Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Donaghy (Lab)
My Lords, I knowledge the progress made in extending the law regarding private property and dangerous dogs. In supporting the amendments, I do not wish to undermine the Government's proposed action but rather to strengthen it. I recognise that the noble Lords, Lord Henley, Lord De Mauley and now Lord Taylor of Holbeach, are fully in sympathy with the plight of the 23,000 postal workers who have been attacked and injured both physically and mentally by dogs in the past five years. They have been on the rounds, as it were, and witnessed what the CWU members are up against. Again, I fully acknowledge the involvement of Ministers.
I also appreciate that the Government wish to simplify and rationalise the law around anti-social behaviour. But in attempting this, I do not believe that they recognise the specialist requirements for dealing with dangerous dogs and their owners. There is insufficient focus on this in the proposed legislation. I will come on to the impact assessments in due course.
As my noble friend Lady Gale said, having met some of the parents of children killed and maimed by dogs, it is clear that the human cost is devastating. However, the economic cost is also worrying, with the loss of approximately 4,500 working days due to injuries sustained by postal workers. Campaigners feel strongly that the introduction of dog control notices would provide an effective preventive measure for alerting the authorities to the potential for dogs that could act dangerously in the future. In nearly every case, attacks have been the culmination of incidents that, if put together and acted upon, could have prevented that accident. The Government have argued that the new “flexible tools package” of orders will be as effective as the dog control notices introduced in Scotland and Northern Ireland, if not more so. However, the Environment, Food and Rural Affairs Committee, as my noble friend Lady Smith has already pointed out, does not agree with that argument.
Specific dog control notices would be a message for the dog owner to take action before an attack and would raise the profile and awareness among dog owners. Many of them exercise their dogs in public parks. They get to know each other and also know the good dog owners and the not so good ones. It would encourage a communal network. Issuing dog control notices should be a simple procedure. They could be issued by those trained to recognise examples of poor control. Action should be taken on the first occasion that a dog attacks anyone. It is the first time in studying for this debate that I have heard of this “one bite” rule or “one free bite” rule, which is appalling and trivialises the seriousness of the issue.
The PDSA has estimated that more than 1 million dogs display aggressive behaviour towards people and pets on a weekly basis. Its research shows that an overwhelming 87% of people believe that pet owners should face tough penalties if their dog attacks another person or animal. For the Government to introduce penalties for attacks on private property is commendable, but they are after the event, after the injury and after the death. Specific dog control notices would establish a framework to encourage better behaviour, preventing serious incidents and would establish a record of behaviour patterns.
The overall impact assessment concentrates entirely on the issue of making it a criminal offence to allow a dog to be dangerously out of control on private property belonging to the owner of the dog. That is hardly surprising, but it is concentrating on legal sanctions after an attack. As I have already said, many attacks are the culmination of behaviour that is well known in the community. The overall impact assessment then refers us to the specific impact assessment on these measures published at the same time as the Bill. That took a bit of finding. It dates back to 9 May 2013. I assume that it has not been updated. Looking at the specific impact assessment, the concentration is on replacing dog control orders with public spaces protection orders, with community protection notices replacing litter clearing notices and defacement removal notices. There is no mention of dangerous dogs, although I understand that it is supposed to be an overall umbrella notice which covers everything.
I realise that the subject of dog control notices has been debated in the other House, and despite all the major stakeholders supporting this and the proposals for compulsory microchipping, the Government have set their face against it. Obviously, local government is in a difficult position, as it is strapped for cash and cutting back on areas such as dog wardens. Therefore it is not surprising that it has shown no enthusiasm for dog control notices. However, the concern is that community protection notices would be a blunt and unwieldy measure. The danger is that they would be slow to serve and open to challenge in the courts.
The Minister of State, Norman Baker, indicated that,
“muzzling, neutering, microchipping, keeping a dog on a lead … can be required under a community protection notice”.—[Official Report, Commons, 15/10/13; col. 682.]
If that is the case, why are the two impact assessments completely silent on this? Looking through the draft guidance for front-line professionals on the reform of anti-social behaviour powers, the section on community protection notices makes no reference to dogs. It does say that before anyone is issued with a community protection notice, the accused should be given a written warning—presumably posted through the letterbox by a postal worker. We have to get to page 48 of the 64-page draft guidance before the actual word “dog” is used, and that is only in relation to public spaces protection orders—the old dog control orders—so we are back to square one.
Thousands of postal workers have been injured, children have been killed and maimed, just over eight guide dogs are attacked and killed per month on average, yet the draft guidance to professionals waits for 48 pages to mention the word “dog”. There is a danger that what the Government regard as streamlining by introducing community protection notices is actually a lack of focus on this important issue. If there is no focus now, what hope will there be when its implementation depends entirely on local discretion and funding?
What further guidance will the Minister give on issues such as the definition of “out of control” and “dangerously out of control”? What guidance will there be when aggressive dogs are allowed to roam freely on the landings of communal flats, terrifying the neighbours? What steps will be taken if an owner in receipt of one of these new community protection notices simply swaps the dog for another? Will compulsory microchipping accompany a community protection notice? Nothing in the draft professional guidance gives us a clue. This is an area crying out for more effective steps to identify and deal with bad owners and poor dog control before someone is maimed and injured. I fully support the amendment.
Baroness Hamwee (LD)
My Lords, I shall make one point in the context of this Bill, which follows a comment by the noble Baroness, Lady Donaghy. Much of this Bill is about anti-social behaviour where someone is “likely to” do something, “threatens to” do something, or something is “capable of” causing harm and various sorts of problems. This is all about people. The dog provisions which we are being asked to consider in these amendments are preventive, not reactive. I would like to see much more of a similar attitude to “likely” behaviour or “possible” behaviour of dogs in the preventive way that we are applying to people in a large part of this Bill.
Police: Public Trust
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Hamwee (LD)
My Lords, it is a privilege and a pleasure to congratulate the noble Baroness on behalf of the whole House. It is entirely appropriate that she was introduced on 5 November. I am sure that she will forgive me for saying that the term “feisty” could have been coined for her. I have to warn your Lordships that she takes no hostages when she is set on getting something done.
If Wikipedia is to be believed, the noble Baroness spent 10 years in the Middle East studying carbonised plant remains—we are more lively here—having studied archaeology as a mature student before politics took over. The noble Baroness, to whom I an finding it hard not to refer by her first name, has been a member of the London Assembly since its inception in 2000; was deputy mayor to Ken Livingstone in 2003-04; and I could use my nine minutes listing the positions that she has held, including, as she has mentioned, membership of the Metropolitan Police Authority and, now, deputy chairmanship of the London Assembly’s police and crime committee.
However, the noble Baroness is more intent on doing than on being. I understand that, for instance, she still goes out early on a Monday morning on a tea run for homeless people. That is between things such as working on a food strategy for London, promoting cycling and much more. She tweeted of her appointment:
“I feel very lucky, but the possibility of protocol disasters is high”.
That is as may be, but the probability of her making an impact on the House is high.
I do not normally tell anecdotes, but I will tell one. A long time ago, before the current rules on evidence-taking, I gave a statement to the police after seeing someone behaving suspiciously. I was asked what he looked like and what he wore, and I said, “I couldn’t really see. He was wearing dark clothes”. The statement, as written by a police constable, was: “He was wearing a pale grey sweater with a navy V-neck trim”. I refused to sign it but I am ashamed that I did not take it further. However, I realise that that has coloured the attitude—the trust—that I have. That is one reason why neighbourhood policing is so important, because it is not just about the content of what is done but the impression that is made. Neighbourhood police are the police whom the public meet day to day, whether north or south of the Trent. Little things like that, as well as the big, have an impact, and a small bad experience can leave us with a large loss of trust.
I confess to your Lordships that I am very embarrassed to presume to talk about trust in a debate in which a recent Reith lecturer has made such a contribution. My personal experience has had a particular impact. I think that personal experience has an impact because one applies one’s own judgment and makes one’s own assessment of trustworthiness. There is a different approach to assessing trustworthiness in the case of individuals and of institutions. I was interested in the comment about young people making a distinction between local police and the TSG. When you look at individuals you are more discriminating and nuanced, but of course you often judge the whole institution by a small part.
Of course, these are general comments that apply to public service generally, as did the comments of the noble Lord, Lord Young, about the necessity and difficulty of changing culture. There is a range of obvious reasons why trust in public services and public servants is so important—that is blindingly obvious, and I apologise for my cod philosophy. However, without trust, how can one win the co-operation of the public or, as my noble friend Lord Paddick, has termed it, “collaboration”? That may be right, because it suggests partnership, which is so necessary for effectiveness. I was interested to see the extract from the ESRC’s Policing by Consent, which said that,
“perceptions of legitimacy are stronger predictors of compliance with the law than perceptions of deterrent risk”.
It referred to authorities behaving,
“fairly and respectfully towards those they govern”,
and added:
“When the police act according to principles of procedural justice, citizens regard such activity as legitimate; they defer to its authority and recognise and justify the power that it wields”.
Another reason for the importance of public trust is its impact on recruitment. The police, like other services, need to recruit good people and I doubt that anyone is more upset by the bad apples than other officers; in that, I echo my noble friend Lady Doocey. The police service needs to be a service with which people want to be associated. It needs to be seen by young people thinking about it as a career path as a profession of which they would be proud to be a member, and one that would provide job satisfaction. Therefore, like other noble Lords, I welcome the College of Policing, about which we will talk more outside this debate. However, I will say now that leadership and training need to recognise and capitalise on a range of abilities, among which I place emotional intelligence very high.
On recruitment and retention, it is clearly necessary to recruit a mix of people who inspire trust. Some people trust the stereotypical powerful authority figure, but even that figure does not necessary come in the form of a white male. However cohesive our society, having forces comprised of people we recognise—“people who look like us”, as they say—is a component. Progress is being made but the struggle is uphill.
Stop and search has been mentioned. That is not just a matter of numbers or of who is stopped and searched, but the quality of the encounter and how they are treated. Transparency is also a component, as has been said. However, I share the view that it is not a panacea. It is not just a matter of pushing information into the public domain. Indeed, one way of concealing information is to give so much that what matters is not noticed—it is hidden in plain view.
The general public depend very much on the media. My noble friend referred to the media. Indeed, I think he used the term “sensational” in that regard. Social media as well as the more traditional media select and interpret what is published.
The debate has largely been about specific policing mechanisms and arrangements. Some have referred to high-profile events and investigations and their devastating impact on how the police are regarded. In what is still a fairly new policing landscape—as we have learnt to call it—the focus has largely been on police and crime commissioners but I want to mention police and crime panels. We cannot assess the success or otherwise of commissioners without also looking at the panels because they have the specific role of being a check and balance, for which they need powers and resources. They should be able to analyse information and ask questions in holding police and crime commissioners to account. I agree very much with what the noble Lord, Lord Wasserman, said about the importance of that. Very shortly, we will consider in detail the mechanisms with which to respond to complaints—mechanisms which must be, as well as be perceived to be, independent, timely, fair and competent—but should we not consider whether a fall in the number of complaints is a good thing, or whether it indicates a lack of trust even in how they are dealt with?
The debate has been about trustworthiness, which I welcome. However, trust is not an entitlement: it has to be earned again and again, day by day and every day.
Crime: Clare’s Law
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Lord Taylor of Holbeach
I shall certainly attempt to do so. We work with the Department for Education on this issue. The policy is designed to look at the family as a holistic unit and find out ways in which by intervening in early stages of violence we can stop it developing into a situation where children, too, can be affected.
Baroness Hamwee (LD)
My Lords, the Minister acknowledged that there has been a call for a much wider look at the issue, particularly at how the police and state agencies respond, coming both from Refuge and Women’s Aid—organisations which know a lot about the subject. I have heard today comments in response to the announcement that welcome the putting of responsibility on to the abused person. That is a very dangerous attitude. I am sure that the Minister will agree that it is unrealistic to create the expectation that somebody should check on a partner’s background. Control and abuse may grow very gradually.
Lord Taylor of Holbeach
On the other hand, my noble friend will recognise that much of Clare’s law is about authorities being open with a perpetrator’s possible history of abuse. Alongside this, HMIC also has a role in setting up a special group to check on capacity at police level to make sure that the police, who are key to a lot of this, operate effectively in this area.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, this will make me popular, as noble Lords are now able to leave the Chamber.
Lord Ahmad of Wimbledon (Con)
My Lords, I ask all noble Lords to leave the Chamber quietly out of respect for my noble friend Lady Hamwee.
