Anti-social Behaviour, Crime and Policing Bill
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Baroness Smith of Basildon
I just hope that that never happens to the noble Lord. I am sure that he would never give this House any cause to accuse him of nuisance or annoyance and therefore breach his IPNA. Actually, it would make a difference. If somebody breaches their IPNA and it goes to the full conclusion of being taken to court and their receiving a custodial sentence, the level at which they have breached is very low. With an ASBO, there is a much higher threshold. In terms of costs, my information is from the police, who say that it is a more complex process to pursue breach of an IPNA than it is with the automatic breach of an ASBO. We also see the number of breaches of ASBOs, because of their seriousness, coming down. That is why the police indicate to us that they think that there are significantly greater costs in dealing with a breach of an IPNA.
I do not know if the noble Lord had the opportunity to read the reports in the other place of the evidence-taking sessions before the clauses were debated. Gavin Thomas, who is the vice-president of the Police Superintendents’ Association, said,
“there is a cost because we have to have people to pull together the case, take it to court and enforce it, so there is a cost”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill, 18/6/13; col. 9.]
In written evidence to the Committee, the noble Baroness, Lady Newlove, who spoke eloquently at Second Reading, said that she was concerned,
“that the injunction to prevent nuisance and annoyance could potentially add to the workload of front line officers because of their lack of knowledge of civil law”.
That is a matter that has been raised by the police as well.
We hear quite horrific tales of anti-social behaviour. We should be under no illusion that it is just nuisance and annoyance on the odd occasion; there are some serious cases. As a former Member of the other place, I dealt with constituents. In one case, a man could no longer sleep in his home, another would sleep on the kitchen floor; somebody else was too frightened to go to sleep. Those were ongoing cases.
In some cases, enforcement was the problem, but we need to have the right tools. The Government are seeking in the legislation to reduce the number of tools available to those taking action and then to put in place additional costs, which will make action difficult to enforce. I am asking the Minister for an explanation of why, when ASBOs are becoming more effective, are working and have a value, they are being reduced.
The Minister is shaking his head at me, but there is a great deal of difference between somebody causing nuisance and annoyance and somebody causing harm, distress and harassment. They are very different and there are times when different measures are appropriate. So far, I do not think that the noble Lord has satisfied people in your Lordships’ House, on amendments to other clauses or on this one, as to why the Government are seeking to deal with just annoyance and nuisance while losing the measure of an ASBO, which has served us well. It is not perfect, and we are happy to see changes to it, but the changes which the Government propose do not address the problem.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I should begin by refuting the suggestion of the noble Baroness, Lady Smith, about our focus on IPNAs at the expense of other measures. She has admitted that there are six measures involved in anti-social behaviour prevention and control, so the IPNA is one part of a suite of measures in the Bill. She makes no mention of the criminal behaviour order, which clearly provides much of the cover which was given by the ASBO.
Baroness Smith of Basildon
The noble Lord is wrong. My second amendment refers to criminal behaviour orders and I spoke to those in the course of my speech. I am surprised that he says I did not mention criminal behaviour orders when I tabled a whole amendment on them.
Lord Taylor of Holbeach
Yes, but I am dealing with Amendment 96 and in speaking to that amendment, the noble Baroness made no mention of criminal behaviour orders. She sought—perhaps accurately, in her eyes—to make a comparison between the IPNA and the ASBO. The two are not meant to be the same or to deal with the same problem in the same way. There is a suite of six provisions in the Bill, which are all meant to deal with situations which the Anti-social Behaviour Act has not managed to address. ASBOs are not an effective power. I say from this Dispatch Box that they are becoming increasingly less effective. Let us look at the published statistics: up to the end of 2012, 58% of anti-social behaviour orders were breached at least once and just over 43% were breached more than once. A staggering 68% of ASBOs issued against under-18s have been breached. By any objective measure, if an order has been around for more than 10 years and had plenty of time to bed down but has such a high breach rate, that is not evidence of success. I am surprised that the noble Baroness is so wedded to the idea of maintaining it.
If one wants to seek the root cause of the failure, it is that ASBOs can take months to obtain. They fail because they leave victims exposed while being obtained and because they do so little to address the offending behaviour, so are we surprised that the number of ASBOs has declined year on year since 2005? That is why we are abolishing the ASBO and the failure that goes with it, and replacing it with more effective powers in the IPNA and the CBO. By replacing the hotchpotch of 19 ineffective and under-used anti-social behaviour powers with six new, flexible and more effective ones, we will give front-line professionals that toolkit which the noble Baroness sought in her speech. The new injunction will replace anti-social behaviour orders on application, anti-social behaviour injunctions, individual support orders and intervention orders. As I said in earlier debates, the injunction under Part 1 is modelled on anti-social behaviour injunctions which have been used successfully by social landlords for over a decade. For more serious cases, where a perpetrator has a criminal conviction, the criminal behaviour order will be available. Like the injunction, it can be used to impose prohibitions and requirements, but breach is a criminal offence with accordingly tough sanctions.
