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Lord Carlisle of Bucklow: My Lords, I realise that the hour is getting late. But, like the noble Earl, Lord Russell, there is a fundamental principle behind the amendments proposed by my noble friend Lady Blatch, and I am delighted to see that the Attorney-General has been good enough to attend to reply to this debate.

I did not take part in the Committee stage and therefore I want to set out, I hope briefly, what I understand it is the Government are proposing and the effect of this amendment. As I understand it, if one looks at the clauses referred to, the Bill provides four new orders for a court to make: first, an exclusion order which, in certain circumstances, would prevent an individual going to certain places at certain times; secondly, a drug abstinence order which would require an individual to undergo drug tests; thirdly, a curfew requirement which imposes requirements on persons subject to curfew; and, fourthly, an exclusion requirement, which would impose requirements on those who were the subject of an exclusion order.

The Bill lays down the maximum period for which any of those orders can be made. I understand it to be proposed that the Secretary of State or the Home Office should have power by secondary legislation to extend the maximum period of the order which this House is now approving in the Bill and therefore the maximum order, which by the decision of this House, the courts can now impose. It is proposed that that should apply at any stage to this Bill and the powers which we are providing in it. They may be small matters but every one of them in some way curtails a right of the individual. It may be his right as against an exclusion order; his right to refuse to be tested for drugs; or his right to go where he wishes during the period of a curfew order.

We should consider carefully what is the situation of this House when increasing the powers of the order which a court can make. I believe that the separation of powers between the judiciary and the legislature is extremely important. I believe that there is a delicate balance often to be struck. I believe it vital that we should always realise that the power of the judiciary is to impose sentences--and I accept in this case pass fairly nominal orders--within the power granted to them by the legislature.

The question is whether it is right that the legislature should allow those powers to be varied by means of secondary rather than primary legislation. I put it to the noble and learned Lord the Attorney-General that the parameters--where we draw the line of that which the court is entitled to do--are extremely important. Those who draw the parameters must be accountable to society for the parameters they draw.

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I am not saying that Parliament is not responsible for a statutory order. It is, but it is not in the same way responsible as it is for primary legislation. I believe that when we are changing those parameters so as to prevent the citizens of this country doing acts which otherwise they lawfully can do it is important that that matter should have the opportunity of full parliamentary debate. I suspect that pretty well all I have said, if it made sense at all, would not be disagreed with by the noble and learned Lord the Attorney-General.

The argument put by the Minister who replied in Committee went no further than to say, "You have to have flexibility and there is not enough time". Of course, I accept that the whole object of an Opposition is to take up time. The Government's legislative programme is always under pressure but it is no excuse to say, "We wish to affect individual rights by order merely because we do not have time to get the primary legislation through the House". I hope that the Attorney-General will reflect on what is said in this debate. My noble and learned friend Lord Mayhew, who is a member of the Select Committee, may also say a few words. The Select Committee made it absolutely clear that it was concerned about the powers being taken in the Bill.

The Minister who replied to the debate said that there were precedents for what was sought to be done. That is probably so. However, what are those precedents, and is it right to move in this way? It is difficult to go against the advice of the Select Committee comprising people of such eminence as my noble friend Lord Alexander. I hope that the Attorney-General will confirm my understanding of the effect of these amendments and reflect on whether it is right to act by secondary rather than primary legislation.

9.45 p.m.

Lord Mayhew of Twysden: My Lords, I do not speak as someone who considers himself an eminent member of the Select Committee or of an Opposition whose only object is to take up time. My noble friend Lord Carlisle and I share the additional objective of helping Parliament as a whole to get the legislation right.

It is helpful to turn to the mantra which heads every report, including the 22nd report, of the Delegated Powers and Deregulation Committee:

    "By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislation".

I speak tonight only for myself and not for my colleagues on the committee. I respectfully endorse what has been said by my noble friend on the Front Bench, the noble Earl, Lord Russell, and my noble friend Lord Carlisle. When one considers, not the reduction, but the maximum of a sentencing power, one must approach the matter with great care. If this House does not regard the liberty of the citizen as of overriding importance we have moved a long way from our traditional priorities. I do not believe that we have.

