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Hazel Blears: 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.
Mr. Malins: 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: 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
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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.
Mr. Malins: 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: 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.
Mr. Malins: 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: 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
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the application for variation is being heard. On that basis, I ask the hon. Gentleman to withdraw the amendment.
Mr. Malins: 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.
Clause 5
Orders on conviction in criminal proceedings
Lynne Featherstone: I beg to move amendment No. 120, in clause 5, page 4, line 34, leave out subsection (5).
The Chairman: With this it will be convenient to discuss the following amendments:
No. 20, in clause 6, page 5, line 6, leave out from 'court' to end of line 7 and insert
'must issue a warrant without bail for his arrest.'.
No. 21, in clause 6, page 5, line 9, leave out 'adequate' and insert '14 days,'.
Lynne Featherstone: The amendment seeks to ask the question why, and I want the Government's explanation. Clause 5 relates to orders on conviction in criminal proceedings. In clause 5(4), it is reasonable for a court to have to give its reasons for not issuing a drinking banning order when conditions have been satisfied. If conditions have been satisfied and the public need protection, we have a right to know why the court has decided against what seems to be logic.
However, clause 5(5) is more problematic, because if the conditions in clause 2(2) are not satisfied, the court is asked to give its reasons for not issuing the order. That means that the court has to explain why it does not think it necessary to make an order to protect persons. If the conditions have not been satisfied, why should we put that undue pressure on the court? It may put the court on the defensive. It would be a brave court that took the decision not to err on the side of caution in such circumstances when eyes were on it. We believe that the decision should be at the courts' discretion in such circumstances and that the court should not have to explain itself when the conditions have not been met.
Mr. Malins: I think that I am to speak to amendments 20 and 21, which relate to clause 6. Clearly, I will not be speaking on them at that stage, but they are probing amendments to clause 6, where it states that
''the court may further adjourn the proceedings or may issue a warrant for his arrest.''
I am simply trying to toughen it up a bit. I do not think that the Minister will accept the amendment but it is an opportunity for me to say that courts are too reluctant to issue warrants for people's arrest when they fail to answer to their bail. [Interruption.] I understand that other matters are going on outside the Room, but I realise that everybody present is listening with the greatest interest to what I say.
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Stephen Pound (Ealing, North) (Lab): You are the new leader of the Tory party.
Mr. Malins: I am grateful.
It is merely a way of drawing the attention of the Minister, and of the House of Commons, to the fact that far too many people in criminal proceedings—it is a different parallel—are not answering bail, and that courts ought to issue warrants without bail at the drop of a hat.
Amendment No. 21, would amend subsection (6), which states that the defendant should have had
''adequate notice of the time and place of the adjourned proceedings.''
Magistrates courts have rules about notice of proceedings; it is often 14, 21 or 28 days. I wonder what is the Minister's view of ''adequate notice''. There is much to be said for making it 14 days. Curiously enough, that is exactly what the amendment suggests.
5.15 pm
Hazel Blears: As the hon. Member for Hornsey and Wood Green explained, amendment No. 120 seeks to remove the provision that would ensure that if the court decides the conditions for a drinking banning order are not satisfied, it must state its conclusion and its reasons. It is in the interests of open justice that the wider community should know whether the conditions have been met and why.
The purpose of the legislation is to try to ensure that local people can see that action is being taken on the issues that are of most concern to them. I would have expected the hon. Lady to welcome the fact that justice should not only be done but be seen to be done openly, transparently and inclusively. I have said before that I want drinking banning orders to be used proactively by the courts. The DBO should not be an order of last resort, but one of the tools that the courts can use to tackle the problems of alcohol misuse that beset so many communities. I ask the hon. Lady to withdraw the amendment, because as a general matter of principle, more transparency and openness in the criminal justice system on how decisions are reached is in everyone's interests.
The hon. Member for Woking asked that courts should issue warrants without bail. Again, I believe that they should have discretion. Because of family circumstances or a range of other issues, bail will be appropriate in some cases and not in others. He also raised the question of what is an adequate period of notice. Again, it could be 14 days, but it could be less. It could be as little as seven days, and I believe that it should be open to the court to determine what that adequate period should be, based on the circumstances.
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