Anti-social Behaviour, Crime and Policing Bill
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Lord Rosser (Lab)
As has been said, the Home Office has already published draft guidance for front-line professionals. The purpose of these amendments is to refer to it in the Bill, with the conferring of powers on the Secretary of State to issue it. In one of the letters sent to us, the Minister also said that:
“We also undertook in response to yet other amendments to revisit the terms of the draft guidance for frontline professionals”.
That letter set out a list of the areas where they would review the draft guidance.
Is the outcome of that review known or is it still taking place? If it is still taking place, is the intention that we will see the outcome of the review of the draft guidance and know what it is before we get to Third Reading? We have at least had the advantage in the discussions we have had so far of knowing what was in the already published draft guidance and, if it is being looked at again, we ought to have sight of any revisions being made to it before we conclude our discussions on the Bill. That would be extremely helpful. Is it now the Government’s intention to review the draft guidance in the light of the carrying of the amendment earlier today, which must presumably have some impact on the draft guidance that has been issued?
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Greaves for his amendment and his comments. I have scribbled down here that I would convey his thanks to my noble friend Lord Taylor of Holbeach. I have so conveyed them and he has obviously heard them, so there we are.
Turning to Amendment 57, I can assure my noble friend that any guidance produced under the new clause proposed in Amendment 56 will automatically apply to any person or body designated under the new clause proposed in Amendment 53. We will come on to that amendment later in our proceedings but suffice it to say that, by virtue of subsection (2) of the proposed new clause, any designated person or body would be treated as a local authority for the purposes of Chapter 2 of Part 4 as a whole. As such, the guidance produced for local authorities under the terms of Amendment 56 will be applicable to persons or bodies designated in accordance with the provisions in Amendment 53. I hope that reassures my noble friend in relation to his amendment.
On the questions raised by the noble Lord, Lord Rosser, and taking the second question first on revisions to guidelines in the light of the vote, obviously the vote has happened and we shall look at the outcome. The guidelines will be finalised once the Bill has reached its final stages in Parliament.
As to where we are on the guidance, we are currently working with councils, the police and others. Over the coming months we will discuss the effects of the guidance but any results and further alterations will, unfortunately, not be available before Third Reading. However, the final draft of the guidance will reflect the terms of the Bill as enacted.
With those reassurances to my noble friend, I hope that he will be minded not to move his amendment.
Lord Brooke of Sutton Mandeville (Con)
My Lords, I shall speak to government Amendment 53, to which my noble friend has just spoken. In responding to my amendment in Committee, my noble friend Lord Ahmad was kind enough to acknowledge that there appeared to be a strong case for extending the availability of public spaces protection orders to bodies other than local authorities. I am most grateful that further consideration has confirmed that view. I know also that the City of London Corporation, whose position prompted my earlier intervention, is grateful for the constructive and open-minded approach taken by officials during discussions on this point. No doubt, other bodies that manage public spaces under statute but are not local authorities will also find the change helpful.
My noble friend will recall that in my amendment in Committee, to which Her Majesty’s Government have now helpfully responded, I alluded to Epping Forest. In this appreciation of the Government response, I quote a testimonial about the Corporation of London from 1979—35 years ago—when I moved in the Commons the Second Reading of a private City of London (Various Powers) Bill on behalf of the City which primarily related to Epping Forest. Two of my noble friends who are now in your Lordships’ House spoke in that Second Reading debate: my noble friend Lord Tebbit, then MP for Chingford, and my noble friend Lord Horam, then replying to the Bill as Under-Secretary for Transport. They were thus witnesses to the quotation uttered by the late Arthur Lewis—then and for the previous 34 years Labour MP for West Ham, where he was Tony Banks’ predecessor—when he spoke in that debate. I quote the conclusive passage in his speech:
“I do not trust the Department of Transport. By its actions over the years it has not proved that it has the best interests of the people at heart. The City of London has proved this. It has done so for 100 years, and certainly to my personal knowledge for the past 34 years … I have gone along to many Ministers, ministerial advisers and local government officers. I have never found any of them so accommodating or helpful as the City of London authority and its officers. They have not put themselves out in the way that the City of London’s officials have. When I have problems or difficulties over Wanstead Flats, West Ham park or Epping Forest, I know that I get better treatment from the authority’s officials than I do from ministerial Departments”.—[Official Report, Commons, 6/3/79; col. 1203.]
I am confident that the Home Office will be rewarded by the Corporation of London for government Amendment 53 with just such similar imaginative service in future.
Finally, to wind up, I also thank the Minister for taking up the drafting point in Clause 67(2) that I raised in Committee in relation to the interpretation of Chapter 2. I note that this has been addressed in the Report stage print of the Bill now before us and I express appreciation for the Government’s reaction to that.
Lord Rosser
I will just raise one or two questions on these amendments. Again, I look particularly at what was said in the letter we received from the Minister. On these particular government amendments, that letter ended by saying that any public spaces protection order,
“made by a designated body under the provisions of the new clause would take precedence over a PSPO made by the local authority in whose area the land is situated”.
As I understand it, that means that a PSPO made by the City of London Corporation—if it was so designated—would take precedence over a PSPO made by the local authority covering the area of Epping Forrest, Ashtead Common, Hampstead Heath or any other areas. I would be grateful if the Minister could confirm whether that is the case. It is what the last sentence of his letter dealing with these government amendments says, as I just read out.
On the face of it, that would appear to be rather odd because Clause 55, which deals with public spaces protection orders, says that two conditions must be met, the first that,
“activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality”.
If the City of London Corporation has responsibility for managing an open space, presumably most of those who will be deemed to be affected on the basis of the,
“quality of life of those in the locality”,
are unlikely to actually live in the open space and likely to live in the areas surrounding it, which are presumably within the area of the local authority.
I am not seeking to raise some frivolous point, and my intention is not to oppose this amendment. What I am getting at is whether there are potential areas of conflict now between what the City of London Corporation may deem to be necessary or desirable in a public spaces protection order and the views of the local authority, bearing in mind that it is surely only the local authority that can make the judgment on whether activities were being carried on which had a detrimental effect on the quality of life of those in the locality. I would be grateful if the Minister could clear that up. Perhaps I have misunderstood it. If I have, I am sure the Minister will explain that when he responds.
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend for his kind remarks and I reiterate the Government’s thanks for raising these issues. On the noble Lord’s point on clarification of the letter, it is my understanding—and we are just double-checking—that the letter got the position the wrong way round, so we apologise for that. I trust that clarifies the point.
Lord Rosser
If I may confirm what the letter should have said, it is that the PSPO made by the local authority has precedence over that made by the City of London or a designated body. That clears it up. I thank the Minister very much.
Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2013
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, the Government are determined to do all that they can to minimise the threat from terrorism to the UK and our interests abroad. Proscription is an important part of the Government’s strategy to tackle terrorist activities. We propose to add Imarat Kavkaz, also known as the Caucasus Emirate, to the list of international terrorist organisations, amending Schedule 2 to the Terrorism Act 2000. This is the 13th proscription order under that Act.
Having carefully considered all the evidence, the Home Secretary believes that Imarat Kavkaz meets the statutory test for proscription and that it is appropriate to exercise her discretion to proscribe it. Section 3 of the Terrorism Act 2000 provides a power for the Home Secretary to proscribe an organisation if she believes it is currently concerned in terrorism. The Act specifies that an organisation is concerned in terrorism if it: commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, including the unlawful glorification of terrorism; or is otherwise concerned in terrorism. If the test is met, the Home Secretary may then exercise her discretion to proscribe the organisation. In considering whether to exercise this discretion, the Home Secretary takes into account a number of factors: the nature and scale of an organisation’s activities; the specific threat that it poses to the United Kingdom; the specific threat that it poses to British nationals overseas; the organisation’s presence in the United Kingdom; and the need to support other members of the international community in tackling terrorism.
Given the wide-ranging impact of proscription, the Home Secretary exercises her power to proscribe only after a thorough review of the available relevant information and evidence on the organisation. This includes open source material, intelligence material and advice that reflects consultation across government, including with the intelligence and law enforcement agencies. The Home Secretary is supported in her decision-making by the cross-Whitehall proscription review group. Decisions to proscribe are taken with great care by the Home Secretary and it is right that the case for proscribing new organisations must be approved by both Houses.
