. That is an interesting situation, Mr. Forth. If you or I are made subject to a drinking banning order on a Monday—it may perhaps be a two-year order—what are we to do about it? Under the Bill, we must wait a year before any application can be made to discharge it. We understand that, but would not it be possible under the Bill for us to return to court on Tuesday to make a variation application?

If I am wrong, the Minister will tell me, but if I am right that makes a mockery of the view that the order cannot be discharged; it could be varied. That may give a potential defendant—or more probably a respondent, in civil proceedings—the opportunity to   appear almost weekly, without ban, on a whim, to apply again and again for variations of the order. The number of possibilities is immense. Can the Minister explain?

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

Clause 4(6) states that an application to vary or discharge an order can be made at any time. Following an application an order could be varied at any time, but it could not be discharged before the end of half its duration unless consent was given by the relevant authorities. With consent, it could be discharged. For example, a two-month order could not normally be discharged until a month had elapsed. The purpose of the provision is to specify that there ought to be a minimum time in which the order has a chance to affect the behaviour of the person who is the subject of the order.

We had a discussion earlier about whether a two-month minimum period was an appropriate period. There was broad agreement among members of the Committee that the prospect of a young person not being able to go to their favourite pub or club for a period of eight weeks could be quite an incentive for them to change their behaviour and perhaps get not quite so drunk the next time they visited that pub or club. We can debate where the line should be drawn and what the earliest point ought to be, but I want to see sustained evidence of changed behaviour as a result of the drinking banning order. We do not need to be too prescriptive about when applications can be made.

Amendment No. 183 would remove the minimum period that an order must be enforced before it can be discharged and would leave the decision to the court based on whether the circumstances had changed. The court should take a view on this matter, but there should be a minimum period, which is why we have specified half the total length of the period specified. If the orders are to be effective, we cannot have a position where they do not have time to bite on the person who is guilty of criminal or disorderly behaviour or has been convicted of a fairly serious assault. For the power to be worth while, it has to be effective for a minimum period. The test that the amendment proposes is already provided for because courts are not going to discharge drinking banning orders when the behaviour has not changed enough for the order to be no longer necessary.

The provisions are appropriate. They provide for a minimum period for the order to take effect. Applications for variation can be made, and it might be that circumstances have changed in relation to where the person lives, or that some other prohibition in the order that is no longer appropriate needs to be varied, but the core provisions that ban people from going to pubs and clubs where they cause the most problems ought to have time to bite.

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

Where in the clause is there any provision to prevent an applicant or respondent from making weekly, or nightly, applications to vary the terms of the order?

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

The hon. Gentleman, from his extensive court experience, will know that where there is an abuse of the process of the court, there is provision for action to be taken. If applications are   made in a frivolous and vexatious way, the courts will be able to deal with them. We are considering a perfectly sensible provision that the order ought to operate for a minimum period, but that people ought to be able to apply to vary it. We want to get the balance right between the rights of people subject to such orders and the need to protect the community. This procedure provides that correct balance while ensuring that there is no abuse of the process of the court, and that the order has time to take effect to change the behaviour of the person who is the subject of the order.

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

I am sorry to say that the Minister's answer does not satisfy me. The truth of the matter is that an order can be made on Monday and there is absolutely nothing in the Bill that prevents a respondent to the order from going back to court on Tuesday and issuing a complaint seeking to vary—not discharge—the terms of the order.

Let us assume, for example, that the order specifies that the person concerned shall not enter 28 named licensed premises in the constituency of Woking. That order is made on a Monday. The next day, the respondent can lodge a formal application to vary the terms of the order to make it 27 rather than 28 licensed premises, and so on. The question of abuse is rarely raised when a magistrates court acts against an applicant. It is used more against the Crown than anything—for example, in cases of abuse of process. I wonder whether I can press the Minister slightly on that point.

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

The hon. Gentleman can press me, but he has acknowledged that there is a procedure for abuse of process, as he well knows from his extensive legal experience. Where defendants, respondents or applicants act frivolously and vexatiously, the court can make an application that that is abuse of process. The court can also make people pay costs, which can be a good incentive for people not to bring forward empty applications. I am informed that the ultimate sanction is that the Attorney-General can take proceedings to restrain a person from making further applications without leave of the court. I understand that the hon. Gentleman is seeking to make his point, which is that there are no measures available to stop frivolous applications, but we have heard him give a series of hyperbolic examples. From his experience he should know that courts are fairly practical places, and I have every confidence that they will deal robustly with applications that they deem to be frivolous, vexatious, an abuse of the court's process or a waste of its time.

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

I thank the Minister for describing me as ''hyperbolic''; I must look it up. However, is it within the court's power upon an application by the respondent to vary the terms of an order to lift the order pending the hearing of the variation?

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

It would be my understanding that there is no power to discharge the order until half the period of the order has expired. If the hon. Gentleman seeks to draw a distinction between lifting and discharging, it would be interesting to explore that fine distinction. I understand that the court has no power to discharge the order; it remains in place while   the application for variation is being heard. On that basis, I ask the hon. Gentleman to withdraw the amendment.

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

Which I shall do. Not with any degree of happiness, but the Minister has given her best and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.