Baroness Smith of Basildon
I apologise for intervening on the Minister, but I wonder if he thinks he has answered the question that I asked about costs. If he does, his response was completely inadequate. I asked what assessment had been made of the costs and quoted the impact assessment, and I asked whether the Government had considered whether or not the imposition of positive requirements would be related to the funds available. The Minister has said that these will be made and funded locally, and that he makes no apologies for local government deciding how they are funded. If there are additional costs on local government, surely the Minister and the Government should have some understanding of what those costs are going to be. He may be coming to the point about what guidance will be issued, but I think that he said that there would be no guidance on what measures could be introduced.
Lord Taylor of Holbeach
I was coming to that point, but I shall just deal with the cost element. The impact assessment, as the noble Baroness rightly says, did not hazard a guesstimate of that figure; in many ways it would have been a meaningless guess because we cannot know all the facts. We cannot know the extent to which local organisations, local authorities and voluntary organisations are already participating in much of that activity which is designed to help young people, or indeed older people, who are in difficulties. Much of the voluntary sector is dealing with this work. The whole point of the framework of the IPNA is that it provides a framework in which groups such as this can operate effectively. We are certain that there will be savings as well as additional costs in the reduction of anti-social behaviour that is going to follow from these measures. I will continue, if I may, because the noble Baroness wanted to know about the guidance.
The emphasis on empowering front-line professionals and giving them the flexibility to respond to individual needs is the reason why we have not provided detailed guidance on this point. That said, we have published draft guidance for front-line practitioners where we have included a steer on positive requirements and issues that local practitioners might like to consider. Pages 25 and 32 of the draft guidance provide examples of the sort of positive requirements that might be possible. We have deliberately not set out to provide an exhaustive list, as we do not want to produce a limited menu. Instead, we want to allow local practitioners, who are best placed to judge what positive requirements are likely to have the greatest positive impact on an individual, to remain unfettered in their use of positive requirements and allow for new and innovative interventions to be developed.
As I said, this is a draft document and if further, more detailed guidance would help front-line practitioners we can look at this again as we work to produce a final version. If noble Lords feel they can contribute to producing the final document, they are, as I said earlier, most welcome to do so. It is a testament to our commitment that we have published draft guidance. I have stood at the Dispatch Box and had to talk about guidance which is to come, which may be part and parcel of the implementation of legislation, without having the document in front of me. In this Bill, we are fortunate: we have the draft guidance on which we can base our discussions. We intend to publish this on a non-statutory basis, but I am quite prepared to acknowledge that we are ready to consider whether our commitment to produce such guidance should be reflected in the Bill.
Baroness Smith of Basildon
I apologise to the noble Lord for intervening, but I want to clarify, to make sure that I have not misunderstood what he said. Is he saying that, because they cannot quantify the costs at the moment, the Government do not know what those costs will be? Will he give an assurance that the Government will meet those costs or is he saying there will be no contribution from the Government to any additional costs incurred by local authorities in IPNAs or criminal behaviour orders?
Lord Taylor of Holbeach
I can give the noble Baroness some sort of figures on the comparative costs. It has been suggested that it will cost £1,500 to pursue proceedings for breach of an IPNA and that was quoted. However, the National Audit Office reported in 2006 that the average cost of prosecution for breach of an ASBO was around £1,500. So, if the figure for pursuing a breach of Part 1 is correct, it will be no more expensive. In addition, the new injunction will be quicker to obtain than a stand-alone ASBO. The National Audit Office found the average cost of obtaining a stand-alone ASBO was about £3,100, compared with a cost of £1,600 for one of the existing injunctions which, like the new injunction, uses the civil standard of proof. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions and enable—
Lord Taylor of Holbeach
I will finish what I am saying, if I may. I will not sit down before the noble Baroness has a chance to intervene. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions, enabling agencies to act more speedily in stopping further harm to victims.
Baroness Smith of Basildon
I am grateful to the noble Lord for allowing me to come back on him, because he misunderstood. I was asking about the costs and the funding of positive requirements. Although I mentioned the cost of proceeding with the breach of an IPNA, that was not the point I raised when I intervened on the noble Lord. He must have had an earlier note. I am asking if I had understood his point about the cost of positive requirements and whether the Government would make any contribution, bearing in mind the additional burdens doctrine. Was he saying that there will be no additional costs in pursuing positive requirements?
Lord Taylor of Holbeach
The Bill makes no provision for the funding of costs.