Having carefully considered all the evidence, we firmly believe that Imarat Kavkaz is currently concerned in terrorism. Noble Lords will appreciate that I am unable to comment on specific intelligence that leads to any decision to proscribe, but I can provide a brief summary of its activities. Imarat Kavkaz, or the Caucasus Emirate, is a terrorist organisation which seeks a Sharia-based caliphate across the north Caucasus. It regularly uses terrorist tactics and has carried out attacks against Russian state and civilian targets. The organisation claimed responsibility for the January 2011 suicide attack on Domodedovo Airport in Moscow that killed 35, including one British national, and a suicide attack on the Moscow metro in March 2010 that killed 39. Since then, there has been continued activity by Imarat Kavkaz, including renewed threats of activity in Russia made during the summer of 2013. The organisation is designated by the US and listed by the UN under the al-Qaeda sanctions regime. Subject to the agreement of this House, the order will come into force on Friday, 13 December.
In conclusion, I believe it is right that we add Imarat Kavkaz to the list of proscribed organisations under Schedule 2 to the Terrorism Act 2000.
Lord Rosser (Lab)
The Minister explained the statutory power available to the Home Secretary to proscribe an organisation that she believes is currently concerned in terrorism and the factors that she has to take into account before exercising her discretion. The United States proscribed Imarat Kavkaz in 2011 after it was linked to the two deadly attacks in Moscow to which the Minister referred—namely at the international airport, when 35 people were killed, and in the Moscow metro, in which 39 people were killed. Imarat Kavkaz was formed in late 2007 and is an Islamic militant organisation based in Russia’s north Caucasus. Its stated goal is the liberation from the control of Moscow of what it considers to be Muslim lands. It regularly conducts attacks against Russian security forces and is linked to al-Qaeda.
We support the order, but I have three points to raise. When the order was discussed in the House of Commons on Tuesday, Diana Johnson MP asked the Minister in the other place about the effects of proscription on the social media, given that Imarat Kavkaz has a number of Facebook pages, and a range of fan pages are directed towards its leader. She asked the Minister to,
“clarify whether Facebook will be prohibited from hosting such fan pages and allowing people in the United Kingdom to access them once the group is proscribed”.
The Minister replied:
“The group’s Facebook page has been referred to the Counter Terrorism Internet Referral Unit, which has responsibility for assessing such issues. If the site is assessed to be illegal, the CTIRU will flag that up with Facebook directly and have it taken down”.—[Official Report, Commons, 10/12/13; cols. 204-05.]
I appreciate that it is only two days since that question was asked but this order, as the noble Lord said, is due to come into effect tomorrow. What, then, is the position in relation to the group’s Facebook page? This is the 13th order of this kind to be laid. Does the Minister know whether previously proscribed organisations had Facebook or any other social media pages and, if so, whether those pages have been taken down?
The consequences for a proscribed organisation are considerable for both the organisation and its adherents. It is a criminal offence for a person to belong to or invite support for a proscribed organisation. It is also a criminal offence to arrange a meeting in support of such an organisation, wear clothing or carry articles in public that arouse reasonable suspicion that an individual is a member or supporter. A proscribed organisation or any person affected by the proscription may apply to the Secretary of State for deproscription. If the Secretary of State refuses, the applicant may appeal to the Proscribed Organisations Appeal Commission. First, how many separate applications for deproscription have been made to the Home Secretary since the Terrorism Act 2000 came into force? Secondly, how many appeals have been made to, and been determined by, the Proscribed Organisations Appeal Commission over the same timescale?
Time-limiting proscription was recommended by the independent reviewer of terrorism legislation, David Anderson QC, who felt that a proscription order should be subject to a review after a fixed period, following which it could be renewed or would lapse. My final question is: what is the Government’s position on David Anderson’s recommendation?
Lord Taylor of Holbeach
My Lords, I hope that I shall be able to answer most of the points raised by the noble Lord, Lord Rosser. I appreciate his support for the order. I strongly believe that Imarat Kavkaz should be added to the list of proscribed organisations.
The noble Lord asked a number of questions. The first was about the internet and the relationship of this proscription and others to organisations such as YouTube and Facebook. We have been removing illegal terrorist content from the overt space where it is hosted in the UK or overseas and we have good relationships with those in the industry—for example, YouTube and Facebook. To date, the Counter Terrorism Internet Referral Unit, which the noble Lord referred to in commenting on the reply in the Commons, has removed more than 18,000 pieces of illegal material. This particular group’s Facebook page has been referred to the Counter Terrorism Internet Referral Unit. If it is assessed as illegal, the CTIRU will flag this directly with Facebook for removal.
The noble Lord also asked about applications for deproscription. There has been none since 2009, and indeed there have been no appeals to the POAC. There was one successful appeal in 2007-08 by the PMOI as a result of a judicial review of the case, as the noble Lord will be aware.
The noble Lord’s last question was about the recommendation made by David Anderson. We obviously take note of that, and indeed matters have been set up. In response to David Anderson, the Home Secretary said that under the current regime any person affected by a proscription can submit a written application to her requesting that she considers the removal of a specified organisation from the list. The Home Secretary is required to determine the application within 90 days. If the Secretary of State agrees to deproscribe an organisation, she will lay an order before Parliament removing it from the list of proscribed organisations. That is subject to the affirmative procedure, as is this order. The Home Secretary’s consideration of these matters following applications from the groups themselves is an effective process. There is a right of appeal and challenge, should the Home Secretary’s decision be negative. Any valid application for deproscription will be considered by the Home Secretary in accordance with the Act. I hope that that helps the noble Lord.
Lord Rosser
Does that response mean that the Government are not looking at going down the road of what I understand to be his recommendation—time-limiting proscription, which would be subject to a review after a fixed period, following which it could renewed or it would lapse? Are the Government not looking to doing that?
Lord Taylor of Holbeach
I have described the position, and I have a note here which helped me to do so. It presents the Home Secretary’s role and the Home Office’s view on the best way of dealing with deproscription, subject to application and considered within 90 days. In the event of a negative response there is a right of appeal. That is the current procedure and it would apply to any of the current 14 bodies that have been proscribed through the order.
Anti-social Behaviour, Crime and Policing Bill
Lord Rosser Excerpts(10 years, 5 months ago)
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Lord Rosser (Lab)
I should like to raise one or two questions about this proposal. As the Minister has said, the role that we currently associate with police community support officers is one of public reassurance through visible street patrols and, as again the noble Lord said, through community engagement, including engaging residents more actively in local policing. Indeed, in my own personal experience, on one occasion two police community support officers knocked on my front door—fortunately they were not there to take me away—to ask me what issues, if any, were causing me concern in my own particular locality. Presumably they were doing a survey of residents’ opinions about issues of concern to them. What we now have is a list of additional powers for police community support officers to issue mainly fixed penalty notices. It could therefore be argued that these powers will put police community support officers potentially into a more confrontational position with members of the public than perhaps we normally associate with their role at present.
As I understand it, under the original terms of this Bill it had not been the Government’s intention to make considerable additions to the powers of police community support officers. Indeed, in the letter that the noble Lord, Lord Taylor of Holbeach, kindly sent to us setting out the Government’s intentions in this amendment, he referred, as has the noble Lord, Lord Ahmad of Wimbledon, to Stephen Barclay’s amendment in the other place that led to the Government tabling a new clause, which I think is Clause 135, conferring powers on police community support officers to issue fixed penalty notices for cycling without lights. As a result of that, something led the Government to say, “Let’s have a further look at what additional powers we can give to police community support officers”. We now have before us a much greater list. The original Stephen Barclay amendment was one additional power, but now we have a long list of additional powers not just affecting cyclists and not just in connection with traffic-related powers; they go further than that. One could make a case for saying that this is beginning to change the role of PCSOs.
We are not standing here opposing this, but my question is this: what led the Government to believe that the extension of powers now being proposed—in Committee stage here, the Bill having been through the other place—is appropriate when they did not believe it to be so at the time it was drawn up and when, bearing in mind the title of the Bill, we can presume that virtually all issues related to policing and the powers of the police were in fact under review and up for consideration? I would be grateful for an explanation of why this has been brought forward at this stage, but was not considered appropriate when the Bill was being drawn up. I understand that these further powers are the Government’s own view of what they want to do and are not, subject to what the noble Lord, Lord Ahmad, may say to me in response, due to any particular pressure from someone. I can see why the Stephen Barclay amendment was made. He raised and then pursued it, and obviously Government Ministers said that they would accept it and take action.