Baroness Hamwee
My Lords, I hope that my amendments live up to that. I speak also to Amendments 22QU and 22QV, and Amendments 56ZBA and 56ZBB. These amendments are all about fixed-penalty notices for failure to comply, in the case of the first pair of amendments with a community protection order, and in the second pair of amendments with a public spaces protection order. The Bill allows 14 days to pay the fixed penalty, which may be reduced in amount it if is paid within a shorter period; I imagine that it is anticipated that that would be seven days. It seems to me that 14 days is a very short period. I am not in this amendment seeking to argue the merits or otherwise of either of the orders but we do not want them to come into disrepute through there being difficulties in their application. Some people go away on holidays, not realising that a notice may have become payable, because they might not actually have been handed it. There are a number of reasons why 14 days for payment is in many areas regarded as on the short side.
My amendments would provide in both cases a period of 28 days with a discount if payment is made, say, within 14 days—or, at any rate, an earlier period—which is comparable with penalties under the Road Traffic Offenders Act 1988. Amendment 22QV, also to Clause 49, would replace a certificate being one that,
“purports to be signed by or on behalf of the chief finance officer of the local authority”,
with one that is simply “signed on behalf of”. I will probably be told that this is language used in many other Acts of Parliament, but it seemed to me a curious provision. More importantly, however, there would be no scope for challenge to it if the local authority got its procedures wrong. I have therefore tabled the amendment not as a frivolous matter but as a serious one. I beg to move.
Lord Ahmad of Wimbledon
I thank my noble friend for explaining the purpose of these amendments. I suppose I could say that I had a vested interest in asking other noble Lords to leave quietly, as I had to respond to this amendment.
This amendment relates to the amount of time that an individual issued with a fixed penalty notice should be given to pay. Where breach of a community protection notice or of a condition of a public spaces protection order has occurred, the offender could be issued with a fixed penalty notice. Payment of this penalty notice discharges the perpetrator from any other proceedings for that breach and so they are, quite rightly, given a period of grace in which to pay the amount specified. Different fixed penalty notice schemes have different periods during which recipients are expected to pay the penalty; for example, littering is set at 14 days whereas others have a longer time. In this case we believe that 14 days is sufficient time for a perpetrator to pay that amount and that it provides the right balance between giving the offender enough time to pay the fine and ensuring that the process for collecting such money is both timely and efficient.
In terms of Amendment 22QV, I have listened to the case made by my noble friend, who highlighted certain instances of concern. However, the language used in the Bill is, of course, commonly used elsewhere on the statute book. For example, this terminology is also used in the Environmental Protection Act 1990 in relation to fixed penalty notices under that Act. In effect it avoids the chief finance officer having to come to court to give evidence personally that he or she had signed the certificate. Despite that provision, it remains a matter for the court to decide what weight to place upon the document as evidence, although in practice it is highly unlikely that whether the document is genuine will ever be an issue. I have heard the case that my noble friend has made, but the Government feel that on balance the 14 days and, as has been stated, the signature of the chief finance officer as stands in what the Government have tabled is the right way forward. For those reasons, I hope that my noble friend is minded to withdraw her amendments.
Baroness Hamwee
My Lords, of course I will withdraw them, given that this is Committee stage. The last of my amendments would not impose any requirement to give evidence any more than would the words in the Bill, but I can see that I will not get anywhere with that. On the 14 days, is it just a question of the Government saying, “We think this is right”, or is it something more detailed than that? We have different views. I have said that I am concerned that the timing may too easily be missed, and that it could bring the penalties regime into disrepute. If the noble Lord has any more to say in support, I would be glad to hear it. Will he tell the Committee whether the shorter period envisaged is indeed seven days, which I rather guessed at? I do not know whether his notes give him that information.
Lord Ahmad of Wimbledon
It would be appropriate if I wrote to the noble Baroness; I will come back to her specifically on whether it is seven or 10 days. However, on the 14 days, that is the Government’s position as it stands.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendments 22QYB, 22QYC and 22QYD.
Clause 50 states who may issue a community protection notice or a fixed penalty notice. Amendment 22QW queries whether paragraph (c) of Clause 50(1) is necessary. It provides that a community protection notice or fixed penalty notice may be issued by,
“a person designated by the relevant local authority”.
Paragraph (b) refers to the notices being issued by, “the relevant local authority”. The authority will have to designate a signatory because whatever it does must be done by someone acting in its name. Therefore, I am puzzled as to what paragraph (c) adds.
I have added my name to Amendment 22QY standing in the name of my noble friend Lord Greaves—he got there first—because my real objection concerns subsection (4) of Clause 50, which provides that only someone in a post,
“specified in an order made by the Secretary of State”,
can be designated. Surely, designation must be a matter for the local authority. Does the Secretary of State have to intervene at this level?
Amendments 22QYB and 22QYC probe whether all police community support officers have the relevant technical knowledge to deal with community protection notices. On previous Committee days we discussed some of the difficulties that may arise in using the existing statutory powers that environmental health officers have, for example, as opposed to using the new mechanisms provided in the Bill. A lot of technical knowledge needs to be applied in deciding whether an infringement has occurred, especially in respect of noise.
My last amendment in this group concerns serving a notice. A fixed penalty notice can be handed over to the individual or be delivered to that person’s address either by hand or by post. If it is to be delivered by post, I am concerned to know when it is deemed to have been issued. If it is issued when the notice is put in the post, it will reduce, by at least a day and possibly more, the time that the recipient of the notice has to pay. I have already said that I am concerned about how short that time is. I beg to move Amendment 22QW.
Lord Ramsbotham (CB)
My Lords, the point I am about to make has been made in connection with a great deal of other legislation and concerns the abilities of those with learning difficulties and disabilities to understand the content and implications of notices such as those we are discussing. It is important to ensure that the legislation includes reference to the provision of appropriate adults or advocates or whatever sources are used to make certain that the full implications are explained to those who may have such difficulties to avoid them getting into yet further trouble, completely inappropriately.
Lord Greaves
My Lords, on behalf of parish and town councils I thank the Minister for his slightly helpful comments at the end of his remarks. Perhaps, before the Bill is implemented, the noble Earl, Lord Lytton, and I and the NALC might get together to see whether we can put forward a clear, evidence-based proposal to the Government which they might consider seriously.
I thank the Minister for his helpful reply to my Amendment 22QYA, which I had forgotten to speak to.
Baroness Hamwee
My Lords, last week I, too, had a long reply to an amendment to which I had not spoken. Perhaps that is the way to go.
On the last of my amendments on the power to issue CPOs, I asked whether everyone falling within the description of what will be the new paragraph 1ZB in the schedule to the Police Reform Act would have the power. I think that the Minister is saying that everyone who falls within that description will have the power and not only particular individuals who have received training. Am I right in understanding that?
Lord Taylor of Holbeach
There may be certain circumstances in which people are specifically trained for this function; there may be others where the work they undertake would include training in this function; and there may be others who operate under the guidance of other individuals who have been trained as to how it should be effectively done. It will depend on the circumstances.
No authority acting under this provision will wish to make a mistake. They will want to do it properly because it is in their interests that the CPN should be enforceable.
Baroness Hamwee
It shows how naive I am, but I have to say that it simply had not occurred to me that the designation under subsection (1)(c) would be of an organisation which is not a public body in the way that we would normally understand it, such as a local authority. As the Minister says, the notice is very powerful and there are criminal consequences. I would certainly like to think about that a little more but of course, for the moment, I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Lord Marlesford (Con)
There was a campaign for a long time—much too long—to remove the most unsatisfactory arrangement under which certain individual protestors hogged the space in Parliament Square, to which the noble Lord, Lord Martin, has just referred. It was eventually ended and the square is infinitely better from every point of view. We were all strongly in favour of having protests, but not permanent protests. I am not absolutely clear where the noble Lord, Lord Campbell-Savours, is suggesting his hut should be. I believe that the area, as the noble Lord, Lord Martin, said, is very much a world heritage site, and it would be difficult to accommodate a permanent building in any of those spaces without intruding on the area. I strongly support the amendment of my noble friend Lord Deben.
Baroness Hamwee (LD)
I support the notion, if not necessarily the detail of finding a way of using what is at the heart of our democracy and an area that has Parliament, Westminster Abbey and the Supreme Court, around it, and which is indeed a world heritage site—I shall not get into the issue of whether traffic should be using it—to provide a means of public expression. I mean expression by the public, not those of us who are in the buildings. That is something in which the Hansard Society is interested as well.
My noble friend’s speech was about the amplification of noise and his amendment would extend the prohibitions to the other prohibited activities, which are about putting up tents, having what is called sleeping equipment, and so on. The noble Lord, Lord Martin, may have referred to this, but other noble Lords have focused on noise. If there is to be an extension—I agree that the fewest extensions or prohibitions the better—I wonder whether it is necessary to deal with both aspects.
Lord Deben
Yes, it parallels exactly what is already enacted for Parliament Square. The reason for that is: when people look at the present situation they could easily duplicate what was the major problem in Parliament Square, which was people living there week in, week out. It excludes that, but it does not exclude the normal arrival to speak or to put forward views, or indeed to ask permission for loudspeakers, which is also possible. It would merely put us in the same position as the House of Commons, which seems to be a not unreasonable proposition.
Baroness Hamwee
My Lords, I accept that, of course, and the possibility of seeking permission. But we have not experienced the problem of people moving into Abingdon Green, and so on. I think that my noble friend will understand my slight caution about that part of the amendment.
Lord Harris of Haringey (Lab)
My Lords, I realise that when the House is in a mood of almost unanimity the noble Baroness, Lady Hamwee, can be relied on to inject a notion of something or other into the discussion. It is therefore very dangerous to say that perhaps this amendment is not quite right, but I do so as somebody with an office in Millbank House. I notice that the boundaries that the noble Lord, Lord Deben, has created would effectively mean that Millbank House could be completely surrounded by demonstrators, which would be entirely consistent with what has been said.
I am not sure that if they were to use loud-hailing equipment it would make a substantial difference. I wonder whether the boundaries are set quite right to cover the full extremities of the parliamentary estate, bearing in mind the way in which sound carries. If the Government are going to take away this amendment—as I hope they are—and think about it carefully and positively, I suggest that they look at precisely those boundaries to make sure that the whole of the parliamentary estate is covered.
Baroness Smith of Basildon (Lab)
My Lords, I have some sympathy with the points made by the noble Lord, Lord Greaves, although the words of his Amendment 34A may not find too much favour in the light of the previous debate, when it refers to,
“making speeches whether or not amplified”,
given the discussion that we have had about amplified speeches outside your Lordships’ House.
There is an important criterion on which, I believe, the noble Lord is seeking reassurance from the Government. People have a democratic and legitimate right to protest in public places, and we would really not want to see these powers misused, if people are campaigning or lobbying for a particular cause or issue, although I do not think that that is the Government’s intention. It would be helpful to have some comment from the Minister. Can he give reassurance that there are no circumstances in which this provision would be allowed to curtail legitimate debate, campaigning or protest? As the noble Lord, Lord Greaves, said, there are other ways in which such issues should be dealt with. We all know of cases where laws have been used for purposes other than those intended by Governments. As the Minister will appreciate, it creates huge suspicion when provisions seem open-ended. I hope that he can give reassurance and be very clear on that, perhaps stating specifically in guidance that the intention would not be to limit in any way the democratic responsibilities of the citizen.
Baroness Hamwee
I will not waste the Committee’s time by repeating the arguments, but this is an instance where guidance would not be enough. Unless we can have hard examples of where the provision might be properly used to restrict assembly where there is no other provision to deal with any of the problems, it would not be adequate for guidance to say something like, “The Government would not expect this to be used in such and such a situation”. This is a power that I would be very unhappy to give to anyone because of its misuse, unless there was a very good reason to allow it here and they have no other tools.
Lord Taylor of Holbeach
I am really grateful for this debate. It has been very helpful to the Committee to be able to talk in these terms. I draw noble Lords’ attention to Clause 55 and how it is constructed. I am not a parliamentary draftsman and sometimes legislation is difficult to read or understand, but here the tests that are required on public spaces protection orders are quite clear and explicit.
We all agree that rights to freedom of expression and peaceful assembly are important, and we would not wish to interfere with them in this Bill. Noble Lords are right to seek from me reassurance on this. What the amendment seeks to do is not as important as the probing that lies behind it. The legislation sets a very high test that must be applied before a public spaces protection order is used, as I will explain. The first condition of the test, in Clause 55(2), states that the activities must have had a detrimental effect on the quality of life of those in the locality or it is likely that such activities will occur which could have this effect. The second condition is that the activity is persistent, unreasonable and is justified by the restrictions on the notice. I think that gives us a pretty clear idea of the sort of activity which a public spaces protection order is designed to cover.