Lord Harris of Haringey
My Lords, I assume that the noble Lord has finished. I found the reply that the Minister gave rather disturbing as regards the issues it covered and did not cover. He spent the first half of his remarks talking about Amendment 96. We have yet to hear the reason why it is necessary to repeal all the ASBO provisions in advance of bringing in the arrangements for the new injunctions. That is quite an important point. The Minister supports a Government who I think believe in free-market principles. If the ASBO and the procedures around it are so inadequate, do not work and are so costly, what is to be lost by allowing both to coexist, at least for a period, until we see how the new regime works? In practice, people—local authorities, housing bodies or whatever—might vote with their feet and decide whether to use the IPNA route or the ASBO route. That would be consistent both with the Government’s principles about a free market and with their localism principle, and would also allow a bit of reality to creep into this—which would be unique for this Government and probably for all previous Governments. People would discover which system works by looking at the arrangements that people followed at a local level. The Government need to explain why it is not possible for the two systems to coexist so that we can see which ones work and which ones do not.
Lord Taylor of Holbeach
The answer is very simple: we do not think that ASBOs are effective. We are proposing a Bill that deals with anti-social behaviour and in our view the measures that currently exist do not meet the requirement that we as a Government want to present as a remedy for anti-social behaviour. That is why we do not support the retention of the ASBOs. They are expensive, not effective in reducing anti-social behaviour and not effective in providing a remedial pattern of behaviour for young people who get into trouble. We want to ditch them and replace them with those measures which the Bill provides for, which give a much better and positive way forward for young people and protect victims.
Lord Harris of Haringey
My Lords, I do not think that anyone doubts that the Minister and the Government are keen to tackle issues about anti-social behaviour, as indeed were the previous Government, and as I suspect has been the case for very many years. Nobody is pretending that ASBOs are perfect or that they solve the deep-seated, underlying difficulties of anti-social behaviour. However, we are saying that these new arrangements are untried. We simply do not know whether they will work or whether they will be better. If they are so much better, as the Minister assures us they will be, then if the two coexisted on the statute book, people all over the country, when dealing with cases of anti-social behaviour, would opt for the noble Lord’s system as opposed to this dreadful, outdated system that he is apparently now so keen to scrap. However, if—just if—it turns out that under certain circumstances the ASBO route might have been better, that will no longer be available. I fail to understand what is lost by leaving in place the existing arrangements, at least for a period, to see how things work out in practice.
I turn to what the noble Lord calls the “positive” elements of the arrangements. These will not be cost-free. Ensuring compliance will involve costs. If an individual is involved—and some will relate to individuals—it will involve costs in terms of that person’s time and maybe their expenditure. If it involves an agency, such as a local authority, which is required to provide particular opportunities for individuals concerned, there will be the cost of providing those opportunities. There has to be transparency as to what those costs are going to be and how it is going to be delivered. If there is not—given that local authorities are facing very significant reductions in their budgets and the voluntary sector is facing a crisis in its funding, in many instances, or in the demand on its services—there is a real risk that the Government are creating these new injunction-based powers but setting them up to fail. I believe the Minister and the Government actually want to do something positive about anti-social behaviour, so I think it unwise to be setting up arrangements, and setting them up to fail, without addressing the question of how the funding is to be taken forward.
Briefly, at the end of my remarks, I return to the amendment that I proposed. The Minister has said that the requirement I am proposing should be included in the Bill is not necessary because it is already there. He quoted the Bill as saying that,
“the court must receive evidence”.
However, that is not the same as,
“the court must be satisfied”—
which is the phraseology that I use. The court could receive evidence but the local authority might stand up or be represented at the court and say, “We no longer have the resources to provide this”. The court could still, in the light of that information, none the less say that it is satisfied and will make the order. Alternatively—and this is also quite possible—a parent or guardian could say, “We give the undertakings. We are confident that we can prevent the recurrence of this type of behaviour and will take the necessary steps”. However, receiving that evidence and being satisfied are not the same thing.
I ask the noble Lord to consider these matters again and to come back to us before Report to say whether these requirements will work—or whether we should not be assured that we are not setting up individuals or organisations to fail by asking them to do things that they cannot deliver, that they are not funded to deliver or, frankly, that no one really believes will happen but simply satisfies them. These new arrangements, in which the Minister quite properly has a great deal of confidence, could otherwise eventually be deemed a failure simply because these issues were not addressed. As I am sure I will receive this information and those assurances between now and Report, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
My Lords, I am very pleased to have the chance to talk about this issue because I am concerned that Westminster City Council, a flagship council, has expressed anxieties. I reassure my noble friend Lady Hamwee that the letter has gone to Councillor Nickie Aiken from my honourable friend Norman Baker, who was the Minister responsible for crime prevention and was the lead on this Bill in the Commons. I have met with my noble friend Lord Flight. I hope that we had a very productive discussion. Much of the information that he has been able to give came out of that meeting on Friday. It is now Monday and things have moved in a rather compressed way.
