Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 7 months ago)
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Baroness Hamwee (LD)
My Lords, in moving Amendment 56YG I shall speak also to Amendment 56YH. I have to say that I am amazed by the influence of my noble friend the Chief Whip, who just by sitting there has prevented anyone walking in front of me.
Schedule 7 deals with the powers to seize invalid passports, and these are two quite small, probing amendments, although they are serious. The first amendment would leave out the provision for a constable, who has various powers of search and seizure, to authorise a person—any person,
“to carry out on the constable’s behalf a search under this paragraph”.
That is a search which may involve the use of force—reasonable force, but nevertheless force. I question whether it is right for such powers to be authorised—perhaps not technically delegated, but to the outside world they would seem to be delegated.
My second amendment would leave out the requirement to return an expired travel document, but not where it is thought that it might be intended to be used for purposes for which it is no longer valid. My question, of course, is: why not? If the document has expired, what harm is there? Are there no other systems that are sophisticated and efficient enough to pick up whether an expired travel document is, in fact, expired? This seems an odd sanction, merely on the basis of reasonable belief. My particular reason for questioning it is that it might really irritate people quite unnecessarily. I have written “unnecessary aggro” against this, and I genuinely think that we should avoid causing unnecessary aggro, because there are enough sensitivities around passport and immigration controls and so on without adding one which, to my mind at any rate, is not necessary. I beg to move.
Lord Ahmad of Wimbledon (Con)
I thank my noble friend Lady Hamwee, who explained that these two amendments relate to the powers to seize invalid passports. As she has said, they are probing in nature. Such powers may be necessary where a passport has been withdrawn in the public interest; for example, to disrupt a person’s travel overseas due to the serious issue that they may be engaged in terrorism.
Amendment 56YG relates to the ability of a constable to authorise a person to carry out a search on their behalf. The purpose of this provision is to allow a constable to make use of support if required when carrying out a search at places other than a port. Such support would be exercised under the authority of a constable, and I reassure my noble friend that, in view of the type of case to which this paragraph applies, it would in practice be likely to be carried out in the presence of a constable. The authorised person—such as a police community support officer—would not be empowered under the provision to use reasonable force or to require a person to hand over the passport for inspection purposes.
Amendment 56YH, which I think my noble friend labelled the “avoiding unnecessary aggro” amendment, relates to expired travel documents. I agree with my noble friend that there is often little harm in returning an expired document to the passport holder. Indeed, there is provision in paragraph 4 of Schedule 7 for that very purpose. The provision recognises that the passport holder may wish to retain the expired passport because, for example, it may include extant visas for travel to other countries. It may even provide memories of places that they have travelled to previously; as well as a visual record, for good or bad, of how we may have looked some 10, or even 20, years ago.
However, on a more serious point, the British passport does of course remain the property of the Crown at all times. There is no entitlement to a passport and no statutory right to have access to it. If a person intends to make use of an expired passport for a purpose for which it is no longer valid—in other words, for a fraudulent purpose—it is right that a constable should be able to remove the document. This would prevent it being used elsewhere for fraudulent purposes, where the level of checks may not be so robust.
It is also entirely inappropriate that a constable should hand back an expired passport to a person where he or she reasonably believes that it is intended to be used for a fraudulent purpose. It would send out the wrong message to the passport holder and would simply allow—if not, indeed, encourage—them to continue to make use of the document for wrong and potentially unlawful reasons. I hope, in light of the explanation I have given, that my noble friend will withdraw her amendment.
Baroness Hamwee
My Lords, I will do so but I have to say that, first, on the issue of the expired passport, there are some good reasons which a passport holder may not even think of at the time. One that immediately occurs to me is the need to be able to show the number of days you have been in the country, which involves showing when you have travelled out of and back into the country. There are tax reasons why a number of people need to be able to show that. It is a matter of the officer’s discretion and reasonable belief but I find it difficult to imagine how the conversations would be conducted. I should perhaps ask my noble friend whether he can tell the Committee how one challenges an officer’s decision. His notes may say, even if I did not think of it beforehand.
As regards whether someone other than a constable can exercise the powers of search and seizure, my noble friend says that, in practice, it would be the constable. If that is the case, the obvious question is: why allow for anyone else to do it? Another question is whether there will be instructions to officers—guidance, codes of practice or whatever—that might deal with this. I do not know whether my noble friend can deal with either of those at the moment—I know that colleagues are here particularly to talk about the next group of amendments—but if he has anything to say, that would be good. If not, perhaps he could write to me.
Lord Ahmad of Wimbledon
I will just assure my noble friend that I do not think I can add to what I have said other than, on the first point about why we should not restrict the power in that way, it is important that there is a level of flexibility that allows the constable to exercise it. In most cases, as I have said, the person would be someone such as a community support officer. As far as the document is concerned, my noble friend raised the point about other reasons. Of course it is at the discretion of the officer, but one hopes that at that point a case could be made. She raised the issue of tax, which is not one that I was thinking through as she spoke. I am sure that there is a list of other circumstances. However, ultimately, it boils down to the document being the property of the Crown, and it should remain so.
Baroness Hamwee
Perhaps after today the Minister could let me know what arrangements there will be for a challenge, and about a code of practice. He nods and, on that basis, I beg leave to withdraw the amendment.
SchedulePowers of community support officersIntroduction1 Part 1 of Schedule 4 to the Police Reform Act 2002 (powers of community support officers) is amended as follows.
Additional powers to issue fixed penalty notices2 (1) In paragraph 1 (powers to issue fixed penalty notices), in sub-paragraph (2)(b), for the words after “in respect of an offence” there is substituted “listed in sub-paragraph (2B)”.
(2) In sub-paragraph (2) of that paragraph, after paragraph (ca) there is inserted—
“(cb) the power of an authorised officer of a borough council to give a notice under section 15 of the London Local Authorities Act 2004 in respect of an offence under section 38(1) of the London Local Authorities Act 1990 or section 27(1) of the City of Westminster Act 1999 (unlicensed street trading);”.(3) After sub-paragraph (2A) of that paragraph there is inserted—
“(2B) The offences referred to in sub-paragraph (2)(b) are—(a) an offence under section 72 of the Highway Act 1835 (riding on a footway) committed by cycling;(b) an offence under section 5(1) or 8(1) of the Road Traffic Regulation Act 1984 involving a contravention of a prohibition or restriction that relates to—(i) stopping, waiting or parking at or near a school entrance,(ii) one-way traffic on a road, or(iii) lanes or routes for use only by cycles, only by buses or only by cycles and buses;(c) an offence under section 24 of the Road Traffic Act 1988 (more than one person on a one-person bicycle);(d) an offence under section 35 of that Act (failing to comply with traffic directions) committed by the rider of a cycle;(e) an offence under section 36 of that Act (failing to comply with traffic signs) committed by the rider of a cycle who fails to comply with the indication given by a red traffic light;(f) an offence under section 42 of that Act of contravening or failing to comply with a construction or use requirement about—(i) lighting equipment or reflectors for cycles,(ii) the use on a road of a motor vehicle in a way that causes excessive noise,(iii) stopping the action of a stationary vehicle’s machinery,(iv) the use of a vehicle’s horn on a road while the vehicle is stationary or on a restricted road at night, or(v) opening a vehicle’s door on a road so as to injure or endanger a person;(g) an offence under section 163 of that Act (failing to stop vehicle or cycle when required to do so by constable or traffic officer).(4) After sub-paragraph (4) of that paragraph there is inserted—
“(5) In this paragraph “cycle” has the same meaning as in the Road Traffic Act 1988 (see section 192(1) of that Act).”Powers to issue fixed penalty notices: consultation with local authorities3 In paragraph 1, after sub-paragraph (2B) (inserted by paragraph 2(3) above) there is inserted—
“(2C) Before a chief officer of police makes a designation applying this paragraph to any person and specifying or describing an offence listed in sub-paragraph (2B)(b)(i), the officer shall consult every local authority any part of whose area lies within the officer’s police area.
(2D) In paragraph (2C) “local authority” means—
(a) in relation to England, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly; and(b) in relation to Wales, a county council or a county borough council.”General power of seizure4 After paragraph 2A there is inserted—
“General power of seizure2B Where a designation applies this paragraph to any person—
(a) that person shall, when lawfully on any premises in the relevant police area, have the same powers as a constable under section 19 of the 1984 Act (general powers of seizure) to seize things;(b) that person shall also have the powers of a constable to impose a requirement by virtue of subsection (4) of that section in relation to information accessible from such premises;(c) subsection (6) of that section (protection for legally privileged material from seizure) shall have effect in relation to the seizure of anything by that person by virtue of sub-paragraph (a) as it has effect in relation to the seizure of anything by a constable;(d) section 21(1) and (2) of that Act (provision of record of seizure) shall have effect in relation to the seizure of anything by that person in exercise of the power conferred on him by virtue of sub-paragraph (a) as if the references to a constable and to an officer included references to that person; and(e) sections 21(3) to (8) and 22 of that Act (access, copying and retention) shall have effect in relation to anything seized by that person in exercise of that power or taken away by him following the imposition of a requirement by virtue of sub-paragraph (b)—(i) as they have effect in relation to anything seized in exercise of the power conferred on a constable by section 19(2) or (3) of that Act or taken away by a constable following the imposition of a requirement by virtue of section 19(4) of that Act; and(ii) as if the references to a constable in subsections (3), (4) and (5) of section 21 included references to a person to whom this paragraph applies.”Powers with regard to charity collectors5 After paragraph 3A there is inserted—
“Power to require name and address etc: charity collectors3B Where a designation applies this paragraph to any person, that person shall, in the relevant police area, have the powers of a constable—
(a) under section 6 of the House to House Collections Act 1939 to require a person to give his name and address and to sign his name; and(b) under regulations under section 4 of that Act to require a person to produce his certificate of authority.”Power to stop cycles 6 In paragraph 11A (power to stop cycles), in sub-paragraph (2), for the words after “has committed an offence” there is substituted “listed in paragraph 1(2B)(a) to (e), (f)(i) or (g)”.”
Lord Ahmad of Wimbledon
One of the memorable parts of the Bill’s passage has been my attempts to be my noble friend Lord Taylor—which I have succeeded in doing on a number of occasions now.
We have made significant reforms to policing to enable the police to respond to the individual concerns of their communities and to give local communities direct access to engage with and challenge their local force. Community-focused policing is key to improving satisfaction rates and public perceptions of police legitimacy, as well as to reducing the fear of crime and perceptions of local disorder. Police community support officers are, of course, vital in delivering this method of policing. Taking time to engage and really get to know their communities, the problems they face and their priorities is central to building these strong links and helps to shape an effective police response.
When the Bill was considered in the other place, my honourable friend Steve Barclay, the Member for North East Cambridgeshire, highlighted inconsistencies in police community support officers’ powers. We have already taken steps to remedy the specific issue he raised by adding Clause 135 to the Bill, but we want to go further to support the important role that PCSOs play. We want to ensure that they have the necessary tools to keep the public safe and tackle the issues that really matter to the communities they serve. We believe that 18 new discretionary powers introduced by these amendments will do just that. These provisions will give chief constables greater discretion and flexibility in how they deploy police community support officers to tackle low-level crime and anti-social behaviour.
I turn first to new cycle powers. Failing to comply with road regulations can expose both cyclists and their fellow road users to danger, including pedestrians, as we sometimes see. That is why we want to do more to ensure that road safety regulations are well understood and adhered to. In addition to giving police community support officers the power to issue a fixed penalty notice for cycling without lights, the amendments will give them power to issue a fixed penalty notice for cycling through a red light, failing to comply with a traffic direction and carrying a passenger on a cycle. We believe that giving police community support officers a more comprehensive package of cycle-related powers will put them in a better position to drive improvements in cycle safety.
I turn to new traffic powers. We are introducing a new package of measures to give police community support officers additional powers to issue fixed penalty notices. These include for failing to stop for a police constable, driving the wrong way down a one-way street, sounding a horn at night, sounding a horn when stationary, not stopping the engine when stationary, causing unnecessary noise, contravening a bus lane and opening a door so as to cause injury or danger. Paddy Tipping, the police and crime commissioner for Nottinghamshire, has indicated a desire to see PCSOs tackling traffic offences. While we do not agree that they should be given the power to issue notices for more serious traffic offences, we believe that the new package I have outlined is practical at this time. I want to be clear that these measures are not intended to provide a means to pick on drivers or cyclists, or to raise revenue. Our focus is improving safety for all road users and to do that we must ensure that road regulations are respected and enforced.
A third area we are covering is parking outside schools. The power to tackle dangerous parking outside schools is an issue that has been raised in previous debates and it is something we wish to address. We know that patrolling outside schools is a core function for many PCSOs and this makes them well placed to use their engagement and problem-solving skills to educate drivers about the risks of dangerous parking. However, we recognise that, on occasions, stronger action is needed and to address this issue we are giving them the power to issue fixed penalty notices to individuals who park in restricted areas outside schools. Local authorities currently play a core role in parking enforcement and we know that a collaborative approach to tackle these types of offences is essential. We believe that chief constables should consider the role a local authority plays before making any decision to designate this power and we have therefore imposed a duty to consult within this provision.
Illegal street vendors and house-to-house collectors is another area of concern. In addition to the measures I have outlined, the amendments aim to support the role PCSOs play in promoting crime prevention and tackling anti-social behaviour issues. Illegal street vendors and bogus house-to-house collectors can cause a nuisance to communities and have a detrimental impact on those working legitimately. Tackling this type of behaviour is important. We recognise that illegal street vendors may be more common within highly populated cities and that is why we are giving PCSOs in London the power to issue a fixed penalty notice to illegal street vendors. This is in line with existing local authority powers. Giving PCSOs the power to confirm the identity of house-to-house collectors will support their role in providing community reassurance and tackling nuisance behaviour.
Finally, we will be aligning the powers of PCSOs to seize and retain material during premises searches with those of police officers. PCSOs already play an important role in supporting police officers to execute search warrants but their authority to seize material is limited. Granting PCSOs this power will free up police time by enabling PCSOs to operate more independently of police officers when carrying out this function.
We know that the public value the presence of PCSOs within the community and we have been clear that engagement is at the heart of their role. This should continue to be their core function. We believe that a distinction between the role of a constable and a PCSO should remain and that is why we have taken time to fully consider the implications of conferring the powers contained within this proposal. We are confident that they will enhance, not dilute the community engagement role of PCSOs and I commend the amendments to the Committee. I beg to move.
Lord Ahmad of Wimbledon
My Lords, perhaps I may say first that when those PCSOs arrived at the door of the noble Lord, Lord Rosser, I am glad that they did not take him away. We would have been without his expertise and input in this Bill, so we are grateful for that. Equally, he made an important point in mentioning it. I come back to a point I made earlier: PCSOs are distinct from police officers, and I think I made that clear in my comments. What they do in terms of reassurance is something that the police themselves do. Again, speaking from my experience of working with neighbourhood teams when I was a local councillor, the police also did similar reassurance exercises.
I turn now to the specific questions that have been put to me. The noble Lord, Lord Rosser, asked why we are proposing this now. Of course, we are responding in line with the scrutiny of the Bill in the Commons. My honourable friend Stephen Barclay raised the issue, but it did go wider and beyond the specifics of his amendments. This is not something that the Government have only just thought about. I referred in my earlier comments to a Labour police and crime commissioner, Paddy Tipping, who wants us to go further. We have consulted on this and we have looked at the position with relevant experts in the field to understand the implications of the change. We have included discussions with the police at both the operational and the strategic level, the College of Policing, the partnership agencies and, indeed, national police leaders. As I said in my earlier remarks, this is about enhancing the powers of PCSOs and not about taking away from their engagement. We believe it is right that the engagement role performed by PCSOs is vital in making police accessible to all, and we do not want to overburden them with enforcement powers that would detract from that. That is why we have taken a considered position on these new packages.
