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Baroness Jay of Paddington: My Lords, I am grateful to my noble friend for his remarks. He may be pleased to hear with regard to the UCLH building that we expect that the trust and its PFI partner will now be authorised to go ahead to financial close, which we expect to take place reasonably quickly.

With regard to the precise definition of what the regional office will cover and what its remit will be with the peripheral health authorities, I am afraid I cannot take that any further this afternoon. As I said in an earlier reply, this is in a sense rather ephemeral at the moment. Although there is a clear intention, there needs to be precise discussion about the relationship with the GLA, as I mentioned in my response to the noble Lord, Lord Newby, who picked up the use of the description "medium-term" in relation to this plan. I hope my noble friend will be reassured that it is a definite plan. The precise configuration and definition are still matters for discussion. My noble friend reminds me of the determination which he had to try to introduce this in the earlier health authorities Bill. I am sure he will also remember the extremely arcane discussions we had about the nature and definition of any possible strategic authority.

Lord Desai: My Lords, I too welcome the Government's decision as a consequence of Tomlinson. I was not one of those who joined the "Save Bart's" campaign, despite my east London connection, because I was convinced that something drastic needed to be done about the old buildings. I therefore welcome the proposal.

If London is to have a strategic regional authority, will the Minister bear in mind when making decisions the treatment of drug abusers? I do not ask for an answer this afternoon. As she knows, I have a connection with City Roads, a drugs intervention charity. One of the major problems of provisions for dealing with drug abuse in London has been the lack of an overall London authority.

Baroness Jay of Paddington: My Lords, I am grateful to my noble friend. An important part of the report by Sir Leslie Turnberg's panel which we have not discussed in your Lordships' House since it was not mentioned in the Statement--as my right honourable friend said, it was impossible to cover everything--is the great emphasis on the need for greater inter-sectoral and inter-agency working on such issues as drug abuse and the other social problems which contribute so much to the ill health of Londoners. A major recommendation of Sir Leslie's report is to invite health authorities, local authorities and voluntary organisations, such as City Roads, to work together to try to formulate more strategic plans for integrated care.

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Crime and Disorder Bill [H.L.]

4.37 p.m.

House again in Committee on Clause 1.

Lord Goodhart moved Amendment No. 3:


Page 1, line 14, after ("cause") insert ("serious").

The noble Lord said: This is the first of a series of amendments to Part I of the Bill standing in my name and those of my noble friends. There is a pattern to these amendments and I believe that it will save time if I explain at this stage our general attitude to Part I of the Bill as shown by these amendments, thus making it unnecessary for me or my noble friends to repeat ourselves each time we introduce an amendment.

Part I introduces five new orders: an anti-social behaviour order, a sex offender order, a parenting order, a child safety order and a child curfew scheme. Of these, the only one that we oppose in principle is the child curfew scheme. We are deeply sceptical about parenting orders and suspect that pilot schemes will show them to be unworkable. However, if the Government wish to try them, then let them be tried.

We welcome the other three orders in principle. They are capable of meeting a perceived need and the noble Lord, Lord Williams of Mostyn, explained why they were required. But, at the same time, we have strong objections to many of the detailed terms contained in Part I of the Bill relating to those orders. Let me outline those objections, of which there are four.

First, the threshold of behaviour which allows orders to be brought into force is too low. The effect of making an order is to subject the defendant to a criminal penalty if he thereafter does things which would not be crimes or perhaps even a civil wrong if done by others. It is therefore a powerful order. It creates a personal criminal law, not a general criminal law. The defendant is not being punished for breaking the law of the land but for breaking a law which applies to him personally or to him and a small group of his associates alone. The grounds for making an order of that kind must be compelling.

Secondly, the nature of the order which the court can make is in many cases too wide and vague. The people against whom the order is made--the subjects of such an order--must know what it is that they are forbidden to do and the order must not be such as to prevent them from leading normal lives.

Thirdly, the penalties for breach are excessive. Where a breach of the order involves a breach of the ordinary criminal law of the land, as it often will, the defendant can be sentenced for that breach. If the defendant does something which is not a breach of the ordinary criminal law, a lengthy term of imprisonment is inappropriate.