I consider it highly unlikely that, in the case of a peaceful protest, or holding placards or handing out literature, or talking to people, even the first condition could be met. I do not see that as being a condition which any court would allow.
Baroness Hamwee
My Lords, I have Amendment 53FA in this group. It is an amendment to Clause 60, dealing with restricting the right of way over a highway. I am suggesting that in subsection (4), which provides:
“A public spaces protection order may not restrict the public right of way over a highway for the occupiers of premises”,
we should also refer to “users” of premises,
“adjoining or adjacent to the highway”.
This is a probing amendment to ask whether the term “occupiers” includes people authorised by the occupier. Obviously this would apply to all premises, but it was thinking about business premises that made me decide that this needed to be made clear, because restricting in effect the use of business premises would be a serious matter.
Lord Taylor of Holbeach
My Lords, I am grateful to my noble friends Lord Greaves and Lady Hamwee for explaining their amendments. Before I start on my notes, I should draw my noble friends’ attention to the underlying conditions that local authorities need to reflect on before they make orders. I think that they condition the whole approach and, to some extent, satisfy some of the anxieties that my noble friends have expressed.
I can assure my noble friend Lord Greaves that, like him, I fervently believe that public spaces are there for everyone to enjoy, but they should not be ruined by a careless and irresponsible minority. These new orders are designed to allow maximum flexibility for the council, meaning that restrictions on access to, or use of, any land should be considered only as a last resort. However, where restrictions on access are necessary, the option should be available to protect victims and communities from anti-social behaviour. That is what we are about and it is what the Bill is about.
On Amendment 41, I accept that the categories of land listed are important and, indeed, worthy of the further debate they have received today. This is exactly why many of them are covered explicitly in the draft guidance. However, making this amendment would stop the local council protecting those spaces more generally from issues that might deter usage. It is important that we do not inhibit the flexibility provided by these new orders.
Perhaps I may illustrate the point. Many of the categories of land listed here are commonly used by dog walkers as well as children. Given the risk to children of diseases spread by dog faeces, it is only right that a council has the ability to introduce measures to ensure that dog owners clean up after their animal. In addition, where some of these areas of land have become a focal point for people to congregate and drink alcohol, making usage by others unpleasant or even impossible, the council should be able to prohibit the drinking of alcohol to free the space for the majority who want to use it responsibly. The amendment as drafted would preclude the council providing these protections or any others that were necessary on the categories of land listed.
Amendment 41A is more specific and is designed to protect any rights of common, such as the right to graze animals, enjoyed by individuals or groups on common land. This amendment is, I believe, unnecessary. A public spaces protection order would not be used to stop a commoner exercising his right of common. In the case of rights of common, it is hard to imagine a situation where a right exercised by a commoner could result in anti-social behaviour, unless it were being done in a particular way. The new flexibility afforded to councils with the public spaces protection order means they can address the problem element of the behaviour while protecting the wider rights.
Amendment 54 would ensure that certain categories of land could not have access restricted. First, let me say that I accept the importance of maintaining access to footpaths, bridleways and byways so that they are available for the enjoyment of all. However, the list in Clause 61 relates to those highways that are of strategic value. This means that, in all probability, restricting access would have a significant impact on the community, if not the region or the country, that far outweighs the impact of any problem behaviours. I do not feel that the same can be said for all public rights of way. However, I agree that they deserve special consideration and I am happy to see how this can be made clearer in the guidance, but where the anti-social behaviour—and it is the anti-social behaviour that we are dealing with, not access—of those using these routes has reached a stage where the community is suffering, the council should have the ability to restrict access either in part or in totality.
I would like to make one more point which I hope my noble friend will appreciate. Due to the way in which the current orders in this area are framed, in many cases a gating order, and indeed the complete closure of a right of way, is the only option available to councils. The new order seeks to change this. Problem behaviours and anti-social individuals and groups can be dealt with more effectively under the new power, ensuring that the restriction of access is necessary only as a last resort. We have made this clear in the guidance, but I am content to work with interested groups such as the Open Spaces Society and the Ramblers, to see whether it can be made any more explicit.
The other amendments my noble friend Lord Greaves has in this group relate to restrictions on rights of way over a highway and appropriate safeguards. Amendment 53B seeks to provide further safeguards on the list of things that need to be considered before the right of way over a highway is restricted. I believe that as currently worded Clause 60 provides those assurances. However, we can consider how to go into more detail in the accompanying guidance to ensure that my noble friend’s concerns are addressed.
Amendment 53D would mean that all those affected would have to be notified in writing. In most cases, I think this would probably be correct. However, it may be that for some orders another medium would be more appropriate, such as speaking individually to those affected if there is only a small number. As such, I do not believe we should tie the hands of councils in this way in the Bill.
Baroness Hamwee
Baroness Hamwee
In moving Amendment 41B, I will speak to Amendments 44A, 44B, 49A and 55A. The amendments take us to Clause 56, dealing with the duration of public spaces protection orders. I entirely take the point that Clause 55 is targeted at activities, but I also take my noble friend’s point that such an order affects everyone. After all, the title of the order is about protecting space, even though the language of the Bill is about the quality of life of the people who may be affected.
The orders may last for up to three years with, I understand, an unlimited number of extensions. The Minister said that he shares the view that public space should be for everyone to enjoy. I take a more urban view than that of my noble friend Lord Greaves. Where space is very scarce in an urban environment it is important not to restrict it. I am aware that one can argue this both ways: one can also say that it is important to ensure that activities do not take place that mean that it is not enjoyable for everyone. It is not just an urban or even suburban or rural issue.
My amendments would provide for the duration to be no more than a year with a single extension, and for there to be no new order dealing with substantially the same space until the expiry of a year—a sort of anti-avoidance provision. For all the reasons already discussed, I would be very concerned about having something that becomes permanent or semi-permanent, but I have a more practical concern as well—it is in part philosophical. My practical concern is: if the order is to stop undesirable activities, whatever they may be, taking place on a particular space, how does one assess that the threat has passed? If the order goes on and on, the culture, local habits and so on of the area may have changed necessarily, and we will never know whether we have been successful, as we should have been in that we have prohibited an activity, or whether we have actually changed behaviour.
Also, if an order goes on and on, it is difficult to see how it can be challenged in the wide, democratic sense. Clause 62 is about challenging validity, but that is different. However, I have Amendment 55A—a pretty ropey amendment, I am afraid, but it would allow some sort of challenge. It is not a good amendment because the clause is about validity, but it will enable me to raise the issue with the Minister on how one challenges such orders. I beg to move.
Lord Greaves
My Lords, I have one amendment in this group, which covers very much the same ground as covered by my noble friend Lady Hamwee, so I shall not pursue it further. I merely support everything my noble friend said.
Lord Ahmad of Wimbledon
I never object to any noble Lord interjecting and asking questions. I have sought to explain why a defined period is specified in Clause 56. I shall certainly take back the suggestion on this matter made by my noble friend Lord Faulks and speak to officials. However, Clause 56 provides a key link through from Clause 55 to Clause 57 and sets out quite specifically the details behind the order. I therefore commend the clause to the Committee on the understanding that I will further consider Amendment 55A.
Baroness Hamwee
My Lords, having started as one who believes—I hope that I still do—very considerably in local democracy, I suppose that I have fallen into the trap over the years of viewing whatever comes to us on green paper as restricting it; it is the cynical view that too much legislation has somehow engendered. Like others, I do not see this debate as being two-dimensional in the way that the Minister has just described; that is, “Is it too long or too short? Well, it is in the middle so that must be okay”. It is a three-dimensional debate and the points that have been made about the expression of local democracy are important and serious. The Committee has challenged the structure of the provisions in a way that will bear a good deal of further consideration. The distinction made by my noble friend Lord Greaves between the different types of content of the orders—access on the one hand and particular activities on the other—may also get us to a better point.
On activities, I should have learnt by now not to look at my BlackBerry during debates, but a very long e-mail on this subject has just arrived from the naturists, who have been quite active in making representations on this Bill. It tells me that nudity is a state, not an activity, so how does this affect them? They are worried.
I do not want to leave it quite on that point so I come back to what the orders try to do and how that is best achieved. I shall of course withdraw my amendment at this point, but I hope that we might be able to discuss between now and Report how the orders will operate. Sadly, I see that the LGA, whose briefing I have just looked up, says that it does not think that the provisions are in need of further amendment. Perhaps we need to talk to it as well. I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Smith of Basildon
My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.
Baroness Hamwee (LD)
I wonder whether I should come in on the same issue to allow time for reflection. As I said to the Minister through his officials, I did not move my amendment because I assumed that there must be legislation which would require both authorities to agree. I read “consult” in this clause as meaning consult not around the outcome of actual closure but about the things surrounding it. I thought that, rather than taking the Committee’s time, I would simply not move it. Perhaps it would have been better if I had.
Lord Harris of Haringey (Lab)
Perhaps the Minister can assist the Committee by giving us some examples of when this power might be required and what the circumstances would be. It is about restricting the public right of way to a highway, but under what circumstances is that likely to happen and what sort of roads would these be? The requirement is to notify “potentially affected persons”, which,
“means occupiers of premises adjacent to or adjoining the highway, and any other persons in the locality who are likely to be affected by the proposed order”.
Depending on the nature of the highway concerned, that could be a very large number. One also wonders why it is confined to the locality when it might have a much wider impact. I suspect that the answers might be clearer if I had a better understanding of the circumstances in which the Government envisage this power being used. If they are rather narrower than the potential of this clause seems to suggest, I would like some clarity on why that is not made clearer in the clause.
Baroness Hamwee
Baroness Hamwee
This amendment takes us to the clauses on closure notices. My amendments are about closure notices, temporary notices and extensions to closure notices. They insert a reference to proportionality at every point. I anticipate that the Government will say that we need not worry because the mechanism that has been designed involves a local authority or a senior police officer, and they would not apply for a closure notice and the court would not grant a notice unless it was proportionate.
Closing premises is a significant step. Closure has to be necessary but, as I read the provisions, the behaviour itself need not be serious enough to justify an order. For instance, one might want to close premises to preclude offensive behaviour—that is one of the types of behaviour in question—but what if the offensiveness is not of such an extreme to justify closure? There are other types of behaviour that could lead to closure notices being applied for and granted—for instance, criminal behaviour, which surely could be dealt with through other mechanisms.
I anticipate that we may be told that this is a matter for guidance, but closing premises is a serious matter and the legislation must be very clear so that we do not have to rely on guidance. Indeed, because it is a serious matter, one ought to have in mind that in any notice applied for or decision made the process should allow for challenge and possibly even a subsequent claim. Therefore proportionality ought to be integral to the power. I beg to move.
Lord Taylor of Holbeach
“Temporarily”, I said. I am sorry. I might have said “temporary” but I meant to say “temporarily”. It may be me misspeaking or the noble Baroness mishearing but: “temporarily premises that are the focus of public nuisance or disorder”.
A number of existing powers could be used to close such premises but they are similar and overlap in a number of ways. We are consolidating these existing powers into a single scheme applicable to all premises associated with anti-social behaviour. These powers are flexible and can apply to private and residential premises, and to business premises whether licensed or unlicensed. The notice allows for immediate action while the longer-term order is put in place if it is required. This will give professionals a simple and flexible means to protect the public, making it easier to act preventively.
However, noble Lords will agree that such a power requires safeguards. Of course, local agencies already work informally with individuals and businesses to mitigate the risks of crime and anti-social behaviour before resorting to formal powers. This will continue to be the case. Most businesses want to protect their customers and premises. Where there is information that premises may be the location for or contribute to crime and anti-social behaviour, they can be invited to take action to tackle it, and many do.
Clauses 69 and 70 specify a minimum rank for police officers authorising the issue of a closure notice for up to 24 hours, with a higher authority needed for both the police and local authority for the extension of the notice up to a maximum of 48 hours. The provisions also include requirements about notification and consultation, and of course only the courts can require closures of premises for longer than 48 hours.
The noble Baroness has not tabled amendments but I can use some of the information that she was seeking. The court has to be satisfied that there is likely to be serious nuisance or disorderly, offensive or criminal behaviour. The second element is that it is necessary to prevent the nuisance or disorder from continuing, recurring or occurring. In practice, we expect that in most cases informal measures would be the right starting point. The draft guidance directs professionals towards informal measures in the first instance, where appropriate. Indeed, if alternatives to closure are available but have not been considered, it is difficult to see, save in exceptional cases, how it could be argued that the closure notice is necessary. Professionals, as public authorities, would have to exercise their powers proportionately or risk an adverse judicial review.