The noble Lord, Lord Rosser, also asked whether we will consider more powers. These changes will mean a significant increase in the number of powers available for designation to PCSOs. That is an important distinction: this is not something that is carte blanche; it is right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed. That will be the case in these additional powers that are being proposed. That is why we have taken the time to consider and, while we will be exploring a wider role for PCSOs, the Government believe that their particular role is being enhanced.
I hope that I have covered the specific questions asked by the noble Lord, Lord Rosser.
Lord Ahmad of Wimbledon
There was not a general consultation with all local authorities but, in our consideration, as I have said, we talked to partnership agencies and national police leagues; that, of course, in some respects includes local authorities’ opinions. This is not trying to take away from local authorities: anyone who has worked at local government level knows that local authorities, the police et cetera all work in partnership in ensuring that we get the maximum level of reassurance.
I turn briefly to the points raised by my noble friend, who speaks with great expertise in this area. I would not in any sense seek to challenge that. I believe that the vital distinction remains between police officers and PCSOs. We are merely seeking to enhance the functions of PCSOs to allow them to engage more effectively in the community and to address the very issues he has raised about their effectiveness when they arrive at a particular point. Our proposals are a proportionate response to what is needed. It will help in community engagement and effective enforcement in respect of some of the lower-level issues that are raised. Neighbourhood policing will be in a better place for that. I beg to move.
Lord Hodgson of Astley Abbotts
My Lords, I now seek to move Amendment 82 and will speak to Amendment 93. The background to these amendments is the existence of two different types of European arrest warrant: a prosecution warrant where a person is to be prosecuted for a crime, and a conviction warrant where a person has been convicted and has fled to another country, knowingly or unknowingly. As drafted, the Bill provides for a proportionality check for prosecution warrants but not for conviction warrants. Amendment 82 seeks to remedy this by inserting the new clause shown. The amendment creates a proportionality check for EAWs to parallel the existing human rights bar in Section 21 which will, under the Bill, be relevant only to prosecution EAWs.
Fair Trials sees many cases where suspended prison sentences imposed in respect of minor offences have been reactivated, several years after the person left the category 1 territory, with an EAW then being issued on that basis. This leads to the drastic measure of extradition being used inappropriately in respect of minor offences. There is the case of Natalia Gorczowska, who was convicted of possession of 4 grams of amphetamines and given a 10-month suspended sentence. She left to begin a new life; several years later, with no apparent reason for the delay, the sentence was reactivated and, still later, an EAW was issued, leading to significant expense and very nearly to a drastic impact upon her young son’s life. The Committee might like to note that, had the same conduct been the subject of a prosecution EAW, it would probably have fallen to be considered as one of minor gravity and unlikely to attract a lengthy prison sentence in application of the specified matters relating to proportionality to be considered before granting a prosecution EAW but not in the case of considering a conviction warrant.
This rather lengthy amendment to Section 21 allows a proportionality analysis, including a broad range of factors tailored to conviction EAWs. Applying the proposed test, the judge would be able to take into account the person’s conduct and other circumstances when addressing proportionality—for instance, whether the person deliberately evaded onerous community obligations by leaving the country, or whether the sentence was reactivated systematically, long after the person left the country and without his or her knowledge.
Amendment 93 provides discretion to refuse a conviction warrant where the subject is a British national and will serve his or her sentence in a UK prison. The proposed amendment would allow the judge at the extradition hearing to refuse to surrender a person under a conviction EAW if that person is a British resident or national, and if it is possible for them to serve their sentence in the UK. It is worded in similar terms to Section 3(1) of the Repatriation of Prisoners Act 1984, which also provides for the issue of a warrant to authorise a person’s detention to serve or complete in the UK a sentence imposed by a foreign court.
Currently, UK courts have no discretion to refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that he or she serves that sentence in the UK. This issue has been highlighted in a number of Fair Trials cases. Individuals have been extradited from the UK following conviction in another jurisdiction yet, following surrender, have been transferred back to the United Kingdom after the lengthy and bureaucratic prisoner transfer process. This is a waste of time and money. UK courts should be given the option of refusing extradition and allowing the defendant to stay in the UK to serve the sentence. Other member states including Belgium, Denmark, Italy and Poland have included this ground for refusal in their implementing legislation.
In the announcement that my noble friend referred to earlier, the Home Secretary stated:
“Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask”,
the issuing state’s,
“permission, for the warrant to be withdrawn, and will use the prisoner transfer arrangements instead”.—[Official Report, Commons, 9/7/13; col. 179.]
The flaw in this approach is the possibility that the issuing state will simply not grant permission.
This amendment establishes a legal basis for the judge to refuse extradition and order that the person serves the sentence in the UK. This possibility is provided for in the EAW framework decision, in which paragraph 6 of Article 4 provides that the executing judicial authority may refuse to execute the EAW,
“if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law”.
Given this clear legal basis to provide the judge with discretion to refuse extradition and allow the person to serve the sentence in the UK, it is disappointing that the Government have opted for a slightly different policy, which is not placed on a statutory footing.
The reference to UK nationals in the Home Secretary’s announcement suggests that this reluctance may be because the Government wish the policy to benefit only UK nationals and not non-national residents. It follows clearly from the case law of the Court of Justice that, if the UK implemented paragraph 6 of Article 4 of the EAW framework decision, which applies to both nationals and those staying in or resident of the executing member state, it would not be able to reserve the benefit of this provision to UK nationals only. The drafting in the Bill appears to be a way of avoiding that constraint. However, the policy discriminates in favour of UK nationals and could be the subject of legal challenge, irrespective of whether or not it is placed on a statutory footing.
The policy adopted in lieu of implementation of paragraph 6 of Article 4 of the EAW framework decision is also an ineffective protection. If the issuing state refuses to use the prisoner transfer arrangements, there is no recourse and the person has to be extradited in any event. As the Home Secretary said in her announcement, the proposed change,
“could have prevented the extraditions of Michael Binnington and Luke Atkinson”,
UK nationals who,
“were sent to Cyprus only to be returned to the UK six months later”.—[Official Report, Commons, 9/7/13; col. 179.]
to serve the rest of their sentences. However, this would have been dependent on the Cypriot authorities co-operating. Had Cyprus declined to use the prisoner transfer arrangements, the judge would not have had any legal ground on which to refuse extradition.
It would make more sense for the Government to put the policy on a statutory footing, providing proper protection for UK nationals and other residents whose social reintegration would be served by their serving their sentences in the UK, in line with the relevant provisions of the framework decision. These amendments allow the judge to identify residents on a discretionary basis; equally, Parliament could set reasonable statutory criteria. By example, I understand that Dutch law provides a five-year residence criterion, which has been considered lawful by the Court of Justice of the European Union. I beg to move.
Lord Ahmad of Wimbledon
My Lords, as my noble friend has said, Amendment 82 seeks to introduce a proportionality bar for post-conviction cases. As my noble friend Lord Taylor has said, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which is of course a fundamental principle of EU law in cases where a person is sought for prosecution. Under the EAW framework decision, an EAW can be issued in a post-conviction case only if a sentence of at least four months has been imposed. We believe that this is a sufficient proportionality safeguard in such cases.
Perhaps I might also reassure my noble friend that the courts will still consider any representations made that the extradition would breach a person’s human rights—I believe that he mentioned this in his comments. As now, a person would be extradited only if it was compatible with their rights under the European Convention on Human Rights. This includes and applies to those people who are wanted to serve a sentence.
I turn to my noble friend’s Amendment 93. I draw your Lordships’ attention to the terms of the Statement made in July by my right honourable friend the Home Secretary—again, my noble friend referred to this—about the reform of the operation of the EAW to enhance the safeguards available for British citizens wanted for extradition. In that Statement, the Home Secretary set out our commitment to make greater use of EU prisoner transfer arrangements. Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant we will ask for permission for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. My noble friend acknowledged that.
Whereas this policy is limited to UK nationals, Amendment 93, put forward by my noble friend, would broaden the scope of this safeguard beyond UK nationals to those who are resident in the UK, with the consequential impacts that would lead to, including those on the public purse. This Government’s policy is that foreign nationals should, wherever possible, serve their sentences in their home country. Therefore the scope in terms of broadening this beyond UK nationals is not something the Government subscribe to, based on the policy I have indicated. I hope, based on the explanations I have given which underlie the Government’s approach, that he will at this time seek to withdraw his amendment.
Lord Hodgson of Astley Abbotts
My Lords, I have just one question. As I understood my noble friend’s remarks, he said that we now have an effective proportionality test for conviction warrants. My advice is that we do not have that and that there is no chance of a proportionality test for that.
While he is reflecting, my other point is on the question of how we are going to be able to deal with situations where countries do not collaborate. I appreciate the point about non-national residents. I hope, however, the Government will consider following up examples like that of the Dutch. They have established cases where non-nationals would not qualify and therefore the issue which he very properly raises about the impact on public funds could be avoided.
Could he just confirm that there is a proportionality test for conviction warrants, because as I understand it there is not?
Lord Ahmad of Wimbledon
For clarification, I repeat that I said that under the EAW framework, an EAW can only be issued in a post-conviction case if a sentence of at least four months has been imposed. We believe that is the sufficient proportionality safeguard in such cases.
Lord Hodgson of Astley Abbotts
I will not try to absorb all that now; I will read about it in Hansard. In the mean time, I seek to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, in moving Amendment 83, I shall speak also to Amendments 84 to 86. With these amendments I am seeking to address some of the weaknesses of the temporary transfer system. Amendments 83 and 84 seek to ensure that temporary transfers remain temporary. Amendment 83 would insert in proposed new Section 21B the words,
“a specific timeframe within which the person must be returned to the United Kingdom”,
and Amendment 84 would insert the words,
“within the period specified in the judge‘s order made under subsection (5)”.
They make a temporary transfer conditional on the issuing state providing assurance that the person will be returned within the time allotted for the transfer. The purpose of the temporary transfer system is to enable the issuing state to complete certain steps in the criminal case which we referred to earlier, such as charging the person, and to allow the person to return home, without seeking their extradition. However, in the Bill as drafted, there is no system for ensuring the return of the person.
The concern is that a person brought before a judge or court in the issuing state in the course of a temporary transfer could rapidly find themselves processed in accordance with the usual course of procedure and detained pending trial. I believe that it is therefore necessary to enable the judge to obtain specific assurances that the person will be returned within a fixed period by the judge. The amendment allows the judge to refuse to grant a temporary transfer in the absence of such assurances.
Amendments 85 and 86 permit the temporary transfer system to be used more than once. The Bill allows for the temporary transfer scheme to be used once only. I entirely accept that there is a need to ensure that the temporary transfer process is not used repeatedly to delay extradition, but I believe the current restriction to one use may be too blunt. If a new point comes to light later in the proceedings suggesting that further progress could be made by the requested person attending again, then, provided it is not an abuse of the system, the procedure should be available again. It must also be unfair to prevent a requested person using a temporary transfer just because they have previously agreed to a request, perhaps by the requesting state. There is an issue here of equality of arms. I beg to move.
Lord Ahmad of Wimbledon
My Lords, the provisions in Clause 140 will allow a person to speak with the authorities in the issuing state before any extradition takes place. The clause allows for the person’s temporary transfer to the issuing state and for the authorities in that state to speak with the person while he or she remains in the UK, for example, via videoconferencing. I understand my noble friend’s concerns that there should be safeguards, but I believe that there are sufficient safeguards already in place.
Both parties must consent to a temporary transfer—a temporary transfer is only possible where the person concerned agrees to it—and in doing so the issuing authority would be agreeing that the person would be returned to the UK. If the person was not returned, the issuing state would, of course, be in breach of that agreement and the clear terms of the European arrest warrant framework decision. Neither are we aware of any cases among our EU partners where such agreements have been disregarded.
Amendments 85 and 86 relate to the circumstances in which a person may make a request for temporary transfer or videoconferencing. I am grateful to my noble friend for bringing to the Committee’s attention the suggestion of allowing more than one request to be permitted by a UK judge.
In this particular case the Government are not persuaded that there are sufficiently compelling arguments for making such a change. Allowing more than one request could be used to delay the extradition process to no good end. We would expect the cases to which my noble friend refers to be very rare, and if such a situation did arise, the individual would still be able to approach the requesting authorities via their legal representatives to provide further information to consider in that case.
Noble Lords are aware, as my noble friend Lord Taylor has emphasised, of the importance we place on getting the balance right between ensuring efficient extradition processes and the protection of the requested person. We believe that this potential for unnecessary delay would outweigh any marginal benefits it may bring.
I therefore hope, with the explanation I have given, that my noble friend will be minded to withdraw his amendment.
Lord Hodgson of Astley Abbotts
I certainly will withdraw it. I am convinced about Amendments 83 and 84, but I cannot see how the ability to get a second temporary transfer is going to cost the Government anything. In fact, it would greatly improve the efficacy in the administration of justice. If I were an EAW subject, I would be very disappointed that because the requesting state had used the temporary transfer system up for its own purposes, I was not then able to use it for myself. It is a shame that we do not have even a measure of equality of arms, always providing for the fact that this should not be allowed to detain and block up the process. I beg leave to withdraw the amendment
“Electronic transmission of European arrest warrant etc
In section 204 of the Extradition Act 2003 (warrant issued by category 1 territory: transmission by electronic means), in subsection (5)—(a) for “subsection (1), a” there is substituted “subsection (1)—(a) a”;(b) at the end there is inserted—“(b) information contained in the warrant is treated as being received by the designated authority in a form in which it is intelligible if the authority receives—(i) a summary of that information in English, and(ii) the text of the warrant itself,in a form in which it is legible.”
Lord Ahmad of Wimbledon
My Lords, this group of government amendments to Part 12 and Schedule 9 deal with three distinct and largely technical issues.
First, Amendment 95ZB, and the associated Amendment 98B to Schedule 9, make minor amendments to Section 204 of the Extradition Act 2003. That section makes provision for cases where the information contained in a European arrest warrant is transmitted to the United Kingdom electronically.
The amendments to Section 204 are needed to support the implementation of the second generation Schengen information system, otherwise known as SIS II. Under SIS II, the NCA will be required to certify requests entered by other member states for,
“arrest for surrender or extradition purposes”,
from the information received electronically under the SIS II process. This information will be an English language summary of the information contained within the EAW, together with the original language version of the EAW. Section 204 therefore requires amendment so that certification can take place on the basis of this English language summary, rather than a translation of the full contents of the EAW.
Amendments 95ZC and 95ZD relate to Clause 149. That clause amends the Prison Act 1952 to ensure that, in all cases where a person spends time in custody in another member state awaiting extradition to the UK, that time is counted as time served towards the UK sentence. As it stands, Clause 149 provides only for cases in England and Wales. Therefore, following discussions with the Scottish Government, we have agreed that analogous provision for Scotland can be made through administrative means. However, with the agreement of the Scottish Government, we are taking the opportunity to update relevant provisions in Scots law in relation to cases where a person is extradited to the UK to be sentenced. Section 210 of the Criminal Procedure (Scotland) Act 1995 makes provision for taking into account time spent in custody awaiting extradition to the UK in cases where a person is extradited to be sentenced. It is out of date in that it refers to the Extradition Act 1989 which is no longer in force. Amendment 95ZC amends this provision to update it in respect of extradition.
In respect of Northern Ireland, Section 38 of the Prison Act (Northern Ireland) 1953 makes equivalent provision to Section 49 of the Prison Act 1952 in cases where a person is sentenced before extradition to the UK. Amendment 95ZD, and the consequential Amendment 98A to Schedule 9, ensures that time spent in custody awaiting extradition to the UK from another member state is always credited. There is currently no legislative provision in Northern Ireland for taking into account time spent in custody awaiting extradition to the UK from another member state where a person is sentenced after extradition. Amendment 95ZD also amends the relevant law in Northern Ireland to ensure that such credit is given.