Since it appears that these additional powers have been put forward at a pretty late stage, and therefore presumably over a short timescale, who has actually been consulted on this proposed extension? Has there been wide consultation with those who might have an interest in this change of approach? Have the police themselves been pressing for this extension for some time but to no avail, and now they find that, metaphorically speaking, they have hit the jackpot, because what they have been pressing for has now been agreed at a rather late stage in the proceedings?
I am putting these points as questions for the Minister and my final question is this. Since the Government have clearly now had a look at what additional powers it would be appropriate to give police community support officers, powers that begin to change the nature of the job—the operative word is “begin”—without taking away their former functions, are the Government now going to carry out a full review of the role and responsibilities of PCSOs? I ask this because what is now in front of us gives the impression, again subject to what the noble Lord, Lord Ahmad, may say in reply, of something that has been drawn up in quite a short time and is being put forward in the Bill now when it had not been the Government’s intention to do so not very many months ago when the Bill originally arrived in the House of Commons and throughout its passage through that place.
Lord Paddick (LD)
My Lords, I should like to say a few words arising from my policing background and experience. I support to some extent the noble Lord, Lord Rosser, in what he said, at least initially. Police community support officers, if they have a useful role, are seen by the police as a bridge between police officers and the community. Part of the reason they are able to perform that role is that they have very limited powers when it comes to enforcement. They can be seen as friends of the community and not necessarily come into conflict with it. As we know from what happened with traffic wardens when they were introduced, they in fact became the enemies of motorists. We certainly would not want to erode the useful role that police community support officers play in terms of being friends of the community and a bridge between the community and what it increasingly sees as enforcement officers; that is, police officers.
The second issue is the need to keep a very clear distinction between police officers and police community support officers. The recruitment standards and the training that police officers receive are far higher than is the case for police community support officers, particularly in the training of police officers in the use of discretion. If we are asking police community support officers to use their discretion as to whether they issue fixed penalty notices to erring motorists or cyclists, considerably more training needs to be given to them on the circumstances in which they should use that discretion. As I say, there is a clear danger that the distinction between the police and police community support officers will be eroded if slowly but surely we give police community support officers more and more powers.
Thirdly, there is already confusion in the minds of the public as to what police community support officers can and cannot do. When police community support officers arrive at the scene of an incident, the public look to them to act as police officers would, and are surprised to find that they do not have the powers or the ability to intervene in a way that the public expect of them. Gradually giving police community support officers more powers will add to that confusion among the public.
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 Rosser
“Long-term police authorisation requiring independent approval
(1) The Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) After section 32A (authorisations requiring judicial approval) insert—
“32AA Long-term police authorisations requiring independent approval
(1) This section applies where a relevant person has granted a long-term authorisation under section 29.
(2) The authorisation is not to take effect until such time (if any) as the relevant independent body has made an order approving the grant of the authorisation.
(3) The relevant independent body may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant independent body is satisfied that—
(a) at the time of the grant—(i) there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation, and(ii) the relevant conditions were satisfied in relation to that authorisation, and(b) at the time when the relevant independent body is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation. (4) For the purposes of subsection (3), the relevant conditions in relation to a grant by an individual holding an office, rank or position in a relevant law enforcement agency, that—
(a) the individual was a designated person for the purposes of section 29,(b) the grant of an authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and(c) any other conditions that may be provided for by the Secretary of State were satisfied.(5) In this section—
“relevant law enforcement authority” means—
(a) a police force in the United Kingdom, and(b) the National Crime Agency;“relevant judicial authority” means—
(a) in relation to England and Wales, the High Court of Justice in England and Wales,(b) in relation to Scotland, the Court of Session, and(c) in relation to Northern Ireland, the High Court of Justice in Northern Ireland;“relevant person” means—
(a) an individual holding an office, rank or position in a police force in the United Kingdom, and(b) an individual holding an office, rank or position in the National Crime Agency.(6) In this section—
“relevant independent body” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted;
“long-term” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted.””
Lord Rosser
We indicated at Second Reading that we intended to propose a new clause on this issue since it was clear that action had to be taken to address how covert policing operations were authorised and managed. Of course, we support undercover policing, since such operations are a vital part of the fight against organised crime and terrorism and are essential in keeping communities safe. We recognise the dedication and bravery of those officers who undertake this work. However, any such operations must be subject to the highest ethical and operational standards. That is essential for both their operational effectiveness and public confidence. Our amendment today, therefore, seeks to deal with the issue of accountability.
There are two cases that highlight how important it is that changes of the kind that we are proposing are made. The first is the case of Mark Kennedy who, as a police officer, infiltrated—I think that is the word—protest groups over a period of years: groups which said that they were involved in lawful demonstrations, rather than crime. The former policeman, it appears, had relationships with women in the protest movement and travelled to eco-protests across Europe. He later told a Channel 4 documentary of his remorse, including his regrets about and feelings for a woman with whom he had had a long affair. HMIC reviewed the activities of Mark Kennedy and other undercover officers and stated that his actions had led to the collapse of a trial of environmental protesters and that he had “defied” management instructions. The report found that Mr Kennedy had helped to unearth “serious criminality”. However, Mr Kennedy said that, while the subject had never been broached directly, it was “impossible” that his superiors had not known he was having a sexual relationship with some protesters. The report suggested that an independent body might be required to authorise such undercover operations. It also said that Mr Kennedy was inadequately supervised and that oversight of undercover officers needed to be strengthened.
The second case is that of the Lawrence family. Twenty years ago, Stephen Lawrence was murdered at the age of 18. He was, of course, the son of Neville and Doreen, who is now my noble friend Lady Lawrence of Clarendon, a Member of your Lordships’ House. Stephen was cruelly murdered by racists and there was evidence of racism in the way the police inquiry was conducted. Serious allegations have now been made that the police spied on the Lawrence family with a view to discrediting them. Peter Francis, a former undercover police officer and a member of the somewhat controversial Special Demonstration Squad, has spoken of his activities as part of an operation to spy on and attempt to smear the Lawrence family.
These two cases and other incidents have led to serious concerns about the accountability of the undercover police operations that were undertaken and raised questions about the accountability of future undercover police operations. Our amendment seeks to ensure that all long-term undercover operations are signed off by a relevant independent body, to ensure that, where needed, covert operations are used proportionately, sensitively, only when necessary and with clear and improved accountability arrangements. Additionally, we do not currently have effective oversight of these operations. There are various options we can explore and we hope that the Government will look at these options carefully. Judicial oversight is just one that could be considered.
There also appears to be an anomaly, because currently, if the police or security services want to enter—perhaps to break in, to bug a room or to intercept a phone call—they need justification that to do so is in the interests of national security in order to get a warrant. Attaining a warrant requires judicial approval. However, those undercover police officers who entered into relationships in an attempt to retrieve certain information needed no warrant.
Of course—and we appreciate this—undercover operations vary. Some will be as short as an hour or so and may involve relatively minor matters; it would be impractical to ask for independent approval for all such operations. However, our proposed new clause is intended to target long-term covert police operations, and these can span from six months to 12 months or even several years. When such operations are undertaken, there needs to be clarity about the goals, the methods and the priorities. Therefore, there should be independent approval prior to any such lengthy operation. It does not necessarily have to come from a judge, but it must be truly independent, and the very process of seeking such approval would help to ensure proportionality, and clarity of objectives and methods. Our proposed new clause would help to ensure that operations such as the hugely inappropriate and totally wrong campaign against the Lawrence family cannot take place again. That campaign and operation against the Lawrence family showed appallingly bad judgment. Surely, we all want to ensure that any operation undertaken is accountable, justifiable and in the wider public interest.
On Report in the other place, the Minister Damian Green stated that it was the Government’s,
“intention to legislate to enhance oversight of undercover law enforcement officer deployments”,
and this could,
“be done through secondary legislation”.