I will conclude my remarks in saying what I intend to do but, first, I should express that we are aware of the problems of persistent and aggressive begging with which a number of councils are faced. I attend the meetings of the safer communities board of the LGA fairly regularly nowadays because I enjoy them and find them very useful. When I went, I think that I was able to explain to those gathered, who included the leader of Bradford City Council—a large city—that the measures provide a portfolio of remedies to deal with this sort of circumstance. The criticism from Westminster City Council came to me rather out of the blue.
However, the Government appreciate those concerns and acknowledge the impact that aggressive begging can have on individuals, businesses and communities. I am aware that Westminster is working with its partners to do what it can to tackle the problem. I think that noble Lords will realise that it is extensive. Westminster has expressed its concerns. It is important that councils, the police and others work together on all these matters, which is one of the underlying themes behind this Bill.
As I have said, last Friday I met my noble friend Lord Flight. It seems that the concerns about the injunction to prevent nuisance and annoyance stem from its differences from the ASBO with regard to powers of arrest. The breach of an ASBO is of course a criminal offence and, as such, someone can be arrested simply for a breach. In contrast, the new injunction is a purely civil measure with civil penalties for a breach. Consequently, we do not consider it appropriate or proportionate for it to have an automatic power of arrest. As such, we have limited the court’s ability to attach a power of arrest to the most serious cases; that is, cases where a perpetrator has been violent or has threatened violence, or if there is a significant risk of harm to another person.
I understand the intention of my noble friend’s amendment and I am sympathetic to local councils’ concerns. He has mentioned other councils and I accept that others may have notified him of their concern. However, I should like to make two points. First, the effect of the amendment may not actually achieve its aim and, secondly and more importantly—we can change the amendment but it is a question of how the Bill operates—there are more appropriate powers that could be used as provided for in this Bill.
The amendment would require a threat of,
“intentional or deliberate anti-social behaviour”.
As has been mentioned by my noble friend Lady Hamwee, this is rather a broad brush. These words insert subjective elements that raise evidential thresholds for enforcement agencies and the courts. The courts would have to consider the state of mind of the perpetrator in ensuring that the power of arrest has been used lawfully. Before arresting an individual under the amendment, the police would need to satisfy themselves that the perpetrator had deliberately or intentionally committed anti-social behaviour. That may look easy to do on the face of it but may be different in practice. For example, it has been suggested that some of the foreign nationals who beg aggressively are coerced into these activities by organised crime gangs. My noble friend Lady Hamwee referred to that too. This is rather different from the current situation with the breach of an ASBO where there is no subjective element. That is why we say this amendment may not help councils in practice in the way that they hope.
However, there is a more fundamental reason why I believe the amendment is not necessary. I can understand why councils have focused on the injunction. It is, on paper at least, the direct replacement for the ASBO on application. However, it seems what the councils actually want are swift, efficient and cost-effective powers to prevent anti-social behaviour, supported by meaningful punishments. As I indicated earlier, as did my noble friend, such powers are in this Bill. The community protection notice under Part 4—which we will being coming to, I hope, soon—is intended to deal with particular ongoing problems or nuisances which negatively affect the community’s quality of life. The notice could be used to direct an individual to stop causing the problem and can, if necessary, be served on the spot. While a written warning is required, depending on the behaviour in question, it would not be necessary to wait too long before the actual notice was issued. It could almost be done immediately where appropriate and necessary.
The notice could be used to stop a specified action or wider behaviour, such as aggressive begging. It will then be available to councils as well as the police to ensure either agency was able to deal with the problem there and then. Breach of any requirement in the notice—for instance, failing to cease begging in a certain area—will be a criminal offence, subject to a fixed penalty notice or prosecution. Critically, a person may be arrested on suspicion of a breach. On conviction an individual would be liable to a fine of up to £2,500. That to my mind is a significant punishment.
Alternatively, where a persistent problem is detrimental to the local community’s quality of life, the public spaces protection order could be used by the council to impose restrictions. For instance, in areas where aggressive begging is a problem, a blanket ban could be imposed on it, ensuring that the council or police can act quickly when it occurs. In addition, the order can be used preventively, so if the council reasonably believed that the problem would simply move to another location—which is a real problem—it could use the new order there too. Local authorities would need to consult the police and other interested parties before seeking to impose an order, but the decision to use the new power would be theirs. It would be vested in local authorities. Again, breach of the order would be a criminal offence, subject to a fixed penalty notice or prosecution. Here again, a person could be arrested on suspicion of a breach. On conviction the offender could face a fine of up to £1,000.
My noble friend mentioned the dispersal power under Part 3, which may be useful to deal with individuals or groups causing problems by allowing the police to move them on immediately and away from the area where they habitually operate, for up to 48 hours. We will talk about how dispersal orders operate when we come to consider relevant amendments. Failure to comply with a direction is a criminal offence which will normally be tried in the magistrates’ court or a youth court for people under the age of 18.
