New Clause 1 — Crime and Disorder Act 1998 (Amendment)

Orders of the Day — Violent Crime Reduction Bill – in the House of Commons at 4:15 pm on 14th November 2005.

Alert me about debates like this

Votes in this debate

'(1) The Crime and Disorder Act 1998 (c. 37) is amended as follows.

(2) In subsection (7) of section 1 (anti-social behaviour orders), for "two years" substitute "three months".'.—[Mr. Malins.]

Brought up, and read the First time.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

With this it will be convenient to discuss the following: amendment No. 1, in clause 1, page 1, line 6, leave out clauses 1 to 11.

Amendment No. 2, in clause 1, page 2, line 2, after 'subject's', insert 'knowingly'.

Amendment No. 3, in clause 1, page 2, line 3, after 'entering', insert

', and attempting to purchase alcohol in or consuming alcohol in,'.

Amendment No. 4, in clause 1, page 2, line 4, leave out from beginning to end of line 8 and insert—

'any premises, other than a private dwelling, for the purposes of purchasing or consuming alcohol.'.

Amendment No. 28, in clause 1, page 2, line 20, at end insert—

'(5) Before making a drinking banning order, a court may 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; 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.

(6) 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, a doctor or a social worker of a local authority social services department;

(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.

(7) 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 on his mental or physical health.'.

Amendment No. 13, in clause 2, page 3, line 3, at end insert—

'(6) For the purposes of this Act, "disorderly" shall mean conduct which would offend a reasonable person but which falls short of a criminal act.'.

Amendment No. 5, in clause 5, page 4, line 26, leave out

'under the influence of alcohol' and insert 'drunk'.

Amendment No. 6, in clause 5, page 4, line 28, after 'consider', insert

'on any application by the Crown'.

Amendment No. 30, in clause 6, page 5, line 19, leave out subsection (9).

Government amendment No. 42.

Amendment. No. 14, in clause 11, page 9, line 16, at end insert

'"disorderly" means conduct which would offend a reasonable person but which falls short of a criminal act.'.

Government amendments Nos. 43, 44, 82, 83 and 86 to 93.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

We come now to one of the Bill's main purposes, which is to tackle alcohol-related disorder. I should say at the start of my remarks that I hope to divide the House on new clause 1 if the Minister does not accept it. I have some hope that the Minister will accept it, based on her comment a few minutes ago that my amendment No. 22 was one that she was inclined to accept in due course. In my many years in this House only extremely rarely have the Government accepted anything that I have said—perhaps it is a fault in my arguments. However, it is terribly encouraging to start the debate this afternoon with the Minister saying that she approves of what I have said so far in relation to one amendment.

I shall explain new clause 1 and speak to Conservative amendments Nos. 1 to 4, 13, 5, 6 and 14, then say a word or two about Liberal Democrat amendment No. 28. New clause 1 is simple: it would amend the Crime and Disorder Act 1998 to enable an antisocial behaviour order made under that Act to be made for a minimum period of three months, rather than two years, as now. Linked with the new clause is amendment No. 1, which would omit clauses 1 to 11.

I make two general propositions in this, the most important debate of the day. The first is that although alcohol-related disorder on our streets is a major problem—not ameliorated by the Government's plans to introduce extended drinking hours, which many people including the police regard as a retrograde step—and one that is getting worse by the day, not enough is being done to address it. The second general proposition is that the existing law is entirely satisfactory when it comes to dealing with alcohol-related disorder. That general theme lies behind new clause 1, which seeks to alter the period of time for which an antisocial behaviour order must be made.

When we discussed antisocial behaviour orders in Standing Committee—I think that it was at the first sitting on 13 October—my hon. Friend Mr. Prisk asked the Minister to reflect on the fact that using existing law is often better than creating new laws. Our general proposition was not only that an antisocial behaviour order can do exactly what a drinking banning order purports to do, but that it can do more and that it may be effective. If that is right—we thought that it was and still think that it is—why give the police yet another power in relation to drink?

The Minister seemed to indicate in Committee that antisocial behaviour orders are not applicable to the kind of activity—alcohol-related disorder—covered by the Bill, and when we asked her why, she pointed out two differences. First, she said that an antisocial behaviour order can be imposed on anyone from the age of 10 upwards, whereas a drinking banning order can be imposed only on over-16s. That is not an argument, however, because if we were to use antisocial behaviour orders in drink-banning situations, we would have a wider, better, less-limited power. I illustrate that point by saying that a lot of under-age drinking involves not 16 to 18-year-olds, but 14 and 15-year-olds, so the Minister's argument fails.

The Minister's second point against the use of antisocial behaviour orders was that under current law—the Crime and Disorder Act 1998—the minimum period for an antisocial behaviour order is two years, whereas for a drinking banning order it is two months. That is a statement of the law, but we can cover the point by simply amending the 1998 Act to enable an antisocial behaviour order to be made for a more flexible period of time, which is the result that new clause 1 attempts to achieve.

Earlier, I advanced the proposition that the existing law on alcohol-related disorder in our towns and cities is voluminous.

Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Education)

Is not a further reason why antisocial behaviour orders may not be suitable the amount of evidence required to issue them, as opposed to the evidence required to issue drinking banning orders? The Bill states that someone need only engage in criminal or disorderly behaviour on one occasion for a drinking banning order to be applied for, whereas an antisocial behaviour order requires a longer period of evidence gathering.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

With respect to the hon. Gentleman, that is not right. Both of those orders must be made by a court upon the production of evidence that satisfies the court that the appropriate order should be made.

A third reason why an antisocial behaviour order could be more appropriate than a drinking banning order is the consequences of a breach. As I understand it, the penalty for a breach of a drink banning order is not the highest. Under clause 10—the Minister will correct me if I am wrong—a person who is the subject of a drink banning order is guilty of an offence and shall be liable on conviction to a fine: not a fine or imprisonment, but just a fine. The clause imposes a drink banning order and effectively says to the person who is its subject: "Breach this order and the result will be a fine", whereas the breach of an antisocial behaviour order can, and often does, result in a custodial sentence, and rightly so.

Let me illustrate further my proposition that existing law deals with problems of the sort that the Minister is trying to deal with. Some months ago, I asked her what powers courts have to ban defendants from entering licensed premises—because, let us make no mistake about it, that is what the drink banning order purports to do. She replied:

"Under the provisions of the Licensed Premises (Exclusion of Certain Persons) Act 1980 a court can make an order prohibiting a person from entering specified licensed premises, following conviction for an offence committed on licensed premises involving violence or threats of violence."