He outlined the Government’s proposals to increase accountability and oversight. However, proper scrutiny is necessary and we need the opportunity to scrutinise those proposals as part of this Bill. Damian Green promised in the House of Commons that he would,
“lay the appropriate order before the House shortly”.—[Official Report, Commons, 15/10/13; col. 634]
As I understand it, we have not yet seen the order, although I may be wrong in saying that. However, we feel that it would be much better to deal with an issue of this importance in what the Government regard as a flagship Bill on crime and policing. I hope the Minister, when he replies, will be able to give a helpful response.
Lord Taylor of Holbeach
My Lords, I am very grateful to the noble Lord, Lord Rosser, for tabling this amendment because I agree with him that the whole question of undercover policing is very important. I do not think that any noble Lord should be in doubt that covert techniques, including undercover policing, are an important weapon in the fight against terrorism and other serious and organised crime. Undercover police officers play a crucial role in keeping us all safe. It is difficult and dangerous work and I welcome this opportunity to pay tribute to all who undertake it.
The new clause proposed by the noble Lord seeks to introduce a system of independent authorisation for undercover policing operations. I do not believe there is any great difference of view between the noble Lord and me on this point. We both believe that there must be proper safeguards to ensure that these covert techniques are used only where appropriate and that the mechanisms for approving all such deployments are fit for purpose. However, I hope that it will help noble Lords if I set out why I do not believe that this amendment is required, not least because the Government have already instigated changes that are designed to meet the concerns that have arisen in the light of some allegations of past misconduct, which were sympathetically described by the noble Lord, Lord Rosser.
Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000, commonly known as RIPA, which stipulates that the use of an undercover deployment can be authorised only at a senior level within the police force or other law enforcement agency concerned. In giving an authorisation, the authorising officer must balance the seriousness of the crime being investigated, and the value of the evidence likely to be gathered, against the right to privacy of the person under investigation and of those others who are likely to have their privacy intruded upon, such as family, friends and other associates.
Her Majesty’s Inspectorate of Constabulary conducted a rigorous and independent review of undercover policing last year and made a number of recommendations to improve the way authorisations and deployments are made. Earlier this year, the inspectorate reported on the progress made in implementing its 2012 report and was generally positive about the work already done. The noble Lord referred to the role played by my ministerial colleague, the Minister for Policing, Criminal Justice and Victims, the right honourable Damian Green, who announced to the Home Affairs Select Committee our intention to strengthen this regime to enhance oversight of undercover law enforcement officer deployments. I am pleased to say that the order to give effect to this commitment was laid in October and is due to take effect on 1 January next year.
I will set out the effect of the changes that the Government are bringing forward. First, law enforcement agencies will need to notify the surveillance commissioners —all retired judges—of undercover deployments. In practice, what will happen is that a surveillance commissioner will see the same papers that were presented to the authorising officer and will have the opportunity to raise any concerns. Noble Lords will appreciate that most deployments are short-term in nature and, in many cases, last no more than a few hours. However, some are long-term, and these may give rise to the greatest concern. Initial authorisations last for a maximum of 12 months. Accordingly, the second change we are putting in place is that an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner—who, I remind your Lordships, is someone who has held a senior judicial office.
In addition, we are increasing the rank of the authorising officer. Deployments of undercover law enforcement officers will henceforth need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent, as well as by a surveillance commissioner, as I have already explained. The seniority of those who will now be required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. We believe that these changes will promote the highest standards of professionalism and excellence in this most sensitive area of policing. We also believe that they will achieve the aims of this proposed new clause by ensuring judicial scrutiny of long-term deployments while preserving the flexibility of law enforcement agencies to act swiftly where necessary.
Covert activity is a necessary part of the armoury of law enforcement but it is absolutely right, as is the intention behind this amendment, that it must be properly controlled and regulated. That is why the Government are making the changes that I have described. In the light of these changes and the new regime that we are now putting in place, I do not believe that this amendment is required and I hope the noble Lord will withdraw it.
Lord Rosser
I shall of course withdraw the amendment but, before I do, I have one question for the noble Lord. Does the proposal that is to be implemented in relation to the role of the surveillance commissioners also include, for particularly lengthy covert operations lasting many months, any sort of regular oversight of the operation by the surveillance commissioners, or is it a case of getting their approval beforehand and, once that prior approval has been given, that is the end of the independent oversight?
Lord Taylor of Holbeach
The prior approval is of course designed to make sure that there is no extension without the surveillance commissioner being a party to the decision. I cannot give the noble Lord a clear answer on this but I would suspect that the surveillance commissioner could make his approval dependent on an update at some point during the extended 12-month period. I will write to the noble Lord and give him some indication of how this would operate. I understand entirely what he is getting at and am quite happy to investigate and provide that to him.
Lord Rosser
I thank the noble Lord for his reply and for his offer to write to me on the issue that I have just raised. I will obviously want to reflect on the reply that we have received but I beg leave to withdraw the amendment.
Lord Rosser
My Lords, I will be brief with what has been described as my blunt instrument on Clause 141. I will not repeat the detailed arguments put by the noble Lord, Lord Hodgson of Astley Abbots. As he said, Amendments 88 and 90 seek to preserve the automatic right to appeal against an extradition order by deleting provisions in the clause that would make the ability to appeal against an order subject to obtaining the permission of the High Court. Essentially, it appears that the Government are now proposing to remove a key safeguard for individuals at risk of extradition by repealing the automatic right of appeal. We have real concerns about this change, which of course removes safeguards for UK citizens.
The automatic right of appeal is a key safeguard against the wrongful extradition of individuals, which allows them to raise new evidence that was not available at the time of the extradition hearing or to challenge the decision of the original judgment. It was surely this automatic right of appeal that allowed Gary McKinnon and his family to challenge the initial decision to extradite him to the US, leading ultimately to the decision not to extradite him at all. Without the right of appeal, he might have been extradited without any further consideration of the evidence, old or new, showing that extradition posed a serious risk to his right to life. Indeed, in the Statement that the Home Secretary made on 16 October 2012, she specifically referred to this issue when she said:
“After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights”.—[Official Report, Commons, 16/10/12; col. 164.]
Yet, subject to what the Minister may say, the Government appear to be introducing changes to the Act that would mean that if a similar case occurred after this Bill had been passed, the Home Secretary would not be able to make the same decision.
Clause 141 amends Sections 26 and 108 of the 2003 Act to provide that an appeal will lie only with permission from the High Court, and no indication is given in the Bill of what criteria will be used to decide whether permission should be granted. I hope that the Minister will be able to indicate the reason for the Bill being so vague over an issue—namely, the criteria—that could have significant human rights consequences. What in fact do the Government expect the criteria to be, do they expect them to be evidence-based and will they be available for scrutiny? What impact do the Government believe any likely criteria will have on the number of cases able to be appealed?
Once an individual has been extradited, of course, there is virtually nothing that can be done if new evidence arises to show that that was not the appropriate or fair decision and was contrary to the interests of justice or their human rights. Does the Minister not agree that, because of that, it is crucial that people effectively have an automatic right to appeal against a decision to be extradited, or at least some other means of ensuring that justice is done, and that we do not end up in a situation which, frankly, does our own extradition system no credit?
I cannot vouch for this personally, but Liberty says that extradition experts are of the view that a large number of cases that have been successful on appeal probably would not have been granted leave under the Bill. Removing the right of automatic appeal will potentially have considerable human rights and legal implications. If the Minister cannot offer some movement on this issue when he replies tonight, I hope that he will at least be able to explain why the Government appear to be taking such a major backwards step, having previously placed such emphasis on their concern for Gary MacKinnon’s human rights.
Lord Taylor of Holbeach
My Lords, as my noble friend has explained, Clause 141 makes the right of appeal against a decision to order extradition subject to the leave of the High Court. Similarly, it makes the requesting state’s right of appeal against a decision to discharge a person from extradition proceedings subject to the leave of the High Court. Clause 141 also allows the requested person to make an application for leave to appeal out of time in certain circumstances. This does not apply to the requesting state.
