Crime and Policing Bill

Baroness Whitaker Excerpts

Committee stage
Monday 10th November 2025 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have added my name to Amendments 1 and 21 in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Doocey, which have just been moved so well. I agree with all the amendments in this group, although I am not quite sure and have reservations about Amendment 2 on lowering the age to 16.

The proposition seems to me straightforward. The powers to tackle anti-social behaviour are currently contained in the Anti-social Behaviour, Crime and Policing Act 2014. So, before the state affords itself even more powers—which, by the way, often duplicate what we already have—should we not assess whether what we have actually works in improving outcomes for victims and fundamentally reducing anti-social behaviour, which is what we want? We should note that 82% of anti-social behaviour practitioners surveyed by Justice have called for such a review of existing powers and criticised the lack of proper consultation, or even engagement, by the Government. It is shocking that there has never been a formal review of the 2014 Act, and that data on the use of existing orders is not collated centrally, nor their use monitored, by government. Surely the Minister agrees that the Government should be working to identify and address problems that are inherent in existing anti-social behaviour powers and orders before creating more, and that that would be an evidence-based approach to this question.

We are largely focusing on respect orders in this group. They are almost duplicates of anti-social behaviour injunctions but will provide, the Government has argued, more effective enforcement. Experts and practitioners in fact suggest that they could confuse enforcement agencies. What is more, as respect orders are so close to ASBIs, the fear is that they will just reproduce and increase the problems with those injunctions, which research shows are overused, inconsistently applied and sweep up relatively minor behaviour problems alongside more serious incidents. At the very least, can the Minister explain why the discredited ASBIs are staying on the statute book? Why not just dump them?

If, as the Government tell us, the key difference with respect orders is to deal with persistent and serious anti-social behaviour, that should be made explicit in the legislation. Otherwise, the danger is that they just become another overused part of a toolkit, handed out promiscuously. That is a particular concern because of the use of the phrase by the Government and in the Bill that these orders are “just and convenient”.

“Convenient” is chilling, because—here is the rub—respect orders are formally civil orders but, in essence, are criminal in character. I am worried about the conflation of civil and criminal in relation to respect orders, which the noble Lord explained so well. The Government are removing that rather inconvenient problem of a criminal standard of proof because it has all that tiresome “beyond reasonable doubt” palaver that you have to go through. However, if you are found guilty, as it were, there is a criminal punishment doled out via a respect order and you can, as we have heard, receive up to two years in prison, which rather contradicts some of the emphasis in the Sentencing Bill on trying to stop people going to prison and keeping them in the community—so this is not entirely joined-up government either.

At Second Reading I quoted Dame Diana Johnson, who made clear the “convenience” point by explaining that the problem with a civil injunction such as an ASB is that,

“if a civil injunction is breached, the police officer has to take the individual to court to prove the breach”,

and she complained that there was no automatic power of arrest. That bothersome inconvenience has been overcome by creating a new respect order, which Dame Diana enthusiastically states

“combines the flexibility of the civil injunction with the ‘teeth’ of the criminal behaviour order”.—[Official Report, Commons, 27/11/24; cols. 795-96.]

However, that convenient mash-up of a legal solution is something that we should be wary of. It has a dangerous precedent, showing that a cavalier attitude to legal norms and justice can lead to great injustice.

When I read all this, I thought of the single justice procedure, which we were told would allow public authorities to bring cheap and speedy prosecutions for law breaches, such as not paying the BBC licence fee or dodging transport fares. However, with quick prosecutions conducted in such a way—and, in that instance, behind closed doors, as exposed brilliantly by Tristan Kirk, a journalist at the Evening Standard—we have seen thousands of people on an industrial scale being found guilty, often of small unintended mistakes. We have to remember that, if you try to bring about justice quickly and using these new methods, you can cause huge amounts of problems. There are harrowing stories of people who are very ill, people who have dementia and even people who have died, who have been victims of these single justice procedure issues.

I hope the movers of the amendments in this group will recognise that fast-track systems of convenience can lead to some terrible unintended consequences. I am reminded, in similar vein, of the growth of those monstrous non-crime hate incidents—again, a legalistic mash-up that have caused so many problems for free speech, using paralegalistic language and confusing us over what constitutes guilt. I was therefore glad to see the amendments by the noble Lord, Lord Blencathra, in this group, and I look forward to his comments later.

This group of amendments is one to which I would like to hear the Minister respond positively. They are well intentioned—no one has been dismissive of anti-social behaviour—but we do not think respect orders are fit for purpose and, on the other hand, anti-social behaviour orders in general are in a mess. At least let us review what works and what does not before we move forward.

[Baroness Whitaker (Lab)]

My Lords, I add my support for Amendment 1. There should be a review of all these orders before layering another one on. In fact, some of that work has been done: freedom of information data demonstrates that people from minority ethnic communities are far more likely to be subject to this range of orders—Gypsy and Irish Traveller people are also more likely to receive disproportionate criminal punishments on breaching the orders—so the lack of monitoring of the use of behavioural orders is disturbing. I am sure that my noble friend the Minister does not want to continue this cycle of criminalising vulnerable and disadvantaged communities, so please can we have a formal review of the impact of the orders currently in place?

[Baroness Chakrabarti (Lab)]

My Lords, I find myself in agreement with many of the genuine human rights concerns already expressed around the Committee. I find myself in a bit of a time warp because these concerns were evidenced by the use, abuse, disrepute and ultimately disuse that anti-social behaviour orders fell into all those years ago. The criminalisation of vulnerable people, people with addiction problems, people with mental health problems, homeless people and so on is not hypothesis; it was evidenced by the practice of the original anti-social behaviour orders.

I therefore hope that, in his reply, my noble friend, who I know to be a very thoughtful Minister, will go some way to expressing how he thinks these new respect orders will improve on the very unhappy history of ASBOs. Other members of the Committee have already set out what happened in the interim. It would be useful if my noble friend the Minister could explain what will be different this time, why and how.

In a nutshell, my concerns are, first, that the threshold of behaviour likely to cause harassment, alarm or distress is low and vague. To be blunt, some people are easily alarmed and distressed. Harassment is the more objective, higher part of that threshold. That is the entry point at which vulnerable people can first fall into this quasi-civil criminal order that can sweep them into the criminal justice system rather than diverting them from it.

The second concern is that, once one is under the jurisdiction of such an order, it becomes a personal, bespoke criminal code for the individual. I remember the suicidal woman banned from bridges and the pig farmer who was given an ASBO because the pigs wandered on to the neighbours’ land. Is it really appropriate to have bespoke criminal codes for different people in different parts of the country? The postcode lottery point was made well, but there is also the issue of vulnerable people and minorities, who find themselves disproportionately affected.

Once you breach your personalised criminal code—which could be to keep away from a part of town where your close relatives live—you are then swept into the system. That is my third concern about these quasi-civil criminal orders: the ease with which vulnerable people with chaotic lives who have been let down by social services and society in general are now swept into the criminal justice system rather than diverted from it.

Finally, I share the concerns about making such orders available to even younger people, who really should not be anywhere near the criminal justice system. In a much later group—sometime next year, I think, when we will still be in this Committee and will be older, if not wiser—I have tabled an amendment, with the support of the noble and learned Baronesses, Lady Hale of Richmond and Lady Butler-Sloss, to tackle the shockingly low age of criminal responsibility, 10 years-old, that we still have in England and Wales.