The power already exists. Undoubtedly a great number of orders should have been made under the 1980 Act, but how many have been made? The Minister went on to say that

"antisocial behaviour orders . . . introduced under . . . the Crime and Disorder Act 1998 and first used in 1999 can also be used to prohibit certain people from entering certain specific areas or premises."—[Hansard, 12 July 2005; Vol. 436, c. 908W.]

If an antisocial behaviour order that carries a custodial sentence in the event of a breach can be used to prevent certain persons from entering certain areas or premises, what does a drink banning order add, if anything, to the existing law?

We suffer from a surfeit of laws. The House of Commons passes law after law, and the trouble is that they pile up and fall into disrepute, and quite often existing legislation that is perfectly fit for purpose is not properly used.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

One of the difficulties that we noted when antisocial behaviour orders were first introduced was the substantial delay before courts started making such orders on a regular basis. Does my hon. Friend think that that might happen with drink banning orders; and if it did, would not that undermine the Government's proper desire to deal with such problems instantly?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

My hon. Friend is right. Such situations are becoming increasingly common. As we all know, in their early years antisocial behaviour orders were barely used at all. I remember the then Home Secretary telling the Home Affairs Committee that he thought that thousands would be used in the first year or two, but such is the bureaucratic nightmare involved that only a few hundred were used in that period. The use of antisocial behaviour orders has increased a lot in the past couple of years, and I congratulate the Government and the courts on that. There is always a very slow run-in period before such orders are used to their full effect. It could properly be said that antisocial behaviour orders are now the norm rather than the exception in such cases, and breaches usually result in a custodial sentence. So his parallel point about the drinking banning order, which, according to the Government, we need to cure an immediate problem quickly, is correct. If the antisocial behaviour order is anything to go by, it will be years before the drinking banning orders get under way and are used to their full effect.

What problems do the drinking banning orders purport to attack? The answer is the alcohol-fuelled disorder, to which I referred earlier. No hon. Member doubts that one of the greatest problems that the country faces is binge drinking, especially by young people, both girls and boys. The Prime Minister's strategy unit's alcohol harm reduction project was established a year or two ago. It told us—we knew it already—that British teenagers, along with those in Ireland and Denmark, are among the heaviest teenage drinkers in Europe. They are more likely to drink to get drunk and to report problems that are associated with drinking than their counterparts in other European countries.

There is a telling statistic: more than one third of 15-year-olds in the United Kingdom report having been drunk at the age of 13 or earlier. That is a desperate figure. Given that an antisocial behaviour order can be made against someone as young as 10, the problem of young person's drunkenness could be better addressed through such an order.

Patterns of heavy and binge drinking, which are especially serious in the UK, lead to an increasing toll of premature death and health problems as well as alcohol-related disorder and injuries.One of the most distressing factors is the number of women who drink well above recommended guidelines. That figure has risen by more than half in the past 15 years. Hon. Members will agree that binge drinking by young women is perhaps even more dangerous in health terms than that by young men.

We face big problems and binge drinking is undoubtedly one of them. Come with me, Mr. Speaker, to the streets of some of our towns and cities in the south on a Friday and Saturday evening, and see what happens when people, full of alcohol, are turned out of pubs and clubs at 11 pm or 12 am. It was probably different in our day—I say that as a kindness to all hon. Members—when there was no such thing as spirit chasers. In my experience in the courts, I have encountered many young people who commit alcohol-fuelled crime, who, in between their pints of bitter, have a double vodka or a double spirit shot. That is a relatively new and damaging trend which must be tackled.

Photo of Jim Sheridan Jim Sheridan PPS (Team PPS), Ministry of Defence 4:30 pm, 14th November 2005

The hon. Gentleman has just said that the most dangerous time is when people are tipped out of pubs at 11 pm and 12 am and gravitate towards the centre of towns. Surely that is an argument for extending the licensing laws and for more flexible licensing laws so that people are chucked out at different times of night?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

The Government continually argue that the new licensing laws will lead to a continental café culture, whereby everybody comes out of the clubs and behaves beautifully. However, the hon. Gentleman is naive if he believes that extended licensing hours will help. I understand that the Government always support the police and, if the police say something, the Government appear to believe that it must be right. The police have said that they are terribly worried about late drinking hours and the Judges Council has made a statement to the effect that alcohol consumption over a longer period of time—the extended licensing hours—is much more likely to fuel alcohol-related crime. I therefore urge the Government, even at this late stage, to think again, given that so many people are against them on permitting alcohol to be drunk round the clock.

The problems of alcohol-related disorder are clearly there for all to see, but there is already a range of offences and orders to cover everything that happens on our streets in relation to drunkenness and drunken crime, and according to the Home Affairs Committee, which is dominated by Labour Members, those powers are grossly underused at present. So what is the point of introducing a new Bill with a complicated new kind of order when the existing law is wholly adequate?

The whole issue is about the proper enforcement of those existing laws, and I shall give the House some examples. If a person is drunk, there is an offence of simple drunk. If they are drunk and disorderly, there is an offence of drunk and disorderly. It is interesting to speculate on the number of people who are prosecuted for being drunk or drunk and disorderly. In truth, the numbers are dropping dramatically, yet there is more drunkenness and disorderliness on our streets. Why, then, have the prosecutions dropped from about 124,000 in 1980 to fewer than 44,000 in 2001? I suspect that the Government would answer that most offences of drunk and disorderly are dealt with by issuing fixed penalty notices. That can sometimes send the wrong signal, however, because some people deserve to appear in court.

When we referred to fixed penalty notices at the Standing Committee's second sitting, I remember the Minister saying:

"From January to August of this year, 86,000 fixed penalty notices were issued across the country".

When I asked her how many had been paid, she replied:

"Something like three quarters: 50 per cent. straight away and 25 per cent. after a little delay".—[Official Report, Standing Committee B, 18 October 2005; c. 63.]

I then referred the Minister to a written question that I had put to her Department in June this year. I had asked for the total value of fixed penalty notices handed out by the police in the Greater London area in the past 12 months, and the percentage that remained unrecovered. One would have thought that the Minister's answer to that question would have been the same as the one that she gave in Committee. However, her answer was that the total value of fixed penalty notices issued was not collected centrally. So, in fact, she was able to tell us very little about the effectiveness of fixed penalty notices.