The noble Lord, Lord Rosser, using his blunt instrument, gives me the opportunity to broaden the debate beyond the immediate amendments and explain how this process will work and why the Government feel justified in introducing Clause 141. My noble friend Lord Hodgson, in tabling his Amendments 88 and 90, challenges us on why we are making these changes. At present, a person has an automatic right of appeal against a decision to order his or her extradition, and the requesting state also has an automatic right of appeal against a decision not to order extradition—an important factor to bear in mind.
As noble Lords are aware, the Government commissioned a review by Sir Scott Baker of the UK’s extradition arrangements. One of the key findings of his review was that the success rate of appeals was extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, a fact to which my noble friend Lord Hodgson referred, which then delay hearings for all appellants and means that justice is deferred. Clause 141 addresses this problem by making appeals subject to permission from the High Court. This filter applies to appeals against, for example, a judge’s decision to order extradition to a Part 1 territory, that is, another member state; a judge’s decision to send a case to the Secretary of State to consider extradition in Part 2 cases, that is, where the requesting country is not an EU member state; and to a decision by the Secretary of State to order extradition in Part 2 cases. To provide parity, it also applies to appeals against decisions to discharge a person.
My noble friend Lord Hodgson asked what sort of issues a court would consider in deciding whether to allow an application to be heard. This will be, as one would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant factors raised by the appellant before reaching a decision. We do not think that they are appropriate to be set out in legislation, as it is a matter for the court itself to consider. I understand that noble Lords will have questions about what safeguards will be available. Let me reassure noble Lords that this provision does not prevent anyone from applying for permission to appeal. Once an application has been made, the High Court will decide which cases proceed to a hearing, but each application will be considered by a High Court judge. Furthermore, Clause 141 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period, if the person did everything reasonably possible to ensure that the notice was given as soon as it could be.
That point brings me to the matters that my noble friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend proposes to amend Clause 141 to insert a requirement for the courts to allow an appeal to be made out of time if it is in the interests of justice to do so. As I said, Clause 141 allows the High Court to hear an out-of-time appeal where the person has done everything reasonably possible to bring the appeal as soon as possible. Our approach follows that of the Supreme Court, which ruled last year that out-of-time appeals should only be considered exceptionally. We believe that this provision gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to meet the statutory requirements, as happens in the vast majority of cases.
My noble friend is also proposing to extend the time limit for appeals in Part 1 cases from seven days to 14 days. As he has explained, this was one of the recommendations that Sir Scott Baker made in his review of our extradition arrangements. We have therefore considered it very carefully in developing the provisions in the Bill. Our view is that extending the time limit in this way would have no practical effect beyond increasing the likelihood for delay. As I said, we have introduced new protections where people are unable to submit their appeals on time through no fault of their own. We believe that this new provision will address the concerns raised by my noble friend, and indeed by Sir Scott Baker, on this issue.
What safeguards will exist under these new provisions? We do not believe that we are removing any existing safeguards. We need to get the balance right between ensuring proper protection for those subject to an extradition request while ensuring that people do not delay their proper surrender by burdening the courts with unmeritorious appeals. We believe that this approach gets these matters right. The court itself will decide the issues and the relevance of any out-of-time considerations.
The changes set out in Clause 141 will allow the courts to focus their attention on the right appeals, removing the burden of unmeritorious appeals while ensuring that proper safeguards are in place for those subject to extradition. I commend the clause to the Committee and I hope that my noble friend will be prepared to withdraw his amendment, and that the noble Lord, Lord Rosser, will see the merit in the clause.
Anti-social Behaviour, Crime and Policing Bill
Lord Rosser Excerpts(10 years, 5 months ago)
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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.
Lord Rosser
I assume this is something the British Transport Police wants. I can hardly imagine that it is something the Government are imposing on it. Is this something it has been pressing for some lengthy period or has it been pressing for it only recently?
Lord Taylor of Holbeach
The noble Lord, Lord Faulkner, indicated that considerable extra burdens have been created for the British Transport Police in undertaking its responsibilities in this direction. We have been made aware of it. The noble Lord, Lord Faulkner, has been a very strong advocate of the issue. I am pleased that the Home Office has been able to respond favourably.
Baroness Hamwee (LD)
My Lords, I understand, and can picture, some of the incidents that have been described. When I used to have to go up to Manchester regularly at weekends, I took to checking whether Manchester United was playing at home and took care not to travel back on trains which might be full of supporters. Having said that, I agree with the noble Lord, Lord Condon, on this. I would be very reluctant to make this a new criminal offence and add it to the statute book. Indeed, I would be reluctant to add any new criminal offence to the statute book unless it was absolutely necessary. Will my noble friend say a word about aggravating factors in sentencing? Would this be a matter for sentencing guidelines, which I know are not under the control of the Government given that we have a Sentencing Council? If an offence has been committed in this context, a sentence can be imposed without the need to create a new offence. I take the point that has been made about that. If a new offence were created in this context, the same problems would arise in pursuing a prosecution as arise with existing offences.
Lord Rosser (Lab)
My Lords, the amendment we are considering, which was moved so ably by my noble friend Lord Foulkes of Cumnock, would create a specific offence of assault against workers in public-facing roles. Reference has been made to various people who fall in that category such as shop workers, and they also include bus drivers and health workers. The proposed offence would carry a period of imprisonment not exceeding 12 months or a fine not exceeding level 5 on the standard scale.
Reference has been made to statistics provided by organisations such as the Association of Convenience Stores, USDAW and the British Retail Consortium. The latter estimated that 30,000 attacks on shop staff were reported last year. Women comprise a high percentage of staff in shops, and that is the case with a great many public-facing roles. Given that it is their employment, if they see a potential incident arising it is not particularly easy for them to walk away from the scene.
It has been argued that there is no need to create a different category of offence. I think that the issue is fairly clear cut. The noble Lord, Lord Condon, and the noble Baroness, Lady Hamwee, have expressed the same view on this issue and we wait to hear whether it is shared by the Minister. However, I think a lot of people feel that those who are attacked and assaulted in the course of their employment are entitled to greater protection than might be the case in other circumstances.
The current sentencing guidelines for assault indicate that an offence committed against those working in the public sector or providing a service to the public should be regarded as an aggravating factor adding to the seriousness of the offence. However, as has been said, that is just one of a number of possible aggravating factors. There is a wide range under the sentencing guidelines for common assault offences of this kind.
We are also aware that many of these assaults do not seem to be reported where they happen in the course of people’s employment, which is what we are talking about. The survey by USDAW, as I think my noble friend Lord Foulkes mentioned, showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done. There is also a feeling among some employees that many cases which are reported are not prosecuted, even where the assailants are known to the police.
Reference has been made to the separate offences of assaulting police officers in the execution of their duty and, in Scotland only, assaulting emergency service workers. The offence in Scotland in respect of emergency service workers is defined by the Emergency Workers (Scotland) Act 2005 and is, I think, subject to a maximum of nine months in prison or a fine of up to £10,000. Prosecutions using that Act have grown year on year since its introduction. There were 324 prosecutions in 2010-11 and, in total, there have been just over 1,100 prosecutions since the Act came into force, with the implementation of the Act raising the profile of assaults on those who provide emergency services.
The evidence indicates that if we had a separate offence in England and Wales of assaulting public-facing workers—we are talking about people in contact with the public in the course of their employment—with tougher penalties than for common assault, that would increase the likelihood of cases being prosecuted. It would restore what is clearly waning confidence among many public-facing workers that the judicial system will protect them, and it would act as a deterrent, as preliminary evidence from Scotland shows that while the number of prosecutions for assaulting emergency service workers has gone up, the number of such incidents has declined. That suggests that the message may be getting over, but I am afraid that attacking and assaulting people in the course of their employment when they are carrying out that role in direct contact with the public just will not be accepted. There has to be a change in attitude towards assaults of this kind, and I suggest that that can only properly be reflected in making clear that the penalties will be higher than they would be for other kinds of assaults.
The present arrangements in England and Wales do not appear adequate, as assaulting a public-facing worker in the course of his or her employment is not a separate specific offence and is regarded as being only one of a number of potentially aggravating factors relating to the crime of common assault. The result is that such assaults are not regarded as being much more serious than many other assaults in the way that applies, as it should, to assaults on a police officer in England and Wales and emergency service workers in Scotland.