Amendments 104A, 104B and 104C to Clause 159 make consequential changes to the extent provisions arising from the two new clauses inserted by Amendments 95ZC and 95ZD. These new provisions will ensure that the UK law is fully in line with Article 26 of the EAW framework decision. Finally, Amendment 99 implements one of the recommendations in the 12th report of the Delegated Powers and Regulatory Reform Committee. That committee recommended that the order-making power in new Section 189E of the Extradition Act 2003 should be subject to the affirmative procedure. New Section 189E enables the Home Secretary to specify descriptions of persons, other than constables, who may exercise powers of detention, search and seizure in respect of people who are in transit through the UK and being extradited from one foreign territory to another. Such a power might be used, for example, to designate immigration officers. The Government are content to accept the committee’s recommendation in this regard. I beg to move.
Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 7 months ago)
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“Possession of firearms by persons previously convicted of crime
(1) In section 21 of the Firearms Act 1968 (possession of firearms by persons previously convicted of crime), before subsection (3) there is inserted—
“(2C) Where—
(a) a person has been sentenced to imprisonment for a term of three months or more, and(b) the sentence is suspended under section 189 of the Criminal Justice Act 2003,the person shall not have a firearm or ammunition in his possession at any time during the period of five years beginning with the second day after the date on which the sentence is passed.” (2) In section 58(2) of that Act (saving for antique firearms), for “Nothing in this Act” there is substituted “Apart from—
(a) section 21 and Schedule 3, and(b) any other provision of this Act so far as it applies in relation to an offence under section 21,nothing in this Act”.(3) Where—
(a) a person is in possession of a firearm or ammunition immediately before the day on which subsection (1) comes into force, (b) by reason of a sentence imposed before that day, subsection (1) would (but for this subsection) make the person’s possession of the firearm or ammunition subject to a prohibition under section 21 of the Firearms Act 1968, and(c) the person’s possession of the firearm or ammunition immediately before that day is authorised by a certificate within the meaning given in section 57(4) of that Act,the prohibition does not apply while the certificate remains in force.”
Lord Ahmad of Wimbledon (Con)
My Lords, the Government remain committed to strengthening the system of firearms control where necessary in order to protect people from harm. We have identified two loopholes in the Firearms Act 1968 that we are taking the opportunity provided by this Bill to address.
The first change is in response to a recommendation made by the Home Affairs Select Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences. The Government have accepted that recommendation, and subsection (1) of the new clause will ensure that the same prohibition applies to people who have suspended sentences.
A person who has served a custodial sentence of between three months and three years cannot possess a firearm for five years after the date of their release. For the purposes of suspended sentences, this prohibition will start from the second day after the date of sentence rather than the date of release. This is because a person with a suspended sentence will not be in custody from the date of sentence, so the prohibition needs to begin almost immediately. We have said the second day after the date of sentence so that, if the person does have a firearm, they are not instantly in breach of the law upon receiving their suspended sentence. In effect, they may have around 24 hours to sell the firearm or transfer ownership of it to someone else.
I should say, however, that this requirement on a person given a suspended sentence immediately to divest themselves of any firearms is subject to the transitional provision in subsection (3) of the new clause. This provides that a person who has had a suspended sentence imposed, and who holds a firearm or shotgun certificate on the day that the new legislation comes into effect, will be able to continue to possess their firearm or shotgun for the duration of that certificate. This is to ensure that we are not placing any additional burden and bureaucracy on the police by obliging them to go through their records to find certificate holders who have suspended sentences. As I have already said, this is purely a transitional arrangement; it will not apply to anyone given a suspended sentence after commencement.
The second change, made by subsection (2) of the new clause, will ensure that prohibited persons are prevented from possessing antique firearms. Currently a person with any criminal conviction would be able to possess an antique firearm. Intelligence indicates that there is a growing interest in antique firearms from criminal groups. This amendment will ensure that persons convicted of a criminal offence and sentenced to at least three months’ imprisonment, including a suspended sentence, will be prohibited from possessing antique firearms in the UK.
We believe that closing both these loopholes will strengthen public protection by ensuring that, as the 1968 Act intended, persons convicted of a criminal offence carrying a sentence of at least three months’ imprisonment are prohibited from possessing firearms. Amendment 104 simply makes a consequential amendment to the extent clause. I commend the new clause to the Committee.
Baroness Hamwee (LD)
My Lords, my noble friend the Minister said that an offender would be allowed a couple of days’ grace, as it were, to sell or hand over the firearm. If the offender wanted to hand it to someone in the same household, would that person have to have a licence, so that there would be no question of it being kept around on the premises and available unless the licence was already there for someone else?
Lord Ahmad of Wimbledon
I am sure my noble friend saw me nodding. That is quite correct.
Lord Rosser
We certainly support these amendments as they address gaps in the legislation and will enable more effective and comprehensive monitoring of firearms licensing. It is interesting to note that the Government’s intention to close loopholes in firearms licensing seems to stop at those on suspended sentences and at tightening regulations on antiquities. Although we agree they are important areas, the Government’s legislation, as we said on the previous amendment, does not extend to other rather more serious areas of activity or to preventing people obtaining a firearms licence. The Government seem to be keen on addressing loopholes in certain aspects of granting firearms licences but not, apparently, in others.
Lord Ahmad of Wimbledon
I believe my noble friend Lord Taylor has already dealt with that issue.
Baroness Crawley (Lab)
My Lords, I apologise that I was not present for Second Reading and ask for the forbearance of noble Lords in my intervention at this stage to support my noble friend’s amendment. However, my support comes with a heavy health warning about effective surveillance and enforcement. As president of the Trading Standards Institute, I am aware of this significant problem. As so many thousands of young people experience their first steps down the road to smoking addiction, as my noble friend said, it is through that means that that addiction starts.
Any move to tackle proxy sales of tobacco would get the full support of the trading standards profession, but proper enforcement and adequate surveillance is a great concern to it. A recent study of proxy sales of tobacco found that there was a strong desire from business representatives—and my noble friend referred to this—to see legislation implemented. The Robinson and Amos study of 2010 of young people’s sources of cigarettes and attempts to circumvent underage sales laws concluded that, while there was indeed a problem, more detailed research was needed before further action was taken. It was suggested that regular national smoking surveys should include questions that could capture more accurately the nature and extent of proxy purchases. I feel that this is somewhat cautious, given what we know from a number of surveys about the danger that young people are placed in by this activity. However, I would appreciate the Minister’s views on the suggestion of a more consistent way in which to survey the problem.
While the Demos think tank report that was out last week, called Sobering Up, studied the very real issue of underage access to alcohol and street drinking, and involved working with Kent trading standards officers, the read-across to tobacco is obvious. Even with legislation, enforcement is the key. The report recommended tackling the growing problem of proxy purchasing through greater community policing of the offence and tougher punishments for those caught. Of course, we are aware that there is an offence of proxy sales of tobacco in Scotland, with fixed penalty notices for both the purchase of tobacco by a young person under the age of 18 years and, separately, for the proxy purchase of tobacco on behalf of a person under 18 years. In Scotland, from April 2011, for the purchase of tobacco by a person under 18, the fixed penalty is £50 and the penalty on prosecution is up to a £200 fine. Also from April 2011, proxy purchases carry a fixed penalty of £200 and up to a £5,000 fine for a penalty on prosecution.
What research have the Government carried out into the effect of this new legislation in Scotland on proxy sales purchases so far? While many of us have anecdotal evidence, we are now two years down the road from the introduction of this Scottish legislation, and I think that noble Lords who want to support this amendment would agree that government has the provision and means to come up with far more structured evidence. I know that the Scottish legislation is still embedding itself; the Scottish Government’s request is for a softly-softly approach to be taken, especially with the introduction at the same time of the display and vending machines ban this year. But the aim, certainly, of trading standards in Scotland is to work in partnership with retailers to increase compliance with the new law. I am grateful to Veronica McGinley, the trading standards officer for Renfrewshire Council for her thoughts on the Scottish experience so far.
It has been emphasised to me that there are, of course, real personal safety risks attached to this type of sale, so we are not simply talking about young people’s health but their personal safety. In Renfrewshire alone, the recent Scottish Adolescent Lifestyle and Substance Use Survey found that 54% of 13 year-olds and 55% of 15 year-olds reported getting someone else to buy their tobacco for them. More frighteningly, in the case of 35% of 13 year-old regular smokers, this was most likely to be from an adult unknown to them.
While supporting moves to legislate in principle, we have to be aware that the enforcement of much tobacco control legislation, including the current age of sale, is the responsibility of local authority trading standards officers. There has been a great deal of talk about trading standards officers. I do not think—my noble friend is no longer in his place—that they would necessarily see themselves as cold war warriors: they are very much into partnership and encouragement these days. However, enforcement is extremely challenging given the massive reductions in staff and budgetary allocations that trading standards departments have faced in the past three years up and down the country. We have heard very recently of a local authority which has proposed reducing its trading standards department by 80% over the next two years. This is very serious if we are talking about the proper enforcement of serious legislation. The requirement also for a Regulation of Investigatory Powers Act authorisation in each case may pose a significant barrier to the testing and enforcement of future legislation. Can the Minister say what further assistance the Government envisage in terms of resource allocation to local authorities in the enforcement of this proposed legislation and, indeed, of current legislation? My noble friend made a robust case for introducing these new offences into the Bill and I look forward to the Minister’s reflections.
Lord Ahmad of Wimbledon
My Lords, I thank both noble Baronesses who have spoken on this issue. I was slightly surprised to see this amendment as it is something that perhaps has been, and no doubt will be, considered in debates on the Children and Families Bill. There was also last Thursday’s Urgent Question, but that was more specific on the issue of standardised tobacco packaging, which I am sure the House will deal with in its own way at the appropriate time.
We in this Committee and in the wider House can all agree that it is wrong for people to buy tobacco on behalf of children and young people; that was a point well made by the noble Baroness, Lady Thornton. We totally acknowledge that smoking is an addiction which unfortunately begins largely in childhood and adolescence, with peer pressure, friends or whatever encouraging people to take it up. Almost two-thirds of current and ex-smokers in England say that they started smoking regularly before the age of 18.
Part of our comprehensive tobacco control plan for England, which was published in 2011, was therefore focused on reducing the numbers of young people taking up smoking. The plan also includes a national ambition to reduce smoking among young people in England to less than 12% by 2015. As a result of decades of tobacco control, rates of smoking among young people have reduced considerably to around 10%, according to the most recent figures. I am sure that we have all noticed the practice of reducing smoking and prohibiting it in places such as restaurants. I remember as a child seeing smoking on trains and undergrounds, which we would be appalled by in this modern age. Restricting and prohibiting smoking has led to a reduction of it in society in general.
However, the take-up of smoking by young people continues to be a problem. It is estimated that more than 300,000 young people under the age of 16 in England try smoking for the first time each year. Reducing access to tobacco by children and young people remains a high priority for the Government and we are determined to reduce further the smoking rates among young people.
As for the sale of tobacco, we know that the majority of retailers are law-abiding and conscientious in how they conduct their sales. I acknowledge the important role they play in ensuring that legitimate tobacco products are sold in accordance with the law, including by being rigorous in refusing sales to young people under the age of 18. I realise that this can be difficult and I understand why some noble Lords and some retailers feel that it should be an offence to buy tobacco on behalf of under-18s. However, as the noble Baroness, Lady Crawley, said, we need to consider carefully whether creating a new offence of proxy purchasing is the right way forward at this time.
The supply of tobacco to children and young people is not a straightforward issue. A new offence of proxy purchasing would not necessarily tackle the wider problem of the supply of cigarettes because children and young people get them from a range of sources, not just from retailers. For example, many children and young people who smoke obtain their cigarettes from their parents or other members of the family—it is tragic but it does happen—or from friends or people they may socialise with who are over the age of 18. Buying single cigarettes in the school playground happens in certain parts of the country. A proxy purchasing offence would do nothing to stop these issues.
Lord Ahmad of Wimbledon
The noble Baroness is right to raise that issue. As someone who worked in local government for 10 years, I am aware of the budgetary challenges faced by local authorities, irrespective of which Administration is in control centrally, and they need to establish priorities. The noble Baroness made an important point about enforcement. If this were to be made an offence, we would need to consider how it would be enforced. Even if a local authority took it upon itself to increase its number of trading standards officers to enforce this measure, it would be very difficult to do so given all the retail outlets that would need to be monitored. It is important to see what happens in other parts of the country, particularly in Scotland. We have an open door on this issue. If local authorities come up with a good initiative, I hope that they will share it with us so that it can be replicated across the country.
Baroness Thornton
I thank the Minister for his reply and I particularly thank my noble friend Lady Crawley for her contribution. As the Minister is a fairly recent newcomer to tobacco issues and I am not, I gently say to him that all the initiatives he mentioned were introduced by the previous Labour Government in the teeth of great opposition from the Benches opposite, if not from those to the left. We are pleased that those initiatives are being carried through, including the introduction of plain packaging—there is absolutely no doubt about that at all. However, the arguments that the Minister has deployed on proxy purchasing are the same ones that the Conservatives have deployed in all the discussions we have had about tobacco regulation over the many years that I have dealt with the issue. It was argued that because one initiative would not solve the whole problem it should not be introduced. We know that making it an offence to proxy purchase tobacco products on behalf of children is not the complete answer—of course it is not—just as we know that plain packaging is not the complete answer, and just as we know that covering up tobacco products in supermarkets is not the complete answer. We know that the provision we are discussing is not the complete answer. However, that does not mean that it is not important to consider it.
I am pleased that the Minister said that the door was open on this issue. Perhaps I may push at that door a little and say that if this amendment is not acceptable to the Government, perhaps they need to consider taking a power to introduce an offence of proxy purchasing at the next stage of the Bill, which can then be implemented in due course. That might resolve this problem. I hope the Government will think about that between now and the next stage of the Bill. I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
My Lords, Clause 110 provides the legal basis for the College of Policing to set standards for the police in England and Wales. This is the first of a number of provisions relating to the college and I think it would be helpful to explain some of the context for them.
The ability of the police to fight crime depends, for the most part, on the skills and abilities of the brave men and women who serve as police officers and police staff. As I glance around the House, I note several noble Lords who can speak with great experience and expertise of that area. The threats police officers and police staff must deal with on a daily basis are significant. Neither the Government nor the police can afford to neglect training and development. To do so jeopardises the safety of all our communities.
The arrangements this Government inherited were insufficient. Although the National Police Improvement Agency had responsibility for police training, its remit was too broad and its work too complex for it to deliver effectively for the police and the public. Given the severity of the threat the police and public face, the Government believe that a more focused set of arrangements are required. Part of those requirements involves the creation of the professional body for the police—the College of Policing.
The College of Policing’s mission will be to support the fight against crime and protect the public by ensuring professionalism at all levels in policing. It will do this through delivery in five core areas of responsibility. Those areas include: setting standards of professional practice; accrediting training providers and setting learning and development outcomes; identifying, developing and promoting good practice based on evidence; supporting police forces and other organisations to work together to protect the public and prevent crime; and identifying, developing and promoting ethics, values and standards of integrity.
The Government intend that the creation of the college should cement the status of the police as a profession. As a profession, the police will need to take greater responsibility for setting standards. Too often, those standards have been led by government. Clause 110 changes this balance. The clause provides that in future regulations regarding rank, qualifications for appointment and promotion, service on probation and personal records for police officers and special constables will be prepared by the college. The college will also prepare regulations relating to training for police officers and qualifications for deployment to particular roles. Finally, if the college believes it to be necessary, it can also prepare regulations regarding police practice or procedure.