Apart from the offences of drunk and drunk and disorderly, there are the offences of common assault and actual bodily harm, as well as four or five offences under the Public Order Act 1986, ranging from riot right down to using abusive words and behaviour. And so the list goes on. Offence after offence can and should be used by the Government but they are simply not being used at the moment.

Antisocial behaviour orders are the subject of new clause 1, and I believe that changing the time for which they operate from a minimum of two years to three months could fit the bill. I want to ask the Minister some specific questions. Does she accept that an antisocial behaviour order can prohibit persons from entering specific areas or premises? Does she also accept that such an order could prevent a person from entering a licensed premises? She must accept that the answer is yes to both those questions. Will she therefore tell me how many such orders forbidding persons to enter such licensed premises have been made so far by the courts? How many have been breached? How effective have they been? How many people have been sent to prison—as is possible under an ASBO but not under a drink banning order—for such breaches? Will she also confirm that another restriction that can be laid upon an individual is, before trial, to impose bail conditions forbidding a defendant from going into specified premises?

The Minister has said that antisocial behaviour orders are not appropriate for dealing with alcohol-related disorder. May I gently suggest to her that she is completely out of step with the courts, which, I can tell her from my own experience, are using ASBOs to deal with exactly the sort of alcohol-related disorder that we are facing? I repeat the point that they are stronger than drink banning orders, simply because the penalty for breach can be up to five years in prison—I will be corrected if I am wrong—whereas the penalty for breach of this drink banning order is only a fine. That troubles me, because if the breach only results in a fine, our means courts will be flooded with cases of people who have a drink banning order made against them, who breach it, and who do not pay the fine, which is the maximum sanction. That is the reality. If you and I were to know, Mr. Deputy Speaker—I knew at one point—the percentage of unpaid fines in the Greater London area in a particular year, we would be absolutely astonished at the volume of them.

The question of breach is important. The Minister said, during the Committee's third sitting, I think, on 18 October, that custody is not appropriate if people have merely breached a community penalty. I happen to take a different view, and I wonder where she has been all this time—in fact, in courts up and down the land, breaches of community penalty often result in a custodial sentence, not least for the original offence.

I want to speak briefly to some other important amendments. The purpose of new clause 1 and amendment No. 1 is my fundamental one of saying that the proposed legislation is unnecessary and that the problems addressed can be dealt with fully under existing law. For that reason, I want to press new clause 1 to a vote.

Under clause 1, prohibitions under a drink banning order

"must include such prohibition as the court making it considers necessary, for that purpose, on the subject's entering premises in respect of which there is a premises licence authorising the use of the premises for the sale of alcohol by retail; and . . . club premises".

My amendment No. 2 is a reasonable provision that seeks to insert into the clause the word "knowingly", because as we all know, some premises such as garages are licensed to sell alcohol, and it is entirely possible to enter a garage premises to get petrol unaware that it also holds a licence and sells wine and spirits.

More importantly, amendment No. 3, on which I am considering asking you, Mr. Deputy Speaker, whether you would permit a separate vote, would simply insert into clause 1(3) the words,

", and attempting to purchase alcohol in or consuming alcohol in,"

That gets us round the problem, which we discussed ad nauseam in Committee, whereby supermarkets, under clause 1(3), would be covered by the ban. Let us remember that the court "must" include a prohibition, not "may". People would therefore be banned from going into supermarkets and corner shops. Would people living close to the only village shop or post office , which might sell alcohol, be banned from going into them? What about garages, sports clubs, hotels, restaurants and cinemas? We are talking about premises that by and large are not remotely connected with the fuelling of alcohol-related disorder, but that are licensed premises, and would therefore be caught under the provision prohibiting people who are subject to a drink banning order from entering them.

During the second sitting of the Standing Committee, Conservative Members raised the issue of the premises that would be covered. We all know that the premises that cause the real problem in terms of alcohol-related disorder are pubs that behave irresponsibly. What about the premises that I listed earlier? Would a court ban people—as it appears it would have to—from entering all licensed premises?

Having listened to the argument, the Minister said:

"On 26 October I, the Home Secretary and Ministers from the Department for Culture, Media and Sport will meet the chief executives of the large supermarket chains, to talk about the issues that the hon. Gentleman has raised. I think that most people accept that they are a problem."

I now ask the Minister to respond fully to my request, and to tell us exactly what happened at that meeting.

The Minister went on to say—this is a critical point—

"We are talking about the behaviour of the individual, and it will be for the courts to decide the appropriate prohibitions of an order. It may say"

—I think that the Minister meant that the court might say—

"that the individual can carry on using the corner shop if it is the only shop for 10 miles—although I doubt that—but he may be banned from buying alcohol there. He could still buy fish fingers, but not alcohol. If he bought alcohol from the garage rather than petrol, he would be in breach of the order and a sanction would follow—and properly so."—[Official Report, Standing Committee B,18 October 2005; c. 47–8.]

Let us pause for a moment. Can the Minister tell us where the Bill says that the court has a power to act in any way that it thinks fit in relation to any particular licensed premises, by name or by description? I want her to be absolutely clear about that, and to answer my fundamental question: rather than including the rigmarole about premises with a licence, club premises and so forth, why does she not accept a straightforward amendment to the effect that a drink banning order may impose a prohibition on a person from entering licensed premises for the purpose of purchasing or consuming alcohol?

In fewer words than those used by the Government, my amendment absolutely covers the position. No Member in his right mind wants to stop someone from entering a garage, supermarket or village shop. I can tell the Minister that plenty of people live in areas so rural that the only shop within miles where they can obtain their daily provisions is one with an alcohol licence. There are also plenty of people who rely entirely on their sport to keep them going. They will want to go on visiting sports clubs which have licences. Why not accept an amendment—amendment No. 4—which allows them to do that, but states that the order can prohibit them from buying or attempting to buy alcohol there, or from consuming it? I believe that those arguments are compelling.

Amendment No. 13 brings us to the extraordinary word "disorderly". I want to insert a definition in clause 3. An earlier part of the Bill states that the court must be satisfied

"that the individual has . . . engaged in criminal or disorderly conduct while under the influence of alcohol".

The word "disorderly" utterly stumps me. It is not defined anywhere in the Bill, so I seek from the Minister some examples of what she means by "disorderly behaviour". Is it disorderly behaviour that is a crime or is it disorderly behaviour that falls short of a crime? I remember challenging a Government Member in Committee on precisely that issue. I asked whether she could provide some examples of disorderly behaviour that did not amount to a crime. In truth, she could not. If my memory serves me correctly, she first provided an example of someone who was plainly drunk and disorderly and subsequently examples of matters that were plainly a criminal offence.