If the Government want to assert that this Bill is about putting the victim first, they should recognise that public-facing workers are all too often victims of assault in the course of their employment, and they should accept this amendment, which creates a separate specific offence, with tougher penalties, for assaults of this kind.
Lord Taylor of Holbeach
My Lords, I welcome this debate. It is very interesting that the speeches we have heard have all referred to behaviour which the earlier parts of the Bill are designed to address. Often, assaults arise from anti-social behaviour in the first instance. It has been a very useful debate. The Government cannot support the noble Lord’s amendment but perhaps I may explain why. It has been discussed twice in the House of Commons, so it will not come as a surprise to the noble Lord, Lord Foulkes, that I am not in a position to accept it.
I wholeheartedly share the view of noble Lords that assaults on people whose work brings them into contact with the public are unacceptable. I assure your Lordships that the Government take this matter very seriously. The speeches in this debate reflect our equal concern at the large number of assaults on people serving the public.
The Government entirely agree that no one should be expected to face violence in the course of their work, particularly when they are serving the public. We have a wide range of people on whom we depend to deliver services—nurses, teachers, police officers and firefighters, to name a few. Assault is wrong and a crime, whoever the victim. Transport workers and shop workers also form part of our essential infrastructure, as do many others whose work brings them into contact with the public. Staff of small shops may be particularly vulnerable because they may need to stay open long hours to make a profit and may operate with minimal staff. The noble Baroness, Lady Coussins, referred to people who work in the retail drinks industry. It is vital that the criminal justice system treats violence against these essential members of society adequately.
However, I do not believe that changes to the law, or a new specific offence, are necessary to achieve that. The noble Lord, Lord Condon, articulated that view well. I do not consider the proposed changes would mean more prosecutions or warrant the higher sentences which might follow. For example, I think that noble Lords would accept that if someone is assaulted in their own home and must live with the sense of fear and anxiety that that may cause, that, too, warrants a stiffer sentence. Nor do we believe that a higher sentence would necessarily have a deterrent effect. The evidence on that point is decidedly mixed. There is already a range of offences having general application which criminalise violent behaviour, and which would already apply in the context envisaged by this new clause. Further offences would only complicate the law and make prosecution more complex rather than make it more straightforward. I reiterate: assault is wrong, whoever the victim.
All cases referred to the Crown Prosecution Service by the police are considered under the Code for Crown Prosecutors. Under the code, prosecutors must first be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, which I think we all understand. In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest, which, again, we would understand. However, the section of the code giving guidance on this public interest test says:
“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.
That is in the prosecution’s guidelines and is an important recognition of the point which the amendment seeks to address. If the evidence is there, and the code is satisfied, the CPS will prosecute.
Finally, mention has been made by my noble friend Lady Hamwee of the sentencing guidelines, which specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that phrase includes those who work in shops and the wider retail business sector, which reinforces the way in which the implementation of the law already reflects the concerns of noble Lords on this issue.
I listened to the speeches made by my noble friend Lord Bradshaw, the noble Baroness, Lady Coussins, and the noble Lord, Lord Faulkner of Worcester, as well as the speech made by the noble Lord, Lord Rosser. It has been a useful debate. I intend to draw the attention of the Crown Prosecution Service and the police to the terms of the debate because it reinforces the message that we take this issue seriously in this House as well as within government. With that assurance, I hope that the noble Lord, Lord Foulkes, will be prepared to withdraw his amendment.
Lord Rosser
“Control of new psychoactive substances
(1) Any person supplying, or offering to supply, a synthetic psychoactive substance including but not restricted to—
(a) a powder;(b) a pill;(c) a liquid; or(d) a herbal substance with the appearance of cannabis, which is likely to be consumed by a person for the purpose of causing intoxication,will be subject to a synthetic psychoactive product order prohibiting its supply.(2) Any subsequent breach of that order will be an offence.
(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale.
(4) This section does not apply to alcohol, tobacco or any drug currently scheduled under the Misuse of Drugs Act 1971 or the Medicines Act 1968.”
Lord Rosser
My Lords, Amendment 56NA and the proposed new clause seek to stop the high street trade in what are known as legal highs. Head shops are retailers that have traditionally sold material and devices relating to the cannabis culture. In the past five years, these outlets have mostly diversified their range of products to include legal highs, which are psychoactive substances that have not been assessed for their harms by the relevant authorities and mimic the effects of illegal drugs such as cocaine, cannabis and ecstasy.
It is estimated that there are around 260 of these head shops, located in major cities and some of the more affluent suburbs. A further report has indicated that legal highs are also on sale in such diverse places as shoe repair shops, petrol stations and takeaway restaurants. Since 2009, the volume of trade and number of outlets in the United Kingdom selling new psychoactive substances has risen considerably. There has yet to be any significant legal challenge to their questionable operations, but the current law does not really provide for this eventuality. Local authorities that have attempted to prosecute sellers under consumer protection legislation have failed. To evade prosecution through the Medicines Act 1968, the legal highs are invariably labelled “research chemicals” which are “not for human consumption”.
The Office for National Statistics has estimated that the number of deaths from new psychoactive substances has risen from 29 in 2011 to 52 in 2012. The Scottish Government’s drug-related death statistics estimate 47 legal high deaths in Scotland in 2012. The reported effects vary depending on drug type, but include symptoms such as anxiety, paranoia, delusions, psychotic episodes, irregular heartbeat, chest pains, hyperthermia and seizures. The UN Office on Drugs and Crime estimated the number of young people aged between 15 and 24 in the United Kingdom who have taken a legal high at 670,000 or 8.2%. That figure is the highest in Europe. It is estimated that the number of websites selling new psychoactive substances in Europe rose from 170 in 2010 to 690 in 2012. About half of these are based in the United Kingdom.
Both ACPO and Police Scotland have expressed support for introducing some enforcement measures against head shops. Legal highs often have an inconsistent set of ingredients; there is no regulation on how they are produced and the substances have, in effect, no status. The manufacturers, often in China or India, are always a step ahead of the law and when any temporary ban is signed, new untested drugs with similar properties come on the market within days. However, the reality is that only three substances have been subject to temporary banning orders in the past two years. The European Monitoring Centre for Drugs and Drug Addiction identified 76 new substances in 2012 and the United Nations Office on Drugs and Crime report for 2013 recognised that more legal drugs are available for purchase than are listed in the UN conventions on drugs.
Amendment 56NA is based on the existing Intoxicating Substances (Supply) Act 1985, which prevents the sale of glues and butane to minors. That law has been successful over some years in reducing the number of deaths from volatile substances. Under the provisions in the amendment, a court would issue a civil order against a particular shop, listing the products identified by trading standards officers which appeared to be psychoactive, synthetic and intoxicating, and prohibiting their supply. The amendment specifically excludes medicines, alcohol and tobacco. Any breach of the synthetic psychoactive product order issued to a supplier or retailer would be a criminal offence.
There is a need to act. The sale of dangerous substances in an everyday retail environment has the effect of normalising their use. It encourages experimentation among minors and exposes more vulnerable people to powerful psychoactive substances. The problem with legal highs is that people wrongly believe that, because they are legal, they must be safe, and having the substances so openly available only reinforces that impression. The reality is that the number of head shops is growing inexorably and nothing appears to be currently in place to prevent that continuing —hence the proposed new clause that we are now debating, which will help to check the substantial increase in the number of shops selling these substances and help to cease the trade in untested psychoactive substances in existing outlets.
The second amendment in the group aims to probe the Government about the comparative lack of data on the impact of legal highs. The Government need to do more work to assess and understand the impact of legal highs on the resources of the police, the NHS and other agencies and the link to anti-social behaviour, criminality and drug abuse. The proposed new clause in Amendment 56NB addresses this point by requiring the Secretary of State to carry out a review within 12 months of the Bill passing.
I hope that the Minister, in responding, will recognise that this problem is getting worse. It has not stabilised: it is getting worse and doing so fairly quickly. Although the Minister may well tell us everything that the Government have done—I am sure the Government have been seeking to do things to address the problem—the reality is that whatever the Minister will tell us has been done has not had the impact desired. The problem is growing and we need action now. This amendment constitutes that action and stands a chance of being an effective way of addressing an increasingly serious problem.