As my right honourable friend the Home Secretary will continue to make these regulations and will continue to be accountable to Parliament for them, she will retain a right of veto. This power will be exercised if the regulations prepared by the college would impair the efficiency and effectiveness of the police, would be unlawful, or would for some other reason be wrong. This final power of veto may be used where the regulations as drafted are flawed, insufficiently clear or do not achieve the policy intention that the college hopes to achieve. In such circumstances the Home Secretary could ask the college to prepare a fresh draft of the regulations so as not to present flawed regulations before Parliament.
As I am sure noble Lords are aware, the Delegated Powers and Regulatory Reform Committee has commented on this clause. Indeed, it has issued an additional report which was published only this morning. The Government are most grateful to the committee for both its reports and we have already dealt with a number of amendments that implement its recommendations. As with its other recommendations, we have given careful consideration to the committee’s points about the delegation of the Home Secretary’s regulation-making powers as provided for in Clause 110.
The Government agree with the committee that regulations made under Section 53A of the Police Act 1996, governing the practices and procedures of police forces, should be subject to the affirmative resolution procedure in all cases. Police practice and procedure are matters of legitimate public concern. We all have an interest in the way that police officers go about their duty and it is only right that Parliament is able to scrutinise the work of the college in this area.
The Bill proposes to give the college two powers regarding standards of police practice and procedure. First, it proposes to give it a power to issue statutory codes of practice under Section 39A of the Police Act 1996. In the event that the college exercises this power, chief constables must have regard to any such code. Secondly, the Bill proposes to give the college a power to make changes to police regulations concerning practice and procedure. The Government believe that, in the event that the college wishes to make matters of police practice or procedure mandatory, Parliament should have the opportunity to debate and approve such regulations before they come into force. We have accordingly put forward Amendments 56P and 56Q.
Baroness Thornton
I gave notice of my opposition to the Question that Clause 110 stand part, and I did so for probing purposes. I am still not clear that the Government are fulfilling the recommendations of the Delegated Powers Committee. I accept that the Minister addressed himself to the first report of the committee but I think I am right in saying that it is very unusual—it may never have happened before—that the Delegated Powers Committee has twice recommended to the Government that regulations should be subject to the affirmative procedure, and I should like clarification on that.
Clause 110 amends provisions which confer these powers to make regulations relating to the police. I listened to what the noble Lord said but I am not completely clear that the regulations will be subject to the affirmative procedure. In paragraph 5 of its report produced today, the Delegated Powers Committee said that,
“we remain of the view that, if the House considers it appropriate to transfer control of the content of the regulations to the College of Policing, the regulations should in all cases be subject to the affirmative procedure”.
I am still not sure whether that is the case. If I am right that the Government have made some regulations subject to the affirmative procedure but not these, then that is a cause for some discussion and concern. If I am wrong, I apologise to the Committee.
Secondly, I seek some explanation of the wording that has already been referred to by the noble Lord. In new subsection (2ZA) introduced under Clause 110(1), paragraph (c) says that,
“it would for some other reason be wrong to do so”,
in relation to the Secretary of State’s right of veto. Therefore, the Secretary of State is giving with one hand and taking away with the other. My honourable friend David Hanson raised the same question in the House of Commons. It seems contradictory, and I should like the Minister to explain to the Committee why the Government reached that view.
I want to make one other point in relation to the noble Lord’s final remarks. He said that the College of Policing will be subject to further scrutiny concerning its fees and other matters, as well as its financial and commercial viability. I just want to ask how on earth the Minister thinks that being accountable to Parliament for one’s financial and commercial viability will work.
Lord Ahmad of Wimbledon
My Lords, regarding the noble Baroness’s first set of questions, she is indeed correct. I mentioned that the Delegated Powers and Regulatory Reform Committee had issued a second report. She quoted from paragraph 5 of that report. Earlier on in that paragraph, the committee says:
“The Government have accepted this recommendation in so far as it relates to regulations under section 53A of the Police Act 1996”.
I believe that that was very clear from the points that I made. She then asked which regulations remain under the negative procedure, and perhaps I may expand on that a bit more. We have said that in respect of regulations under Sections 50 and 51 of the Police Act 1996 and Section 97 of the Criminal Justice and Police Act 2001 the Government believe that the negative resolution procedure should apply, and I shall expand on that.
These regulations relate to limited aspects of the governance, administration and conditions of service of police forces and to police training. Clearly, as I said earlier, these matters do not have the same level of sensitivity and public interest as police practices and procedures. During debate on an earlier amendment, the noble Baroness referred to the fact that she has been in your Lordships’ House far longer than I have, and I am sure she can relate to the fact that no regulations have been made in relation to training since Section 97 of the 2001 Act came into force and that the existing regulations under Sections 50 and 51 of the 1996 Act concerning ranks, appointments, promotion and personal records have been the subject of limited and infrequent amendment.
These essentially administrative matters are more akin to regulations on pay and discipline, which are also made under Sections 50 and 51 of the Police Act 1996, and are subject to the negative resolution procedure. There is no need for regulations prepared by the college to receive an enhanced level of parliamentary scrutiny, when regulations made under the same powers on matters of at least equal significance, such as police pay, do not. The negative procedure has worked effectively for many years on all these issues without any difficulty. It seems right and proportionate to maintain those uniform arrangements going forward. That does not of course mean that we cannot rule out the possibility that the regulations might need to be made quickly. Therefore, the affirmative resolution procedure would make that more difficult. Typically, that would occur in response to some unforeseen emergency, a change to our international obligations, a court decision that existing regulations are unlawful or the discovery of some error in the regulations that requires particular correction.
The noble Baroness also talked about my right honourable friend the Home Secretary retaining the power of veto for any other reason and the reasons for that. The information on when it may be wrong to make regulations for any other reason are set out in the Explanatory Notes, to which I refer the noble Baroness. It covers circumstances in which the regulation, as drafted, is not sufficiently clear, as I said earlier, is flawed or would not achieve the policy intention for which the college had hoped. In such circumstances the Home Secretary could ask the college to prepare a fresh draft so as not to present flawed regulations before Parliament.
In proposing what they are, the Government have struck the right balance, which ensures sufficient scrutiny by Parliament and supports oversight by the Home Secretary, if required. I commend the amendment to the Committee.
Baroness Hamwee
My Lords, I am taking this opportunity to ask the Minister, who knows about my question, whether Clause 115 has the effect which it seems to me to have. The new section which is to be inserted into the Police Act will provide for powers to anyone to disclose information to the College of Policing where this is,
“for the purposes of the exercise by the College of any of its functions”.
Will the Data Protection Act be overridden in its entirety by this provision? What checks, possibility of challenge and possibility of complaint will there be? Is there any proportionality, propriety and so on? I am sure that I will be told that there is a difference between the college’s functions and its powers but I am not clear about the extent of this clause, which seems to be very wide.
Lord Ahmad of Wimbledon
I take it that my noble friend’s comments primarily were probing. Clause 115 provides the basis of information-sharing agreements between individuals and the College of Policing. In order for the college to fulfil its objectives it will need, from time to time, to have access to certain information. This information could cover a range of issues, including information about data in support of its work on the effectiveness of policing practice, data to inform the standards it sets for police officers and staff, and information that will help it produce the standards of ethics and values for the police. For example, as part of the college’s work to develop standards and ethics for the police, it may need information from the IPCC about its investigations and some of the lessons it has learned from the conduct of police officers. This information will be general and it should not be necessary for the IPCC to share information that would enable the college or its staff to identify individual police officers. I hope that noble Lords agree that it is important for the IPCC and other public authorities to have a clear legal power to share this valuable information with the college.
Baroness Hamwee
Of course, at this stage I am probing. Anything more comes later. I understand to an extent the purpose of the clause, which is to give powers. Perhaps it is a failure of my imagination but I am not clear as to what sort of information the college might require to be disclosed. I will look at what my noble friend has said. As I have said, this seems to be a very wide clause. I will have to do some work on this after today but I am not clear on how the restrictions to which my noble friend has referred would work in this connection. For the moment, I am left with one question. Has the Information Commissioner specifically been consulted about this clause?
Lord Ahmad of Wimbledon
I suggest that between Committee and Report I meet my noble friend to address her specific concerns, which I hope will help with clarity and understanding at the next stage.
Lord Harris of Haringey
Does the noble Baroness agree that it might be helpful if the Minister, in writing to her, sets out a precise list of what is required and explains why it would not be possible for that list to be laid in regulations so that it is clear what information is being referred to? The way in which it is written at the moment seems extraordinarily broad.
Baroness Hamwee
I agree with that. I was going to press my noble friend a little on whether the Information Commissioner has been consulted. I hoped that there might be time for inspiration to flow across half the length of the Chamber but I do not think that it has.
Lord Ahmad of Wimbledon
While inspiration may be somewhat limited, I take on board the noble Lord’s suggestion. As I have said, I will suggest a meeting to address some of the concerns.
Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 7 months ago)
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“Information about guests at hotels believed to be used for child sexual exploitation
(1) A police officer of at least the rank of inspector may issue a notice under this section to the owner, operator or manager of a hotel that the officer reasonably believes has been or will be used for the purposes of—
(a) child sexual exploitation, or(b) conduct that is preparatory to, or otherwise connected with, child sexual exploitation.(2) A notice under this section must be in writing and must—
(a) specify the hotel to which it relates;(b) specify the date on which it comes into effect and the date on which it expires;(c) explain the effect of subsections (4) and (5) and sections (Appeals against notices under section (Information about guests at hotels believed to be used for child sexual exploitation)) and (Offences).(3) The date on which the notice expires must not be more than 6 months after the date on which it comes into effect.
(4) A constable may require a person issued with a notice under this section to provide the constable with information about guests at the hotel.
(5) The only information that a constable may require under subsection (4) is—
(a) guests’ names and addresses;(b) other information about guests that—(i) is specified in regulations made by the Secretary of State, and(ii) can be readily obtained from one or more of the guests themselves.(6) A requirement under subsection (4)—
(a) must be in writing;(b) must specify the period to which the requirement relates;(c) must specify the date or dates on or by which the required information is to be provided.The period specified under paragraph (b) must begin no earlier than the time when the requirement is imposed and must end no later than the expiry of the notice under this section.(7) In this section—
“child sexual exploitation” means conduct that constitutes an offence listed in subsection (8)(a) or (b), or an offence listed in subsection (8)(c) against a person under 18;
“guest” means a person who, for a charge payable by that person or another, has the use of a guest room at the hotel in question;
“hotel” includes any guest house or other establishment of a similar kind at which accommodation is provided for a charge.
(8) The offences are—
(a) an offence under any of the following sections of the Sexual Offences Act 2003—sections 5 to 8 (rape and other offences against children under 13);
sections 9 to 13 (child sex offences);
sections 16 to 19 (abuse of position of trust);
sections 25 and 26 (familial child sex offences);
sections 47 to 50 (abuse of children through prostitution and pornography);
(b) an offence under section 1 of the Protection of Children Act 1978 (indecent photographs of children);(c) an offence under any of the following sections of the Sexual Offences Act 2003—sections 1 to 4 (rape, assault and causing sexual activity without consent);
sections 30 to 41 (persons with a mental disorder impeding choice, inducements etc to persons with a mental disorder, and care workers for persons with a mental disorder);
section 59A (trafficking people for sexual exploitation);
section 61 (administering a substance with intent);
sections 66 and 67 (exposure and voyeurism).”
Lord Ahmad of Wimbledon (Con)
My Lords, child sexual exploitation is an abhorrent crime and we are determined to stamp it out. In the past, all too often these crimes were largely hidden, but now child sexual exploitation is rightly centre stage as an issue that we must tackle. We are strengthening the system of civil orders used to manage the risk of sexual offences through Part 9 of the Bill, which noble Lords have already considered in Committee. The provisions in this group of government amendments provide an additional power to tackle the problem from a different angle. They will make it harder for child sex offenders to be able to use the anonymity of hotels and similar venues to commit offences against young people and children. A number of recent high-profile cases, such as in those in Oxford and Keighley, have shown that offenders have used the cover of hotels and bed-and-breakfast accommodation to commit sexual offences against children. By introducing these new powers, we will help the police to tackle child sexual exploitation where there are reasonable suspicions that offending has taken place or will take place.
Already, police forces are actively tackling this issue, as evidenced by the increasing number of cases that the police are bringing before the courts and the significant sentences being handed down to perpetrators. In addition, on a national level, we have strengthened the response to this issue through the inclusion of child sexual exploitation within our strategy to combat organised crime. The newly established National Crime Agency is strengthening the UK’s capability to combat child abuse online with some 4,000 specialist officers. We have also set up a Home Office-led national group through which agencies are working together to better identify those at risk and create a more victim-focused culture within the police, health and children’s services. Whether exploitation is happening now or has happened in the past, we will continue to ensure that victims are not left to suffer in silence and that those who exploit them are rightly brought to justice.
The Government want to support the police in their efforts to vigorously pursue perpetrators of this despicable crime. Targeted new powers of the kind that we are proposing will provide additional help to law enforcement agencies by allowing the police to obtain information about guests staying at hotels, guest houses and B&Bs where they suspect sexual exploitation could be taking place. If there is a reasonable suspicion that premises are being used for child exploitation, a police officer of at least inspector rank may issue a notice to the owner, operator or manager. That person would then be required to provide the police with information over a specified period of up to six months about guests who check in on and after the date on which the notice takes effect. This could include information such as the name, age, address and relationship of guests, which would be used for vital intelligence and evidence-gathering. Where there is information that a child is potentially at risk, police would use existing powers to protect the child and pursue offenders in the normal investigative process.
It is essential that this new power is taken seriously and can be enforced. That is why it will be an offence for a person served with a notice to fail to comply, and they will be subject to a maximum penalty of a level 4 fine, currently £2,500. However, clearly there should be safeguards. An offence will not have been committed if the person has a reasonable excuse for failing to comply or if reasonable steps were taken to obtain or verify the required information, and an appeal against the notice can be made in a magistrates’ court. The intention of the new power is to create a proportionate and targeted tool that will be used in an intelligence-led way to help prevent abuse, and I commend these amendments to the Committee.
Lord Rosser
My Lords, as we know, hotels do not require a specific licence to operate unless they are licensed to sell alcohol, and they certainly have no specific duties to report suspected child abuse. Clearly we are at one in wanting to eliminate child sexual exploitation as far as is possible, which is the objective of these amendments. However, I will raise one or two questions.
In the information that the Minister sent us, he said that it is not expected that this targeted power will be used more than 10 times a year, and that,
“as such, the impact on business is expected to be minimal”.
I do not ask him to tell me why he thinks that the figure is 10 rather than nine or 11, but it would be helpful if he could give some indication as to roughly where that figure of 10 came from.
Amendment 56YA defines “hotel” as,
“any guest house or other establishment of a similar kind at which accommodation is provided for a charge”.
I imagine that it must be possible to find some accommodation that is provided which is similar to a guest house but with no charge—something might conceivably be run by a charity. I want to confirm—and this is not particularly a criticism—that the wording would mean that that kind of establishment was excluded from the provisions of that clause.
The view of the Delegated Powers and Regulatory Reform Committee is that it considers that regulations specifying additional categories of information should be subject to the affirmative procedure. I understand that the Government do not envisage that. If I am correct in making that assertion, perhaps the Minister could say why. If I am wrong, and it will require the affirmative procedure, I will be very pleased indeed.
On this requirement under the clauses we are discussing, to provide information, for example in relation to addresses of guests at the hotel, is it the Government’s intention—I assume that it is but just want to clarify it—that it will apply only in relation to this particular kind of offence? One can think of situations in which a hotel was used by individuals to perpetrate other forms of quite serious crimes. Child sexual exploitation is obviously very much at the top end, but a hotel could be used to enact or plan other forms of crime. Do the Government intend that this provision will apply over a wider field than child sexual exploitation, which obviously we all accept is a very serious crime?