Additionally, in applying the test, a court, the police or a local authority must have regard to an individual’s human rights—for example, Article 8 rights. As I said when similar issues were raised in respect of earlier parts of the Bill, such qualified rights can be infringed only where to do so is necessary and proportionate in the pursuit of a legitimate aim.
The noble Baroness, Lady Smith, asked me what the reasonable grounds are. It is a matter of evidence, usually comprising of witness statements and statements of victims and police officers, in particular. CCTV evidence, for example, can also be brought into play when deciding whether there is a justification for the grounds. The term is commonly used in legislation and I hope that noble Lords will accept that.
The noble Baroness also asked who has been consulted. Given that the notice is affixed to the premises it would not be appropriate to name all the individuals who had been consulted. Guidance highlights the importance of partnership working and it is advised that the police and local authority keep a record of who has been consulted.
The noble Baroness also asked why we do not require the police and local authority to make information about the closure of the premises more publicly available, such as in a paper or some other way. The closure powers are flexible in that they can be used for residential, business, licensed and non-licensed premises. There may be circumstances where a short-term closure of the premises is needed to resolve a problem, such as closing a residential premises for 24 hours to prevent a Facebook party. That would not be of interest to the wider public in that area, and requiring the police or local authority to make a public announcement of all closures would add an unnecessary layer of bureaucracy. That is why we require the police and local authority to consult anyone they think appropriate as well as the owner and occupier of the premises. Clause 72 requires them, where possible, to fix a copy of the notice to the premises.
I hope that I have been able to answer the questions that the noble Baronesses have posed. I hope my noble friend will accept my explanations and agree to withdraw her amendment and that noble Lords will support the provisions in this part of the Bill.
Baroness Hamwee
I was going to say I will catch up with that when I read Hansard. I wonder whether, rather than starting with my amendment, I should have moved one in the group in the name of my noble friend Lord Greaves. I am grateful to the Minister for responding to my noble friend’s amendments that were not moved and not mine. Clearly, the answers will deserve, and require, some reading.
One comment I will make is that of course the right of judicial review must remain and human rights must apply. However, I do not think that having either of those available means that we should allow legislation which is insufficiently clear or detailed to go ahead without questioning it. At the same time, the Government are trying to reduce the use of judicial review, so the argument that that remedy is still available is not one which particularly appeals to me. However, I imagine that my talking any longer will not appeal to other Members of the Committee, so I beg leave to withdraw my amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Hamwee
(c) the respondent is aged 18 or over”
Baroness Hamwee (LD)
My Lords, I will also speak to Amendment 21G. The first of these amendments takes us to Clause 12, which is the clause giving power to exclude a person from his home in the case of violence or the risk of harm. This power can be included in an IPNA—in the injunction—if two conditions are fulfilled. The first is that the anti-social behaviour giving rise to the application for the IPNA amounts to violence or the threat of violence and the second is that there is a significant risk of harm from the respondent. My first amendment provides for a third condition, namely that the respondent is aged 18 or over. It seems to me a very severe sanction to exclude anyone from his home. I accept that this power is to be in response to a “significant risk” or behaviour, but if it is so significant as to justify such an action, are there not other courses of action that might be open to be taken? It is not required by the statute to link any of these provisions with a course of treatment or rehabilitation, as one would hope to see in many cases, and particularly that of young people.
The Bill is quite properly focused on the victim; we see that not just in the drafting of the Bill but on almost every page of the draft guidance, with which your Lordships have been provided. But I suggest to the Government that while excluding somebody from his home may mean the immediate protection of the victim, the longer-term protection must be rooted in addressing the victim’s long-term behaviour. Of course, excluding somebody from his home does not mean that he will not meet the victim somewhere else. So I am particularly concerned about this in the case of young people. I wonder, too, what the local authority response would be. Would it have obligations if a person under 18 found himself suddenly homeless?
In the Commons, the Minister referred to the guidance, making it clear that,
“the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate”.—[Official Report, Commons, 14/10/13; col. 543.]
That applied especially to the respondent’s Article 8 rights. It is one thing to issue guidance to local authorities—and I do not, of course, speak for the judiciary—but it is another matter to issue guidance to the courts. I have very considerable doubts as to whether it is right as a response to an IPNA, in the absence of something else justifying this, to allow this at all. I am hoping that there must be some explanation as to whether this cannot be done through any other relevant measure.
Amendment 21G is also about under-18s. I accept that suggesting that there may not be an injunction unless the police have talked to the respondent and his parents or guardian to discuss the behaviour and the respondent has been given an,
“opportunity to enter into an agreement as to future good behaviour”,
sounds a bit “Dixon of Dock Green”—perhaps a bit “Evening, all”. But it comes not from that but from provisions in the Republic of Ireland, which have been drawn to my attention—and from a concern previously expressed by the Home Affairs Select Committee in the Commons, whose report recommended that the legislation should not permit IPNAs to be used against young people unless supportive and informal interventions have failed. I can hear the Minister saying “guidance” to that.
In the Republic of Ireland, there is similar legislation but the courts are permitted to impose a behaviour order, which is their version of the IPNA and ASBO, against children aged 12 to 18 only after a senior police officer has held a meeting with the child and the parents or guardian, and when the child has been warned about behaviour and given the opportunity to sign a good behaviour contract—and, of course, to abide by it. I understand that in the past five years in Ireland the authorities have issued more than 2,000 behaviour warnings and 15 good behaviour contracts but only three behaviour orders to those under 18. I suggest that that is a successful way in which to go about the matter. I beg to move.
Lord Taylor of Holbeach
We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.
Baroness Hamwee
My Lords, we, too, will look at the guidance in the light of the debates. I say that as a promise rather than a threat—and I hope it is interpreted in that way.
My first amendment—as are so many amendments at this stage—is to some extent probing. I thought that the Minister made my case rather better than I did. I am glad that he will be consulting. I would not expect him to move forward on this without talking to the front-line professionals. I make just one comment on what he said: accommodation with other family members is unlikely to be available unless it was there without the need for an order. I am just thinking about the way that family dynamics work. As regards both amendments but particularly the second, I, too, will look at the guidance again and hope to provide some useful input to ensure that what the Minister describes as a longstop is a very long longstop. I beg leave to withdraw the amendment.
Lord Rosser
We acknowledge that there was broad support for the requirement that the youth offending team be consulted before an injunction under Clause 1 is sought against somebody under 18. However, there appears to be no timescale for the consultation with youth offending teams, and as a result there could be—not necessarily will be—delay. For that reason, the time taken for consultation with local youth offending teams should be reviewed. That is the purpose of the amendment. Surely we need to keep an eye on how long the process is taking and to check on whether there are hold-ups when the legislation comes into force.
I appreciate that the Government’s view is that the necessary consultation with the relevant youth offending team will take place with a proper sense of urgency and should not be unduly delayed by protracted consultations. A clear commitment to a review would further strengthen that position and make clear the need to carry out such consultation expeditiously. That is what those who may be victims certainly wish. In the light of the statement in the draft guidelines that the consultation requirement does not mean that the youth offending team could veto the application, will the Minister say what would constitute consultation being completed? Does the person applying for an injunction have to have received a response from the youth offending team for consultations which have been completed? If the response is that the youth offending team is not in favour of the injunction, would discussions have to continue before the terms of Clause 14(1)(a) had been met?
Would a failure by the youth offending team to respond at all within a certain timescale mean that consultation could have been deemed to have taken place? If so, what would the Minister consider a reasonable minimum period for a response? Would a failure to respond by a youth offending team within a certain time be grounds for an application without notice under Clause 5? Could the youth offending team oppose an application for an injunction under Section 1 for someone under the age of 18 in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?
Baroness Hamwee
My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.
We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,
“the local authority for the area where the respondent resides”,
meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord and my noble friend for their amendments. This group again relates to the balance that needs to be struck in ensuring that the appropriate consultation takes place, but relates specifically to cases involving young people under the age of 18.
Amendment 21H is concerned with the duty on applicants for injunctions under Part 1 to consult with the local youth offending teams in the case of under-18s. Crucially, that consultation must take place before the application is made to the court. That is an important change to the process where young people are concerned. Therefore, youth offending teams will help to ensure that the prohibitions in the order are appropriate and understood by the young person, and that any positive requirements are tailored to meet his or her needs. As we all recognise, as do I from my time in local government, youth offending teams are an important and established part of the youth justice system. They are well used to working with young people in these sorts of circumstances.
The noble Lord raised the issue of consultation. This would be an ongoing process and I would expect the consultation with the youth offending team to take place swiftly for the benefit both of the victims and of the communities that require protection. One of our primary objectives in reforming the response to anti-social behaviour is to speed up that response and I would not expect this consultation requirement to prevent that.
Baroness Hamwee
My Lords, is my noble friend aware of whether the Local Government Association has been consulted—sorry to use the term again—on this provision? It seems to me that the Government should have been talking to it about whether it would want a statutory role. I take his point about occasional urgency but it is always open to a local authority to say, “This is urgent. You had better get on with it”, or, at the other end of the spectrum, to say, “We have no comment”. If he is not aware of what talks underlay the provision as we see it now, perhaps he could let me know after today’s sitting.
Lord Ahmad of Wimbledon
In direct response to that, I can say that representatives from the LGA and other organisations have attended meetings with my noble friend with regard to this Bill. I again reassure her that, as the guidelines are reviewed, I am sure that the LGA will be making representations and will be part of that process.
Baroness Hamwee
Baroness Hamwee
My Lords, my amendment is grouped with the debate on Clause 17 stand part and Amendment 22DA in the name of the noble Lord, Lord Ramsbotham. Within the past few minutes, he has sent me a note asking me to apologise to the Committee. Like many of us, his anticipation of what would happen, and when, was rather thrown. He said that he had an impossible diary today with long-agreed speaking engagements outside the House. However, in case the Minister thinks that that lets him off the hook from attack from that quarter, the noble Lord has primed the noble Earl, Lord Listowel, to speak on his behalf on his later amendments. The noble Lord said that he would not dream of considering voting before Report anyway, although I think one might add “ … ” to that.
My amendment is to Clause 17. I have not sought to delete the clause from the Bill because I wonder whether it might be possible to discuss a compromise. I am aware that this is a delicate issue on which there has already been quite a lot of focus. The clause provides that Section 49 of the Children and Young Persons Act 1933—it has a long pedigree—is not to apply to proceedings on IPNAs. That section restricts reporting of proceedings in which children and young persons are concerned. That provision restricting reporting also has an exception within it. Is that exception not sufficient for the Government's purposes? The exception is that if the court is satisfied that it is in the public interest to do so, it may dispense to any specified extent with the requirements of the section. Is that not sufficient? That is Section 49(4)(a). Section 49(5) provides that the court can similarly dispense with the requirements of the provision if it is appropriate to do so for the purposes of avoiding injustice to the child or young person.
We have talked on a number of occasions about one purpose of the ASBI being to avoid criminalising young people, whom we hope to divert from a criminal career—not to consolidate a criminal career. Given the way in which reporting would be likely to happen, this provision would criminalise the young person and have a very unfortunate long-term impact. “Naming and shaming” is not a term I like to use—it means stigmatising and putting a negative label on the young person. There must be a very high risk of perpetuating the problems which an IPNA should be looking to nip in the bud.
We have also talked about positive re-engagement and rehabilitation. I question whether not imposing reporting restrictions would be a deterrent. Is there any evidence that it might be? There are also, of course, safeguarding concerns. This had not occurred to me, but I am told that professionals consider that there is a risk that children who are identified as having been involved in anti-social behaviour may engage in risk-taking behaviour or be more susceptible to being groomed. This is very much in our mind at the moment.
In all, it seems to me that the risks, quite apart from the concerns that have been voiced by the Joint Committee on Human Rights and the Local Government Association, are too big. Perhaps the Minister can tell the Committee what lies behind this; what evidence the Government have that this is the right way to go; what assessments have been made to evaluate safeguarding risks, and whether the Government have kept in mind the impact on a child’s rehabilitation. I beg to move.
Lord Hope of Craighead
I add just a short point to what the noble Baroness has said. When one looks at the draft guidance at page 26, one can see what the Government are thinking of here. The point is made that making the public aware of the perpetrator and the terms of the order can be an important part of the process in tackling anti-social behaviour. One can follow the thinking behind that proposition. When one reads on, however, one sees that there will be circumstances in which either the police or the council may decide not to publicise the fact that an IPNA has been made. It seems to me that the power—or the discretion, perhaps one should say—to decide whether or not publicity should be given is being taken away from the court and given to the police or the council. Will the Minister explain why that is being done, bearing in mind the point that the noble Baroness has made about the discretion which exists within Section 49?
