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Mr. Malins: We are all aware that it might sometimes be essential to issue an order quickly or, indeed, immediately, but how does it follow that the person subject to the application should not be served notice? The two are completely different points. I apologise for intervening at such length, but if the conduct is of such gravity that an emergency application is clearly required, the person must have committed a criminal offence, unless the Minister tells me otherwise, and will have been remanded in custody or bailed. In any event, it is still possible and desirable to give notice.
Hazel Blears: I agree that it is desirable that people be given notice in most circumstances.
Mr. Malins: In all circumstances.
Hazel Blears: No. Our law recognises that it is right to make ex parte orders in certain circumstances. People who have been subjected to appalling behaviour by an individual might well be intimidated and harassed or otherwise contacted by that individual, and it might be necessary to make an ex parte order to protect those people from intimidation and harassment by the person who is the subject of the order. I am sure that the hon. Gentleman is aware of many other situations like that. We must retain the ability to make an ex parte interim order on the admittedly rare occasions when it is necessary to do so. Denying the courts the ability to make such orders would tie their hands unnecessarily when we want them to use the powers in the most effective way.
The amendment tabled by the hon. Member for Hornsey and Wood Green would require an interim order not to take effect until someone had been served with a copy of that order. I understand her point. Court orders are generally put into effect when they are made, but clearly someone needs to be notified that the prohibitions are in place if they are to abide by them. It is not appropriate to include that in the Bill,
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but I am happy to consider that position to see whether we can set out the need to serve someone personally, and to consider any guidance that we can issue to ensure that we cover the point that the hon. Lady made.
Amendment No. 24 would prevent the court from renewing interim orders. The provision provides that interim orders can be renewed for a period of four weeks, and there is no limit on renewal because it is a matter for the courts to determine. They will have the evidence in front of them and will see whether it is necessary to renew the order. Our experience with the antisocial behaviour legislation is that the courts are pretty keen to scrutinise the evidence before them. They do not make these orders lightly or in a way that does not reflect the evidence, and it is important that they should have that flexibility without us legislating specifically that the order can be renewed only once, twice or three times. Again, the courts will be very conscious that they are making orders that carry prohibitions and that affect the way in which people lead their lives, and they will not want to extend the orders unnecessarily without proceeding to a full hearing.
Amendment No. 124 talks about the orders being renewed only
''if it is just to do so''.
That is exactly what the courts are there to do. They consider the evidence, the degree of seriousness and appropriateness, and proportionality. That is exactly the sort of balancing test that they carry out every day. They will issue an order if the evidence fulfils the criteria, but they will not issue one if it does not. The addition of the words
''if it is just to do so''
would pre-empt the proper role of the courts in this process. I have no doubt that they will scrutinise these matters extremely carefully. The amendments are therefore unnecessary, and I ask the hon. Members to withdraw them.
Mr. Malins: Strictly speaking, as I have not pressed my amendment to a vote, there is no question of my withdrawing it. I shall simply say a few more words and we shall not vote on the matter. Has the Minister consulted widely with the judiciary on this issue? That is a serious question. I once asked another Minister whether he or she had consulted with the district judges, magistrates courts and Crown court judges before introducing legislation, and the answer was no, but that that would be done in future. Has the right hon. Lady consulted with the district judge bench, the lay bench and the Crown court bench on this clause? I ask because a senior judge wrote to me some time ago to express deep concern about the fact that an application could proceed without notice, and saying that some effort should surely be made to give notice to the person affected. If a person cannot be traced to give notice, how will the order be served after it has been made? Those are fair questions and the Minister has not answered them.
Hazel Blears: I can reassure the hon. Gentleman that the draft Bill was sent to the Lord Chief Justice on behalf of the judiciary, that we are consulting the
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judiciary on guidance and that we keep in regular contact. Clearly, we would take note of any substantive points that the judiciary as a whole might want to make to us about the practical application of the provisions of the Bill. It is drafted in accordance with the way in which courts normally view such matters—for ex parte applications, for renewals and for interim orders. The courts will consider the evidence and they should have the discretion and the flexibility to make appropriate orders in all circumstances.
Lynne Featherstone: I am reassured by the Minister's faith in the judiciary, albeit a faith not shared by the Prime Minister.
Amendment agreed to.
Amendments made: No. 69, in clause 8, page 7, line 1, after 'making', insert 'or hearing'.
No. 70, in clause 8, page 7, line 3, leave out
'or before the Crown Court or'.