There is a portfolio of measures in this Bill which can be used by local authorities, I think, effectively. The fact that begging persists here in the capital is an indictment of the fact that we still do not have effective measures to deal with it. I think that the Bill provides them.
I hope that I have been able to reassure my noble friend of my earnest desire to get this matter sorted. I am very pleased to meet with Nickie Aiken or for that matter any other councillors responsible for this area of activity in their local authorities, to try to explain to them how in practice they can use the measures provided for in the Bill to deal with what is a very serious problem.
Baroness Hamwee
My Lords, the Minister has given a very detailed reply as to the measures available, but I am sure that he would agree that none of that reduces the need to deal with trafficking and immigration control, which I think is actually behind quite a lot of what is happening which is so offensive.
Lord Taylor of Holbeach
In some circumstances there is undoubtedly some suggestion that people involved in begging have been brought here as part of criminal gang activity. But that is another crime and there are other measures to deal with it. Meanwhile, local authorities’ concern is to make sure that members of the public, tourists and businesses are not interfered with by beggars in public places.
Lord Flight
My Lords, I thank the Minister for that very detailed response. I am hopeful that what he described will be an effective measure for dealing with this issue. The only area where I still have some uncertainty, and where Westminster and other councils have uncertainties, is the double-stage aspects of both CPNs and the new public spaces protection orders. There is concern that warnings will be given out to people who will disappear and then come back again as soon as the police have gone. But I am grateful that the Minister has accepted the request to meet not just Councillor Aiken but any other of the local authorities concerned, to go through their concerns and thrash out a mechanism that can work. On that basis, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
My Lords, the election of police and crime commissioners put the public back at the heart of our drive to cut crime. I am pleased that the noble Lord, Lord Harris, has recognised how effective police and crime commissioners are.
Lord Taylor of Holbeach
Well, I welcome even modest conversions and am delighted that the noble Lord has proposed this amendment because I have always seen police and crime commissioners as being important.
Under Section 5 of the Act which introduced them, police and crime commissioners are required to issue and publish a police and crime plan, as the noble Lord said. They must do so within the financial year within which they were elected, and they are under a statutory duty to consult their chief constable in drawing up this plan.
The police and crime plan must set out the plans for, among other things, the police and crime objectives and the policing of the area for which the chief constable is responsible. In developing their plans, the police and crime commissioner must consult the public and, in particular, victims. The plan must also be scrutinised by the police and crime panel in each area before it is issued.
The Association of Police and Crime Commissioners has published details on its website about the individual police and crime plans and the key priorities in them. It is no surprise, at least to me—and I do not think that it would be to other noble Lords—that tackling anti-social behaviour is consistently cited as one of the top policing and crime objectives in local force areas. Out of 41 police and crime commissioners, 30 put tackling, preventing and reducing anti-social behaviour among their key priorities in their individual plans. Eight PCCs put reducing the impact of, and keeping people safe from, anti-social behaviour as among their individual priorities, and three further plans clearly set out to encourage the reporting of anti-social behaviour. Therefore, all police and crime plans make reference to anti-social behaviour.
The amendment proposed by the noble Lord, Lord Harris, would create duplication and add bureaucracy. If police and crime commissioners are required to produce individual police and crime plans for their own local areas—which is part and parcel of what they are required to do under the Police Reform and Social Responsibility Act—why should Parliament require them to publish a local anti-social behaviour strategy for their local area in separate legislation? Why should front-line professionals and the courts have to wait to use the injunction under Part 1 as required by this amendment?
This Government are serious about tackling anti-social behaviour and so are elected police and crime commissioners, as evidenced by the figures that I have given. Our anti-social behaviour reforms are about the police and their partner agencies putting the needs of victims first. This means giving the right powers to do this. I have said already that the new injunction is one of the key planks in our reforms. Agencies and the courts must be able to use this as swiftly as possible—I hope that the noble Lord does not see his amendment as a delaying tactic.
I understand the importance of PCCs’ involvement—indeed, some of our reforms provide an active role for them; for example, the community remedy, which is in Part 6 and specifically mentions police and crime commissioners. We will draw their attention through guidance and otherwise to the new powers—I hope that the noble Lord is aware of this—but what will not help anyone in putting victims first is to duplicate and delay using the new powers, which is what this amendment would do. I therefore invite the noble Lord, Lord Harris of Haringey, to withdraw his amendment.
Lord Harris of Haringey
My Lords, this amendment was not about trying to delay the process—I think that the Minister tries to ascribe to me motivations that I do not have. The amendment is about trying to make it work effectively.
I acknowledge that police and crime commissioners are required to draw up and should all have in place a police and crime plan. But it is a police and crime plan, and they draw it up in consultation simply with the chief officer of police for their area. That is the requirement in the legislation.