It is a very big thing to take away from the court the power to restrict publicity, bearing in mind the reach of the whole of Part 1, which is what we are concerned with, including Clause 5, which permits an application for an injunction to be made without notice being given to the respondent. The court would have no power to stop the press if they happened to be there reporting what had taken place. It would be a very serious matter to go as far as the clause goes without a full explanation why exercise of discretion is being taken away from the court and being given to the police or the council, who are not answerable to the court for what they do.
Lord Taylor of Holbeach
I am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am sorry if I struggled to get the place name right but I am delighted that he mentioned this point because I just received a note saying that Section 39 of the 1933 Act gives the court the discretion to impose reporting restrictions.
Baroness Hamwee
My Lords, I, too, was a little confused when the Minister referred earlier to Section 39, which the noble and learned Lord just mentioned. This will require some reading. The point, of course, is entirely right. It is how the court has discretion as regards publicity. I do not at all challenge the point on the injunction. I am very grateful to the noble and learned Lord, Lord Hope, for reminding the Committee that our courts are essentially public; that is where the concern comes from.
The Minister talked about the status quo. That confused me, because I thought that I was arguing for the status quo. He said that the status quo was good, but he challenged my amendment. I cannot see how we will not return to this on Report. However, I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this is a probing amendment on a subject not too dissimilar from the issue raised by the noble Lord, Lord Marlesford. Our new clause is about corporate anti-social behaviour. Other than the community protection order, which includes the power to close premises that cause severe problems associated with anti-social behaviour, the Bill’s emphasis is not on the corporate but on the individual.
Too often the public feel, sometimes justifiably, that although they as individuals have to obey the law or be taken to task, companies seem not to be targeted until things get very serious and action is taken that could lead to their closure. A corporate anti-social behaviour order would be targeted at actions by a corporation or company that are deliberately socially harmful, and cause harassment, alarm or distress at a local rather than a national level. It would not target legitimate businesses or business activities—even businesses that some might regard as unpalatable. For example, there is a lot of talk about payday loans, and some people do not like gambling. The order would not focus on business activity, and there is no intention to comment on business activities that may cause distress at a national level; it would be used only where local disregard for the public and for the environment could cause harassment, alarm or distress.
The purpose of such an anti-social behaviour order would be preventive. It could identify low-level behaviour and seek to prevent it increasing in frequency or becoming more serious, as is often the case. Some of the examples I shall give tie in with the comments about litter in the previous debate—examples such as takeaways and other businesses that fail to deal with rubbish outside their premises, or premises that are unnecessarily noisy. I remember, when I was a Member of Parliament in the other place, dealing with a business in a residential neighbourhood. It had to have delivery vehicles coming and going—but at 5 am, did those vehicles really need to leave their engines running, causing considerable distress to those who could not sleep, or were woken first thing in the morning?
There could also be a pre-sanction stage, with an acceptable behaviour contract, to deal with problems. I think that such a provision would be welcomed by businesses that do their best to deal with such problems, but find themselves up against other companies that cut corners and do not fulfil their obligations to local communities. An anti-social behaviour order for local businesses would complement the community protection order by offering sanctions targeted at businesses, which might be used before more serious action that could lead to closure of the business was taken.
A corporate anti-social behaviour order would be business-friendly, because it would nip the problem in the bud and give the business the opportunity to deal with it before it faced far more serious action. It also gives the opportunity for preventive measures; I am thinking particularly about littering and noise pollution. At the moment the legislation focuses on individual behaviour—that is where the community protection order comes in—rather than on the actions of companies. It is a preventive measure, designed to be more effective, more helpful and more friendly towards business. It could also lead to better engagement between businesses and the local authority, which would have a reason to hold early discussions about problems that could arise and how it would deal with them, and also to better relations with local residents, by nipping any such problems in the bud before they get too serious. I beg to move.
Baroness Hamwee
The noble Baroness raises an interesting point. I have been wondering about other examples, and the one that immediately came to mind was the noise of aircraft coming into Heathrow in the middle of the night, which is a big issue in my area—but perhaps the order is not intended to be as extensive as that.
I have a serious question for the noble Baroness, which is whether it is appropriate for criminal offences to be created by regulations. That is in effect what subsection (3) of the proposed new clause would do, as it states:
“The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed”.
I appreciate that this is a probing amendment, so I do not want to be too tedious about it, but that struck me as a point of principle that one might want to consider.
Lord Ahmad of Wimbledon
My Lords, the Government are often accused of not listening. I listened with great interest to the previous debate, initiated by my noble friend Lord Marlesford, and as I went over to the Box I noticed a piece of litter on the floor. I acted promptly and handed it to the doorkeeper—so there is some hope of instant action on the part of the Government.
I am grateful to the noble Baroness, Lady Smith, for tabling her amendment with the proposed new clause and raising an important point. I agree with her that, where businesses act in a way that is likely to cause harm to others, they should be held to account. However, the Government feel that a corporate ASBO is unnecessary. We believe that we have drafted the new powers in such a way as to be flexible enough to deal with this eventuality.
For example, the new community protection notice, which we will discuss when we come to Part 4, can be issued against a corporate body. If that corporate body is persistently acting in an unreasonable manner and having a detrimental effect on the quality of life of those in the locality, it can be held to account through the new notice. While the community protection notice replaces litter and graffiti notices, it can be used for much more, including noise and other behaviours. What is more, breach is a criminal offence and, on conviction, a business could be fined up to £20,000. It is a power which provides real teeth.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendments 22C and 22D. I hope that I can be quick with these. Amendment 22B seeks clarification as to the standard of proof required for a criminal behaviour order. Of Clause 21, the Minister said in the Commons:
“The draft guidance to the Bill makes it clear that we expect that the courts will follow existing case law from the House of Lords in relation to antisocial behaviour orders and that they will apply the criminal standard to criminal behaviour orders”.—[Official Report, Commons, 14/10/13; col. 543.]
He then said that an amendment similar to this was unnecessary. If guidance is needed on an issue as serious as the standard of proof, it should be in the legislation. The Joint Committee on Human Rights, which reported before Report in the Commons, said that that should be in the Bill.
Amendment 22C would import the test of necessity—as for an ASBO—to the making of a criminal behaviour order. Amendment 22D would import a test that we have already discussed in the context of an IPNA from the Crime and Disorder Act, which would provide that the court should disregard an act that the defendant shows is “reasonable in the circumstances”. That is linked to the standard of proof but is a separate issue. When we discussed a similar provision on Monday, the answer was that, for an IPNA the court must consider whether an injunction was “just and convenient”. That, of course, is not the same test as would apply to a criminal behaviour order. I beg to move.
Lord Taylor of Holbeach
My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.
For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.
Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.
Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.
The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.
Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.
Baroness Hamwee
Indeed, I am partially satisfied and I will not repeat the argument I made about the distinction between IPNAs and CBOs for the purpose of Amendment 22D.
I am puzzled as to why, if the Government expect the criminal standard of proof to apply and then—it is not quite the same—say that it “will” apply, they are reluctant to spell that out. It is a new offence and I would have thought that it would be better to spell it out, but there we are.
I did indeed intend to raise the evidential burden regarding Amendment 22C. For something to “help” is a very low threshold. It is rather a small objective and achievement. I hope it answers the noble Lord, Lord True, if I say that I was linking it back to Clause 21(3) because Clause 21(4) refers to “such behaviour”. That behaviour is described in Clause 21(3) as having “caused” or being,
“likely to cause harassment, alarm or distress to any person”.
We are talking about a criminal order so it seems to me that it is proper for there to be a more exacting test. However, having said that, I am grateful to the Minister for the partial consideration and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving this amendment I will also speak to Amendments 22H, 22J and 22K. My noble friend Lord Greaves has Amendment 22KA in this group.
On Monday, when we were discussing the relationship between provisions in the Bill and statutory nuisance, I explained that I had been asked to raise the matter by the Chartered Institute of Environmental Health, of which I am vice-president. I will speak briefly to my amendments today, but I also ask the Minister whether we can discuss the matter before Report. The institute is clearly concerned about remedies such as the community protection orders and noise abatement orders being too similar for comfort. The institute talked to me about the potential for confusion and conflict and twin-tracking by different authorities and different professions. However, I assure the Minister that we are willing to contribute to the guidance around all this. We take the point that the guidance is still in draft form. We are concerned to get the legislation right, not just to rely on guidance where the legislation may in itself not be as clear as it might be.
Amendment 22NA would provide for a significant detrimental effect to trigger a community protection notice. Where there is a civil process, the de minimis principle would apply. It has been put to me that the alternative to dealing with this in legislation is for it to come out over time in case law, which would obviously have a cost implication.
Amendment 22ND would require a person in authority to assure himself that the conduct is not already subject to any other statutory control. As drafted, that person may think it appropriate as a discretion. This seems to be quite a weak protection against different agencies wasting each others’ time chasing the same end. What is most important is to avoid obstructing or contradicting action that has already been taken, such as an indefinite prohibition in an abatement notice.
Amendment 22NE would provide that no notice was served where it would be controlled under any other statute, which is again about conflict. Where the problem is noise, apportioning responsibility and sorting out a fair and effective remedy can take a lot of technical—
Lord Ahmad of Wimbledon
I am responding to this debate, so I am listening with great attention, but for a moment I thought I had lost my place. I must point out that we are discussing group 9, which starts with Amendment 22E. I believe that my noble friend is speaking to group 13, which starts with Amendment 22NA. My apologies for not intervening sooner, but I thought that I had lost my place. Perhaps she would like to speak to the earlier group.
Baroness Hamwee
My noble friend is absolutely right. I apologise to the Committee. There is such enthusiasm to move on today that I was moving too fast. I must give my noble friend an opportunity to accept or possibly reject my Amendment 22E. It would provide in Clause 21 that the court must receive evidence about suitability. There must be a proportionality element in the requirements provided in the orders. I may be told that this yet again is something that is dealt with in guidance.
Amendment 22G takes us to the duration of the orders. We are presented in the case of under-18s with a fixed period of not less than two years or an indefinite period. I suggest that there should be a limit for everyone, as there is for under-18s. The criminal behaviour order can include a lot of requirements and restraints, which could, if they go on indefinitely, have a disproportionate impact. To have something hanging over one’s head indefinitely could be a disincentive—you could give up hope of ever getting it right.
Amendment 22H would provide that reviews are not confined to under-18s, which continues more of that thought. Amendments 22J and 22K are consequential on that. I beg to move.
Lord Greaves
My Lords, Amendment 22KA is a modest attempt to help the Government to get their legislation correct. It refers to the review of criminal behaviour orders which has to take place under Clause 27. Clause 28(2) states:
“The chief officer, in carrying out a review under section 27, must act in cooperation with the council for the local government area in which the offender lives or appears to be living; and the council must co-operate in the carrying out of the review”.
Clause 28(4) states:
“In this section ‘local government area’ means—
(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.
That definition is archaic and does not apply to the local government map of England as it now stands. It misses out large tracts where there are no districts and where there are unitary counties.
There are other parts of this legislation—under IPNAs and community protection notices, for example—that get it right and refer to counties where there are no districts. They clearly have to be added. My amendment adds this so that large parts of England are simply not missed out. Since the Bill refers at the moment to districts or London boroughs, I assume that the district or lowest level is meant. Where there is a unitary authority only—a county such as Cornwall, Northumberland or various others—that needs to be added. This is in the spirit of being as helpful as possible to the Government, as I always am.
Lord Ahmad of Wimbledon
With all things legalistic and legislative, my noble friend will agree with me that it is important, as he himself stated, to get it right. Let me assure him that we will certainly take into account his insight and expertise in ensuring that in our drafting we correct any omission, if indeed that is the case.
I hope, based on the explanations I have given, that my noble friend will be minded to withdraw the amendment.
Baroness Hamwee
My Lords, I apologise again to the Committee for getting so confused over these amendments. I say to my noble friend Lord Greaves that he knows precisely why an amendment is not accepted now—because they never are, are they?
I remain troubled about the issues that I have raised. Proportionality seems to be more than a matter of human rights in the technical way in which we sometimes refer to them. An indefinite order period over five years is a very harsh response. As I understand it, there is no statutory requirement for review in the case of over-18s. There is a page, thereabouts, of provisions for reviews in the case of under-18s, but for the over-18s it is left to everyone’s good sense.
As I say, I remain troubled, but let us see where we might go when the little bits of this which will be further considered have been considered. For now, I beg leave to withdraw the amendment.