No. 71, in clause 8, page 7, line 5, leave out
'or of proceedings in such a court'.
No. 72, in clause 8, page 7, line 8, after 'satisfied', insert '(a)'.
No. 73, in clause 8, page 7, line 9, at end insert—
'(b) that it is not necessary for the application to be heard in the presence of the individual.'.—[Hazel Blears.]
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9
Appeals
Question proposed, That the clause stand part of the Bill.
Mr. Malins: Can the Minister confirm that if a magistrates court makes a drinking banning order, the appeal to the Crown court is to be made in the normal time allowed for the making of appeals from the magistrates court to the Crown court in criminal matters? If so, can she tell us what that period is?
Hazel Blears: I can assure the hon. Gentleman that the appeal is made in the normal way from the magistrates courts to the Crown court in criminal matters. He has the advantage of me as to the time period, and I am sure that he would like to enlighten the Committee in that regard, as a result of his extensive practical experience.
Question put and agreed to.
Clause 9 ordered to stand part of the Bill.
Clause 10
Breach of drinking banning orders
Hazel Blears: I beg to move amendment No. 74, in clause 10, page 8, line 2, leave out
'to imprisonment for a term not exceeding 51 weeks or'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 27, in clause 10, page 8, line 2, leave out '51 weeks' and insert '6 months'.
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Government amendments Nos. 75 and 76.
Amendment No. 28, in clause 10, page 8, line 7, leave out subsection (4).
Amendment No. 128, in clause 10, page 8, line 42, leave out subsection (12) and insert—
'(12) The Secretary of State must not make an order unless a draft of the order has been laid before Parliament and approved by a resolution of each House.'.
Hazel Blears: Amendments Nos. 74, 75 and 76 seek to remove the possibility of a custodial penalty being imposed for breach of a drinking banning order because we want to ensure that the courts use drinking banning orders where it is appropriate for them to do so. In addition to the ability of the magistrates courts to make a drinking banning order on application, the Bill also requires the courts to consider making such an order following conviction in every case in which the individual was under the influence of alcohol when the offence was committed. A high number of offences are committed while those responsible are under the influence of alcohol, and on reflection we consider that a custodial penalty purely for breach of a drinking banning order is not justified at this time, given the availability of fines and community sentences as effective deterrents.
Additionally, breach of a drinking banning order will be an aggravating factor when a court considers a sentence for any other offence committed alongside the breach. That could result in a custodial sentence. We believe that custody should be reserved for the most serious, dangerous and persistent offenders. There will still be potential for offenders to receive custodial sentences for persistent breaches of the community sentence imposed for breach of a drinking banning order.
Mr. Malins: If the Minister is right that custody should be reserved for the most serious and dangerous offenders, why does breach of an ASBO carry five years?
Hazel Blears: Breach of an ASBO can carry a custodial penalty of up to five years, because it is clearly a serious matter, but custody is not mandatory for breach of an ASBO, and in many cases, particularly where young people are concerned, community penalties have been used, with a range of other sentences. Earlier in our debate the hon. Gentleman welcomed the flexibility that the Government introduced in the Criminal Justice Act 2003, enabling a range of different community penalties to be used by judges and magistrates to target offences. Now he is trying to face both ways. He says that he welcomes a range of community penalties because he thinks that they are much more useful for targeting behaviour and getting people to change their behaviour than the old sentences of custody or a fine; yet now he says that a range of penalties for breach of a drinking banning order is not appropriate.
Breach of an ASBO will often happen after a lengthy period in which people are subjected to
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violence, intimidation and harassment, which is intolerable behaviour to many of our constituents. Breach of a drinking banning order may amount to someone going into a pub from which they are excluded and carrying on visiting it as they used to. That is of a significantly different character from some breaches of the serious prohibitions in ASBOs. We are aiming for proportionate penalties for breach of a drinking banning order. If the hon. Gentleman means to say that courts should always respond to such incidents in the same way, he means to deny them that flexibility.
Custody should be reserved for serious, dangerous and persistent offenders, but it will still be available for persistent breaches of the community sentence imposed for the original breach of the drinking banning order. We do not propose to change the requirement that courts should consider making a drinking banning order following a conviction in every case. That is another point of difference from ASBOs, which are made on application or where a serious chain of events has occurred, in a persistent chronic set of circumstances. Drinking banning orders might not always be made in those circumstances. They might be made to give people a short, sharp shock. They might last for two months only. We do not think that breach of a two-month drinking banning order should necessarily result in a custodial sentence.
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