On the information about guests that might be gleaned, if that information does not result in a charge or a successful prosecution, for how long can it be retained by the police? Can it be retained in perpetuity or will it have to be given up or destroyed after a certain period of time? Since I do not think that that is indicated in the Bill—I am sure that if I am wrong, I will be corrected—for what purposes may the police use any information obtained about guests, and are there any restrictions on possible use of information provided to the police under these clauses?
Lord Ahmad of Wimbledon
My Lords, I will turn to some of the issues—if not all, I will certainly write to the noble Lord in that respect. On the issue of the Delegated Powers Committee’s recommendation that the order-making power in Amendment 56YA should be subject to the affirmative procedure, that report has come today, we are considering it and we will respond to the committee’s report in advance of Report stage.
The noble Lord raised the issue of the application of these particular proposals just for child sexual exploitation. It is their primary aim to target that particular heinous crime. I am sure that all noble Lords would agree that this is something that needs to be tackled head-on.
As for the figure that the noble Lord asked about in the briefing, that was a matter that I raised, too. This figure is indicative; one would hope that it was zero. That is the sentiment that I would express from the Government, but it is an indicative number only.
The noble Lord, Lord Rosser, asked about accommodation provided for a charge. The provision is aimed at hotels and bed-and-breakfasts; it would not cover accommodation provided for free, such as accommodation run by a charity. I trust that that has answered most, if not all, of his questions, but if there is anything pending I shall write to him.
“Appeals against notices under section (Information about guests at hotels believed to be used for child sexual exploitation)
(1) A person issued with a notice under section (Information about guests at hotels believed to be used for child sexual exploitation) may appeal against it to a magistrates’ court.
(2) An appeal must be made within the period of 21 days beginning with the day on which the person is issued with the notice.
(3) Where there is an appeal against a notice under section (Information about guests at hotels believed to be used for child sexual exploitation), then until the appeal is finally determined or withdrawn—
(a) no requirement may be imposed under subsection (4) of that section in relation to the premises in question;(b) any such requirement already imposed is of no effect.(4) A magistrates’ court hearing an appeal against a notice under section (Information about guests at hotels believed to be used for child sexual exploitation) must—
(a) quash the notice,(b) modify the notice, or(c) dismiss the appeal.”
“Power to take further fingerprints or non-intimate samples
(1) In section 61 of the Police and Criminal Evidence Act 1984 (fingerprinting)—
(a) in subsections (5A) and (5B), for the words after “investigation” in paragraph (b) there is substituted “but(i) subsection (3A)(a) or (b) above applies, or(ii) subsection (5C) below applies.”;(b) after subsection (5B) there is inserted—“(5C) This subsection applies where—
(a) the investigation was discontinued but subsequently resumed, and(b) before the resumption of the investigation the fingerprints were destroyed pursuant to section 63D(3) below.”(2) In section 63 of that Act (non-intimate samples)—
(a) at the end of subsection (3ZA)(b) there is inserted “, or(iii) subsection (3AA) below applies.”;(b) in subsection (3A)(b), for “insufficient; or” there is substituted “insufficient, or(iii) subsection (3AA) below applies; or”;(c) after subsection (3A) there is inserted—“(3AA) This subsection applies where the investigation was discontinued but subsequently resumed, and before the resumption of the investigation—
(a) any DNA profile derived from the sample was destroyed pursuant to section 63D(3) below, and(b) the sample itself was destroyed pursuant to section 63R(4), (5) or (12) below.””
Lord Ahmad of Wimbledon
It was always my great desire to be the noble Lord, Lord Taylor of Holbeach. My ultimate aspiration has today been achieved twice over.
These amendments are designed to improve the use of DNA and fingerprints in criminal investigations. I shall begin with Amendment 56YD, which allows the retaking of DNA and fingerprints if an investigation is restarted. At present, the Police and Criminal Evidence Act 1984 allows DNA sampling and fingerprinting of an arrested or charged person only once in an investigation. If the police or the Crown Prosecution Service decide not to proceed against an accused person, that person’s DNA and fingerprints must be deleted, unless they have previously been convicted, or charged with a qualifying offence. If the investigation is later restarted, there is no power to retake the DNA and fingerprints. The CPS has now introduced a new procedure, the victims’ right to review, under which a decision not to proceed may be reviewed and the case restarted. If DNA and fingerprints have already been taken and destroyed, there is currently no power to take them again if the case is restarted. Amendment 56YD provides for such a power.
Amendment 56YE ensures that the retention of a person’s DNA is determined by considering their entire criminal history. If a conviction in that history would allow retention, it is important that a DNA profile can be retained, regardless of whether the arrest in connection with which the profile was obtained was itself followed by a conviction. This is important because, normally, when a person has had a DNA sample taken on a first arrest, DNA is not taken on any later arrests, because that would incur unnecessary costs to obtain the same profile. However, without this amendment, there is a danger that the DNA from the first arrest would be deleted from the database if there was no causal link between the taking of DNA on a first arrest and a conviction obtained following a later arrest. Amendment 56YE makes the position clear, thereby ensuring that a DNA profile can be retained indefinitely whenever someone has a previous conviction or caution for a recordable offence, irrespective of the fact that they were not proceeded against for the offence in respect of which the DNA sample was taken.
Finally, Amendment 97 to Schedule 9 to the Bill is consequential on amendment 56YD and amends Schedule 2A to PACE, which allows the police to require people to attend at a police station for the purposes of having their fingerprints or DNA taken. It duly applies the existing time limits for imposing such a requirement to the new provisions that I have described. Under existing legislation, if a person is arrested or charged then released without having had their DNA or fingerprints taken, the police may take them later, but only within the following six months. The amendments to Schedule 9 apply this principle to the scenario involving retaking, putting a time limit of six months from the restarting of the investigation on the power to retake DNA or fingerprints. These amendments are sensible measures to improve the use of DNA and fingerprints which I commend to the Committee.
Lord Beecham (Lab)
My Lords, I note the Minister’s recidivist tendencies in terms of his aspirations to be the noble Lord, Lord Taylor of Holbeach, and congratulate him on his judgment in that respect.
This is a classic case of legislating in haste and repenting at leisure, because the problems that these amendments seek to address were highlighted by the Opposition when the Government originally legislated. We pointed out that the Government should have taken the greatest possible steps they could in acknowledging the legal requirements set down under European court judgments to maintain the retention of DNA so that it could be used to define and catch criminals who had committed crimes or could potentially commit further crimes. This was argued during the passage of the Protection of Freedoms Act, and the argument was not accepted at the time by the Government. Now, not untypically in an era of rapid U-turns, they have made a U-turn, although it has taken some time. It is clearly right that the Government should act in this way. It is notable that on this occasion they are not following the practice of the Conservative Party in making sure that their records are consigned to history rather than being kept available. That is welcome, although perhaps we may see a U-turn in that respect as well.
So far as this legislation is concerned, there is still an issue around the retention of information. The Minister referred to the fact that samples would have to be taken within six months. I do not understand the rationale for that. DNA samples can be taken and kept for long after the event. I recently read an interesting history book called The Isles in which DNA samples were taken from a cave in Cheddar Gorge from remains going back some thousands of years. Yet with those DNA samples they managed to trace somebody living in the 21st century in that area. These things can last. Crime is not just a short-term matter—I understand that an estimated 20,000 to 23,000 people could have committed crimes within a span of six years—so I do not understand the rationale for the six-month period. While we welcome the progress made so far, perhaps we could have an explanation of why six months is being insisted on rather than a longer period. My honourable friends in another place were suggesting that a period of six years would be appropriate. After all, we are talking here about potentially serious crimes; we would not be bothering with DNA samples if we were not. There is no rationale, in my judgment, for the period the Government have selected.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord for his broad support and support in principle for what we are seeking to do here. I also listen with great care whenever he talks about history and literature. Today he combined both. I am forever learning from the noble Lord.
On the specific question of why six months, it is our view that there must be a limit otherwise people who have been arrested and then had proceedings against them dropped for lack of evidence would never actually know whether they were free of the risk of having their DNA and fingerprints taken. Six months has been regarded as the reasonable limit in legislation passed by this Government as well as the previous one. The noble Lord mentioned the Protection of Freedoms Act, namely that the DNA of a person who has not committed any offence should not be retained indefinitely. He used that as a premise for saying perhaps that the Government are U-turning. This is not a U-turn. I always regard these things as progression and I think we have moved in the right way and I am glad that the noble Lord respects that.
“Power to retain fingerprints or DNA profile in connection with different offence
(1) For section 63P of the Police and Criminal Evidence Act 1984 (section 63D material obtained for one purpose and used for another) there is substituted—
“63P Retention of 63D material in connection with different offence
(1) Subsection (2) applies if—
(a) section 63D material is taken (or, in the case of a DNA profile, derived from a sample taken) from a person in connection with the investigation of an offence, and(b) the person is subsequently arrested for or charged with a different offence, or convicted of or given a penalty notice for a different offence.(2) Sections 63E to 63O and sections 63Q and 63T have effect in relation to the material as if the material were also taken (or, in the case of a DNA profile, derived from a sample taken)—
(a) in connection with the investigation of the offence mentioned in subsection (1)(b),(b) on the date on which the person was arrested for that offence (or charged with it or given a penalty notice for it, if the person was not arrested).”(2) The amendment made by subsection (1) applies even where the event referred to in subsection (1)(b) of the substituted section 63P occurs before the day on which this section comes into force.”
Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 7 months ago)
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Lord Ahmad of Wimbledon (Con)
My Lords, these amendments address aspects of the new closure power. As noble Lords will recall, the power has two key parts: the closure notice and the closure order. Where informal measures have failed, or are inappropriate, the closure notice allows the police or the local authority to close quickly those premises for up to 48 hours out of court. In some cases this will be sufficient to resolve the problem, but in others a longer-term closure order might be required. Following the closure notice, the police force or the local authority that issued it can apply to the court for a closure order to close premises for up to three months, although this can subsequently be extended by the court to a maximum of six months. This allows the local authority or the police to find a solution to the problem while protecting victims and communities.
Amendments 56ZG and 56ZH seek to exempt the operator of the premises and anyone else designated to secure the premises from the effect of a closure notice. The purpose of the closure powers is to restrict the number of people who are able to access premises, and therefore to reduce the nuisance or annoyance associated with it. The clause allows the owner as of right to access the premises so that they may secure and maintain it and obtain any items or information they may need. As my noble friend has explained, there may be cases where a person other than the owner is in control of the premises. Alternatively, the owner may not be able to attend and secure the premises. The closure powers cover a wide range of premises and therefore a wide range of situations. To include the term “operator” may make the definition too wide, enabling a large number of people to claim that they cannot be prohibited from accessing the premises by the closure order. This could have the effect of undermining the closure notice itself.
However, Clause 69 already contains provisions to allow the closure notice to be tailored to the appropriate circumstances, which was a concern my noble friend raised. Subsection (3) allows for the police or for the local authority to define who is prohibited, at what times and in what circumstances. The police or the local authority will therefore consider what the appropriate arrangement is on a case-by-case basis. It is in their interests to have the premises properly and safely secured, as this will help ensure adherence to the closure notice. They will be able to make arrangements to ensure that the appropriate people can access the premises, whether this be the operator or someone designated by the owner.
The list of those whom a closure notice cannot prohibit relates to those who should not be prohibited by an out-of-court notice in any circumstances. It is our view that this should remain as those who habitually live there or who own the premises. The clause adequately caters for my noble friend’s point as regards the operator of the premises.
Amendment 56ZJ seeks to amend Clause 69(4). Subsection (4) states that the closure notice cannot prohibit access to those who,
“habitually live on the premises, or … the owner”.
This means that those people can continue to access and, indeed, occupy the premises. However, a closure order can prohibit those who live in the premises and the owner. A closure order can be made only by the court. That is an important distinction between the two measures. It is for the court to decide who should be prohibited. The breach of closure notice is also a criminal offence, whether or not it is specified. It is important to be clear who can enter premises subject to a closure notice. It also needs to be clear to those who may seek to enter premises as well as those enforcing the closure notice. Whether this is specified or not does not change the fact that the closure notice cannot prohibit those who habitually live on, or own, the premises, as I have already said. Therefore, even where an oversight occurs, it will not result in an individual having breached a closure notice as the notice cannot prohibit access. As I say, a closure order can be made only by the court.
Amendment 56ZQ seeks to allow the owner, occupier or operator of the premises to appeal a closure order. I am pleased to reassure my noble friend that the Bill already allows for this. Clause 77 sets out two categories of people who can appeal a closure order. These are, first, a person on whom the notice was served and, secondly, a person who has an interest in the premises but on whom the closure notice was not served. Clause 72(2) covers the serving of a notice. It lists a number of ways the police or local authority can serve the notice and requires that they do all of these, if possible. Therefore, in the majority of cases, the owner, operator and occupier will be served the notice and therefore can appeal under Clause 77(1)(a). If, for some reason, it was not possible to serve the notice on the owner, operator or occupier, they would be able to appeal under Clause 77(1)(b), which provides that anyone,
“who has an interest in the premises but on whom the closure notice was not served”,
can appeal the closure order. In this clause, “interest” covers those with a financial or legal interest in the premises. Given those reasons, I hope that my noble friend will not move the amendments I have covered.
Amendment 56ZL would allow a local authority to appoint a business partner to serve a closure notice, as my noble friend explained. I acknowledge from my own experience that this can be helpful. Local authorities considered different ways of delivering these services and concluded that the decision to serve a notice should remain with the local authority. I would like to take the amendment away and come back to it on Report.
Amendment 56ZR seeks to ensure that those who may need to know about a closure notice or order are properly informed of its provisions to ensure that it is not breached inadvertently. The Bill requires that the police or local authority,
“must if possible … fix a copy of the notice to at least one prominent place on the premises … each normal means of access … any outbuildings that appear … to be used with or as part of the premises”.
They must also, if possible,
“give a copy of the notice to at least one person who appears … to have control of or responsibility for the premises, and … to the people who live on the premises and to any person who does not live there but was informed (under section 69(6)) that the notice was going to be issued”.
This ensures that, where it is possible to do so, the notice will be clearly displayed and given to the key individuals who may be seeking to access the premises. If, for whatever reason, the notice could not be served and displayed in the way I have indicated, resulting in an individual accidentally entering premises in contravention of a closure order or notice, it could be considered that in the circumstances the individual had a reasonable excuse. They would not then be in breach of the notice or order and would not have committed an offence.
Amendment 56ZS would allow those seeking compensation to have to satisfy only two of the conditions set out in the Bill rather than all four. I listened very carefully to what my noble friend said about the drafting elements, and I am sure that officials have noted that as well. However, the amendment would mean that the court would have to be satisfied only that one of the conditions set out in paragraphs (a), (b) or (c) of Clause 83(5) had been met alongside the condition in paragraph (d). However, I take on board the helpful comment made by my noble friend Lady Hamwee about the drafting. We will reflect on that in advance of Report.
We have deliberately framed these provisions around the four conditions that have to be met. We often decry the growth of compensation culture and we do not want to add to it here. Of course, where the owner or occupier of the premises subject to a closure notice or order has suffered financial loss, was not in any way associated with the anti-social behaviour on the premises and took reasonable steps to prevent such behaviour, that person should be entitled to claim compensation. However, we do not believe that the ability to seek compensation should extend more widely than this. To do so would open up the police and local authorities to numerous claims, and would make it more difficult for applicants to know whether their claim was likely to be successful. Importantly, this amendment might also deter police and local authorities from exercising their closure powers in appropriate cases, thereby exposing victims to continued distress.
Having said that, I note that my noble friend’s intent in tabling this amendment came from a drafting perspective. However, based on the assurances that I have given, I hope that she will withdraw the amendment.