Lord Taylor of Holbeach
If the noble Lord will forgive me. It has to be presented to the police and crime panel as well.
Lord Harris of Haringey
It has to be presented to the police and crime panel, but the panel has no executive role, as far as that is concerned. It does not have a power to reject or amend it. It is simply there as part of a formal process. I am sure—or at least I am told somewhere—that police and crime panels are doing a good and valuable job in terms of monitoring the activities of police and crime commissioners, but they are not part of the consultative mechanism. They are not there to represent the interests of their local authorities and it is not regarded as their function to be, for example, a series of the crime and disorder leads from the various local authorities in their area.
It is a different function. It is a function about scrutiny, whereas crime and disorder leads in individual local authorities are there in an executive capacity. I do not think that the involvement of police and crime panels solves the issue. If one is to be effective in tackling anti-social behaviour, one needs to work with the local authorities and all the different agencies involved, including the housing providers. That is what this amendment is about.
Lord Greaves
I am very grateful for that additional information, which is entirely different from anything that was within my ken or understanding. That is an interesting point but I only included the Welsh body since it made up the set. However, I would be very interested to hear the Minister’s explanation of why he thinks that the Environment Agency not just needs these powers, since other bodies can work with it and do the work, but why it is capable—why it has the resources and competence—to manage injunctions and the people whom they will be served upon. I beg to move.
Lord Taylor of Holbeach
My Lords, we will come to the Welsh relationship with the Bill later on in our consideration of it, if not with this particular amendment. However, I will speak to my noble friend’s amendment, which would see the Environment Agency and its Welsh equivalent removed from the list of bodies that can apply for the new injunction. As my noble friend may or may not know, the Environment Agency has been able to apply for anti-social behaviour orders since 2006. Alongside Transport for London, this was done by an order under Section 1A of the Crime and Disorder Act 1998. Noble Lords might not be aware of that provision, as it does not appear on the face of that legislation but was done under an order.
The Environment Agency has not used the anti-social behaviour order often but we believe that it should retain access to its replacement so that, as a national body, it can take fast and effective action to tackle serious environmental anti-social behaviour, rather than relying on the police or council. On Report in the House of Commons the list was extended to include the Natural Resources Body for Wales, to give the Environment Agency’s sister body similar access to the injunction. The Natural Resources Body for Wales manages some 6% of Wales’s land area, including many woodland visitor attractions and nature reserves. As such, it should be able to apply for an injunction when someone decides to act anti-socially on that land.
I understand the concerns over too many agencies having access to such an important tool, but I believe that the list included in Clause 4 represents those agencies best placed to protect communities from anti-social behaviour. Both the Environment Agency and the Natural Resources Body for Wales play an important role in ensuring that our environment is welcoming to everybody and they should, I believe, be able to lead court action when that enjoyment is put at risk by anti-social individuals. We will continue to work with bodies such as the Environment Agency to ensure they are prepared for the new power and on that basis I ask my noble friend to withdraw his amendment.
Lord Greaves
My Lords, I still do not understand the logic of having the Environment Agency: why not Network Rail, for example? I can think of a lot of national organisations for which it would be possible to make the same argument. The noble Lord said that the Environment Agency had not used this power very frequently. Will he write to tell me how many times it has used it since it got the power? That would be interesting and helpful.
The specific point I was trying to make is that if injunctions are a weapon of first resort then I can understand why the Environment Agency might want to use it against somebody who does something nasty on a bit of land that it owns, or jumps in a river when they should not. However, I thought that the whole basis of the Bill was that injunctions are not to be a weapon of first resort but a weapon of last resort. I asked what resources the Environment Agency would have to carry out preventive work and management of potential injunctees, if that is what they are called—potential respondents. I did not get an answer. I asked what resources the Environment Agency might have to manage the process of positive requirements. Again, I do not think that there is an answer. I think that the Government are making assertions rather than giving explanations on this.
Lord Taylor of Holbeach
Perhaps I may just explain. The agency currently has the power to issue ASBOs—that exists. If we were to take that power away, as ASBOs disappear, it would have no equivalent power, unless we replace them with a power which we consider to be most appropriate, the IPNA. I hope my noble friend will understand that we ask the Environment Agency, both in this country and in Wales, to do a lot on our behalf to protect the environment. This is a method whereby it can do just that. I would be very surprised if the noble Lord were not in favour of allowing the Environment Agency to have some successor power to its current power to issue ASBOs.
Lord Greaves
My Lords, I understand that very well. I understand that the Environment Agency has those powers, but we are told that it hardly uses them, which is why I am asking how widespread their use is, how many it has actually used since it got this power. That is what the argument is. I hope that I will get that information, but for the time being, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
Amendment 21B, tabled by the noble Baroness, Lady Smith, would require the courts to take into account whether or not to grant applications for arrest warrants in cases where an arrest warrant was not attached to prohibitions in the injunction at the time of its issue but was sought subsequently, when the breach had occurred.