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The committee is called upon to express an opinion as to whether the delegation of power in a Bill is appropriate. One has only to read the annual report of my noble friend Lord Alexander of Weedon, who chairs the Select Committee, to see that it is an all-party committee which since its establishment has never expressed an opinion as a result of a vote. That is certainly so in the case of the report now under discussion. I pause, or perhaps I am flannelling, to allow the Attorney to be informed, because Attorneys do not take instructions. On this occasion, as on all others, the committee arrived at the conclusion, without any division, that it would be inappropriate to permit the extension by order of a sentence of each of the kinds dealt with in the amendments.

I hope that when he comes to reply the Attorney will tell the House why he considers it appropriate, contrary to the views of the committee--which are not binding--to increase the powers. If noble Lords were debating a provision to diminish a sentencing power it would be a different matter. That would not impinge on the liberty of the subject, whereas here it does.

In conclusion, I should like to put two questions. First, what are the precedents, if any? In paragraph 16 of the 22nd report we find that the Home Office identified two precedents: Sections 45 and 50 of the Powers of Criminal Courts (Sentencing) Act 2000. A footnote reminds us that there is a third precedent in Section 50. However, paragraph 16 states that the Home Office,

    "readily admitted that these were not an exact parallel. In so far as precedents do exist they date from before the establishment of this Committee, and so this issue has not come before us before".

Can the noble and learned Lord confirm that those are the only quasi-precedents and that there are no exact precedents?

Secondly, what are the circumstances in which the Government would view it as expedient to have an order-making power to enlarge this sentencing power? We are not in the habit of suffering a drought in legislation from the Home Office in the criminal justice field. What is the urgency? Why not wait for the next criminal justice Bill or similar measure? I would be greatly assisted by replies to those two questions.

Lord Williams of Mostyn: My Lords, I am most grateful for the contributions that have been so moderately made. There is no question of ignoring the advice of the committee. It is a committee of great eminence. It is always enormously respected by the House. What the committee said was that it recommended that the powers should be omitted. If those powers are to remain--contrary to its recommendation--the committee suggests that they should be subject to affirmative procedure. So it is only fair that I should read out the whole of the caveat and point out that we have gone to the compromise position of the affirmative procedure.

The noble and learned Lord, Lord Mayhew of Twysden, put to me one or two questions about precedents and what would be the requirement for the order-making power. The requirement comes because the orders are experimental in nature and are due to be

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piloted. We cannot be absolutely certain about the most effective period of time for the orders because they differ. The maximum length of the exclusion order is set at one year, partly because it is less intrusive than the curfew order where the maximum is six months. The exclusion order may be too short to be effective against a stalker or someone intent on domestic violence. That is the reasoning and the answer I give to the second question which the noble and learned Lord put to me.

The noble Lord, Lord Carlisle of Bucklow, asked me to confirm that he was correct in his description--I do--where speaking of exclusion orders, drug abstinence orders and exclusion and curfew requirements of community service orders. So the noble Lord is quite right.

I return to precedents. The maximum period of a community order can be increased by secondary legislation. The maximum term of a probation order and a curfew order can be amended using delegated powers. Section 49 of the Criminal Justice Act 1991 allows the proportion of a prison sentence spent in custody to be changed, including its increase by secondary legislation. I am happy to deal with the points--the two barrels of that very fine shotgun, respectively the noble Lord, Lord Carlisle, and the noble and learned Lord, Lord Mayhew.

It seems to me--I put this only for consideration--that that power is a very significant power going directly to the liberty of the individual who is incarcerated. If one wants to look qualitatively at the differences between imprisonment and the kind of orders which the noble Lord, Lord Carlisle, correctly identified, I would suggest, with great respect, that Section 49 of the Criminal Justice Act 1991 is a more significant potential interference with the true liberty of an individual and that it can be increased by secondary legislation.

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