Baroness Hamwee
My Lords, of course I shall do so but, on that last point, when I looked again at my amendment in preparation for today’s debate, I thought that this would be something that would be completely bemusing to anyone who did not have the Bill in front of them. I apologise for that. It should be paragraph (a) or (b) and (c) and (d). It also seems that the applicant having incurred financial loss, as set out in paragraph (c), was a given—one has to incur loss to have a claim for damages. So it may or may not need to be said.
I am grateful to my noble friend for the other points that he has covered. On whether or not one refers to the operator—I am thinking about businesses—we are back to guidance. My noble friend talked about discretion on a case-by-case basis. He is aware that I would prefer to rely on guidance as little as possible.
I remain concerned about the term “habitually resident”. There is a danger of people who live in the premises being adversely affected when they should not be caught up in this. Where will they go?
I note that the Minister talked about “interest”, where it is used in the context of a financial and legal interest, as being something between interest in property and the normal, general meaning of the term. I will think about that. I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 7 months ago)
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Lord Rosser
My Lords, one of the issues that my noble friend Lord Ponsonby of Shulbrede raised is the apparent extent to which Clause 94 could be used to keep cases that would justify court proceedings under the terms of the Bill out of the courts, where an individual has admitted to engaging in anti-social behaviour or committing an offence to a constable, investigating officer or a person authorised to issue additional cautions. Even where such a person thinks that the evidence is enough to seek an injunction under Section 1 or to take other court proceedings, they can still make a decision not to seek an injunction, not to take court proceedings, not to give a caution and not to give a fixed penalty notice. Instead, they can tell the offender to carry out any action listed in the community remedy document, including making a payment to the victim.
Since the Secretary of State is to issue guidance to local policing bodies on how they should discharge their functions in preparing or revising the community remedy document, can the Minister say what will be the maximum penalties that can be provided for in that document, including the maximum payment that can be ordered to be made to the victim? If an offence has been admitted, can the offender insist on being taken to court or receiving a caution or fixed penalty, rather than carrying out an action listed in the community remedy document?
Will a constable or investigating officer be able to act under Clause 94(3) if the offender has previously committed offences, or will it be only if the offender is not previously known? Will a record be kept and, if so, by whom, of any actions under Clause 94(3) that an individual who has committed anti-social behaviour or an offence has been told to take? Since the community remedy document is to apply not only to anti-social behaviour but to an individual who has committed an offence, what kind of offences will be deemed suitable to be dealt with under Clause 94?
My noble friend Lord Ponsonby spoke about the issue of scrutiny and the apparent inadequacy of the scrutiny that is likely to take place. Certainly, there do not seem to be watertight provisions in the Bill to ensure that such scrutiny takes place of the use of the powers under Clause 94.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for tabling his amendment. As he explained, it is probing in nature and seeks to establish a local panel to scrutinise the strategy and use of cautions and out of court disposals in particular. I listened carefully to the reasoning given for the reduction in crime; there were some interesting comments.
I draw your Lordships’ attention to the out of court disposals review that is currently taking place, in partnership between the Ministry of Justice and the police, and in conjunction with the Home Office, the Attorney General’s Office and the Crown Prosecution Service. The review will look at all out of court disposals currently used against adults and consider how they might be reformed. The aim is to ensure that out of court disposals are as effective, simple and transparent as possible. The review includes conditional cautions and community resolutions, both of which will be subject to the community remedy. This public consultation was launched on 14 November to seek the views and experiences of professionals, victims’ organisations and the public. The consultation will conclude on 9 January and the review as a whole will conclude later in the spring.
Two key themes of the review—picking up on a point raised by the noble Lord, Lord Ponsonby—are transparency and accountability. The consultation asks the public to consider whether they think there is more information about out of court disposals that should be shared; whether they are able to hold the police to account for the way that out of court disposals are used; and how they think that the Government can make the out of court disposal system more accountable.
In particular, the consultation asks for views on what sort of offences out of court disposals are appropriate for. I agree that the use of cautions for serious offences and repeat offenders requires careful consideration in each specific case. The Review of Simple Cautions, to which the noble Lord referred, has already been completed. The review made it clear that cautions should no longer be used for indictable only offences, and certain serious either-way offences, unless there are exceptional circumstances, and that those who persist in criminal activity should no longer expect to receive a caution. Those changes have been made to the guidance on simple cautions.
The out of court disposals review is also looking at this issue. Currently, the guidance for all out of court disposals indicates that they are available for all offenders, but are primarily intended to address first-time offending. The latest data, for 2012-13, show that 60% of those getting a caution—that is, either a simple or a conditional caution—have not received a previous caution.
On the issue of senior officer oversight, the simple cautions review recommended that there should be greater local accountability and scrutiny of decision-making. The review further recommended that each force should have a senior officer identified as responsible who would provide local leadership and accountability and who would make use of local scrutiny panels. We are considering that recommendation carefully as part of the wider out of court disposals review. There are clearly links between the matters considered in the simple cautions review and the out of court disposals review, and we will consider these alongside each other. Further, I assure the noble Lord that the issues he and others raised in this debate will be fed into the out of court disposals review.
The draft guidance on the community remedy signposts existing CPS guidance on the use of conditional cautions. The community remedy will work with any changes to conditional cautions or community resolutions that take place as a result of the review, but we need to be careful not to impose anything in the Bill or the guidance that will contradict or restrict any changes to those systems.
I will pick up a few points made by the noble Lord, Lord Rosser. He asked about the crimes for which the remedy might be used. They are low-level criminal damage, low-value theft, minor assault without injury and anti-social behaviour, and are currently set out on page 15 of the draft guidance. In addition, the noble Lord asked whether the offender could insist on prosecution. The answer is no. He asked whether the community remedy only applied to first-time offenders; I have already covered that particular issue. I was asked what records are kept. The police will keep records in accordance with the Data Protection Act 1998 and will retain them if there is a specific police purpose. As I said, a much more detailed review will end in January of next year.
The noble Lord, Lord Ponsonby, indicated that this was a probing amendment. I hope by what I have said that that I have conveyed that there are broader issues to consider as well. We will undoubtedly return to this issue once the current review results are out. In the interim, I hope that the noble Lord is reassured both by my explanations and my commitment that the content of this debate will be included in that review, and that he will be minded to withdraw his amendment.
Lord Ponsonby of Shulbrede
My Lords, I thank the noble Lord, Lord Ahmad, for that response to my amendment. I am pleased that there will be a further review of out of court proposals. Perhaps there should be a review of the scrutiny panels themselves? The purpose of my amendment is not to address a lack of legislation. The legislation has been in place for years: it is just that it has not been implemented.
Lord Ahmad of Wimbledon
On that point, as I said in my response, one thing that the wider review is doing is talking directly to local players on the ground, including local police, to feed back on the effect. The noble Lord is quite right that legislation is available. What we need to see is practical implementation. We hope that the more detailed review will address those issues.
Lord Ponsonby of Shulbrede
Once again, I thank the noble Lord, Lord Ahmad, for that explanation. I will make one last point. In London, where 25% of all crime in England and Wales takes place, as far as I am aware no scrutiny panels are in operation. Having said that, I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 8 months ago)
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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.
Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 8 months ago)
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Lord Ahmad of Wimbledon (Con)
My Lords, I can be brief with this group of government amendments which implement the recommendations made by the Delegated Powers and Regulatory Reform Committee in respect of certain of the delegated powers in Parts 1, 4 and 5 of the Bill. The amendments to Clauses 55, 56 and 57 are worthy of particular comment. The Delegated Powers Committee argued that, in relation to the public spaces protection orders, the current provisions in the Bill requiring a local authority to consult with the chief officer of police and community representatives was too narrow given the potential impact of such orders. The committee further argued that there should be a general duty to publicise the intention to make a notice. We are happy to accept the point made by the committee. The amendments to Clause 55 therefore require a local authority to publicise its intention to make an order so as to allow persons affected to make representations. In the normal way, a local authority would be bound to consider any such representations before making an order. This process is also replicated where the local authority plans to extend, vary or discharge an existing order by the amendments to Clauses 56 and 57 respectively. I beg to move.
Baroness Smith of Basildon
I was a bit slow on to my feet; I suspected that there may be other noble Lords wishing to speak on this.
The noble Lord will recall that these are the amendments over which I last week raised our concerns about their being tabled late. The anticipation was that they would be debated the day after they were laid, so I am pleased that we have had a gap and welcome the opportunity to look at them more closely.
The amendments to Clause 55 are in response, as the noble Lord has said, to recommendations from the Delegated Powers and Regulatory Reform Committee. The Government had tried to confer a wide-ranging and significant power on local authorities to control the ways in which public spaces are used without any requirement to publicise the public spaces protection order before it was made. We agree with the committee that that would have been inappropriate delegation of powers. I am pleased that the Government have tabled the amendment, which would require a local authority to publish the text of the proposed order, if I understand it correctly, or an extension in duration of an existing order, or any variation in a public spaces protection order. It adds clarity, which I welcome, but there are still concerns about the amended clause that will need to be addressed later in passage of the Bill.
As the noble Lord said, government Amendments 56ADA and 56ADB on orders relating to the Housing Act—those on absolute grounds for possession of anti-social behaviour—and government Amendment 100 about the granting of injunctions will ensure that those elements are subject to the affirmative procedure. We have serious concerns about these proposals. The amendments at least provide for a greater degree of accountability of the legislative process and add greater scrutiny to these powers, which we find deeply flawed. There are loopholes and my noble friend Lord Rosser will be speaking to those in the course of today’s debate.
I will give one example. Clause 4 specifies the bodies which are authorised to apply under Clause 1 for an injunction against a person to prevent them engaging in conduct capable of causing nuisance and annoyance. Subsection (5) of that clause will enable changes to be made to bodies and persons who are authorised to apply for an injunction under Clause 1, including making changes to the circumstances in which a body may make such an application. The Government’s view has been challenged, and I think they now accept this: it is not a general power to amend but is restricted to adding persons who may apply for an anti-social behaviour order under Section 1 of the Crime and Disorder Act 1998.
The Delegated Powers Committee said that the Home Office’s explanation does not take account of the different nature of an anti-social behaviour order from an injunction under Clause 1, including the different tests to be applied in each case when determining an application. As a result, the Government have now tabled amendments whereby this would now rightly be subject to an affirmative procedure, which is much more appropriate.
Government Amendments 56ADA and 56ADB relate to subsections (10) and (11) of Section 84A of the Housing Act 1985. One of the conditions that, if met, could be used to trigger repossession proceedings, is that the tenant,
“or a person living in or”,
even,
“visiting the dwelling, has been convicted of a ‘serious offence’; and that offence was committed in the locality of the dwelling, against a person who lives in the locality, or against the landlord or a person employed in connection with the landlord’s housing management functions”.
The Delegated Powers Committee stated that,
“the scope of the power is not limited in any way, but simply allows the addition or removal of any indictable offence. In our view, this is a significant Henry VIII power, since the way in which it is exercised will have a direct effect on the circumstances in which a court will be required to order possession”.
Therefore we certainly agree with the government amendment that it is more appropriate that these amendments subject this process to the affirmative procedure. Obviously, the repossession process can have a hugely detrimental impact on people’s lives, and as such, any such power introduced by the Government must be monitored closely. Noble Lords have to be aware that we have serious concerns about that policy. My noble friend Lord Rosser will speak about that in more depth when we come to our debate on Clauses 86 and 89 stand part.
Lord Ahmad of Wimbledon (Con)
I note what the noble Baroness has said and appreciate the support, albeit qualified, for the government amendments from the Benches opposite.
Baroness Smith of Basildon
As a point of clarification, I am fully aware that it is not three years in every case—it is up to three years. However, one of my concerns is that, because of the cost of renewal and the uncertainties around that, a number of local authorities may think that three years has become the default. It will be easier for them to run to the maximum of three years rather than face the bureaucracy and costs of renewal by doing otherwise.
Lord Ahmad of Wimbledon
My Lords, first, I thank all noble Lords who have participated in this debate. In doing so I make the general point that sometimes in debates such as this you hear some noble Lords saying that the period is too long and others saying that it is too short, and so going down the middle is normally the solution. The noble Baroness talked about perfection. Dare I say that, perhaps on this clause, we are as near to that as we can be? I will address the amendments and the questions as far as I can but I hope, as I always do with the noble Baroness opposite, that she will gain some reassurance from what I say, if not from my words then at least from my tone.
These amendments relate to the process of reviewing and extending public spaces protection orders, as we have heard. As noble Lords are aware, there is currently no statutory review point for the orders we are replacing and they can run indefinitely. The argument has been made about where we are today. Putting in a limit is a positive way forward, otherwise—to quote the noble Baroness’s words back at her—these orders run on and on. It is important to look at how they should be reviewed. I believe that there should be a formal review point, which we have decided to set at three years.
The effect of Amendments 41B and 44A, which stand in my noble friend’s name, would of course be to limit this to 12 months. I have listened to the arguments that she put forward. As we have made clear in the guidance, orders do not have to last for three years—a point just made by the noble and learned Lord. There is flexibility within this, according to the circumstance and the situation and at the discretion of the issuing authority, including the local authority, as to what is appropriate. If appropriate, these can be reviewed or discharged before three years have elapsed. My view is more qualified and endorsed after listening to the debate and I believe that three years is a proportionate balance between the needs of users and the protection of the community, especially given the everlasting orders that we are seeking to replace.
Amendments 44B and 49A—which I take to be an alternative to Amendments 41B and 44A—would ensure that orders could not be extended more than once. The noble Lord, Lord Harris, raised the specific point that the legislation allows only for renewal. I am sure that he has reflected on Clause 56; there are provisions specifically to allow for the recurrence of a renewal of an order. He is nodding so I am sure that he agrees with the point I am making.
Of course, there are situations in which longer-term restrictions could be necessary; for example, as I am sure my noble friend is aware, these orders will replace, among other things, dog control orders, as the noble Baroness, Lady Smith, said. This means that a public spaces protection order will be required, as a dog control order is now, to ensure that the fouling of public land is dealt with. I am sure that my noble friend will agree that this is not a problem that can be fixed in three or indeed six years and an ongoing restriction is therefore required. As such, preventing the further renewal of orders would mean communities having to put up with dog mess as well as other potentially anti-social behaviours, such as public drinking.
Turning to Amendment 48, my noble friend will be aware that the orders being replaced by the public spaces protection order do not include a formal review and, as such, can last indefinitely. In reforming the powers, we believed that it was only right that a statutory timeframe was built in, and I am sure that my noble friend will welcome that in principle. As the legislation states, the review should be conducted every three years.
Of course, I understand the concerns raised by my noble friend about the potential impact of a three-year restriction if applied to all orders but, as I have already said, the legislation is clear that councils can limit the duration of an order to a period of less than three years. Indeed, as the draft guidance suggests, in a situation where a public right of way is being closed for the first time to try to deal with a specific issue, the council may well prefer to review this after a shorter period of time.
To make this amendment would mean that all orders covering rights of way would have to be reviewed every six months. This would include, as I have already mentioned, welcome restrictions to deal with dog fouling and the consumption of alcohol. This would turn the new power into a bureaucratic nightmare that resulted in councils that decided to use it living in a loop of constant consultation and review. As I have said before, in my own experience as a local councillor for 10 years, consultations were regularly part and parcel of our decision-making, but if we had to issue an order and then immediately start another consultation, I fear that we would be constantly in consultation mode.
Lord Greaves
Does my noble friend accept that there could be a difference between the kinds of restrictions he is talking about, which in appropriate circumstances we would all find sensible to last for a long period of time, and actually banning access itself? It is when access itself is banned on a right of way that the real problems start to occur.
