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Lord Renton: With deep respect to the noble Baroness, for whom we all have a great regard, I feel that there are two difficulties with her amendment. The first is that Secretaries of State do vary rather, to put it mildly. Secondly, local circumstances vary a great deal

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as indeed do local councils. If the Secretary of State had the responsibility of giving advice--as that is what it would come to--right across the country, I believe that he would find it difficult to give advice which applied sensibly to every kind of local circumstance. Therefore, with the deepest respect to the noble Baroness, I doubt whether her amendment is acceptable.

Lord Falconer of Thoroton: As I indicated in relation to the previous amendment, it would be the intention to issue guidance from the Secretary of State. However, bearing in mind what the noble Lord, Lord Renton, said, it cannot be too prescriptive because it is intended that local strategies will be prepared in the local areas. We feel that the guidance need not be statutory. That is especially the case given the Human Rights Bill that we recently introduced, which will give further effect in domestic law to the rights and freedoms contained in the European Convention on Human Rights. It would be unusual for such guidance to be given the status suggested by my noble friend's amendment. Moreover, with a new procedure of this kind, there is advantage in the flexibility provided by non-statutory guidance, which can be amended in the light of experience and after consultation with those concerned. Perhaps we should also bear in mind the points made by the noble Lord, Lord Renton, in that respect.

It may also be helpful if I explain, again, how we intend to take the guidance forward. We will be consulting all interested parties on its preparation during the passage of the Bill. That, in itself, should lend the guidance extra weight while preserving the need for flexibility. For the reasons that I have given, I hope that my noble friend will feel able to withdraw her amendment.

Lord Henley: Before the noble Baroness does so, perhaps the noble and learned Lord could answer the following question. He said that the Government will be consulting "during the passage of the Bill". However, will we have a chance to look at this guidance before the Bill leaves this Chamber and goes to another place? Alternatively, by referring to "the passage of the Bill", does the noble and learned Lord mean at a later stage? In other words, will we see the draft guidance before the Report stage?

Lord Falconer of Thoroton: I cannot say at present precisely when the guidance will be available. Therefore, I can give no assurance as to whether or not it will be available before the Bill has passed through this Chamber or another place. However, we shall certainly bear in mind the noble Lord's point.

Baroness Hilton of Eggardon: I am grateful to my noble and learned friend for his response. I regret that the amendment will not appear on the face of the Bill. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Amos moved Amendment No. 10:

Page 2, line 11, after ("court") insert ("or by originating application to the county court or high court").

The noble Baroness said: I move Amendment No. 10 on behalf of myself and my noble friend Lord Bassam of Brighton. The purpose of the amendment is to allow the county court, as well as the magistrates' court, to deal with antisocial behaviour orders. I am aware that local authorities have gained much experience in recent years by using the county court route to seek injunctions against antisocial behaviour.

County courts are experienced in applying the mechanisms of civil justice; they determine points of law; and would offer a direct route to the Court of Appeal if an antisocial behaviour order is challenged on technical grounds, or if there is a need to establish a legal precedent. The ability to obtain an antisocial behaviour order from the county court will offer the police and local authorities the additional recourse of actions for contempt of court if the order is breached and the Crown Prosecution Service declines to take action. I beg to move.

Lord Falconer of Thoroton: The effect of this amendment would be to enable applications for antisocial behaviour orders to be heard in three different courts: the magistrates' court, the county court and the High Court. The clause at present provides only for the magistrates' court. We undertook consultation on the antisocial behaviour order. We specifically drew attention to the question of the best court to deal with that matter. My noble friend Lord Williams announced to the House in a Written Answer on 18th December that a summary of the response to the consultation paper was being lodged in the Library. The overwhelming majority of the responses favoured the magistrates' court and not the county court. I think there are good reasons for that. First, many of the applications will be made by the police who have much greater familiarity with the magistrates' court than the county court or the High Court. Secondly, the enforcement of the orders by proceedings where there is a breach will take place in the magistrates' court. It seems to us sensible that both the original application for the order and its enforcement should be dealt with in the same court.

I appreciate that there are arguments along the lines of points of law being better dealt with in courts other than the magistrates' court--although some magistrates would not necessarily agree with that--but any appeal is to the Crown Court which is presided over by a professional Crown Court judge. I should have thought such a judge would be capable of dealing with points of law. For the reasons I have set out we cannot accept the amendment. I ask the noble Baroness to consider withdrawing it.

Baroness Amos: I am grateful to my noble and learned friend for his reply. The amendment was motivated by a desire to make the antisocial behaviour order procedure as flexible as possible and sensitive to the needs of the police, local authorities and the communities they serve. However, in view of the

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response which has been given and the views which were expressed in the consultation process, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 11:

Page 2, line 13, after ("proved") insert ("beyond reasonable doubt").

The noble Lord said: This amendment is self-explanatory. It seeks merely to add the onus of proof of beyond reasonable doubt to the application to the magistrates' court. As we know, two or more persons--unless the noble and learned Lord agrees to think again on this matter--have to suffer from harassment, alarm or distress. They presumably make their application to the relevant authority which will either be the police or the local authority. The local authority then applies to the courts to seek an order prohibiting the defendant from doing anything described in that order.

This raises a number of questions. First, as I understand it, at the moment any evidence put before the court would have to be considered on the balance of probabilities and not beyond reasonable doubt. Secondly, as regards the individual who is described as the defendant, to what extent would he be involved in that court procedure and to what extent would he be legally represented? I think I understood the noble and learned Lord to say earlier that the defendant certainly would be legally represented if there was a breach of the order and he came before the courts for the courts to decide how they should resolve that breach of the order. However, it is not clear whether he would be represented at all; that is, whether he had a right of defence; whether he would be legally represented; or whether he would obtain legal aid in the magistrates' court.

It is important that the noble and learned Lord also addresses the point about the standard of proof that the magistrates' court should have to observe. As the order could prescribe some fairly onerous obligations on the person described as the defendant, it is important that these matters should be proved conclusively in the court and not just left to hearsay evidence or, as I put it, the balance of probability. I think the noble and learned Lord said earlier that the defendant had little to fear from such an order which merely prohibits him from doing certain things. We shall discuss that later. However, the things described in the order which the defendant could be prohibited from doing could be very onerous. If it was thought that he was making a nuisance of himself in a certain area, one would think it highly likely that he could be prohibited from going into that area. We shall discuss this on later amendments but that area might be an area in which he seeks to work or needs to be able to cross to get to work. Therefore the burden on him would be serious and one which the courts must take seriously. Therefore the courts need to have conclusive evidence before they make such an order. I hope, with that explanation and the self-explanatory nature of the amendment, that the noble and learned Lord will be able to satisfy my concerns. I do not know whether other noble Lords also have

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concerns about these matters. I shall be interested to hear what the noble and learned Lord has to say. I beg to move.

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