I have talked the issue through with legal colleagues who are utterly stumped by the Government's failure to define disorderly conduct. In an alcohol context, being drunk and disorderly is already a crime. My probing amendment No. 13 asks what is meant by "disorderly", and I would be most grateful for the Minister's clarification.

The greatly respected organisation Justice takes a similar view. It believes that the threshold in clause 2(2) for the imposition of a drinking banning order is too broad. Drinking banning orders, it believes, should surely be aimed at those who

"drunkenly commit acts of violence, criminal damage, threatening behaviour and similar crimes. It is, we believe, uncontroversial"— and I agree—

"that mere high-spirited behaviour, (which most law-abiding people have indulged in at some time) should not result in a coercive order of this nature and severity."

Where do high spirits come in relation to disorderly behaviour, what is the actual definition of disorderly and is it not already covered by existing criminal offences?

On amendment No. 5, will the Minister define the difference between being under the influence of alcohol and drunk? The Bill purports to permit a drinking banning order to be made against someone who is

"under the influence of alcohol", rather than drunk. I looked carefully at the legal precedents to see what definitions there were in existing legislation of being under the influence of alcohol compared with being drunk. We all know from our experience in the courts and, more commonly, as watchers rather than anything else, what a policeman would say about someone whom he or she deemed to be drunk. The policeman would say that the person's eyes were bloodshot, his speech slurred, he could not walk straight and so forth, so he was "drunk".

What, then, of being under the influence of alcohol? The closest parallel that I can find is the drink-driving laws, where it is entirely possible to be

"under the influence of alcohol", but not "drunk". Of course, drink-driving laws are administered through the use of a breathalyser at the roadside and thereafter a taximeter test at the police station. Someone whose breath intake of alcohol exceeds 35 mg or, in blood, 80 mg, is deemed to be under the influence of alcohol. That is the actual charge laid against someone driving a motor vehicle while under that influence, but it does not mean that they are drunk. According to the law, as determined by the breathalyser, they are under the influence of alcohol. Why, then, does clause 2(2) make it a condition for making the order that the individual has engaged in

"disorderly conduct while under the influence of alcohol"?

Does the Minister mean drunk and, if so, why does she not say so? If she means under the influence of alcohol, will she define exactly what that means?

My amendment No. 6 relates to clause 5, which deals with the imposition of a drinking banning order. It seems sensible to me that the body responsible for imposing such an order should be the Crown who prosecutes the case, rather than the court. Courts often consider making such an order without reference to the Crown or without taking the Crown's views into account. It is more sensible to say that a drinking banning order should be made on an application by the Crown rather than of the court's own volition.

My final amendment in this group, No. 14, tries to be helpful to the Government by inserting in the clause a definition of the word "disorderly". I simply ask the Minister to be kind enough—

Photo of Jim Sheridan Jim Sheridan PPS (Team PPS), Ministry of Defence 4:45 pm, 14th November 2005

If memory serves me right, in Committee, when we discussed what constitutes "disorderly" behaviour, the example that was given was six youngsters under the influence of alcohol outside someone's house. The hon. Gentleman says that such people are simply exhibiting high spirits. Would he tell a constituent who complained about such a situation that the youngsters in question were just in high spirits, or that they were being disorderly?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I say now exactly what I said in Committee. Let us consider the example of six 18-year-old youngsters who have been to a 21st birthday party and are under the influence of alcohol. [Interruption.] Let me finish this point. Let us say that there are some high spirits and that—in keeping with the example given in Committee—they were making a bit of a noise running across the road. If it is not a criminal offence, it does not deserve the sort of sanction that this Bill provides for. That is why we have the criminal law, by the way. There are many decent, high-spirited people who behave in ways that do not break the law, and as far as I am concerned, let them do so. The law is the law, and normal high spirits should not—I repeat, not—be punished by a drinking banning order, which is a very punitive measure indeed.

Photo of Jim Sheridan Jim Sheridan PPS (Team PPS), Ministry of Defence

Is that what the hon. Gentleman would tell his constituents?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

Yes, it is. I would tell them that normal high spirits are entirely to be accepted. If the hon. Gentleman is saying that under his Government, normal high spirits should be punished by a punitive order, I disagree with him wholeheartedly.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Two weeks ago, a constituent came to my surgery who is being plagued week in, week out by a group of youngsters consuming large quantities of alcohol. The hon. Gentleman describes such behaviour as high spirits, but my constituent does not, given that she is being woken up at 2 and 3 o'clock in the morning. Are the Conservatives now happy for law-abiding people such as her to be kept awake all night by "high spirits"?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

Oh dear—the hon. Gentleman misses the point altogether. The people keeping that person awake all night are almost certainly drunk and disorderly, and the police—[Interruption.] Forgive me, is the hon. Gentleman saying that those people are not disorderly?

Photo of Kevan Jones Kevan Jones Labour, North Durham

My constituent is saying that week in, week out, she and her neighbours are being harassed by people who are perhaps not completely drunk according to the hon. Gentleman's argument, but who are clearly causing a nuisance in that neighbourhood. Is he saying that such behaviour is acceptable?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

The hon. Gentleman, who was a valued member of the Committee, is not doing himself justice. If the conduct amounts to a criminal offence, it is a criminal offence. I am in no doubt that he is familiar with sections 4, 4(1)(a) and 5 of the Public Order Act 1986, and he will doubtless intervene to tell me whether he believes that they cover the situation about which he is talking. [Interruption.] Does he want to tell me what he thinks about my observation that those sections apply? Yes, he does.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Anyone can be a clever lawyer—there are too many in this place—but the point is that this Government are trying to tackle disorder on estates. Frankly, by referring to such hooligan-style behaviour as "high spirits" the hon. Gentleman shows just how out of touch he is.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

The hon. Gentleman is letting himself down time and again, and I will be doing him a service if I do not give way again. I repeat: the behaviour that he is talking about is a criminal offence, and what we want is proper enforcement of the existing criminal law. We need to distinguish between criminal acts, and high spirits that do not amount to a criminal act. If such behaviour amounts to a criminal act, let those guilty of it be prosecuted; if it does not, there is no point in a harsh sanction.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

Does my hon. Friend agree that the sort of behaviour that Labour Members are describing sounds very much like antisocial behaviour? If that is so, is not an ASBO the appropriate remedy?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers) 5:00 pm, 14th November 2005

My hon. Friend is right. If the behaviour is not thought by the police to warrant prosecution in a particular case, an ASBO is a relevant application.