Lord Ahmad of Wimbledon
I take on board what my noble friend is saying. That is why I believe that, as the clauses are drafted, there is flexibility with regard to the circumstances, the situation and indeed the tenure appropriate to the offence that is being perceived. I have already flagged up that in this instance, if an issue arose for the first time, the local authority may well be minded to apply an order of smaller duration to allow for exactly the kind of review and assessment that my noble friend is suggesting. I understand the point my noble friend makes and, as I have said, it probably refers more to the restricting of access than anything else. I have listened and we will consider how to make the guidance more specific in this regard.
Finally, Amendment 55A relates to appeals against public spaces protection orders. My noble friend has asked for clarification of whether there is a right of appeal against the extension of an order. That is a fair point. The amendment would provide an additional opportunity to challenge an order every time it was extended. This could result in additional appeals, even if the circumstances had not otherwise changed. That said, my noble friend has raised an important point and I will take it away and reflect further on it.
The noble Baroness, Lady Smith, asked if I could predict the number of orders and renewals. Crystal balls are hard to come by and the important thing we are seeking to do here is to ensure that the orders are specific, time-limited and can be reviewed. Again, if the behaviour has been corrected, the order does not need to stay in place for ever. That is an important point to bear in mind. How often are we expecting the orders to be renewed? That is very much up to the local authorities to decide. One order can cover more than one behaviour with a shorter consultation process, so there is less paperwork, less bureaucracy and less delay. Reviews can be quite light-touch, so one review may be more intensive than another. It would be almost impossible to give a cost for each review.
We should not forget that there is an absolute need for democratic accountability for the continued operation of these orders. The Government feel that the balance has been struck. The noble Baroness talked about the Ramblers and Battersea Dogs and Cats Home. Perhaps she would like to respond and tell me whether she believes that what we are seeking to do in Clause 56 is appropriate, because the current situation means that there is no time limit. We are seeking to ensure three years, with the possibility to review, and a three-year period is allowed for only if the local authority chooses to persist with that; if it chooses to put one year down, that is its prerogative.
Baroness Smith of Basildon
The noble Lord invites me to say whether I think it is a good idea. The way to find that out is to review the operation after a couple of years. I am not really satisfied that saying that because some people want one year and some people want it for ever, if we find the middle number that is the right way to go. That does not address specific circumstances but I thank him for trying to answer my questions. He missed one: I asked what assessment had been made of why these were needed and what demand there was. Who has called for these changes to be made and have one order covering all three issues?
Lord Ahmad of Wimbledon
My Lords, I hope I have illustrated that there is a need to decrease bureaucracy when you take three and turn it into one. Coming back to a point that the noble Baroness raised about enforcement, it makes that much easier. Certainly, my own experience in local government substantiates that. I am sure other noble Lords may share that experience.
It is right and proper that these orders should be regularly reviewed. The noble Baroness asks what evidence there is and why we have taken this route. The Government believe it is right to devolve these decisions to the people who are on the coalface, so to speak: the local authorities, the people who are closest to circumstances at a local level. I hope that I can share my own experience but also that of anyone who has served in a local authority. The last thing you need is central government or a central diktat telling you what is appropriate for your local area.
Lord Ahmad of Wimbledon
What the Government are seeking to do is exactly what we have said on the tin: to allow local authorities to decide what is appropriate for them. I always take the laughter of the noble Lord, Lord Greaves, as approval.
Lord Harris of Haringey
My Lords, I am grateful to the Minister for giving way, but if the desire is to give all this freedom to local authorities, I am still not clear why Clause 56 is needed at all. As has been pointed out, Clause 55(8)(c) states, “must … specify the period”, so you cannot just say, “We’ll just whack it in and see what happens”, and Clause 57 allows for variation. While I am on my feet and so as not to interrupt later, in case the Minister does not have the answer in his notes, I would be interested in his response to the question asked by the noble Lord, Lord Faulks, as to the objection to changing “must” to “may” in Clause 56(5), so that there might be a less onerous process for the renewal of orders.
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
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Lord Greaves (LD)
My Lords, I shall speak also to Amendment 53C. This small group contains two completely unrelated amendments. The first simply asks why premises owned by parish and town councils are not treated in exactly the same way as premises owned by district or other principal councils in terms of exemptions from alcohol bans. District councils are treated in a slightly less strict way compared with other premises, but I do not understand why town councils are not treated in the same way, as they very often own what people think are council-owned facilities in small and medium-sized towns.
Amendment 53C is a more important amendment, and it reads fairly cryptically. It proposes inserting at the end of line 41 on page 35,
“notify such other persons as may be specified in regulations made by the Secretary of State”.
It relates to Clause 60, which concerns orders restricting a public right of way over a highway. Therefore, we are back to that subject.
The existing legislation in a number of different areas relating to access contains designated or specified organisations. There is a list of those organisations and they usually appear in secondary legislation rather than in an Act. I remember arguing a long time ago during the passage of the Countryside and Rights of Way Bill, as well as the Commons Bill in 2006 and some others, that they ought to be in an Act, but they ended up in regulations.
In the CROW Act, proposals relating to access concern restrictions on access land; in the case of the Wildlife and Countryside Act, they concern closures and diversions of rights of way; and in the Marine and Coastal Access Act, they are to do with the designation of access land and the coastal route. In all these cases there is a designated or, in the more recent legislation, specified list of organisations which are notified of proposals. The list includes access organisations such as the Ramblers, the British Mountaineering Council and the Open Spaces Society. It also includes representatives of landowners. For example, the Country Land and Business Association, formerly known as the Country Landowners Association, is on a specified list, as are other organisations. It is a balanced list and it is a matter of automatic notification.
The purpose of this slightly cryptic amendment is to ensure that such a list—really it is the same list as in the other legislation—applies in the case of proposals to restrict, and particularly to stop access to, rights of way so that those organisations have the opportunity to make representations just as they have in other cases. Particularly on the rights of way we are talking about here, if what was being proposed was a closure or diversion under the Highways Act, as amended by the Wildlife and Countryside Act, that right would exist.
I shall say what I said before we had our dinner break: nowadays such notifications are far easier than they used to be. Once a system has been set up, it is just a question of pressing two or three keys on a computer keyboard. If I can set up that sort of system easily enough, I am sure that local authorities would have no difficulty doing so. I beg to move.
Lord Ahmad of Wimbledon (Con)
My Lords, I am grateful to my noble friend for tabling his amendments. On Amendment 53A, I appreciate and understand the important role that parish and town councils and community councils in Wales play in delivering key services in their area and, importantly, in creating a feeling of community; for instance, through the organisation of social events and so on and so forth.
The Bill provides some level of protection for council-operated licensed premises so that they can organise the kind of social events I have referred to but, as my noble friend has suggested, the narrower definition of local authority in this part of the Bill may mean that protection is not afforded to the types of council covered in the amendment. As such, it could result in the parish council not being able to sell alcohol at its annual fête because of a wider controlled drinking zone implemented by the district council. I have listened very carefully to my noble friend’s comments and have reflected on the amendment. If he will agree to withdraw it, we will certainly consider any further and wider implications of the change suggested and return to this on Report.
Amendment 53C would give the Secretary of State the ability to add, by regulation, to the list of persons who should be consulted before access is restricted. We believe that, as currently drafted, the Bill covers all those who should be consulted in each case. I am happy to provide further examples in the guidance but we do not believe there is a need to provide the Secretary of State with the ability to prescribe additions to the list. As my noble friend knows, it would, of course, be open to a local authority to consult more widely, if it so chose. On the basis that I accept in spirit his first amendment and with the explanation I have given on his second amendment, I hope that he will be minded not to press his amendments.
Lord Greaves
My Lords, having just had a splendid dinner, I am tempted to put the first amendment in this group to a vote and see what the Government do, but I shall not. I shall be a good boy. I thank the Minister for his very constructive response.
On Amendment 53C, I do not understand why organisations which are consulted at the moment on all similar proposals should not be consulted on these proposals. There is a suggestion that these national organisations ought to keep out of these local decisions, but we are talking about rights of way networks which have national or regional importance as public footpaths for many people who do not live locally. There is an issue of principle here which I would like to discuss further with the Government. In the mean time, I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for his amendment, and not least for his closing remarks. He raises an important and interesting issue. The City of London Corporation, as all noble Lords would agree, does a fantastic job managing a number of important spaces through both primary legislation and the effective use of by-laws. I also know that in discussions officials have held meaningful and constructive conversations with representatives from the City of London Corporation over the past few months to discuss the issue, and I note and appreciate the safeguards that have been built into the suggested amendment. I would like to consider the matter further ahead of Report, read through my noble friend’s contributions and the representations which have been made by the City of London, and consider any wider implications of this proposed change. In the mean time, given the strong case made by my noble friend and what I hope he feels is my positive response, I hope he will be minded to withdraw his amendment.
Lord Brooke of Sutton Mandeville
My Lords, I am happy to do as my noble friend suggests. Should he wish to have further contact either with me or with the City of London Corporation, I hope that he will not hesitate to do so. I am very grateful to him for the spirit of his response, and I beg leave to withdraw the amendment.
Lord Brooke of Sutton Mandeville
Perhaps I may make a very brief intervention. Clause 67(2) seems to contain a drafting mistake because the subsection opens with the words “This section”, but it is in fact a reference to paragraph (b) immediately before it in subsection (1), referring to “public place”. I am not seeking to press this in any way but some attention might be drawn to it between now and Report to make sure that, if I am right, it is corrected.
Lord Ahmad of Wimbledon
My Lords, Clause 67 provides interpretations of the terms used in this chapter, and I shall briefly explain the definitions and the reasoning behind the key terms.
First, perhaps I may pick up on the question of “public place”, which the noble Baroness, Lady Smith, has just raised. This is defined as,
“any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission”.
It is the same definition as is used for the current designated public place order. It does not apply where a private Act gives a person or body a power in relation to a certain area of land. However, if that person or body gives written notice to the local authority, the local authority can make a public spaces protection order in relation to that area of land.
Unitary authorities fall within the definition of “local authority” as currently drafted in the Bill. I am mindful that we have looked at the various definitions of local authorities, including parish councils and county councils, and we are looking at all these issues in more general terms. I hear what the noble Baroness says about the specific issue of unitary authorities but they fall within the definition of “local authority”.
There are a few other definitions which have not been raised in this debate, but I hope that I have reassured the noble Baroness on the two specific issues that she mentioned and that she will be minded not to press her opposition to the clause standing part. I thank my noble friend Lord Brooke for pointing out the drafting issue and we will certainly review it in advance of Report.
Anti-social Behaviour, Crime and Policing Bill
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Baroness Smith of Basildon (Lab)
My Lords, may I raise a point about the further consideration of the Bill today? At 6.03 pm yesterday, we received quite a lengthy letter from the Minister with amendments that I am told are to be debated today. Is it appropriate to receive amendments at such late notice for debate the following day?
Lord Ahmad of Wimbledon (Con)
My Lords, as with the Opposition, we have also seen all the amendments and have been working through them. They have been tabled and agreed for debate; that is the programme that is scheduled for today. I know that the noble Baroness appreciates the challenges of the number of amendments we have on this Bill, and we wish to make progress.
Baroness Smith of Basildon
I am sorry. I understand the need to make progress. The Minister will know from the amendments we have tabled and our contributions to this debate that we agree with him in seeking to make progress. I am, however, questioning whether it is right to table amendments and notify some Members of your Lordships’ House—not all—at 6.03 pm for debate on the following day. That seems completely inappropriate. As we are speaking, I am trying to go through all the amendments to ensure that we have a response and can fully consider them. This House prides itself on scrutiny, but this does not leave us the opportunity to scrutinise adequately these amendments tabled by the Government.
Lord Ahmad of Wimbledon
Again, I say to the noble Baroness that anyone who has been in the previous days of this Committee would not doubt for a moment that the House has been very careful in its scrutiny of the Bill. That is reflected in where we currently are in the progress of the Bill. As I said, these amendments have been tabled and we, as the Government, have looked at them. We look forward to the debate and the scrutiny that will take place of them.
Lord Rosser (Lab)
My Lords, we have tabled amendments 21E and 21F to seek to clarify the effect of changes made to Clause 12 on Report in the House of Commons. As I understand it, the effect of those changes is that the ability to exclude a person who is the subject of an injunction under Clause 1 from the place where he or she normally lives in cases of violence or risk of harm can now apply across all tenures, including owner-occupiers, and not just the social housing sector, as I think was originally proposed. Will the Minister confirm whether that is now the case?
If Clause 12 now applies across all tenures equally, what powers are now given under Clause 13 that apply only to someone with a tenancy agreement but do not apply to someone normally living in owner-occupied property who is also the subject of an injunction under Clause 1? One would have assumed that all tenures were now being treated equally but I take it that Clause 13, by its very wording, does not apply to a person in owner -occupied property. If there is still a difference in the powers available under Clauses 12 and 13, depending on the form of tenure, will the Minster say what those differences are and why they are necessary? Will he also say whether Clause 13 applies to the private rented housing sector or to just the social housing sector? Presumably the private rented housing sector is now covered by the changes made to Clause 12, so if a private sector housing tenant is not covered by Clause 13, in which ways does it mean that someone in social housing accommodation is being treated differently from someone who is a private sector housing tenant and who is also the subject of an injunction under Clause 1?
Amendment 21F would give local authorities extra flexibility in tackling anti-social behaviour in the private rented housing sector when private landlords refuse or are unwilling to act. It would be helpful to have the Minister’s comments.
Finally, under Clause 12, the injunction may exclude the respondent from the place where he or she normally lives. Under Clause 13, the tenancy injunction may include a provision prohibiting the person against whom it is granted from entering or being in any premises or any area specified in the injunction. What is the reason for the difference in wording apparently based on form of tenure?
Lord Ahmad of Wimbledon (Con)
My Lords, I totally understand the noble Lord’s concern that anti-social behaviour powers in this Bill should be, as far as possible, tenure-neutral. He is quite correct that this came up during the debate in the other place and Clause 12, which provides for exclusion, is now tenure-neutral following amendments made on Report in the Commons. Of course, it is of no consequence to the victims of such behaviour that the perpetrator is a tenant of social housing, in the private rented sector, or is indeed an owner-occupier. What matters is that action can be taken.
Clause 13 makes special provision for tenancy injunctions so as to preserve the powers in housing legislation. For the most part, the housing injunction can be used in the same way as an injunction to prevent nuisance and annoyance. However, it makes the express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person and this constitutes a breach of the tenancy agreement. Such behaviour could be committed by a visitor or lodger, for example. Front-line professionals have demonstrated through discussions held that they value this power and that is why we have retained it.
I assure the noble Lord that we are satisfied that Part 1 already enables the police, a housing provider or a local authority to apply for an IPNA to prevent a person allowing, inciting or encouraging someone else to engage in anti-social behaviour. It can be used in this way not only against tenants in the social and private rental sectors, which are the sectors that these amendments are concerned with, but against owner-occupiers. Given that, we do not need to extend the tenancy injunction provisions to cover a wider category of persons, as these amendments seek to do.
I also assure the noble Lord that Clause 13 applies to anyone who has a tenancy agreement with a local authority or a social landlord, so it does not cover the private rental sector.
Based on the assurances that I have given in terms of the extension and the provisions that were discussed in the other place, I hope that the noble Lord is content to withdraw his amendment.
Lord Rosser
I am still not entirely clear what the position is in the light of what the noble Lord has said. As I understood it, he seemed to be at some pains to say that the content of Clause 13 is also covered by Clause 12 because the police, or somebody making the application, would have the powers to make that application in respect of somebody in the private rented sector, or presumably even an owner-occupier, who was,
“allowing, inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”.
I think that that is what the noble Lord was seeking to tell me. That wording appears in Clause 13 in relation to tenancy injunctions but it does not appear in Clause 12, although the Minister is seeking to say that that is what Clause 12 actually means. Therefore, if owner-occupiers and the private rented sector are covered by Clause 12, why do we need Clause 13 to put in different wording for a tenancy injunction when the noble Lord is apparently seeking to say that that is already covered in Clause 12?