Fourthly, while the Government are conferring wide powers on the courts, they do not seem to trust the courts to use those powers properly. They therefore impose minimum times for which the order can be made; they refuse to allow the courts a free hand in varying the order; and in some cases they exclude the power for the court to give a conditional discharge by

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way of sentence. The Government should trust the courts to get it right. With a novel and powerful order of this kind, the Government should leave the courts the maximum flexibility to tailor the duration of the order and the punishment for breach to fit the circumstances of the case.

We must not forget that human rights are not just the right to behave well. One of the most important rights--it will not be found spelt out in any of the conventions but it is there all the same--is the right, up to a point, to behave badly. People have a right to be non-conformist; they have a right to be bloody-minded; they have a right within reason to make a bit of a nuisance of themselves. It is not easy to draw the line. We want to live in a law-abiding society with a low level of crime and a low level of fear of crime; we want a low level of vandalism and disorder of all kinds and a low level of fear of vandalism and disorder; but at the same time we do not want to live in an authoritarian state. In certain aspects of this Bill the Government verge towards authoritarianism.

Let us look more specifically at Clause 1. Each of the four objections I outlined applies to Clause 1. The threshold of the orders is too low. The power to make the orders is not adequately defined or clarified. The penalties for breach are excessive and the discretion of the courts is unreasonably restricted. The Government will be aware of a powerful article published in the magazine of the Howard League by six extremely distinguished academic lawyers. One passage from the article states:


    "the Government's latest legislative proposal is neither sensible nor carefully targeted. It takes sweepingly defined conduct within its ambit, grants local agencies virtually unlimited discretion to seek highly restrictive orders, jettisons fundamental legal protections for the grant of those orders, and authorises potentially draconian and wholly disproportionate penalties for violations of them. While the Government claims that this measure is aimed at those who terrorise their neighbours, its actual reach is far broader and covers a wide spectrum of conduct deemed 'anti-social', whether criminal or not. We think it unfortunate that one of the Government's first major proposals on criminal justice policy is of such a character".

The conclusion of the author of that article is that the scheme for anti-social behaviour orders should be abandoned altogether. We do not go as far as that. We believe that the criticism contained in that extremely impressive article should be taken seriously. We accept that there is a need for anti-social behaviour orders. The individual claimants are, as the noble Lord, Lord Williams of Mostyn, pointed out, often not in a position to take action themselves, either for reasons of the cost of obtaining an order or for fear of retribution from those against whom the order is sought. But, at the same time, Clause 1 must be examined extremely carefully and it is in that light that I ask the Committee to look at Amendment No. 3 which is grouped with Amendment No. 4.

The purpose of the amendments is to ensure that, if an application is based on harassment, that harassment must have been serious. But if an application is based on alarm or distress, the defendant's conduct must have been such as to cause or to have been likely to cause alarm or distress to reasonable people. Acts of trivial harassment or causing minor alarm or distress do not

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justify an order as draconian as an anti-social behaviour order. After all, something like a strong and unfamiliar cooking smell may cause distress to a limited degree but, save in the most exceptional circumstances, one cannot imagine that it would justify an anti-social behaviour order.

I do not attempt to define what is serious. That should be left to the court. In addition, as the clause is drafted, an anti-social behaviour order may be made where the alarm or distress, which may be perfectly genuine, is caused to unduly sensitive people. Noisy neighbours can be neighbours from hell. But so, in a more limited sense perhaps, are neighbours who complain about the slightest noise from the flat above. Their distress may be genuine, but it should not be allowed to form the basis of an anti-social behaviour order.

Further, no element of intention to harass or cause alarm or distress is necessary for an anti-social behaviour order to be obtained. It may be that, by definition, harassment involves some degree of intention. But alarm and distress do not require deliberate intention to cause them as an element of their causation; they can be caused unintentionally. That reinforces the argument that the standard of conduct to trigger an anti-social behaviour order is not high enough.

The noble Lord, Lord Williams of Mostyn, referred to Amendment No. 13. I have to say--I will expand on this when we reach that amendment--that I do not believe that it is adequate to deal with the problem. It places the burden of proof on the defendant; it is the defendant who must show that his acts were reasonable and he should not have to show that. The seriousness of the alarm or the distress are one of the facts that should be established in order to enable an anti-social behaviour order to be granted. I beg to move.

4.45 p.m.


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