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Lord Williams of Mostyn: I confirm what I did not make plain earlier. There will be no requirement for the complainant, the old lady to whom the noble Viscount refers, to attend court.

Lord Henley: On the question of burden of proof, I am entirely satisfied. It would be difficult for me not to be entirely satisfied when the noble Lords, Lord Mishcon and Lord Renton, have supported the noble Lord, Lord Williams, as has my noble friend Lord Onslow. With that support, the noble Lord should be well pleased. I can say to the noble Lord that I have no intention of coming back to this issue at Report stage or later.

The noble Lord did not address what might be described as the "going to work" issue, which is important. We shall return to the matter on a later amendment. It is important to remember that subsection (4) makes it quite clear that the order can prescribe anything. The words are:

It therefore could prohibit individuals from going across a particular area, irrespective of whether they are, or are not, causing harassment, alarm or distress as they go across that area. As I said, we shall return to the matter. As regards this amendment, I am perfectly satisfied with the explanation given and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord Goodhart moved Amendment No. 12:

Page 2, line 16, leave out ("anything described in the order") and insert ("further anti-social acts similar to those proved on the application").

The noble Lord said: Subsection (4) of Clause 1 allows a court to prohibit a defendant from "doing anything". That has to be read in the context of subsection (5), which states:

    "The prohibitions that may be imposed...are those necessary for the purpose of protecting persons...from further anti-social acts".

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In practice, I suggest that the question of what a magistrate thinks is necessary for that purpose can be highly subjective with the consequence that the order made could be extremely wide.

The noble Lord, Lord Williams of Mostyn, said earlier that the antisocial behaviour order was analogous to a civil injunction--and so indeed it is. But if an injunction was made by a civil court, what that court would prohibit would be the continuance of the course of conduct that gave rise to the application for the injunction. I suggest to the noble Lord that this Bill should do the same. It should ban continuance of conduct similar to that which led to the application of an order. Incidentally, it would also have the advantage of making the clause slightly shorter by rendering subsection (5) redundant. Why do the Government not restrict the order in that way? I accept that there may be a reason and am interested to hear the noble Lord's reply.

The noble Lord, Lord Williams, said in relation to the previous amendment that an order would not be made to exclude the defendant in the case envisaged by the noble Lord, Lord Henley, from crossing an area that he needs to cross in order to get to work. It is, however, very difficult to see what provision there is in the present clause to prevent that. Therefore I suggest that the Government should consider restricting, in the way proposed in Amendments Nos. 12 and 15, the ambit of an antisocial behaviour order. I beg to move.

Lord Monson: I hope that the noble Lord, Lord Williams, will look favourably upon this amendment, at least in principle--not least because he seemed to imply, when replying to Amendment No. 3, that it was the Government's intention that the court's powers should be restricted in the way suggested by the amendment.

Lord Thomas of Gresford: There are two areas of concern in relation to the words,

    "doing anything described in the order".
One is the curfew; the other is the exclusion order. The temptation for a court--for example, in the situation I described earlier of playing football outside an old lady's house--is to say, "All right, nobody goes near her house after eight o'clock at night"; or alternatively "You stay indoors from nine o'clock every night." Restrictions of such a wide ambit would come within the wording of subsection (4) and should not be there.

Lord Henley: I voiced my concerns earlier about the use of the words,

    "anything described in the order".
However, having said that, I see that there could be a case, as the noble Lord, Lord Thomas, put it, for exclusion orders which in fact the noble Lord, Lord Thomas, would rather not see. Therefore, for that reason, I cannot go so far as to support the amendment in the names of the noble Lords, Lord Goodhart and Lord Monson.

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As I said, I have some considerable alarm, or possibly distress, in relation to,

    "anything described in the order".
I wonder whether some other small limit could be imposed on "anything". I make that point merely to say that I will give some thought to the matter and possibly come forward with a further suggestion at Report stage. I do not think that I could support a limit as extensive as that proposed by the noble Lord, Lord Goodhart. It would exclude exclusions, which would be a useful part of the armoury available to magistrates.

Lord Williams of Mostyn: I have some sympathy with the noble Lord's amendment and the purpose behind it, as I think does the noble Lord, Lord Henley. The effect of what is proposed by the noble Lord, Lord Goodhart, would be little different in practice from what is contained in the clause at present. I say quite specifically that we would generally expect the prohibitions in the order to reflect the defendant's current behaviour.

However, there might be some circumstances where what the noble Lord proposes could be too limiting and lead to endless argument about what is a "similar" antisocial act. There may be different forms of continual nuisance, for instance in a shopping centre, which is quite distressing to some people and quite alarming to others. One does not want to be too restrictive in what is intended to be--I echo the noble Lords, Lord Renton and Lord Mishcon--a flexible remedy and not too circumscribed.

However, we have to bear in mind that when both Houses of Parliament have passed the Human Rights Bill, which I hope will not be too long, all of these provisions will have to be construed under that over-arch. That will be extremely important. These orders are to be local and geared to the needs of a local community. They need a certain amount of flexibility, as the phraseology presently allows. We would not expect them to be used inflexibly by magistrates and, if they were, that could be put right readily on appeal. So, generally, I believe that the consequence of the power that is given would produce the conclusion that is desired by the noble Lord's amendment.

One finds under subsection (5) of Clause 1 that:

    "The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting persons in the local government area from further anti-social acts by the defendant".
We should have thought that the introduction of proportionality is sufficient to meet what I recognise might be an adverse consequence if the provision were not there.

Lord Goodhart: In view of the noble Lord's assurance that in general the orders that are expected to be made are likely to be in the form envisaged in the amendment, I am happy to withdraw it and beg leave to do so.

Amendment, by leave, withdrawn.

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Lord Williams of Mostyn moved Amendment No. 13:

Page 2, line 16, at end insert--
("( ) For the purpose of determining whether the condition mentioned in subsection (1)(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.").

The noble Lord said: I mentioned this provision earlier, so I hope to be reasonably brief. The amendment indicates that an order should not be made where a defendant can show that any of his acts are reasonable in the circumstances. That meets in part the various proposals put forward that some complainants are unduly tetchy, unduly susceptible or unduly sensitive. It may well be that apparently antisocial actions may have been reasonable in the circumstances although that was not immediately apparent.

We originally took the view that the reasonableness of the behaviour would be one of the factors taken into account by the court in assessing whether the need for an order be made out. Following debate at Second Reading in this House and outside comments received, it was quite plain that there was substantial concern from a number of quarters that the clause as presently drafted is not sufficiently tight.

We paid attention to the remarks at Second Reading, and to the representations, and believe that the concern is valid. We have therefore included the defence of "reasonableness" on the face of the Bill. I take examples at random. A charity worker, for instance, is collecting door to door; an aircraft company has aircraft flying over a residential area during permitted hours. There are all sorts of actions which might be "offensive" but where a sensible explanation ought to provide a defence. That is one of the reasons, bearing in mind what was said by your Lordships and others, for our belief that the provision should be on the face of the Bill. I beg to move.

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