In my contribution, I drew attention to Clause 13(3), which says:
“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,
so it clearly covers premises other than where the person normally lives, but the subsection goes on to say that it could also apply to,
“any area specified in the injunction”.
Do the terms of Clause 13(3) apply also to owner-occupiers and the private rented housing sector or are we treating differently people in the social housing sector who may have one of these injunctions and who it is proposed should be excluded? Are the people concerned in the three different types of tenure all being treated equally or is there something different in this for the tenant of social housing accommodation? If there is no difference and it is all covered by Clause 12, why do we need a separate Clause 13?
Lord Ahmad of Wimbledon
I repeat that as far as the first clause is concerned, the intention is to be tenure-neutral. As I said, we have considered the discussions that took place on Report in the House of Commons and have made appropriate amendments. I also repeat that the specific purpose of a tenancy injunction is to capture behaviour where a tenant has breached, or it is anticipated that they will breach, their tenancy agreement by engaging, or threatening to engage, in anti-social behaviour. We have tried to cover all elements in both clauses. As I have said before, it does not matter to the victim whether the perpetrator is a tenant of social housing or in the private rented sector. What matters is that action can be taken, and Clause 12 covers that.
Lord Rosser
With great respect to the Minister, I do not think that he has explained why Clause 13 is necessary. He keeps saying that Clause 12 is tenure neutral. If it is tenure-neutral, it covers social housing tenants as well as those in the private rented sector and owner-occupiers. Therefore, why do we need Clause 13? He refers to Clause 13 relating to anti-social behaviour, but Clause 12(1)(b)(i) also refers to anti-social behaviour. It also refers, in subsection (1)(b)(ii), to,
“a significant risk of harm to other persons from the respondent”.
The Minister has not addressed another question that I asked. Clause 12 refers to,
“excluding the respondent from the place where he or she normally lives”,
but in Clause 13, which covers tenancy injunctions, a prohibition can apply to,
“any premises specified in the injunction (including the premises where the person normally lives)”.
I therefore repeat that the provision envisages that the scope can extend beyond the premises where the person lives. There is also a phrase about preventing a person,
“from entering or being in … any area specified in the injunction”.
Is the Minister saying that the terms of Clause 13(3) are also included in Clause 12? He cannot have it both ways. He cannot say that Clause 12 covers all forms of tenure and then say that he still needs Clause 13.
Lord Ahmad of Wimbledon
I can only repeat what I have already said: Clause 13 makes special provision for tenancy injunctions so as to preserve specific powers in housing legislation. In this case, it also makes an express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person. This constitutes a breach of their tenancy agreement. As I said earlier, such behaviour could be committed by a visitor or a lodger. The reason for Clause 13 is that front-line professionals value this power. That is why we seek to retain it.
Lord Rosser
Why is it not equally important that the provision about,
“inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”
should apply to the private rented housing sector, and to owner-occupiers? Is the Minister saying that only somebody in social housing might incite or encourage others to engage or threaten to engage in anti-social behaviour, and that that would not apply to the private rented sector or to owner-occupiers? Of course it applies there, too. This is not tenure neutral. If it were, Clause 13 would not be needed.
Lord Ahmad of Wimbledon
My Lords, either I am failing to comprehend totally what the noble Lord is saying, or vice versa. I am listening very carefully to what he is saying, but, rather than repeating myself, I think it would be in the best interests of making progress if I wrote to him about this. I hope that he has been reassured by some of what I have said, and by the commitments and assurances given by the Government. On that basis, I again ask him to withdraw his amendment.
Lord Rosser
Obviously, I accept that the Minister will, without any commitment, have another look at this and write to me—which presumably will require him to reflect on everything that has been said before his reply is signed and sent. On that basis I will withdraw the amendment. However, I put to him again this simple question: if he is arguing that Clause 12 is tenure neutral, why does he need Clause 13? I beg leave to withdraw the amendment.
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.
Lord Rosser
I certainly will withdraw my amendment but can the Minister respond to two of the questions I asked? Can the youth offending team oppose an application for an injunction under Section 1 for someone aged under 18 and can it oppose it 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?
Lord Ahmad of Wimbledon
The youth offending team cannot actually veto an application. If it objects to a particular application, we expect further dialogue to take place on what it has submitted, but that does not mean that the process should be dragged out unnecessarily.
Lord Rosser
I accept that the team cannot veto it, but my question was: if it does not agree with it, can it oppose it in court? When the thing goes to court, will it be necessary for the court to be told of the outcome of the consultation of the youth offending team and the view of the youth offending team?
Lord Ahmad of Wimbledon
This is a specific issue. As I said, I would expect that the court would consider all consultations that had taken place and advice that had been received in considering this element. Certainly, the intention in providing for these orders would be that the youth offending team had a central role. It would also be represented in court. If there were an occasion where the team felt strongly enough, yes, the short answer is that it would be represented at the court hearing if it thought that its issues were not being considered in the right way.
Lord Rosser
I thank the Minister for his response to the question and I beg leave to withdraw the amendment.
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.
Lord Beecham (Lab)
Will the Minister indicate whether unincorporated bodies will be caught by the provision, or would that require additional legislation?
Lord Ahmad of Wimbledon
I believe that the clause as drafted could apply to an individual or an organisation. When we discuss that wording, it will be clarified. This applies to an individual or an organisation—which incorporates the issue raised by the noble Lord. In addition, where the use of business premises has resulted, or is likely to result, in nuisance to members of the public or disorder nearby, the new closure powers that we are introducing, to which the noble Baroness referred, will be able to close a premises immediately. The police and/or local authorities can act quickly where a business acts anti-socially. Again, breach is a criminal offence with the potential for a significant fine.
It is also worth saying that sometimes it may be a particular individual who is the root cause of the anti-social behaviour—for instance, the business owner or a store manager—and not the business as a whole. In those circumstances, the police, council or others listed in Clause 4 could apply to the court for an injunction against the individual on the test of nuisance or annoyance. Hopefully that would deal with the issue and, while breach in this case may not be a criminal offence, it could still result in a large fine or even a custodial sentence.
In putting forward this amendment, the noble Baroness said that it was a probing amendment to seek clarification. I hope that on the basis of the example I have given, by drawing the attention of noble Lords to the fact that we will be discussing this issue under Part 4 and with my explanation, she will feel able to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for his explanation. I am not sure whether it will be helpful to probe the matter further when we get to community protection notices, because they deal with individuals. If there is a persistent litter problem in certain premises, it would not be possible to have a community protection notice against every individual. My worry with his other proposal, the closure of premises, is that it would deal with the problem by closing the business. Often, it might be better to take preventive action with the corporate body, the business, to prevent closure and to deal with the problem, rather than to act against individuals and then, if that does not work, close the business. I am trying to find a pre-emptive way to prevent the problem rather than deal with it once it had happened. However, I am grateful to the noble Lord for taking the point seriously. Perhaps we can return to it and discuss it further when we consider community protection. I beg leave to withdraw the amendment.
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 Rosser
I am very interested to hear the Minister’s response on all the issues that have been raised, particularly about the duration of a criminal behaviour order. This has already been stated. For those who reach the age of 18 there is a,
“fixed period of not less than 2 years, or … an indefinite period”—
then it says in brackets—
“(so that the order has effect until further order)”.
I am not quite sure what that means. What is the further order that is envisaged? It does not say, “until further notice” but “until further order”. Perhaps the Minister will clarify what that actually means.
As far as the order being allowed to go on for an indefinite period, the Minister has been quite eloquent during the passage of the Bill, telling us all about some of the existing provisions, how they are not working and how they are not having any effect. Bearing in mind that it says in the draft guidance that the criminal behaviour order,
“is aimed at tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court”,
then I suggest that if such an order has been in effect for five years but has not had any impact and has not managed to tackle the most serious and persistent offenders, it is unlikely that it will do so beyond five years.
On how long the order period should last, if the Minister is determined that the facility should be there for it to continue for longer than, say, a period of five years and to go on indefinitely, does he not think it appropriate that there is a proper review to justify the need for it to continue on the basis that one would have thought five years a reasonable time to show the effectiveness, or otherwise, of an order?
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lady Hamwee for her explanation of these amendments and for sharing her thoughts about a group yet to come. It gave those of us on the Front Bench advance notice of what she might be saying, so I thank her profusely for that.
Amendment 22E seeks to require a court to consider the proportionality, as my noble friend said, of positive requirements for including them in a criminal behaviour order. Positive requirements are of course an important element of both the criminal behaviour order and the injunction to prevent nuisance and annoyance. As currently drafted, the Bill states that the court must receive evidence about the suitability and enforceability from the person or organisation that will be supervising compliance with the requirement. Proportionality will therefore routinely be considered by a court as part of this decision.
The Bill sets out clear limitations on courts when determining whether to agree any positive requirement proposed in the application. The court must not impose any requirement that conflicts with, for example, an individual’s religious beliefs, or interferes with their work or education. Ultimately the court will have regard to an individual’s human rights—for example, Article 8 rights—when deciding to include positive elements. Such qualified rights can only be infringed where to do so is necessary and proportionate in pursuit of a legitimate aim. Proportionality, therefore, is a relevant legal consideration for the courts.
Amendment 22G, which the noble Lord, Lord Rosser, focused on as well, would remove the ability of the court to grant a criminal behaviour order that lasted longer than five years. Of course, I understand the reasoning behind this. However, where the courts are dealing with the most anti-social individuals, they should have the option of imposing an order for a longer period. The courts, as I am sure all noble Lords will agree, will always consider the reasonableness and proportionality of a longer order before granting it. They will have access to relevant information about a particular case. We believe they are best placed to make a judgment about the appropriate length of an order. What is more, the offender has the ability under Clause 26 to apply to the court to vary or discharge the order at any time.
The noble Lord, Lord Rosser, sought clarification about the words “further order”. This refers to a further order of the court, not a further CBO.
Finally, I understand that Amendments 22H, 22J and 22K are designed to ensure that all orders are reviewed annually. As your Lordships are aware, we have ensured that this is the case for under-18s. We recognise the importance of frequent monitoring as a young person matures during the duration of an order. However, in respect of adults we have left the decision open to the relevant police force as to whether there should be such a review. In such cases where an individual is behaving in a way that is seriously anti-social, it may not be appropriate to review the case after 12 months, as this would be too soon and would simply result in an unnecessary burden on the police and courts. Again, we wish to make sure that such decisions are made by those on the front line who are best placed to assess each individual case.
Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(12 years, 8 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, I would comment briefly that having looked at these amendments, Amendment 22QA seems to be a particularly reasonable and sensible way forward. If you think of the local authority as being at the centre of its place—not just part of the local council but managing the area—it seems very reasonable and sensible. This is perhaps a case, as the noble Lord, Lord Greaves, and my noble friend Lord Harris said earlier, of wanting the parts of the Bill that are useful to work. This may well assist the Government in ensuring that the clause is effective.
Lord Ahmad of Wimbledon (Con)
My Lords, Amendments 22NC and 22QA are proposed by my noble friend to change the process at the point where a community protection notice is issued. Currently, when issuing a community protection notice, an authorised person—be that a police officer, an officer of a local authority or a person that the local authority has designated, such as a social landlord—would have to inform any body or individual that the person issuing the notice thinks appropriate. Amendment 22NC seeks to remove this requirement.
Amendment 22QA, in my noble friend’s name, then seeks to impose a requirement that an authorised person who is not the local authority must inform the relevant local authority of its issuing of a notice. I recognise that it is important that a local authority is aware that community protection notices are in operation in its area but, conversely, it is also important, as I am sure noble Lords will agree, that local authorities notify the police. The reality is that police and local authorities will be working together to tackle local anti-social behaviour and therefore it is not necessary to put into the Bill the requirement to inform the local authority. The existing provision in Clause 40(6) states that the authorising officer “must … inform” any appropriate individual or body of the issue of a community protection notice, and it is difficult to imagine any case where the relevant local authority would fall outside the definition of “appropriate”. I do not think it necessary to specify that the local authority must be informed.
However, there may well be others whom it would be appropriate to inform as well. As I have suggested, the police will often have an interest. I fear that the effect of my noble friend’s amendments would be to restrict the requirement to informing the local authority only.
Our guidance for front-line professionals states clearly that, where a community protection notice is being issued, there is clear merit,
“in involving the local council, which will have many years of experience in tackling environmental issues, when deciding whether or not to serve a CPN”.
As I and my noble friend have said on previous occasions, the guidance can be amended as we move through the parliamentary process. Of course, if there is a requirement, we can set a clearer expectation on the necessity of ensuring that the local authority is fully involved.
As an aside—I speak with some experience, although perhaps not with the same number of years’ experience as my noble friend—in my 10 years in local government, I served as both the cabinet member for the environment and then as the cabinet member for policing and community engagement. In that respect, my experience—albeit on a London council—showed that the local authority, the police and other local agencies work well on the ground, and we have faith that these agencies will continue to work well as we move forward.
Amendment 22QF concerns remedial works carried out by the local authority where there has been a breach of a community protection notice. Remedial works may be carried out if a person fails to comply with the terms of a notice served on them. The local authority may carry out the remedial work without the consent of the owner or the person who had defaulted on the notice on land “open to the air”, and Amendment 22QF would prevent this. The local authority cannot simply enter premises at will; I am sure that my noble friend knows that to be true. It must seek the “necessary consent” of the defaulter and the owner of the premises if that person is not the defaulter. However, there may be circumstances where the local authority has taken all reasonable efforts to find the owner but has not been able to do so. I do not believe that communities should continue to suffer in such circumstances, and that is why it is important that the authority is able to carry out remedial works.
I hope that my noble friend is reassured by the explanations I have given of what is behind the Government’s proposals here, and that he will be minded to withdraw his amendment.
Lord Greaves
My Lords, I thank the Minister for that reply, although I was a bit peeved by the first part of his response. If I have not made it absolutely clear that the first amendment is a probing amendment in order to find out what this subsection means, then I apologise. I shall try to be clearer in future. It is quite normal in Committee to table amendments that take out subsections, not because you want to take them out but because you want the Government to explain what they mean. They are called probing amendments and that is fairly normal procedure, but I am sorry that I did not make that clear in this case. Clearly, I do not want to take out the subsection; I want a clear explanation from the Government of exactly what it means, and I shall read Hansard before I decide whether I have had a clear explanation.
The Minister said that the reason why councils will have to be notified is that they have many years of experience. That is true but it is not why they have to be notified. They have to be notified because, as I understand it, they are the most important central body as far as community protection notices are concerned. I am not suggesting that the police are not important—they clearly are very important indeed—but the council is the body that has the staff and the ability to go on to the ground and do something about these problems, and remedy them if that is required. The Minister said that the Government have faith that these agencies will continue to work well on the ground as we move forward. I have no doubt that where this is working well already on the ground it will continue to do so, and I hope that it will be brought in where it is not yet working—so long as the people are still there on the ground.
I am sorry to hammer on about this, but in many parts of the country it is precisely those council staff and the local neighbourhood policing teams, who are so vital to this operation, whose employers are wondering how long they can continue to pay them, because of the cuts that are taking place. That is just a fact. I am not making a political point. If I were on the Labour Benches I would be making a horrible political point and attacking the Government over this, but I am not doing that now; I am just stating that this is the fact that we have to live with. Many of us are fighting hard to ensure that in our own patches the mechanisms, the structure and the networks continue, but with every year that passes that gets more difficult. It is one thing to pass legislation like this that puts forward exciting new ideas and measures to deal with the problems, but if we cannot do it on the ground because there are no staff left, it is very difficult. Having moaned in that way, I beg leave to withdraw the amendment.