Lord Taylor of Holbeach
Enforcement is, of course, part of the issue. If we decide that we need to restrict the supply, we will need to have the methodologies of enforcement. However, I think that I have made it clear that having evidence and information is equally important to underpin any legislative background against which we are operating. There is much going on in this area and I make a commitment to keep noble Lords informed of developments. With that in mind, I hope that the noble Lord will be able to withdraw his amendment.
Lord Rosser
I will ask the Minister to clarify one point before I make my main response. Did he say that officers, whether police or trading standards officers, had been going around the country to head shops and warning them of the error of their ways—those were not the Minister’s exact words but that was the general thrust of them—and that those officers were also saying to them that legal action could be taken against them? Or were they just going around and chatting to them, giving no indication at all that they had any powers to do anything?
Lord Rosser
I am sorry if I misunderstood. I thought that there had been a reference to such approaches being made. I will make one particular point on that, which is really a follow-up to the point that I just made, even if I misunderstood what the Minister had said.
Lord Taylor of Holbeach
I have come across the point referred to by the noble Lord. The police have indeed been visiting head shops across the country to send out the message that legal highs cannot be assumed to be safe or legal. I think that is a reasonable thing to say. It is part and parcel of the communication that the people who are engaged in this trade need to be aware of their social responsibilities and the legal risk in what they are doing. It is a reasonable task to ask of police, who are enforcing the law in this area.
Lord Rosser
I have no problem at all with the police going around and doing that. I was asking: if the police are going around doing that—I have no problem with it; it is a good idea and they should be doing it—are they able to say to those they meet who are involved in that particular trade that any legal action can be taken against them?
Lord Taylor of Holbeach
If the drugs are illegal, clearly that is exactly the position, and that is the point they make. The assumption those people may have, that some of the formulated chemicals that they are selling are legal or safe, may well be wrong. The noble Lord will know that some chemicals on the list of banned substances under recent legislation—last time we brought in 10 proscribed formulations—may well be present in products that those people may not be aware are illegal.
Lord Rosser
One of the main points is whether those are illegal drugs, in which case action can be taken. That is one of the issues around many of those psychoactive substances. If the noble Lord says that the police are going around and saying that some of those substances may well not be legal, can he tell me whether any prosecutions are forthcoming as a result of those visits?
Lord Taylor of Holbeach
Certainly, if people were found to be in possession of illegal drugs, an offence would have been committed and the opportunity to prosecute undoubtedly exists. The point is that there are people in this business who assume that what they are doing is beyond the scope of the law. We seek to make sure that they are properly informed of the fact that there is no such hiding place. The law is there to protect the citizen, and the current and future drugs legislation is designed to do just that—to make it clear to them that there is no hiding place for them.
Lord Rosser
If the Minister had been able to give me some assurance that he felt that action could be taken through the law against people involved in supplying those particular substances, I would feel greatly relieved. However, I have listened to what the Minister has had to say and there have been an awful lot of mays, ifs and maybes, and nothing specific. He is not saying that, as a result of looking at current legislation, the Home Office and the Government are satisfied that action can now be taken under a particular Act. My understanding and the information I have—the Minister may well tell me that I am wrong—is that some local authorities have attempted to take action under existing legislation but have not been successful. However, if the Minister is saying that there is legislation under which we can take action against those people in relation to those substances, I would be greatly relieved. However, I would like to know what that legislation is and what action is being taken.
Lord Taylor of Holbeach
I promised to keep Peers informed of the outcome of that campaign, and will do so. However, it is quite clear that with some of those psychoactive drugs—I believe that I debated that issue with the noble Lord in Grand Committee, when we passed that legislation—the truth is that people may be dealing in those chemicals who are unaware of the illegality of their actions. I will keep noble Lords informed and I hope that we can move on.
Lord Taylor of Holbeach
They have access to the means to test the substances, which is a reasonable enough basis on which to alert the people running those premises that they might be dealing in illegal drugs.
Lord Rosser
Obviously, I shall withdraw my amendment. I feel that the Minister seems rather nearer to me than virtually all other noble Lords who have spoken in the debate in feeling that legal action might be possible and have some value.
Lord Taylor of Holbeach
We have identified harmful legal formulations. The noble Lord sat with me while we discussed that in Grand Committee. This House has approved statutory instruments that identify those substances. We are quite clear that our war on dangerous drugs will include the restriction of supply of harmful psychoactive drugs. It does that at present and will do so in the future. However, the development that the proposed new clause seeks to put into the Bill takes this further than what we consider to be our current policy. We ask the noble Lord to withdraw the amendment because we are working in that area. My honourable friend Norman Baker is likely to produce his views on this matter shortly. I have committed to informing noble Lords on that basis.
Lord Rosser
I appreciate the Government’s position, which is that if any of those substances sold contained controlled drugs, they would expect the retailers to be prosecuted. That is what Norman Baker was quoted as saying in the press. However, the issue is that many of the substances involved are not illegal, for all the reasons that we have been discussing. That is one of the reasons why we have the problem that we have. I am aware that the Government are not entirely unsympathetic to the issue of law enforcement, even if there has not been much support for that idea from anywhere else in your Lordships’ House today. I am referring to the Government’s approach, which we are dealing with. When I say “legal enforcement”, I mean as per the amendment that I put forward. I do not suggest that people are suggesting that legal action should never be taken.
In the Written Statement to which the noble Lord recently referred, which was published towards the end of November, he quoted the Minister for Crime Prevention, Norman Baker, who said that the G8 member states had,
“identified a need to speak with one voice to source countries, creating a space for dialogue about substances of concern and pressing for domestic controls in source countries and law enforcement cooperation”.—[Official Report, 26/11/13; col. WS79.]
I am not entirely sure what “law enforcement cooperation” refers to, although I am not asking the Minister that now.
I will certainly withdraw the amendment. This has been an interesting debate. I am well aware that I have not had any friends as regards the amendment that I moved. My concern is that there has been a general recognition that there is a problem in this area and that it is getting worse. I do not think that any noble Lord has sought to say anything to the contrary. The real concern must be that we do not spend all our time discussing what to do, not taking any action at all and finding that the problem gets worse and worse, which could happen. Let us hope that that is not the case; I note what the Minister has said about actions they seek to take. I beg leave to withdraw the amendment.
Lord Stevens of Kirkwhelpington (CB)
My Lords, I will just add my comments to those of my noble friends Lord Condon and Lord Blair and the noble Lord, Lord Paddick. Obviously, the Independent Police Complaints Commission should be independent, and noble Lords may be aware of the views of the commission that I chaired recently on the combination of the inspectorate and the Independent Police Complaints Commission itself. Putting that aside, it was fascinating to take evidence from the head of the IPCC, Anne Owers, and to see her recently for a couple of hours to talk about issues and realise how underresourced she is. Credit must be given to the Government that they have recognised that.
Along with my noble friends Lord Condon and Lord Blair, and my old colleague, the noble Lord, Lord Paddick, I just call for a little caution. Having led inquiries in difficult places such as Northern Ireland for 15 to 20 years, I know that you need the experience and the expertise. The noble Lord, Lord Harris of Haringey, is absolutely right that the IPCC has to be seen to be independent, but let us gradually work towards that. To train people up to the required level takes an awful lot of experience. In addition, this is not just about training but about having your feet on the ground, understanding how the systems work, building up a team and delivering something that is useful to the police service and, more importantly, to the complainant. Noble Lords should make no mistake about it: the IPCC needs support, needs resources and needs reforming. It has a massive job to do and I would not like to see it have the rug drawn from underneath its feet in terms of experience and delivery.
Lord Rosser
My Lords, I will be very brief. I, too, thank the noble Baroness, Lady Doocey, and my noble friend Lord Harris of Haringey for tabling these amendments. Clearly, their principal purpose is not so much to be specific but to provide the welcome opportunity to hear from the Minister what the Government’s future intentions are in relation to the IPCC, particularly concerning its independence. Very important comments were made by the noble Lords, Lord Blair and Lord Stevens, about the need to ensure that there are suitably qualified people within the IPCC to carry out the investigations that are needed. We, too, hope that the Minister will be able to indicate how the Government see the future of the IPCC, in particular what changes and objectives they are seeking for the IPCC in the years ahead.
