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Lord Elton: I am grateful for that. My concern about this clause, which I believe is analogous to the concern of the noble Lord, Lord Phillips, is whether failure in one of the five requirements would invalidate proceedings at the stage which we are now discussing. Would it be valid grounds for objection? In other words, a notice had not been fixed to the coal-house door, as it were.

Baroness Scotland of Asthal: My Lords, it would not invalidate the proceedings in relation to those who were not so affected, but obviously if action is to be taken against a party with an interest, appropriate notice should have been served on them. It will be incumbent on those serving the notice to ascertain all persons with a proper interest. In relation to those so served, the proceedings would be affected, although it would not invalidate the whole procedure. Obviously

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if someone claims that they had an interest which was not properly taken into account, then perhaps there would be an argument that the notice was not valid because their interest was not properly considered. However, I shall clarify the specific position and write to the noble Lord.

As regards the position of a lodger, the noble Lord, Lord Avebury, will know that lodgers are in a slightly more insecure position because they have no security of tenure.

Perhaps I may return to our original debate. I do so because much concern was expressed about who has a proper interest and what the court should do. Not only is it incumbent on those seeking a closure order to ascertain whether such an order is the most appropriate action to take in the circumstances to cure the ill we are discussing, they must also make it absolutely clear who has an interest in the property.

My noble friend Lord Bassam referred noble Lords to Clause 2 dealing with the position of the courts because the court must decide whether the making of an order is reasonable. I shall take the example cited by the noble Lord, Lord Elton, of the little old lady being terrorised by a thug who has taken over the property. It would be perfectly possible for the court to say that under the particular circumstances there should not be a closure order. Those circumstances are that the police have arrested the said thug for the misuse and supply of illicit drugs pursuant to the Misuse of Drugs Act 1971 and are minded to oppose bail; the magistrate would also be minded to agree to oppose bail. So out goes the nasty thug and in remains the little old lady, warm and cosy in her flat, now relieved of the burden of the property being run as a crack house. All parties are now happy.

It is not that such orders must be made, but the court will have the opportunity to decide whether it is reasonable to do so. That is why my noble friend Lord Bassam invited noble Lords to look at what is provided in Clause 2(3). The court has to be satisfied that,

    "(a) the premises in respect of which the closure notice was issued have been used in connection with the unlawful use, production or supply of a Class A controlled drug;

    (b) the use of the premises is associated with the occurrence of disorder . . .

    (c) the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified".

As I have said, it would be perfectly possible for the court to decide that the circumstances of paragraphs (a) and (b) are proven, but in the particular circumstances of the little old lady, it is not necessary to make a closure order to prevent the occurrence of such disorder because it is possible simply to arrest the thug and relieve the little old lady of the imposition that has been put upon her.

Lord Elton: I thank the noble Baroness for trying to allay the earlier concerns expressed by myself and other noble Lords about the little old lady and the social services, but what she is saying is that, in fact, very often—or at least on some occasions—the court may suggest to the police a different course of action from that

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of closure, but the Bill has to provide for those cases when the court agrees that closure is necessary and, regrettably, the little old lady is involved. Our concern was for that circumstance.

Baroness Scotland of Asthal: I see the point, but this anti-social behaviour order is being crafted so as almost to oblige the various services to work in partnership and in concert with each other. Such issues will have to be addressed before the court would be minded to make an order.

I shall conclude by dealing with the example of the lodger. Of course I shall reflect on the points made by the noble Lord, Lord Avebury, and, if necessary, write further to him. The lodger does not have security of tenure. At the point at which the first closure order is made, the lodger may or may not be a person with an interest, but it is likely that once the closure order had been made and the property closed, the lodger would no longer be in residence and thus would no longer have a right to be there. It may be that therefore the lodger would no longer be a person with an interest.

Lord Avebury: Would the noble Baroness be kind enough to broaden her response to my question to include licensees in general? There may be others on the premises who are not parties to tenancy agreements, leasehold or freehold, or to the new forms of tenure she mentioned earlier. Such people may simply have been allowed by the freeholder to reside in the premises perhaps for an extended period even though they may well have no tenancy rights at all. Nevertheless, the particular premises would have been their home.

Lord Phillips of Sudbury: I am grateful for the response from the noble Baroness and I hesitate to raise points of detail. However, this is the only chance we have to do so, although there will be an opportunity for reflection. In her response the noble Baroness said that, in order to serve a closure notice, it will be necessary to establish who has an interest in the premises. That is quite right, but the language of Clause 1 merely refers to the authorising officer being satisfied that "reasonable steps" had been taken to find out who has an interest in the premises. That offers a certain latitude.

I do not think that a similar latitude has been imported into Clause 5. Subsection (9), which would be amended by Amendment No. 16, is set out in categorical terms. It states that a summons must be served on a person who has "an interest" in the closed premises, and goes on to specify that it should also be served on someone on whom the closure notice was not served. The noble Baroness will see my point: you give your best shot at finding out who has an interest in the property and serve on them, but the subsection states that even if those best endeavours have not found all those with an interest, those people who have not been discovered are still entitled to be served.

As an old-established practising hack solicitor, I see here the makings of a lawyers' field day. The Government should reflect on whether, despite the

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danger of exhaustive definition—I take the point made by the noble Baroness—it might make sense in this case to consider the severe practicalities and perhaps seek to define what is meant by "having an interest" in this clause.

Lord Wedderburn of Charlton: I wonder whether it is convenient for me to add a question set out in two parts which is relevant to those remarks. Surely nothing set out in Clauses 1 or 2 would limit the operation of Clause 5(9), especially as regards its interplay with subsection (6). I appreciate the points made by my noble friend, but surely the fact that a notice must be served is still valid and needs to be looked at. I say that because, as usual, the range of actors in the drama, as it were, does not exhaust the possibilities.

Little old ladies and lodgers are two cases, but what about deserted wives? Modern jurisprudence gives them types of interest. Are they to be included on the list? Must inquiries be made into the family and connubial history of all those who have resided or currently reside in the premises?

Perhaps this is not relevant to the amendment, but since we are discussing the Bill in Committee, I refer to the point that surely in more general terms something should be set out about what is meant by an "interest" here, otherwise one will be inviting litigation.

1 p.m.

Baroness Scotland of Asthal: I can reassure my noble friend by referring to what I said earlier about the guidance to be issued in relation to this matter.

I take up the point made by the noble Lord, Lord Phillips of Sudbury, in particular in regard to those of us who have had the joy of practising in these areas. The noble Lord will know that you may take reasonable care to gather-in everyone who has an interest when you take your first step but, once you have made an order closing a property, anyone who has an interest whom you have somehow failed to discover will usually turn up fairly quickly thereafter to let you know all about it. It is therefore perfectly fair and reasonable that the question of extension is put more in a mandatory term for those who have an interest because, by the end of the three-month period, anyone who has an active interest in the property is likely to have appeared, and they must be first.

I hope that the noble Lord is satisfied with that explanation. I should say that what was noted in my speaking notes to be a short, brisk issue has taken 23 minutes to dispose of.

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