Photo of Jim Sheridan Jim Sheridan PPS (Team PPS), Ministry of Defence

May I also let myself down by asking the hon. Gentleman to clarify the difference between high spirits and disorder? Will he give a practical example of what the difference is?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I shall link drunk and disorder, which is an offence. I have already said that the number of prosecutions is lamentably low for that offence. The hon. Gentleman must understand that there is a difference between something that is not an offence and something that is an offence.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

If a person in the street is drunk—I cannot make it much simpler than that—and is then disorderly, that is an offence of being drunk and disorderly. [Interruption.] The line lies where the police and the courts—thank God, we still have the courts—choose to draw it. Genuine high spirits, which do not amount to someone being drunk and disorderly, are not a criminal offence. I hope that the hon. Gentleman understands that.

Photo of Bob Spink Bob Spink Conservative, Castle Point

Is not a material factor the regularity with which the bad behaviour takes place, which is damaging a community's quality of life? If there are high spirits on one occasion, that is one thing; if there is repeated bad behaviour in a particular area, that should be tackled by the use of ASBOs.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

My hon. Friend is right. I cannot make the point to Labour Members more clearly than I have. If there is an offence under the Public Order Act 1986 or under any other legislation, it should be prosecuted. If there is no offence, there should be no prosecution. We must never forget, as my hon. Friend Jeremy Wright has said, that there is the availability of the ASBO, which if granted—

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

The hon. Gentleman was not, I think, a member of the Committee that considered that Bill, so he is not able to say that. If an ASBO is made and it is breached, that can result in a custodial sentence.

First, the reality is that we have a huge amount of alcohol-related violence, and it is becoming worse by the month under the Government. Secondly, there is no doubt that there is a huge amount of existing law relating to drunken violence that is not being enforced by the police. Thirdly, an ASBO covers the process that the Government want to include in their new Bill. We need only to amend the ASBO legislation to permit orders to be made for a shorter period of three months. In one fell swoop we would overcome the Minister's apparent objection in Committee.

The Minister must understand that the purpose of the orders is to ban people from purchasing, or attempting to purchase, alcohol rather than entering premises that may have a particular licence. I know that Lynne Featherstone will be making her comments on behalf of the Liberal Democrats on amendment No. 28. I have much sympathy with that amendment and I hope to be able to respond to her as the debate progresses.

Photo of Lynne Featherstone Lynne Featherstone Shadow Spokesperson (Home Affairs)

I shall speak to amendments Nos. 28 and 30 and comment on other amendments in the group. With the permission of the House, Mr. Deputy Speaker, I shall probably put amendment No. 28 to a vote at the appropriate time.

Amendment No. 28 is an attempt to ensure that a drinking banning order is not applied inappropriately—a point that, to some extent, we discussed in Committee. There are cases where an individual, through a number of conditions, is rendered incapable not just of complying with an order, but of understanding it. In such cases, a person may suffer from substance addiction, including alcohol dependency, or have a mental condition such as Asperger's syndrome or Tourette's syndrome.

The amendment that we tabled in Committee stated that a court "must" have a report on each individual who appears before it. The Minister argued that the paperwork involved would create too heavy a bureaucracy and delays would occur. She said that drinking banning orders were meant to be a quick and effective punishment without being as cumbersome or severe as antisocial behaviour orders, which carry a much longer and more severe penalty.

As suggested by Mr. Malins in Committee, the amendment now says that courts "may" ask for a medical report so that they can be satisfied that the individual can understand and comply with a drinking banning order. I was persuaded by the Minister's argument about bureaucracy, and she offered to include in the guidance the need to consider asking for a medical report. On reflection, however, I decided that simply to place it in guidance is not enough of a safeguard for an individual who is thus incapacitated. I have modified the amendment to put the measure on the face of the Bill to ensure that all courts and advocates refer to it and recognise its relevance.

Guidance for mental health problems is used to support antisocial behaviour order legislation, but it has not worked. One does not have to look far to find examples of ASBOs being served inappropriately. The British Institute for Brain Injured Children provided me with many examples, one of which in particular stuck in my mind. A 14-year-old boy was given an ASBO that included a curfew. He had to stick to it, but he had a mental age below that of a seven-year-old and could not tell the time. The boy and his family needed help to deal with their problems, and an ASBO was inappropriate in enabling them to receive guidance and support.

With the amendment changed to "may" instead of "must"—I hope that the Minister is in a good mood—the judiciary would be able to avoid using a drinking banning order inappropriately while ensuring that the process was still quick. A doctor or GP should also be able to give their opinion to a court to speed that process further. If drinking banning orders are to work in the way envisaged by the Government, they should be swift procedures, more akin to parents grounding their naughty children. It should be a short punishment that is not meant to last a lifetime but to shock them into realising the error of their ways. We need to be sure that the vulnerable are adequately and properly protected.

Amendment No. 30 returns to the issue of publicising individuals who are subject to a drinking banning order. The Government want to disapply the blanket ban on the publication of names and photographs of defendants under 18. We think that that contravenes the United Nations convention on the rights of the child. That is applied to the criminal law, and we are considering the civil law, but such publication would break with the spirit of the convention. We want to protect young people.

I was surprised by the Minister's view in Committee that it was appropriate to put photos and names in the press. She argued that if I wanted the measure enforced, I should be happy with that, because the more publicity that names and faces received, the more likely it would be that the individual would be recognised going into an area where he should not be. However, it would be far more appropriate to give that information to interested parties, such as licensees, local authorities and police, rather than pillorying those people in the press.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Is it now Liberal Democrat policy not to name and shame individuals? In Durham, some estates are plagued by certain individuals. Is the hon. Lady saying that they should be protected?

Photo of Lynne Featherstone Lynne Featherstone Shadow Spokesperson (Home Affairs)

We should comply with the spirit of the UN convention on the rights of the child. Interested parties, such as estate wardens, should be informed because they could work with the police to enforce a drinking banning order. We should not simply name and shame, like in the olden days in the stocks and by pillory. Publicity could also be self-defeating. ASBOs have become a badge of honour for some young people, and drinking banning orders could be prized in the same way. We know that young men can be competitive about how much they drink.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Will we see Liberal Democrat "Focus" leaflets published to highlight the fact that Liberal Democrats now oppose naming and shaming individuals? How will people on the estates plagued by certain individuals be able to help the police if the individuals cannot be identified? The hon. Lady's proposal is totally unworkable.