We are not introducing a new and untested power under Clause 9. The courts are used to handling applications for arrest warrants: for anti-social behaviour injunctions on which the IPNA is modelled and gang injunctions, as well as other injunctions. We should therefore bear in mind that the courts are already experienced in handling applications for arrest warrants and dealing with breach proceedings and they are experienced in doing so without needless delay or copious guidance. So while I agree with the point made by the noble Baroness, Lady Smith, on the importance of swift action—indeed that is one of the reasons we are reforming the anti-social behaviour powers—I am not persuaded that statutory guidance is needed on this point.
My noble friend Lady Hamwee has also tabled an amendment to the provisions on powers of arrest. The purpose of Amendment 21C is to prevent an arrest warrant being issued against someone who breaches a requirement in their injunction. They would only be able to be brought before the court to answer the breach of a prohibition in the order. With respect to my noble friend, I do not agree with that. Whether a term in an injunction is a prohibition or a requirement, they form part of an order of the court. They must be complied with. The requirement to do something about the cause of your anti-social behaviour is as important as the prohibition to stop it. The courts must have the power to enforce them both. If a person is not forced to do something about their behaviour by complying with a positive requirement, it is likely that they will eventually breach the order and cause further problems. That has been the problem with anti-social behaviour orders.
As my noble friend points out, this is different from the approach we have taken in Clause 3. At the time an injunction is made, a power of arrest can only be attached to a prohibition and not to a positive requirement. The reason for this distinction is that the test under Clause 3 is, rightly, a high one. A power of arrest can only be attached where there is a threat of violence or harm. It is difficult to see how this test could be met by breaching a positive requirement. However, the provisions in Clause 9 for obtaining an arrest warrant do not include such a high test because here the focus is on enforcing the injunction, not on preventing an immediate risk of violence or harm.
On the basis of this explanation, I hope that the noble Baroness, Lady Smith, will be content to withdraw her amendment.
Lord Beecham (Lab)
My Lords, the Minister has not addressed the thrust of my noble friend’s amendment, in terms of the potential for delay. This is an area where, by definition, the quicker one proceeds to a resolution of the matter, the better. There are some constraints in the way the court system currently works which make that rather more difficult. A number of proposed court closures have affected both county courts and magistrates’ courts. I assume that these breaches would be basically dealt with in the county courts, but there have been closures there as well. Do the Government have any indication of how long it will take to secure these injunctions, in the light of that development and the general pressure on the court system?
It is not necessarily the case that a matter can be easily resolved at a first hearing. There is also the question of the operation of legal aid under the rather restricted system we now have. One assumes, and perhaps the Minister can confirm this, that legal aid would be available for those who qualify, on financial grounds, to defend an application for an injunction. There seems to be a potential for an undesirable delay, which may or may not be necessary. The thrust of my noble friend’s amendment is that the Government should endeavour to begin properly and assess the likely timescales and the likelihood of delays and then to give guidance to ensure that, where necessary, the relevant resources can be made available. Could the noble Lord deal with those issues?
Lord Taylor of Holbeach
My Lords, the noble Lord has asked me a number of detailed questions. If he does not mind, I will look at the record and write to him, as I do not have the briefing here to be able to reply in detail to all that he wishes to know.
Baroness Smith of Basildon
I am grateful to the noble Lord. He did not fully address a couple of questions in the points that I made. One of the issues was about delays in county courts. I did not say that county courts were facing delays—that came from local government, the police and the Home Affairs Select Committee in the other place. The other point I raised was that, if he is not prepared to consider guidance prior to this being introduced to ensure that county courts are able to deal with these matters in a timely way, will he agree to consider and bring back to your Lordships’ House at Report a statement on whether, rather than having guidance beforehand, it is possible to truncate the normal five-year review period to see whether it is working? This issue should be reviewed after one year to see whether there are delays in the county court system which slow down the process of justice, or whether, as the Minister said, everything is working fine and there is no problem.
The delays at the moment are occurring for a number of reasons—they are under pressure to reduce staffing in county courts, and my noble friend Lord Beecham also raised some of the issues. I also understand that there are more litigants in person because of the reduction of eligibility for civil legal aid. Both those issues add to the delays in the system. We do not need to have a process whereby people suffer anti-social behaviour when someone has breached their IPNA and then there is a lengthy delay while they wait for the courts to assess whether an arrest warrant can be issued. Therefore, if the Minister rejects out of hand the issue of guidance beforehand, will he agree to look at truncating the review period and review how it is working after a year rather than five years?
Lord Taylor of Holbeach
I will take a look at the record and if I feel that it will be productive and I can add to the position they have stated I will write to the noble Lord, Lord Beecham, and the noble Baroness. I cannot commit to a particular timeframe, but if there is evidence of a problem to which the noble Baroness is able to draw my attention, I will deal with it.
