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Division No. 2

CONTENTS

Addington, L.
Beaumont of Whitley, L.
Calverley, L.
Carlisle, E.
Cox, B.
Dholakia, L.
Ezra, L.
Falkland, V.
Geraint, L.
Goodhart, L. [Teller.]
Grey, E.
Hampton, L.
Harris of Greenwich, L.
Henderson of Brompton, L.
Hooper, B.
Hooson, L.
Hylton-Foster, B.
Kenyon, L.
Kitchener, E.
Lester of Herne Hill, L.
Lindsey and Abingdon, E.
Linklater of Butterstone, B.
Ludford, B.
McNair, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Newby, L.
Nicholson of Winterbourne, B.
Redesdale, L.
Renton, L.
Rochester, L.
Rodgers of Quarry Bank, L.
Russell, E.
Thomas of Gresford, L. [Teller.]
Thomas of Walliswood, B.
Thurso, V.
Tope, L.
Wallace of Saltaire, L.
Williams of Crosby, B.

NOT-CONTENTS

Acton, L.
Allenby of Megiddo, V.
Alport, L.
Amos, B.
Ampthill, L.
Archer of Sandwell, L.
Barnett, L.
Bassam of Brighton, L.
Bath and Wells, Bp.
Berkeley, L.
Biffen, L.
Blackstone, B.
Blease, L.
Borrie, L.
Braine of Wheatley, L.
Brooke of Alverthorpe, L.
Bruce of Donington, L.
Burlison, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Currie of Marylebone, L.
David, B.
Davies of Oldham, L.
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Diamond, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Elis-Thomas, L.
Ely, Bp.
Evans of Parkside, L.
Ewing of Kirkford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Fitt, L.
Gainsborough, E.
Gallacher, L.
Gilbert, L.
Gladwin of Clee, L.
Glenamara, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Islwyn, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Putney, L.
Kennedy of The Shaws, B.
Kennet, L.
Kilbracken, L.
Kirkhill, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Longford, E.
Lovell-Davis, L.
McCarthy, L.
McIntosh of Haringey, L. [Teller.]
Masham of Ilton, B.
Merlyn-Rees, L.
Milverton, L.
Molloy, L.
Molyneaux of Killead, L.
Monkswell, L.
Montague of Oxford, L.
Murray of Epping Forest, L.
Nelson, E.
Nicol, B.
Palmer, L.
Peston, L.
Pitkeathley, B.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L. [Lord Privy Seal.]
Sainsbury of Turville, L.
St. John of Fawsley, L.
Sewel, L.
Shepherd, L.
Simon, V.
Simon of Glaisdale, L.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Strabolgi, L.
Strafford, E.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tenby, V.
Thomas of Macclesfield, L.
Varley, L.
Walker of Doncaster, L.
Wallace of Coslany, L.
Watson of Invergowrie, L.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

17 Mar 1998 : Column 596

4.44 p.m.

[Amendment No. 7 not moved.]

Lord Henley moved Amendment No. 8


Page 2, line 30, at end insert ("unless the court is of the opinion that there are exceptional circumstances relating to the offender or offence which justify its doing so, in which case the court shall state its reasons").

The noble Lord said: My Lords, I intend to speak to this amendment very briefly in order to ask just one question. We have already debated this matter. In the event we decided that we could not offer our support on these matters to noble Lords on the Liberal Benches. The question deals with when the court is able to discharge such orders in under two years without the agreement of the two parties. We have been told that the orders have to last for two years.

17 Mar 1998 : Column 597

Bearing in mind the response that I received from the noble and learned Lord regarding a previous amendment when he said that the two-year limit was there because it indicated the seriousness with which these matters should be viewed, can he inform us why these matters are considered to be very serious in England and Wales where an order must be for two years, but not, as I see from Clause 20(7), in Scotland where no such limit applies? I daresay I shall be told that things are different in Scotland. If these matters are considered to be so serious in England that the order must be for at least two years, I do not see why the same should not apply in Scotland. In addition, if it does not apply in Scotland, I do not see why we need such a limit in England and Wales. I shall be grateful for a response from the noble and learned Lord on that matter. It is probably a matter to which I shall return when I return to something similar to Amendment No. 5. I beg to move.

Lord Falconer of Thoroton: My Lords, the noble Baroness, Lady Anelay of St Johns, advised me on the first occasion that I spoke that one should never get into matters relating to Scotland lest one did now know what one was talking about. I have set out in detail what is the justification for a minimum two-year period in relation to England. I am told that the different criminal procedure in Scotland makes it desirable for there to be no limit of that sort in relation to Scotland. It would not be sensible for me to go further than that.