Photo of Lynne Featherstone Lynne Featherstone Shadow Spokesperson (Home Affairs)

I remain convinced that informing interested parties would be more valuable than placing notices in the press, as suggested by the Minister. Publicity might be self-defeating, because the resulting celebrity might encourage youngsters to break their drinking banning orders. It would be far more appropriate to notify only those interested parties who could help the police.

New clause 1 proposes that an ASBO should last for only three months, but that is far too short a term in which to change behaviour—and that has to be the objective of any such order. We need to produce a cultural change. An ASBO lasts two years, but a year would be just right. I would prefer to see far more work being done with those who are served with ASBOs or drinking banning orders. If that happened, the length of the order could be modified according to improvements in behaviour.

We discussed the definition of "disorderly" for some time in Committee. I am not unattracted by the Conservative definition, but it is very vague and did not get any clearer despite all our attempts. The Government are trying to achieve the difficult job of pinning the definition between the criminal and the high-spirited, but I was concerned when Rosie Cooper said that behaviour that constitutes disorder and should be banned included:

"generally running about, running across roads and shouting to one's friends".

She elucidated further that

"It may be seen as . . . threatening and people are disturbed by it."—[Official Report, Standing Committee B, 18 October 2005; c. 35.]

Drinking banning orders may cross several fine lines, but we will have to see how they work in practice. I am inclined to give the Government the benefit of the doubt until we see how drinking banning orders work. The terms are ill defined, but I understand that the nuisance created in some cities has now gone beyond the pale and it is that mischief that—[Interruption.] I have always acknowledged that such behaviour has gone too far. I want to see how the Government's plans will tackle it, and I am not convinced that they will achieve their aims without stepping over the line into an authoritarian approach. However, I assume that the matter will be kept under review and that if there is a step too far, we shall retreat—

Photo of Lynne Featherstone Lynne Featherstone Shadow Spokesperson (Home Affairs)

No, Liberal Democrats have a well-balanced view of life and have nothing whatever to be ashamed of. I have always been proud of our position, which is, in the end, common sense.

Given the length of some of the speeches, I shall conclude my remarks. I hope, Mr. Deputy Speaker, that you will allow us to vote on amendment No. 28.

Photo of Bob Spink Bob Spink Conservative, Castle Point 5:15 pm, 14th November 2005

I have little sympathy with the Liberal amendment, No. 28. I believe in naming and shaming individuals who indulge in loutish behaviour and damage other people's lives.

I want briefly to support the new clause, the logic of which is clear. There are too many complex laws and we are making too much law. New laws take time to bed in and become effective—if they ever do—so using existing ASBOs is the rational way to deal with the problem and improve the protection we offer communities that suffer from loutish and unacceptable behaviour.

Lowering the height of the hurdle from two years to three months, as the new clause proposes, is the rational way forward. It will make ASBOs more attractive and promote their use, so that the police, the Crown Prosecution Service and the courts are encouraged to implement them to increase protection for residents and people whose quality of life is regularly damaged by bad behaviour and nuisance on our streets.

I support the new clause and hope that the House will accept it on a Division. It is rational and common sense, and we should adopt it.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

We have trawled over some of the ground we covered in Committee, but we now have a clearer idea of the views of all the parties. The purpose of the Bill is to try to ensure that we protect the law-abiding majority of decent people from the kind of behaviour that Bob Spink just mentioned.

New clause 1 and amendment No. 1 would reduce the minimum length of an antisocial behaviour order from two years to three months. It would remove all the provisions relating to drinking banning orders, on the basis that the Opposition feel it would be appropriate to use ASBOs rather than drinking banning orders in all circumstances—[Interruption.] I hope to cover every point that Mr. Malins made and to rebut some of the things that he got wrong.

Technically, it would be possible to reduce the length of ASBOs and simply provide conditions tailored to drink issues, where that is the problem behaviour, but that would do no service either to ASBOs or to the proposed new orders. In Committee, I talked about the need for courts to consider making a drinking banning order on a basis that is much more proactive than that for their current consideration of ASBOs.

Antisocial behaviour orders cover the spectrum of antisocial behaviour. The motivations that drive that behaviour will be very varied. Those receiving ASBOs will often have poor educational records, a history of truancy, problems at home, parental issues—a range of different things lead up to their offending behaviour. That is why ASBOs are fairly complex, with a range of prohibitions to try to target the antisocial behaviour. As Members have said, the complex nature of ASBOs meant that they were slow to take off when they were originally proposed in the Crime and Disorder Act 1998. We have made them simpler, but they remain significant and serious orders. Courts need to be pretty well convinced of the case for making an ASBO; indeed, some of my hon. Friends might say that courts, local authorities and the police are not using the powers to their full extent in many areas, although I am pleased to say that the situation is improving.

ASBOs take time to have an effect, and the community must be protected in the interim, so simply reducing the time limit for ASBOs is not the right remedy to the problem that we face. It is important that we have a fairly simple order—the drinking banning order—that is designed to tackle the problem of binge drinking and the violence that emanates from the people who indulge in it.

Let us not forget that, in other circumstances, binge drinkers can often be fairly responsible citizens who have decent jobs, good wages and normally conduct themselves as decent members of society. They go out and drink far too much in far too short a period. They deliberately go out to get as drunk as they possibly can. They get involved in a fracas about a kebab or which person they will take home for the evening. They get involved in a fight in the taxi queue. They are then suddenly involved in the kind of violence and disorder that no one wants to happen.

Photo of Jim Sheridan Jim Sheridan PPS (Team PPS), Ministry of Defence

My right hon. Friend is right, and one of the contributory factors is the irresponsible attitude of retailers who have happy hours and buy-one-get-one-free promotions. They have a responsibility as well.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

My hon. Friend is right, which is why we have been working with the industry to try to ensure that we can introduce provisions on happy hours. We have had a dreadful situation in this country. During some happy hours, people are told, "Drink all you can for £10", and I saw a sign saying, "Girls drink free until midnight", which is a recipe for mayhem and bad behaviour—not just among the girls, but more generally, too. That is why I am pleased that several of the big chains have recently decided to outlaw the kind of irresponsible promotions that we have seen in the past, and I expect many more of them to take that action.