The Earl of Listowel (CB)
My Lords, in moving Amendment 22KB in the name of my noble friend Lord Ramsbotham, I shall speak to Amendments 22KC, 22NZA and 22NZB. My noble friend apologises to the Committee for his absence. He has a long-standing commitment and asked that I might present his case for him. There seems to have been a little confusion. His amendments were tabled late in the day and I, also late in the day, called for a clause stand part debate. I do not think that I will need to call for a clause stand part debate, given the useful amendments tabled by my noble friend. The amendments deal with Clause 29, on the breach of orders, and Clause 37, on offences. They would take minors out of both those clauses.
As an aside, several of my colleagues who would be interested in our debate are involved in the Children and Families Bill, as am I, and there has been confusion about the timing of that Bill, which may have been an obstruction to colleagues interested in the area of children to come to discuss this Bill. If the Minister has not agreed to this already, perhaps there may be an opportunity to meet with him and officials to discuss how this Bill affects children with those Peers who are particularly interested in the welfare of children.
Over the past few years, there has been a welcome reduction in the number of children in custody, as a result of the recognition by Her Majesty’s coalition Government that imprisonment is not an effective way to deal with children’s offending behaviour. As your Lordships will be aware, the new police dispersal power to tackle anti-social behaviour is introduced by the Bill. Children who breach the order and are convicted of failing to comply with the police dispersal order are to face a fine and/or up to three months in prison. I suggest that those sanctions are disproportionate, counterproductive, incompatible with children’s rights and risk reversing the positive downward trend seen in children’s custody numbers.
As a bit of background, currently, nearly seven in 10 children breach their anti-social behaviour orders. That is typically due to a lack of support, rather than wilful non-compliance. It is a much higher breach rate than for adults. Imprisonment is imposed as a sanction for juvenile ASBO breaches in 38% of cases, with an average sentence of just over seven months.
The purpose of the amendment is to remove imprisonment as a sanction for children when they fail to comply with a dispersal order. The amendments replace imprisonment with robust community alternatives. I have mentioned several times my concern about the guilt that many of those young people will carry with them. They will feel responsible for the failures in the family. I have spoken to young men who have made it their job to be at home when their father has returned home from the pub so that they can stand between their mother and their father at the time. I have already spoken about those boys who grow up without a father in the home. Of course, there are young men who are beaten by their father on a regular basis. Those young men feel responsible for having to stand up to their father and protect their mother, for being beaten by their father or for having their father absent from the home.
My wide experience of this is that children do not think rationally in those times. They tend to think that they are responsible for those failures. Being too harshly punitive of young children may be counterproductive. I spoke recently to a lawyer with several years of experience of working as a defence lawyer for such children. To get them prepared to stand up in the witness box and give a reasonable case, he would say to a child, “Look, Richard, I know that there is good in you. My partner, Margaret, knows that there is good in you. You can make the choice. You can do the good, the right thing or you can choose not to”. By speaking in those terms to the child, he gets the best from them.
My concern is that if we are overly harsh, if we imprison children, if we punish them too severely, they will be confirmed in their belief that they are bad to the bone, that they are responsible for all the bad things in their life and will go on to be a nuisance to society and cost society a large amount of money when they are later imprisoned. A further problem, to which I just alluded, is that once children get involved in the prison system, there are much more likely to get involved with it again. They will be returnees. I look to the Minister for some reassurance in his response.
Baroness Hamwee
The noble Earl has raised extremely important points, and I do not want to repeat arguments that I made on my earlier amendment about publicity, which also apply here. It is not only the noble Earl, who has massive experience, who makes these points. As I said earlier, so many organisations which have practical experience and great success in diverting children at risk of going down the route of a criminal career back to a better road, have suggested that such amendments should be made. We should take that extremely seriously.
Baroness Linklater of Butterstone
My Lords, I support these amendments wholeheartedly. We are talking about punishment. Punishment must, as a fundamental, be appropriate, proportionate and likely to succeed. I suggest that the provisions have none of those things right. It is entirely wrong to have a sanction which involves the potential imprisonment, which is the ultimate sanction for breach of a CBO, of children between the ages of 12 and 18. A detention and training order, which is a possible likely outcome, can be given to such children for breach for a minimum of four months and a theoretical maximum of 24 months, half of which would in fact be intervention, supervision and the rest.
Children who fail to comply with a police dispersal order can also get up to three months. We are looking at a whole range of options to incarcerate young people. It has already been referred to tonight that children routinely breach ASBOs—about two-thirds of them do. Once they get into the world of breach, we are in very dangerous territory. All the successful work that we have seen and in which I have been closely involved with the Youth Justice Board has been to avoid the incarceration of children. This is simply because it does not succeed; the noble Earl has indicated why. In all cases, incarceration should be for the most dangerous, severe and violent behaviour. Those are the kinds of criteria that we should apply to anybody going to prison. In other words, the criteria apply to adults, too, but how much more do they apply to children?
Baroness Hamwee
Baroness Hamwee
I shall speak also to Amendment 22N. Amendment 22L would add the term “proportionate” to the period during which a dispersal order would apply so that the use of the power is both necessary and proportionate. When this matter was discussed in the Public Bill Committee in the Commons, the Minister said that he was confident that the powers will not be used disproportionately and referred to the need for authorisation by an officer of at least the rank of inspector. My amendment would insert a degree of objectivity into the clause. This is not intended to be critical of police officers, but if the power is intended always to be used proportionately, should that not be spelled out and be capable of being challenged?
My second amendment, Amendment 22N, would provide that the authorisation must clearly identify the locality in question. That is a matter of clarity, but rereading the clause over the past few minutes, it strikes me that the term “locality” could be understood in different ways in Clause 32(1), which is the specified locality to which the order will apply, and Clause 32(2)(a), where we are directed to reducing the likelihood of members of the public in the locality being harassed, alarmed or distressed. In the second case, the normal meaning of “in the locality” would be in and around the area, not in the specified locality referred to in Clause 32(1). I have only just thought about this. Reading things again, they sometimes read slightly differently. I do not know whether the Minister can assist me on that.
The amendment relating to proportionality was raised in the context of concern about peaceful assembly. I think we will come to that later, but I shall just say that I, too, am concerned that we should do nothing in the Bill to prevent peaceful assembly when people in a proper manner exercise their democratic rights as citizens. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I rise to speak to Amendment 22M in the name of my noble friend Lady Smith of Basildon, which would insert into the Bill the words,
“and once the relevant local authority has been consulted”.
I do so on two main grounds. One is to revert to a topic that we discussed in Committee on Monday, which concerned the importance of the powers in the Bill being exercised as part of a wider pattern and a wider agreement with local government and other interested parties. That is a general principle that we should not move away from. However, the main issue is that this is clearly a power that relates to a specific locality. It might relate to, for example, aggressive begging in a particular park, square or precinct. Therefore, you would expect the local authority or the custodian of the public space concerned to have very clear responsibilities and interests. There may well be community implications. There may well be a need to listen to what the local authority may feel will be the community impact of such an action or, indeed, to consider the local authority’s view on whether the community benefits from such an action.
I understand that the local authority should be the custodian of those public spaces and that these are the circumstances in which this power may be used so it is appropriate that it be involved. I understand that the parallel of this power, the old anti-social behaviour order regime, did involve consultation with the local authorities concerned, yet the Government have specifically excluded it in this Bill. I would be interested to know a little more about the rationale behind why this has happened in this particular case as this seems to me an obvious area where you would expect there to be consultation with local authorities.
If the argument is that local authorities have been slow in responding to consultation and that this has led to a continued problem, I would be surprised because local authorities usually are well aware of concerns that are being expressed by local communities about a problem in a particular area. If that is the case, I suspect there are some faults on the side of the local authority. These could be remedied by some expectation of what the normal period is within which the local authority should respond when asked for its views on these matters. However, I think there is an extraordinary weakness in the way that these powers could be pursued. The way in which the legislation is framed, this is a quite a broad power. The authorisation could come from a police officer and would proceed solely on the basis of the authorisation of a police inspector. This is not something that would have necessarily gone to court, although obviously it relates to people about whom there are clearly concerns.
I would like to know why it is not felt to be appropriate in these circumstances for the local authority to be consulted. If the argument is that there have been unconscionable delays associated with that, can the Minister give us some examples of where they have occurred, and can the Minister say why it would not be possible to build in to the legislation something which required a specific time period for the local authority to respond when such a power is being considered?
Lord Taylor of Holbeach
I accept the noble Lord’s explanation, but perhaps I can turn to the points raised by the noble Baroness, Lady Hamwee.
The noble Baroness asked about how we undertook in the draft Bill to provide the consultation with local authorities; we did not do that in the draft Bill. I have made it clear that I would expect police and local authorities to work closely together in the exercise of all anti-social behaviour powers under the provisions in the Bill. We believe that this clause and the dispersal power that arises from it are useful. The current Section 30 dispersal power has worked well in dealing with longer-term issues. Those powers are held by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems. The arrangements set out in Clause 32 balance the need for safeguards with the flexibility vital to dealing with a wide range of anti-social behaviour. I commend the clause to the Committee.
Baroness Hamwee
My Lords, I do not think that I should prolong this debate, and I shall keep until after today the questions that have occurred to me during the course of this debate.
My noble friend Lord Greaves has a much better memory than I have and has reminded us of the distinction between locality and location, as identified in previous legislation. I could not help but notice that my noble friend the Minister, in talking about Clause 32(1), used the term “location”, so I think we may need to be absolutely clear about that. But that can wait until after today.
I will say to both Front-Bench speakers who were sorry to have missed the Countryside and Rights of Way Bill proceedings that we dealt with an awful lot of it at unearthly hours of the morning and right through the night. On one occasion, breakfast was provided for the House, except for those who were stuck in the Chamber dealing with the Bill. So the noble Baroness may be a bit less sorry that she missed it. I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I should probably start by saying, “as I was saying”. I apologise again to the Committee for some confusion about an earlier amendment. Members of the Committee were either excessively polite, in the manner of your Lordships’ House, or completely unengaged with what I was saying, and did not interrupt me for some time. I am grateful to the noble Lord, Lord Ahmad, for eventually doing so.
I do not want to repeat what I have already said, but refer the avid reader of Hansard back to the report of earlier this evening. I will repeat my requests that we discuss before Report the relationship between how statutory nuisance and nuisance under the Bill are dealt with. Community protection notices, particularly noise abatement notices, address very similar problems. I am aware that guidance will have a role to play here, and I hope to contribute to it.
Amendment 22NA, which provides that the detriment under Clause 40(1) should be significant, speaks for itself. It should be more than a de minimis matter. Amendment 22ND deals with the possible clash of the use of CPNs and existing statutory powers, as does Amendment 22NE. Amendment 22NF, unlike the earlier amendments, seemed desirable to me—I do not mean that the others are not desirable but that this is my drafting, not someone else’s. I suggest that the community protection notice should explain not only the points set out in Clause 40 but the remedial action proposed given the powers to be provided under Clause 44, which will essentially allow the local authority to go in, carry out work and charge.
Amendments 22QD and 22QE take us into Clause 43, which is about appeals against community protection notices, and are probing in the hope that the Minister will be able to confirm that modification of a notice which the magistrates’ court may make on appeal can be only in favour of the applicant and that modification can include variation by reducing the requirements—in other words, that the appellant will not be in danger of finding himself with harsher restrictions or provisions. I beg to move.
Lord Greaves (LD)
My Lords, I have tabled Amendment 22QC in this group, which I will comment on in a minute or two. Since this is the first group about community protection notices, I thought that it might be helpful to say a few things on the back of that about them generally. Of all the new measures to deal with anti-social behaviour that are being put forward by the Government in their new battery of weapons, I am most enthusiastic about community protection notices if they are done in an appropriate way.
My first question to the Government is about those notices, which may be issued on reasonable grounds that,
“the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and … the conduct is unreasonable”.
In what ways does this differ from the criteria and the test in Clause 1 for serving an IPNA? These require that a person,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”.
What is the difference between “nuisance” and “annoyance” on the one hand, and on the other conduct that,
“is having a detrimental effect … on the quality of life”,
of people in the locality? I am not entirely sure what the difference in meaning is but perhaps the Minister can tell me.
Secondly, what kind of things are community protection notices intended to deal with? Clearly, they are intended to deal with different things from injunctions to prevent nuisance and annoyance. There is a hint in Clause 54, which talks of repeals and transitional provisions of litter abatement notices and two other litter notices under the Environmental Protection Act 1990, and of defacement removal notices under the Anti-social Behaviour Act 2003, which refer to graffiti really. What else is there? Is this just about litter and graffiti? I am sure that it is not, but for what other things do the Government envisage that this potentially wide-ranging power could be used?