Lord Henley: My Lords, I am very interested in that response, particularly as the noble and learned Lord has his noble and learned friend the Lord Advocate sitting next to him. As I said, I intend to return to this matter. I try to avoid getting involved in matters relating to Scotland--and I say that as someone who lives very close to it. I accept that the legal system is different there.

When the noble and learned Lord put the arguments in favour of having the two-year minimum period for the sentence, he said it was because the Government wanted to indicate the seriousness of the orders. The same must also apply in Scotland, and therefore similar rules ought to apply there. I do not intend to pursue the matter at this stage particularly as I do not have my noble and learned friend sitting next to me to assist me in arguing these issues with both noble and learned Lords.

I hope that one, if not both, of them can write to me giving some indication as to why Scotland should be treated differently in these matters and why the arguments that the noble and learned Lord, Lord Falconer, put forward were valid for England, but not for Scotland. I hope that they can write to me between now and a later stage. I might come back to the matter at that later stage. I see that the noble and learned Lord wishes to press me before I sit down.

Lord Falconer of Thoroton: My Lords, I would not dream of pressing the noble Lord. Perhaps I may assist slightly further. There has been consultation in both England, Wales and Scotland as regards this issue. The

17 Mar 1998 : Column 598

consultation about England and Wales favoured a minimum duration, whereas there was no such feeling in relation to Scotland. So we reflect the difference, quite rightly, between the two.

Lord Henley: My Lords, the noble and learned Lord said that they responded to consultation and that is very good. That consultation indicated a different approach in the two countries. But the arguments he put forward earlier were not the same. They were arguments based on the fact that the orders should be taken so seriously that they should be made only for a period of two years or more.

I shall read carefully in Hansard what the noble and learned Lord has said and I look forward to receiving a letter from both noble and learned Lords in due course setting out their arguments in slightly greater detail. However, I may wish to return to this matter at a later stage, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 9:


Page 2, line 37, leave out ("five") and insert ("two").

The noble Lord said: My Lords, in Committee two alternative amendments were tabled to limit the sentencing powers of the court for breach of an antisocial behaviour order. One of those versions sought to make the breach punishable as a contempt of court under the Contempt of Court Act 1981 rather than as a criminal offence. The other amendment sought to retain such a breach as a criminal offence, but to restrict the maximum sentence under Clause 1 to two years. Both amendments would have had the effect of reducing the maximum sentence to a period of two years, which is the maximum punishment for contempt under the 1981 Act.

There are considerable advantages in using the contempt of court punishment, as my noble friend Lord Thomas of Gresford pointed out in Committee. In particular, a defendant, if punished for contempt of court, can be released on an apology and with adequate assurances of future good behaviour. As a result of the breach, a defendant does not become a criminal and is not technically a convicted person.

However, the Government have made it clear that they intend to treat a breach of an antisocial behaviour order as a criminal offence, and they have said that they regard that as a fundamental aspect of the Bill. In those circumstances, we have not tabled an amendment suggesting that the punishment should be that for contempt of court. We accept that one advantage for the defendant of treating the matter as a criminal offence is that he will have the right to a jury trial.

However, one may ask: why a five-year maximum? A breach of an antisocial behaviour order may, and often will, consist of actions which themselves are crimes. If so, the defendant can be punished for those crimes and can be separately charged with a separate offence of a breach of an antisocial behaviour order, possibly leading to a consecutive sentence. That course might be appropriate to mark a breach of the order, but I cannot see any circumstances in which it would be

17 Mar 1998 : Column 599

appropriate to give a consecutive sentence for a period as long as five years. If the breach of the antisocial behaviour order is not itself a criminal offence, I regard it as inconceivable that it would be possible to justify a five-year sentence for that breach.

The noble Lord, Lord Williams of Mostyn, said on 3rd February:


    "there may well be extreme circumstances where a five-year sentence would be justified. I can easily conceive of those circumstances".--[Official Report, 3/2/98; col.605.]

I have great difficulty in doing so.

The noble Lord may have had in mind repeat offences, but, if so, a two-year sentence seems an adequate maximum. If the defendant is released at the end of serving that sentence and breaches an antisocial behaviour order again, back to prison he will go on, no doubt, another two-year sentence. The same is true of the maximum period for breach of a sex offender order (Amendment No. 13). In those circumstances, I ask the Government to reconsider the extraordinarily long five-year sentence for breach of an antisocial behaviour order. I beg to move.


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