There is a significant difference between ASBOs and the orders that are proposed. We are asking the courts to use drinking banning orders much more proactively. Whenever they hear a case in which someone has been involved in violence while under the influence of alcohol, they should consider whether it is appropriate to make a drinking banning order. No great big, convoluted and complicated application is necessary, and the remedy is fairly simple. The whole idea is to try to get people to change their behaviour and to make them realise that going out on Friday and Saturday nights, getting into a completely drunken state where they cannot remember what they have done and getting involved in violence and disorder will simply not be tolerated and the court will make an order to do something about it.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I understand a great deal of what the Minister is saying, but is not the logic of her remarks that those who deserve a drinking banning order are behaving antisocially? That is why the court wants to mark their behaviour as antisocial. In those circumstances, would it not make more sense to call the behaviour what it is, by using an antisocial behaviour order?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

The description "drinking banning order" is very graphic and pretty easily understood. One of the prohibitions that the court must consider is banning people from premises that sell alcohol. The whole idea is for the order to contain prohibitions that tell people that they are not allowed to go to their favourite bars and clubs. That is quite a disincentive to carrying on in a drunken way. People may also be prohibited from going out with their regular group of friends, with whom they go out and create mayhem in communities.

Lynne Featherstone asked whether the order will become a badge of honour. The prospect of not being able to go out to their favourite pub or club on Saturday nights, perhaps for three months over the summer, can have more impact on young people than many of the other things that we pass in the House. That will help to change behaviour.

Photo of Jo Swinson Jo Swinson Opposition Whip (Commons), Shadow Spokesperson (Culture, Media and Sport)

Does the Minister agree that, rather than introducing drinking banning orders and such measures to tackle the problem of binge drinking, it would make more sense to allow other measures time to work before opening up bars and clubs to 24-hour drinking?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

The hon. Lady repeats the assertion about 24-hour drinking. I am sure that she knows that a tiny minority of licensed premises will have those extended licences. We will see flexible licensing hours. As my hon. Friend Jim Sheridan said, rather than everyone being tipped out on to the streets at the same time, people will have their exit from pubs and clubs staged, and we hope that they will behave better.

On that basis, I ask Mr. Malins to withdraw the motion. I have been sympathetic to his earlier amendment, but I am afraid that he has run out of luck now. I cannot accept that we should simply have ASBOs, rather than the new drinking banning order, which will be of significant use in dealing with such issues and is welcomed by the police and local authorities.

The hon. Gentleman asked what the penalty for a breach of a drinking banning order would be and whether it could be a custodial sentence. I must correct him for the record. I made it clear in Committee:

"There will . . . be potential for offenders to receive custodial sentences for persistent breaches of the community sentence imposed for breach of a drinking banning order."—[Official Report, Standing Committee B, 18 October 2005; c. 91.]

He will know from his extensive experience that the courts will have the power to make a community order as well as to impose a fine. There would be a range of options including curfews, exclusion orders and unpaid work. In Committee, he welcomed the range of options available to courts through community orders because that meant that magistrates could respond more flexibly to the kind of mischief and problems with which we are trying to deal. He was not correct if he thought I said that there could never be a custodial penalty, because clearly there could.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

The Minister advanced the same argument in Committee. She might remember that I asked her a question about the matter. Does she accept that it would be perfectly feasible for people to breach the community penalty that they received for breaching a drinking banning order, yet to be able to continue with the drinking banning order? In other words, they could decide not to drink, even though they would have breached their community penalty. If people can do that, does it not underline the point made by my hon. Friend Mr. Malins that the response to the breach of a drinking banning order should directly be a custodial penalty? Such an option would remain available, would it not?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

No. We have a taken a view on this and do not think that there should be a direct custodial penalty. A community order can be made and if the case returns to the courts after the breach of that order, it will be for them to decide the appropriate penalty. It is perfectly proper for the courts to do that. That will sharpen up the distinction between antisocial behaviour orders and drinking banning orders. I am sure that hon. Members are not in the business of saying that people should go to prison for up to five years if the breach of the order has been to enter the single pub or club from which they have been barred from entering. It is important that penalties are proportionate to the breaches that they address.

The hon. Member for Woking has alleged on several occasions that prosecutions for being drunk and disorderly have decreased dramatically in recent years. In 1997, there were 31,891 such prosecutions and in 2003, there were 31,343. The number of prosecutions has stayed pretty constant. As he knows, some 86,000 fixed penalty notices have been issued for a range of offences, so there are more sanctions against drunk and disorderly behaviour than there were in the past.

The hon. Gentleman repeated a point that he made in Committee about a parliamentary question that he tabled and my response to it. The reason for the discrepancy was the fact that the question related to Greater London and my response in Committee related to national figures. I pointed that out in Committee, so I am surprised that he simply tried to repeat his point today to no good effect.

Opposition amendment No. 4 would change the definition of premises to which prohibitions might apply. The Bill currently provides that a drinking banning order prohibits an individual from doing things described in the order. The prohibitions must include whatever the court considers necessary with regard to the subject entering premises that sell alcohol and club premises. The definitions of the premises are in line with those in the Licensing Act 2003.

We had a general discussion in Committee about the possibility of people being banned from supermarkets or garages. It is unlikely that the courts would want to ban individuals from entering supermarkets unless that proved absolutely necessary due to the circumstances of a specific case.

If the intention were simply to stop a person from obtaining alcohol, that would not be sufficient under the Bill. The Bill gives the courts flexibility. They may impose a whole range of prohibitions, such as not going out with certain groups of people to certain premises, but they must include a prohibition on entering specific licensed premises. People will thus be stopped from entering the bars, pubs and clubs to which they really enjoy going. That is an attempt to change their behaviour, which is an important aspect of the Bill.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

The Minister said that the order must include a prohibition preventing someone from entering certain licensed premises. Can she specifically tell the House whether a drinking banning order can forbid someone from going into a supermarket to buy alcohol, but not simply from going into a supermarket? Can she confirm on the record that that is the case?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee 5:30 pm, 14th November 2005

If the hon. Gentleman looks at the Bill, he will see that clause 1(2) states:

"Such an order may impose any prohibition on the subject which is necessary for the purpose of protecting other persons from criminal or disorderly conduct by the subject while he is under the influence of alcohol."

"Any prohibition" may therefore be imposed by the court. Clause 1(3) lists the mandatory requirements of such a prohibition. A supermarket prohibition could therefore be made under clause 1(2), but not under clause 1(3)(a) or (b).