For example, could it be used to deal with accumulations of rubbish in the back yards of empty houses, or of houses where tenants do not care too much about such things? Could it be used to deal with odour, if someone was making regular bonfires and causing lots of smoke in the area? Could it be used for animal nuisances, such as dog dirt? Could it be used for somebody who insisted on hanging out their washing across the front street rather than in other appropriate places at the back? Could it be used against gatherings in the street—for example, if people wished to use it, in the complaints being made at the moment about Roma people in Sheffield? Would this be an appropriate way of dealing with that or, whether or not it is appropriate, could it be used for that? It would be very helpful if, after this debate, the Minister could list 10 useful things it could be used for. Then we will have a fairly good idea of whether those of us who are local councillors and so on might consider that this is a power which we can use.
There are some concerns that a number of these powers and the existing ASBOs criminalise anti-social behaviour if notices are not complied with, although things such as litter already involve the criminal law. If this is an exciting new power that can be used for all sorts of things in a proportionate manner, there are concerns about the lack of resources, and of new resources, for local authorities to use it. As I keep saying in debates in this Committee: tackling anti-social behaviour and nuisances, and helping to make our residential streets more civilised places at local level, is resource-intensive. It means lots of different agencies co-operating.
For example, in my ward, every month there is a local environmental audit. People from the local neighbourhood policing team, localities officers, councillors and people from the council’s anti-social behaviour unit and its refuse collection and litter sections go round with a little wagon. If there are any accumulations of rubbish, they do not bother serving notices on anybody; they just stick it in the wagon and take it away. That kind of thing is quite resource-intensive and, at a time when all local authorities are under real pressure, it is the kind of thing that will be found difficult to keep going. Yet these powers will be no good whatever unless there are people on the ground who can investigate reported problems, see problems for themselves and have the resources to serve the notices, follow them up and deal with the people.
Amendment 22QC probes what happens in a slightly interesting situation. If you serve a notice in relation to a nuisance that refers to a piece of land and the person who you are serving it on transfers its ownership from, for example, one company that they own to another that they own or are involved in, or to their wife or their husband, you have to start all over again because you are dealing with different people. The proposal I am putting down here does not work but is there to probe. Have the Government got any ideas about how to deal with this? A remarkably high proportion of anti-social behaviour problems are caused by a few individuals who just enjoy playing the system and opposing the council. They regard it all as a great game. How on earth we deal with these people, I do not know but if my noble friend the Minister has any ideas, I would certainly like to hear them.
Lord Rosser
I hope the noble Lord will accept that the definitions the Minister was giving seemed to come under the requirement to do specified things, not achieve specified results, which is what I had asked about.
Baroness Hamwee (LD)
My Lords, my much less elegant interpretation of these provisions is that paragraph (c) is about “how” and paragraphs (a) and (b) are about “what”. There is an absolute requirement to achieve paragraphs (a) and (b) but there can be only a reasonable requirement—and a choice of ways—as to how to to get there.
Lord Taylor of Holbeach
I would see it as being about outcomes as opposed to methodology. Noble Lords are familiar with this concept and understand the particular example.
Moving on to Amendment 22NG, while I cannot think of a specific example where it would not be necessary to include the specified time for actions to be undertaken on a notice, I am not the front-line officer dealing with anti-social behaviour on a daily basis. Those officers have told us that the additional flexibility afforded by the new powers is exactly what they want. They do not want to be constrained on a time limit. This is directional and they want to be satisfied that the direction of travel is working properly. To put a time limit on it may be counterproductive. The amendment would erode that flexibility.
The noble Lord, Lord Rosser, asked what is meant by “reasonable”. We have discussed “reasonable” before. In this case, the power will be used by council enforcement officers and police officers. These are trained professionals who make this judgment on a daily basis. What is reasonable in one situation is not reasonable in another. The judgment has to be made on a case-by-case basis. I hope that the noble Lord will accept that.
The noble Lord, Lord Harris, came up with the notion of CPNs for a string of shops promoting payday loans or for an off-licence. The conduct has to be defined as being unreasonable and a notice that imposes unreasonable requirements can be appealed. However, if an off-licence has benches outside encouraging people to congregate and engage in conduct that would be detrimental, it could be required through a CPN to remove the benches. That would be a perfectly reasonable request.
Except for the seven examples that I owe my noble friend Lord Greaves, I hope that I have given noble Lords the answers to their questions—but I appear not to have done so.
Lord Taylor of Holbeach
I suppose that this comes back to the accountability of Ministers. I am accountable to the Committee this evening in giving answers to somewhat difficult questions. I promise to write to the noble Lord with an explanation. He was very astute. I saw him leap with alacrity at a particular point and show it to a colleague on his Bench, so I knew that something might be up. I will write to the noble Lord.
Baroness Hamwee
My Lords, I should have thought that the noble Lord, Lord Beecham, would have been glad to ensure that if there were conduct on the part of a government department that might justify a CPN there would be someone there on whom it could be, not literally, pinned.
I come back to my amendments. The Minister said that victims do not care how a problem is solved or who solves it. I agree with that. In my group of amendments I am seeking to ensure that the most effective mechanism is used. That is why I keep coming back to the need to ensure that the professionals who will be left to use the existing statutory powers are confident that no confusion will be caused. If it would be helpful to undertake further discussions with probably not only the Minister’s own department but Defra, I know that there are people who will be happy to try to thrash this issue out in a practical fashion following today’s proceedings. For the moment, I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Hamwee (LD)
My Lords, my noble friend has rightly referred to the series of actions that the Government are proposing in the new regime. Like him, I welcome the fact that the new injunctions will not be criminal. I think he said that this distinction in the eyes of young people may not be as great as it is to us. Does he agree that that is particularly the case with the widespread powers that the court has on breach of such an injunction?
On this amendment, may I make a point that may come up time and again? This is on the place of guidance, as used by all those who will be involved in the new regime. Guidance is one thing. It is important and has a significant place in the way any measure is applied. However, guidance is only guidance. If an issue is really important, it should not be left to guidance and therefore, while it may or may not happen, it should be a matter for the legislation itself. I am glad that my noble friend has raised this issue right at the start of today.
The Earl of Listowel (CB)
My Lords, I speak as vice-chair of the All-Party Parliamentary Group on children and young people in care and leaving care. Half of young people in custody have experience of care: they have been fostered or have been in residential care. Many of those unfortunate young people, who are in that position principally because they have been abused by their families, are also likely to get tangled up in the law and in the situations with which we are concerned here.
I begin by putting two questions to the Minister. First, there has been concern in the past that the assumption relating to media reporting when dealing with children is reversed in these circumstances. One of the tabloid newspapers published a string of photographs of children and their addresses some time ago. This was a few years ago and perhaps things have moved on, but I would be grateful to the Minister if he could write to me on where things stand with regard to publicising the names and photographs of such children.
My second question relates to youth services. We all know that the devil makes work for idle hands. With the cuts that have come about, youth services have taken a very heavy blow. Research has shown that where there have been summer activities for young people, the crime rate among young people reduces. We need to think about the positive things that we can do as well as the negative things—the stick and the carrot, if you like—when we discuss this issue. What guidance and advice on protecting youth services are being offered by central government to local authorities at this difficult time? In particular, what advice is being offered to the new PCCs, which have a lot of resources and which could perhaps funnel some of them towards supporting youth services? I was very gratified to hear recently how much support the Government are giving to mentoring young people in the criminal justice system and in schools. That information would be helpful.
I am sorry to speak for so long but I should like to make just one point. Many of these young men—boys, I should say—grow up without a father in the home. We know that two-thirds of black boys in the United States grow up without a father in the home. According to the OECD, the level of lone parents in this country is even higher than that, so many boys here are growing up without fathers in the home. The risk is, and my experience shows this time and again, that such young men feel a sense of guilt. They are not rational in trying to understand why their fathers are not interested in their lives. They think that it is something that they did that caused it. I can think of an occasion when I was with a group of looked-after children in Parliament. Somebody popped their head in to ask a question, suggesting that somebody might have done something wrong, and there was an immediate look of guilt among them—“What have we done wrong? What are we to blame for?”. You hear from adults who have had such an experience that they are ridden with guilt and feel negative about their lives, even about the good things in it. The risk is that, by having a low age of criminal responsibility or by introducing these measures for people of such a young age, the state is coming along and saying, “Yes, there isn’t anything good in you. We will put your photograph in the local newspaper. You will be described as a bad person”. In that, we are reinforcing what their parents have told them and what their experience has been.
I remember as a boarder at school becoming particularly attached to my housemaster, who was with me for several years. When he moved on to be the headmaster of a new school, for several weeks I would ask myself before going to bed at night, quite unreasonably, what I had done to him that was driving him away. I felt guilt for driving him away. I cannot stress enough that my experience points to such a sense of guilt in these young people. Yes, they must be made to feel responsible; no, they should not be allowed just to be called victims. There are sanctions available but I worry that there may be a perverse outcome if we keep the age as currently proposed in the Bill. I look forward to the Minister’s response.
Baroness Hamwee
My Lords, I have amendments tabled later on community protection notices and how statutory nuisance is to be dealt with, but I use this opportunity to ask the Minister a couple of questions.
In the Commons, the Government took out the exclusion from community protection notices of statutory nuisance—it was in Clause 40(5)—saying that they had established a technical working group including representatives from the police, the Chartered Institute of Environmental Health and the Chartered Institute of Housing to draft clear guidance as to what to use when. I should declare an interest. I am a vice-president of the Chartered Institute of Environmental Health, which is why it has come to me on this issue. It has told me that it was asked for a comment at one point but that it is not aware of the technical working group. Can the Minister explain to the Committee what is happening in that area?
The institute’s concern is about confusion over who should do what, whose responsibility it should be and whether, in the case of some nuisances, those who might have powers to deal with them are likely to have the technical knowledge. The point was made to me that you can tell what litter is, but it is not always easy to tell when noise is a statutory nuisance, because so many conditions and criteria surround it. I would be grateful for some help and news, which might shorten our debate later—although, of course, it might not.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Greaves for his amendments and my noble friend Lady Hamwee for her comments. It is interesting that she talks about noise. In one’s own personal experience, what is music to some is noise to others. I think we shall be returning to this.
With regard to the amendments to the new injunction, it is our view that they could make the actual process much slower and more bureaucratic—akin to the orders that we seek to replace. It would not help professionals deal with anti-social people and, more importantly, would not help victims who have to endure the perpetrator’s behaviour.
The new injunction is designed to be used quickly and, in many cases, preventively, to stop problem behaviours before they escalate. These problem behaviours will not always relate to a statutory nuisance. Therefore, to include an additional condition which suggests that statutory nuisance should be considered every time would, in all likelihood, result in some social landlords or police forces being unable to act quickly to protect the victim. We expect social landlords and police forces to work in partnership with local councils to deal with shared problems, such as anti-social noise nuisance. If social landlords and police forces felt obliged to seek advice from the local council’s statutory nuisance team before every injunction, this could delay the process of the application unnecessarily, and lead to victims suffering even more. Moreover, this new third limb of the test could open up the process to prolonged and costly legal challenges, as respondents sought to argue that their conduct amounted to a statutory nuisance.
The same is true of my noble friend’s amendment to Clause 40. As he will be aware, we had originally excluded statutory nuisance from situations in which a community protection order could be issued. However, after discussing the matter at length with environmental health officers and other professionals, we discovered that this exemption could result in an undesirable scenario. Some perpetrators might use the appeal mechanism to go unpunished via either the statutory nuisance or the breach of the community protection notice.
My noble friend Lady Hamwee is correct that the Opposition Front Bench raised such concerns in Committee in the Commons. Having considered the matter further, the Commons was content to make this change on Report. So I ask my noble friend to accept my assurances that we continue to work closely with statutory nuisance experts, to ensure that the guidelines reflect the important rule that the regime plays in protecting communities from behaviour that is a nuisance or prejudicial to health. In addition, I assure my noble friend Lord Greaves that the issue of a community protection notice, or the granting of an injunction by the court—which was a specific question he asked—in no way discharges the local authority from its statutory duty to serve an abatement notice where behaviour meets the required threshold.
I say to my noble friend Lady Hamwee that our draft guidelines already deal with the interface between statutory nuisances and the new powers in the Bill. I can reassure her that we continue to engage with environmental health practitioners on how this guidance can be further developed in advance of the commencements.
