Lord Marks of Henley-on-Thames (LD)

Amendment 60 in the name of my noble friend Lady Hamwee would make it clear that a public event attendance prohibition requirement would not be available if its enforcement was not reasonably practicable. I share the doubts of my noble friend on practicability. Indeed, the widest orders in this category—that is, prohibiting attendance at any public event rather than particular events—may generally be too wide in any case, because it is going to be very difficult to define a “public event”. Moving to a more general point, one of the difficulties with the restrictions in this group is the difficulty not just with practicability but with enforcement, spoken to in the last group by the noble Baroness, Lady Fox. The noble Viscount, Lord Hailsham, foresaw difficulties in determining practicability, which he thought might be fatal to these conditions. I can see his point that there are difficulties. The question for the Committee in considering whether these conditions ought to be permitted is to see how far they would in practice be imposed if not practicable, and then to consider the question of practicability. I suggest that the answer to the difficulties is a combination of the justification points relating to community orders, if I can put it that way, and the enforcement possibilities offered by new technology and intelligence. As far as intelligence is concerned, I take the point made by the noble Lord, Lord Jackson, that it is pretty easy to find out where the pubs are. But there are other difficulties of intelligence which new technology and intelligence-gathering techniques might be needed to address. However, when I talk about justification, it is right that we should remind ourselves that the conditions are intended to augment community orders and suspended sentences, and those sentences are intended to be, in part at least, punishment, no differently from a curfew order or a residence requirement. They are in part, therefore, punitive. However, the alternative may be custody, which is a far more serious punishment, and one that with the best will in the world offers a substantially reduced chance of the offender having the opportunity to undertake any rehabilitative activity at all. The other point is new technology and intelligence techniques. Noble Lords have mentioned electronic monitoring, as well as alcohol monitoring and other devices, but electronic monitoring using tagging is a considerable part of the answer. Although I have some sympathy with the noble Baroness, Lady Fox, on the civil liberties implications of these conditions, monitoring by tagging is no different from monitoring by curfew or by a residence requirement, which we have had for a very great deal of time, but the new technology enables a more flexible and wider approach to conditions. However, I remind the noble Baroness, Lady Fox, that civil liberties are restricted at their very worst by imposing sentences of immediate imprisonment where people are in custody. Amendment 106 in my name would allow exemptions or variations by probation officers to allow a person to attend employment, education or rehabilitation programmes, but those exemptions or variations would be exceptions to the imposition of the restriction zone condition. The amendment also requires a report on the operation of restriction zone conditions. The purpose of this amendment in each of its sub-clauses is to enable both the courts when imposing conditions and probation professionals to weigh in the balance, on the one hand, the extra security and the protection of victims or potential victims which may be offered by the imposition of a restriction zone condition, against on the other the desirability of encouraging offenders to benefit from opportunities of employment, education or rehabilitative activity. It is a classic balancing exercise of a type that is undertaken every day by members of the public and professionals in daily life when they consider questions of risk against opportunity, and that is really what we are talking about here. The point is that our amendment does not come down exclusively on one side or the other. The idea of it is to enable the imposition of these restriction zone conditions, not to conflict with the provision of educational or other opportunities. So, the condition could still be made, but subject to those exemptions or restrictions, which will permit the desirable activity. The noble Lord, Lord Jackson, supporting my noble friend Lady Hamwee in her amendment, said that it was unfair to oblige venues and others to police these conditions, and of course I see that. But these conditions are not perfect, they will not be perfectly enforceable, and they will not be completely practicable in the sense that they will always prevent the restricted activity. However, for the most part, in practice, offenders are likely to observe these conditions simply because they are there, and for fear of being caught and punished for their breach. Questions of affordability were raised, and of course more resources are going to be needed to police and enforce these conditions, but those costs have to be measured against the costs of custody. The noble Baroness, Lady Prashar, raised an interesting point with her amendment when she suggested that the Parole Board should have oversight of restriction zones. For my part, I am not quite sure how that will work—it seems an onerous obligation on the Parole Board—but I take her point that there should be some oversight of restriction zones. In a general sense, that could be undertaken by the Sentencing Council in considering sentencing guidelines to judges on how they are to be imposed, and by training of probation officers in how they are to be implemented. On electronic monitoring, of which the noble Baroness, Lady Fox, spoke, if it is proportionate and appropriate and is subject to restrictions that are decided upon to ensure that it is, then, broadly speaking, I agree with her points.