Lord Beecham
It occurs to me to ask the noble Lord whether there have been any consultations with the judiciary about this aspect. I assume that that may have been the case. Presumably the judiciary will have a view on the imposition of a new burden on it. We talked about the new burdens doctrine earlier this evening as regards the costs of some of the proposals in the Bill on local government and whether they will be met. From a local government perspective I cannot say that I was very thrilled with the Minister’s response to that; he seemed rather to ignore it. However, this is a different sort of new burden—one placed on the courts system. That being the case, one would have imagined that this would have been discussed with the judiciary at some level. Has the noble Lord any knowledge of such discussions taking place, or were any representations made as a result of consultations on the Bill?
Lord Taylor of Holbeach
I was anxious to move on, as noble Lords may have guessed, but I think that the sentiment of the House is that the night is perhaps getting on—although I was just getting into my stride. I have found answering these amendments somewhat more difficult than others as they stray into a legal capacity where my skill base is probably not as substantial as that of the noble Lord, Lord Beecham. None the less, I have said that I will look at the record and write to noble Lords on the basis of the points they have made when I am able to give them a fuller and more reasonable answer to the points they raised. No doubt we will have plenty of opportunity to deal with that in future. In the mean time, I ask the noble Baroness to withdraw her amendment.
Lord Beecham
The noble Lord has just reminded me that I really ought to have declared an interest. I am still a solicitor, not so much practising but an unpaid consultant in the firm for which I used to act. I am only sorry that a particular noble Baroness is not in the Chamber because I used to appear before her father in the county court when he was sitting as a district registrar—an experience not to be recommended, I have to say, to those who followed me.
Baroness Hamwee
In that case, my Lords, I apologise to the House but I do want to raise at this point whether Schedule 2 should stand part of the Bill. The Minister is aware of the particular concern that I have, which is that the schedule provides for sanctions in the event of a breach of the injunction. My concern is about the sanction applicable to children—the sanction of imprisonment. Children who breach an IPNA can be given a supervision order or, if they are over 14, up to three months’ detention. I do not think that the Minister will be surprised at concern as to whether such a sanction is proportionate, productive and compatible with children’s rights, for reasons of which the Committee will be very well aware.
Detention of any length in the case of children is something that many noble Lords are concerned about—whether it is not only not effective but also particularly harmful for children. I am not aware of evidence that imprisonment for breaching an ASBO acts as a deterrent for children committing anti-social behaviour. We are all aware of the potential harm for children’s development and the impact on their rehabilitation. We all know stories about fast-tracking children into the criminal justice system by dealing with them inappropriately at a very early stage in what may or may not—one hopes not—turn out to be a criminal career. Only the most serious crimes committed by children lead to custodial sentences. The IPNA is, of course, a civil measure, and detention is a very disproportionate sanction for a breach when the child has not actually committed a criminal offence. In brief—and I have kept it brief—I would be grateful if the Minister could tell the Committee how detention for children can be justified in this way.
Lord Taylor of Holbeach
My Lords, I hope that the Committee will forgive me if I rattle through my notes here, as I am aware of the lateness of the hour. I am grateful that my noble friend Lady Hamwee has raised this issue; it is an important point about the justification of detaining under-18 year-olds if they have breached the terms of an injunction in Part 1.
It is important to remember that, although the test for an injunction is the civil standard of proof, in the event of the breach of the test what applies will be the criminal standard of proof—beyond reasonable doubt. The court must also consider whether the young person has a reasonable excuse for breaching the injunction. Only a young person over the age of 14 can be detained and for not more than three months. Currently, under the anti-social behaviour regime, a young person can be detained for up to two years. It is also important to say that detention can be used only as a very last resort,
“where the court determines that because of the severity or extent of the breach no other power available to it is appropriate”.
Secondly, when the breach is established, it will be a civil contempt of court. This means that a young person will not be saddled with a criminal record, unlike with the breach of the anti-social behaviour order. We have also said in draft guidance that informal approaches should be used in most cases involving young people. When agencies believe that a more formal intervention is necessary, the courts must have the power to deal with young people who have not responded to the informal approaches or who wilfully ignore the terms of their injunction.
I hope that I have made it clear to my noble friend that these powers are used extremely sparingly. They are certainly not a power of first resort—they are of last resort only.
Baroness Hamwee
My Lords, I have already made clear this afternoon my concern about reliance on guidance. I wonder whether, if this sanction is so rare, a child would find himself faced with it, and there is no other basis on which to consider detention—that is, if you believe that detention, even used sparingly, is a correct approach. I expect to come back to the matter, and apologise to the Committee that, in the rush to get amendments tabled with the change of timing of this Committee stage, I missed this last week.