My noble friend Lord Greaves also asked about the choices available. There is no choice as to whether a local authority serves an abatement notice for statutory nuisance. It must serve one if it is satisfied that a matter is a statutory nuisance. He referred to the Explanatory Notes. There is a good example in there that is illustrative of what may be a nuisance, but not a statutory nuisance. A dog bounding over a fence, or through a hole in a fence, can be a nuisance. Recently, I experienced that with my young son, aged 20 months. Suddenly, a dog scurried under a fence, and appeared next to him. It was certainly more than a nuisance to his father, who was far more startled, whereas the dog was just being playful. In those cases, the first and most sensible thing for anyone who is trying to be a good neighbour to do is to talk their neighbour and see if the matter can be resolved locally. Where such behaviour persists, a non-statutory injunction is not appropriate, and a sensible solution is required before putting it on to a more serious basis.
Let me reassure my noble friend Lady Hamwee once again that the Government continue to talk to experts in the field. Based on my explanation, I hope that my noble friend will withdraw his amendments.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Hamwee (LD)
My Lords, I have three amendments in this group. Let me take the last one, Amendment 20H, first. I have lifted the wording from the Crime and Disorder Act 1998, and it would provide that the court disregards,
“any act of the defendant”—
I have said “defendant”, although I should have said “respondent”—
“which he or she shows was reasonable in the circumstances”.
That follows neatly from the comments which have just been made, and I agree with what my noble friend said about that. I used the term “defendant” when I tabled the amendment because we think of the respondent as a defendant. This provision would allow the respondent to defend himself or, if you like, respond to the allegations. This goes to the behaviour which my noble friend has just mentioned.
My first amendment would insert the word “a”, and turn “nuisance” into “a nuisance”. This enables me to ask whether “nuisance” in this context is wider and less specific than “a nuisance” in the Housing Act. My second amendment, Amendment 20C, is to leave out “or annoyance” and is not only for the reasons which other noble Lords have given during the course of the afternoon as examples of conduct that each of us undertakes which our colleagues might regard as annoying—in my case probably putting down too many amendments. It is also to understand the distinction between nuisance and annoyance.
I have noticed during the course of the afternoon that many noble Lords have talked as though the clause referred to causing “nuisance and annoyance”. In fact, it is “nuisance or annoyance”. I am sorry to be picky—or, as my noble friend Lord Greaves would accuse me of being, legalistic—but these words are important.
Lord Wigley (PC)
My Lords, I shall speak to Amendment 20GA, which is tabled in my name and that of the noble Baroness, Lady Hollins, and is coupled with this group. It seeks to address concerns that the Bill does not adequately take account of the likely impact which these new provisions will have on people with a learning disability. The amendment says:
“Consideration should be given to people with a learning disability in the issuing of an injunction to ensure they are not discriminated against”.
It may not be the most elegant English, finishing with the word “against”, but I think the gist is generally understood. I should also declare my interest as vice-president of Mencap Wales.
As we heard in the debate on the previous bank of amendments, the Bill introduces civil injunctions to prevent nuisance and annoyance—IPNAs as they are called. These may be imposed if the court considers it “just and convenient” to prevent anti-social behaviour. The Joint Committee on Human Rights, in scrutinising the Bill, highlighted that this is a lower test than the test of necessity, as required by human rights law. Furthermore, it considered that the new IPNA definition of anti-social behaviour is broad and unclear.
This has set alarm bells ringing with Mencap and others who work with people with a learning disability, fearing that this will lead to IPNAs being used inappropriately. As many know, people with a learning disability are disproportionately likely to be victims of anti-social behaviour. Mencap's report Living in Fear found almost nine in 10 people with a learning disability had experienced bullying, harassment or some form of anti-social behaviour.
The root of this, of course, is attitudinal and is based on the value that we as a society place on disabled people. In some people's eyes they are different and sometimes regarded, sadly, as dangerous. This was brought into sharp focus by the recent murder of Bijan Ebrahimi. Bijan was a disabled man picked upon for being different on his estate in Bristol. He suffered from low-level harassment before being accused of being a paedophile. He was questioned by the police, who found him innocent, but unfortunately by this point rumours had begun circulating that he was a child abuser and two days later he was brutally murdered.
My concern is therefore that a lower threshold for IPNAs, together with a murky definition of anti-social behaviour, will result in these new injunctions being used out of misunderstanding, fear and ignorance of people with a learning disability, and of behaviour that might be associated with their impairment. It could also lead to a rise in vigilantism and will do nothing to improve people’s understanding of the needs of disabled people.
There is also a fear that victims may in turn be branded perpetrators. For example, a person with a learning disability might be continually verbally abused by a neighbour. What if that victim is at the end of his tether and snaps, so to speak, at the neighbour? Such behaviour might in turn result in an IPNA being placed on that individual. The Bill sets out examples of certain prohibitions and requirements in Parts 1 and 2, and the amendment would include consideration of learning disability at this juncture. Such a step, if backed by robust guidance, would undoubtedly go some way towards meeting these concerns. I hope that the Government might look at this area further, not least because I understand that no equality impact assessment of the Bill has been carried out to date. I look forward to hearing the Minister’s thoughts on these matters.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I may be about to surprise the noble Baroness. Well, to some degree—modestly surprise her. With these amendments we return once again to the issue of the test. I understand the concerns that noble Lords have articulated. Some of the arguments are returning to this issue and it is very important that we debate them and get them clear in our minds. I shall start with Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins.
This amendment raises the important issue of the proper considerations which must be considered in applications for IPNAs under Part 1 against respondents with learning disabilities. The amendment may not be necessary, because I have already spoken at length about the test for the injunction and the two limbs of the injunction, but I reiterate that, in deciding whether to grant an injunction, the court will consider whether it is fair, reasonable and proportionate to do so. That is within the terms under which a court would consider any injunction. In doing so, the court will be aware of its obligations to prevent discrimination against any respondent and to ensure that a respondent’s human rights are respected. Of course, the court will also ensure that the respondent is capable of complying with the terms of the injunction—indeed, that is specifically mentioned in the guidance. If the noble Lord will look at that section he will find that it is referred to. It is all part of the “just and convenient” part of the test which goes along with the whole business of nuisance and annoyance as being a joint, two-limbed test.
Returning to Amendment 20B, my noble friend Lady Hamwee pointed out that the Housing Act refers to “a nuisance”, not simply “nuisance”. I can reassure her that the test for the new injunction is based on that used for anti-social behaviour injunctions in the 1996 Act. No difference is intended but one of the two usages had to be used in this case to provide that continuity. Similarly, in respect of Amendment 20C, the use of the term “annoyance” in addition to “nuisance” also derives from the Housing Act 1996. The two terms will take their ordinary meaning. The dictionary definitions we have heard from my noble friend Lord Greaves are very interesting, but there is a meaning in law, by precedent, which is clear to the courts and, indeed, the Law Society has made clear that it welcomes that definition. They are commonly used together and may cover a broader range of behaviours than either would alone. We see the benefit in retaining the familiar test that includes both; that was mentioned in previous debates.
My noble friends Lord Faulks, Lady Hamwee and Lady Berridge, and the noble and learned Lord, Lord Hope of Craighead, all made similar points about Amendments 20 and 20H, as, indeed, did the noble Baroness, Lady Smith. The amendment in the name of my noble friend Lord Faulks was, of course, one of those recommended by the JCHR. Both amendments seek to add an explicit test of reasonableness to the threshold for making an injunction. The Government are aware of the concerns about the test for the injunction under Part 1 and I listened carefully to those concerns expressed at Second Reading and again today. I agree that it is important that the courts consider reasonableness, fairness and proportionality in deciding applications for injunctions to prevent nuisance or annoyance. The courts will consider these factors as a matter of course as part of the second limb of the test—that it is just and convenient to grant an injunction—as I said in my answer to the amendment in the name of the noble Lord, Lord Wigley. However, the courts will be aware of their obligation to discharge their functions compatibly with the European Convention on Human Rights, an exercise which requires a consideration of necessity and proportionality. However, we will want to consider whether we have done everything necessary to ensure that this is so with the drafting of Clause 1.
That is not to say that we necessarily agree with the amendments as they are drafted. Both would revise the “nuisance or annoyance” test, and I have made it clear that we see the merit in keeping a test that is already familiar to the courts. However, we want to consider whether we can make it clearer in the legislation that the courts must be satisfied that it is reasonable to issue an injunction under Part 1. This is what the amendments seek to achieve and, in that sense, we are not very far apart on this issue, so I will reflect carefully on Amendments 20 and 20H in advance of Report.
In conclusion, the test for the new injunction is tried and tested, it has a long pedigree and I see no evidence that it has given rise to the difficulties that a number of noble Lords have suggested in this and previous debates. The previous Administration sought to recast and strengthen the “nuisance or annoyance” test for an anti-social behaviour injunction back in 2003. This House endorsed that strengthening and on this issue, as I have said before, I am happy to endorse the position then taken by the noble Lord, Lord Bassam. The police, local authorities and others will not act lightly in seeking an injunction. They and the courts must exercise such powers in a reasonable, fair and proportionate manner. As I have said, I am ready to take away Amendments 20 and 20H and explore, without commitment, whether it would be appropriate to introduce into the test an explicit reference to reasonableness. That point aside, for the sake of the victims of anti-social behaviour, who must be at the forefront of our deliberations on the Bill, I would be loath to weaken the effectiveness of the new injunction. I have no doubt that we will return to this matter on Report. I thank noble Lords for speaking to their amendments and I hope that they will be content not to press them.
Baroness Hamwee
My Lords, before my noble friend responds, of course let us all think about it, but may I put one further, supplemental thought in the Minister’s mind? He talked about the pedigree of the term “nuisance or annoyance”. If a lot of that pedigree comes from the housing context, then we need to be careful about transposing the words without the constraint around it. That may not be the right word, but we need to consider the reasonableness of the term if we are moving into a different context.
Lord Taylor of Holbeach
Perhaps I should rely less on the Housing Act and draw attention to other matters such as the abuse of alcohol in public places, for example, which uses a similar test, or the parking of vehicles on highways and the obstruction of highways, which was also mentioned by me in a previous debate. This does not apply just to housing matters; there are other issues that have used the test of nuisance and annoyance. I do not see the problem that my noble friend suggests.
Lord Faulks
My Lords, I am grateful to all noble Lords and noble and learned Lords who have taken part in this debate. I am grateful to the Minister for his reassuring noises; he has shown himself, as usual, to be a listening Minister. The expression “nuisance or annoyance” has a pedigree, as I think he said, in the housing context. It is almost a term of art, so widely has it been used over the years in the context of breach of covenant in common law, and it has found its way into statute.
Of course, a particular housing situation is not precisely analogous to anti-social behaviour. Nonetheless, there is a substantial accumulation of case law that the judges will understand and, I suggest, they will interpret it accordingly. I repeat what I said earlier: it seems that in any event the reasonableness is part of the judge’s task in deciding whether or not it is just and convenient to grant an injunction. Reasonableness will be the watchword, as will the obligations that the court has under the Human Rights Act.
Where I suggest it is important to import reasonableness, as the noble and learned Lord, Lord Hope, said, is at the stage of defining with some degree of objectivity the nuisance and annoyance so that neither the agencies nor the court are in any way diverted by simply having to accept a subjective interpretation of what counts as anti-social behaviour. I hope that the Minister will reflect on that. I appreciate that this does not in any way weaken the power, but it should reassure those who are naturally concerned about the potential for this power to be used oppressively, and that reassurance would be at least provided, I hope, by an appropriate amendment. With that, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I say in response to my noble friend’s point about education and training, “Call me legalistic”. The noble Lord, Lord Harris of Haringey, is very bold in raising these important points. He used the phrase “bona fide” several times in his speech, as well as in the amendment. Followers of paganism would say that their religion was bona fide. As the noble Lord was speaking, it occurred to me that a call to prayer at a very early hour is very annoying to some people, but would one challenge that? He raises bold and brave questions.
Baroness Berridge
My Lords, I refer to the report of the Joint Committee on Human Rights. The examples raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Harris, all seem to relate to the manifestation of somebody’s religious beliefs. The report states that the holding of religious beliefs by any individual is an absolute right under both the European convention and in international law, under Article 18 of the Universal Declaration of Human Rights. It is only the manifestation of one’s religious or humanist beliefs that can be restricted by a country on certain grounds, as defined in European and international law. Would the Minister please outline why the Bill, as currently drafted, only allows prohibitions and requirements to,
“so far as is practicable … avoid any conflict with the respondent’s religious beliefs”?
It should, surely, be the manifestation of those religious beliefs that the Bill is aimed at.