Under amendment No. 28 the hon. Member for Hornsey and Wood Green seeks to reintroduce an earlier amendment that required the court to receive a report on the subject's mental and physical health and substance addictions. We had a long discussion about that Committee, and I accept that the hon. Lady has changed "must" in her earlier amendment to "may". However, local authorities already have a duty under the National Health Service and Community Care Act 1990 to assess anyone who may be in need of community care services. If there is any evidence to suggest that someone is suffering from a syndrome or problem that prevents them from understanding the order social services authorities must make sure that they are subject to an assessment, which should run alongside the collection of evidence and an application for an order. I do not want inordinate delay and a bureaucratic system. Drinking banning orders, as we have discussed, are meant to be a short, sharp shock. They enable the court to deal proactively with someone accused of committing an offence under the influence of alcohol. If we include a panoply of provisions to cover the handful of such cases, the courts will be inhibited from using the power to protect the decent, law-abiding majority. We must be aware of vulnerable individuals, but we must not predicate all our legislation on one or two specific cases; otherwise we will undermine its very purpose.

Photo of Lynne Featherstone Lynne Featherstone Shadow Spokesperson (Home Affairs)

Does the Minister not accept that the judiciary, in its judicious interpretation of the phrase that the court "may" require a report, would apply the provision only to cases where they deemed it necessary to receive a medical report? Such a requirement would therefore not have an adverse effect on the vast number of drinking banning orders that may be imposed.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

The hon. Lady knows that the courts have discretion when looking at the cases that are brought before them. They must be satisfied that two requirements are met: first, someone must be guilty of offending behaviour; and, secondly, it must be necessary to make the order. The court will consider a range of factors when deciding whether the second requirement has been met. May I advise the hon. Lady that my comments are meant kindly? She has talked a great deal about human rights, which are important. However, we have to achieve a balance of human rights, and respect the human rights of the decent, law-abiding majority whose peaceful existence is threatened when people drink far too much and get out of control, causing the nuisance that happens far too often. Getting that balance right is important, but in this instance she is wrongly seeking to put the rights of the perpetrator above those of decent members of the community.

Amendments Nos. 13 and 14, which were tabled by the Opposition, seek to include a definition of "disorderly" to cover

"conduct which would offend an ordinary person but which falls short of a criminal act."

We had a long discussion about that in Committee. There is no need to define the word "disorderly" in the Bill. It is not defined in relation to the offence of being drunk and disorderly in section 91 of the Criminal Justice Act 1967. The Select Committee on Home Affairs concluded that it would be a mistake to try to define more closely the current definition of antisocial behaviour. The courts are perfectly aware of behaviour that is disorderly, and of behaviour that results in a criminal act. In Committee, I gave the hon. Member for Woking an example of disorderly behaviour. If a large group of people are marauding through an area, kicking over bins and causing excessive noise, they may not necessarily commit a public order offence, but they are certainly guilty of disorderly behaviour.

The hon. Gentleman talked about high spirits, but in Committee some telling examples were given, particularly by my hon. Friend Ms Butler, who said that "high spirits" was not an accurate description of the problems in her community.

Amendment No. 5 would require that for orders on conviction the court must be satisfied that the individual was drunk, rather than under the influence of alcohol. That would raise the threshold at which a drinking banning order could be obtained and could lead to a wide range of offenders who were under the influence of alcohol escaping the prohibitions imposed by a DBO. I think that it is for the courts to come to a view based on the evidence before them on whether an offender was under the influence of alcohol when they committed an offence. I ask hon. Members to think about the sort of problem that we are trying to tackle. The courts are well placed to determine whether someone was under the influence of alcohol. I direct the House's attention to the second limb of the offence, which is that for an order to be made, it must be necessary to protect the rest of the community. The courts will examine that closely before making an order.

Amendment No. 6 would ensure that a court must consider only applications by the Crown. That would defeat part of our purpose, which is to encourage the proactive use of DBOs. The court would have to wait for the Crown to make an application; it would not be able to consider the matter of its own volition. That would weaken our proposals.

Liberal Democrat amendment No. 30 would reimpose automatic reporting restrictions in proceedings for an order on conviction involving young people. Several hon. Members have said that they consider it useful not to bind the court to automatic reporting restrictions. That does not mean that restrictions cannot apply in specific, narrow cases if they are necessary for the protection of the individual. I happen to believe that if people have gone out, deliberately got drunk, got involved in violent behaviour under the influence of alcohol, and acted in a such a way that the court finds it necessary to make an order to protect the rest of the public, it is extremely hard to make a case for their name and details being kept a secret from the rest of the community, who have been the victims of that behaviour. Far from being a badge of honour, being banned from one's favourite pubs and clubs is likely to be a good incentive to change one's behaviour. In addition, it is important that local people are able to report it to the police if they see the individuals in question in pubs and clubs from which they are banned, so that action can be taken in relation to the breach.

Government amendment No. 43 gives district councils the same right as county councils to make applications for DBOs, which is entirely right and proper. Government amendment No. 42 is merely a small consequential amendment. The other Government amendments are welcome tidying measures. Clause 23 is to be removed because, on reflection, we realised that the DBO provisions make the Licensed Premises (Exclusion of Certain Persons) Act 1980 superfluous. We can achieve everything that we want to achieve through the DBO route, which is a much better provision. The 1980 legislation is extremely narrow—it depends on a conviction on the licensed premises themselves.

The DBO is—dare I say to the hon. Member for Woking?—a more modern and appropriate way in which to deal with the mischief we encounter in our communities these days. I ask him and his hon. Friend Mr. Grieve, who has taken a very legalistic approach to various pieces of our legislation, to think carefully about making sure that legislation is modern, flexible, about changing behaviour and able to cope with the new challenges that we face, rather than cleaving to the traditional interpretation of the law and focusing simply on prosecution. Making available ASBOs and DBOs is about making sure that our criminal justice system is modern, flexible and able to meet the challenges of this day and age.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I confess to being disappointed by the Minister's response. The truth of the matter is that the Government have presided over a massive rise in binge drinking and alcohol-related violence, which they are doing very little to stop. The existing laws are not being enforced, but all the Government want to do is introduce a new flagship policy on the basis that a headline and a new Act will solve all their problems—tell that to the people on the streets who are suffering as a result of alcohol-fuelled violence.

New clause 1 seeks to amend the ASBO legislation to make it more flexible. Why on earth can the Minister not accept that making ASBO legislation more flexible is a good idea? She does not want to accept any arguments from this side of the House, as a result of which I want to put the new clause to the opinion of the House.

Question put, That the clause be read a Second time:—

The House divided: Ayes 155, Noes 327.

Division number 88 Orders of the Day — Violent Crime Reduction Bill — New Clause 1 — Crime and Disorder Act 1998 (Amendment)

Aye: 155 MPs

No: 327 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.