Lord Taylor of Holbeach
My Lords, when we discussed police integrity last Thursday, I felt that there was a degree of unanimity in the House. In the debate that we have just had on these amendments, there was also a degree of unanimity, certainly with regard to the direction of travel that we want to see the IPCC adopt. We had a very good debate last week, initiated by my noble friend Lord Paddick, and I am grateful to my noble friend Lady Doocey for the contribution she made to that debate, and for tabling these amendments today.
As the noble Lord, Lord Harris, and my noble friend Lord Tyler said, we need to address perception as well as reality. The IPCC confidence survey reported that 85% trusted it to handle police complaints impartially but we cannot be complacent in our drive to rebuild the IPCC as a truly independent body.
In connection with Amendment 56QZE, noble Lords will be aware that the Government are transferring resources to the IPCC to enable it to undertake all serious and sensitive investigations—an intention that is entirely consistent with my noble friend Lady Doocey’s amendment. An announcement will be made shortly, in line with the police annual settlement process, on the level of those resources. I can assure noble Lords that the expansion of the IPCC is on track and it will begin to take on more cases from next year.
However, in requiring the IPCC to carry out “the majority of investigations”, the amendment does not specify the nature of those investigations. My noble friend Lady Doocey talked about serious investigations and that is probably what she intends the amendment to deal with. Of course, some complaints made against the police are best dealt with at local level. We will still have the police investigating the police at a local level; for example, where it is a matter of service levels or a lack of civility. But I think we can all see that with the more serious investigations the IPCC must independently be in a position to investigate those matters.
As a Lincolnshire man, I am finely tuned to poachers and gamekeepers. As regards Amendment 56QZF, I note that my noble friend and the noble Lord, Lord Harris, are anticipating our direction of travel. I appreciate that the requirement for the director of investigations to be someone who has not held the office of constable in the United Kingdom would seem to provide a stronger guarantee of independence. However, I question how the public’s best interests would be served by the IPCC having to dismiss someone who currently performs this function effectively and impartially; indeed, I am doubtful whether this would even be possible under current employment law.
I am with the noble Lords, Lord Condon, Lord Blair and Lord Stevens of Kirkwhelpington, on this issue. We need a skills base within the IPCC if it is to be able to perform the task we expect of it. Similarly, the target—and it is a target, even though the Government have all but forsworn targets—of at least 75% of those employed as investigators by the IPCC being from non-police backgrounds by January 2017 is intended to address concerns about impartiality.
However, this amendment overlooks the steps the IPCC has already taken to ensure a diverse and multidisciplinary staff, and the training scheme aimed at those from a range of backgrounds. It is worth noting that according to the latest published figures, the proportion of investigatory and caseworking staff with a background in policing is below 16%. Of course, what is most important is the way in which all IPCC staff work and their commitment to the values and culture of the organisation. I am sure that the noble Lords, Lord Condon, Lord Blair and Lord Stevens of Kirkwhelpington—and, I hope, the noble Lord, Lord Imbert—share these sentiments. It is good to have such a distinguished group of former Met commissioners participating in this debate. I am sure they will agree that it is the culture of the organisation that dominates the way in which it responds to its independent role.
Moving to Amendment 56QZG, I can see that for the Home Secretary to receive annual figures on the proportion of staff from non-police backgrounds, and the number and nature of their investigations, would provide a degree of detail and certainty as to operational conditions within the IPCC. However, the commission already has a statutory duty to report to the Home Secretary on the carrying out of its functions each year. It already publishes details of the organisation and its investigations in its annual report and in annual statistics. I can see no benefit from prescribing the content of the annual reports in the way that the amendment seeks to do. Indeed, it might be suggested that that is not a very independent thing for the Independent Police Complaints Commission to be asked to do. I know that is not what my noble friend intends but it would certainly add to the bureaucratic burden of the organisation.
Having said that, I agree with my noble friend that the IPCC must be independent and be seen to be independent. In the light of my comments, I hope that she will feel able to withdraw her amendment.
Anti-social Behaviour, Crime and Policing Bill
Lord Rosser Excerpts(10 years, 5 months ago)
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Lord Stevens of Kirkwhelpington (CB)
I support the noble Baronesses, Lady Henig and Lady Harris of Richmond. I also remember the promises made to this House by Ministers who preceded the noble Lord. There has been a long history in relation to the private security industry and I declare my interest as chairman of Skills for Security, which does all the training for the private security industry. I have been in that position for some time.
The history of this goes way back. The police service has had grave concerns over the past 10 to 15 years about rogue companies in the private security industry, with some issues that were very much into the criminal arena of behaviour. It surely makes sense for there to be an approach that follows the promises made to this House and talks about the responsibility not just of individuals but of companies. Large companies in this country have a responsibility. They do a very good and important job in the private security industry. It makes sense for these companies to be held accountable as an identity rather than individuals within the company. It follows government policy in terms of making companies responsible for the negligent and highly negligent actions of their employees. It would ensure that companies can be held to account and investigated by the IPCC, something we talked about earlier in this House. It would also address the continuing uncertainty that is impacting on business planning, which some of us involved in this area have identified with other people also talking to us about their concerns.
Everyone in this House will know about the increase in organised crime. A number of organised crime gangs operate in this area. Some of them infiltrate companies and some are part and parcel of companies. It makes sense, if that is the case, that companies in general should be held accountable. The other area which is important—and my noble friend Lady Harris of Richmond talked about it—is training. It is something I know a little about, having borne that responsibility for some time. It is essential that when training is done it is done with certainty. That means that if there is accountability, it is there for those people in the company as a whole, whether it be big companies such as G4S or the smaller companies that some of us are involved in.
If this amendment were taken up—it is a probing amendment, of course—it would add to public confidence. The police service in general would know where it stood and government agencies also would know exactly what they were working with and exactly how to tackle some of the difficulties that sometimes happen in the private security industry.
Lord Rosser (Lab)
My Lords, I will be brief. My noble friend Lady Henig indicated that this is a probing amendment which has been tabled as there are doubts about whether undertakings given previously still stand. In view of the obvious importance of this issue, which is clear from the contributions made to this debate, we shall certainly listen with interest to the Minister’s answer.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
I thank noble Lords for their contributions and for the concise way in which they have addressed this important issue. I am grateful to the noble Baroness, Lady Henig, for presenting these amendments—not that I am going to accept them—as the SIA is one of my departmental responsibilities within the Home Office. She mentioned commitments that I made last year at the annual general meeting of the SIA. I made similar commitments by video link; unfortunately, I could not be there as I was dealing with a Bill and could not be in two places at the same time.
I reiterate our commitment to the SIA. No one knows more than the noble Baroness, Lady Henig, how important that body is, given her distinguished service as its chairman. We also appreciate the points made by the noble Lord, Lord Stevens of Kirkwhelpington, on the importance of business licensing for the development of the industry. We are at one in that aim and we have not been idle on this issue. There has been a public consultation on the process and we have published the Government’s response to it. As the noble Baroness may know, we do not need primary legislation —we do not need to put anything in the Bill—to introduce business licensing. It would be introduced by secondary legislation and would cover issues such as door supervision, security guarding, cash and valuables in transit, close protection, CCTV and public surveillance, and key holding—the traditional areas. However, noble Lords will be aware that one of the consequences of the Leveson report is that private investigators should also come within the ambit of the regulatory body—the SIA. Therefore, there is a lot to do. I reassure my noble friend Lady Harris of Richmond that we are still very much on target.
I turn to the amendments. Amendment 56QA seeks to link the application of the complaints and misconduct framework overseen by the IPCC to SIA-regulated businesses. As the noble Lord, Lord Stevens, said, the police work with the private sector on many different aspects of their work, many of which are outside the security industry and, as such, it was never the intention that the provisions of the Private Security Industry Act would apply. I shall describe the sorts of thing that I am talking about. These include, for example, call handlers in police control rooms or inquiry office staff. In addition, forensic science work, which is, of course, integral to the police service, is regulated by the forensic science regulator, and would be excluded.
The intention behind Clause 121 is to ensure that the oversight of complaints and conduct matters by the IPCC extends to all private contractors, subcontractors and their employees carrying out functions for the police where those functions have been traditionally carried out by police officers and police staff, so that where there has been a move towards the civilianisation of police functions, these should be covered. Police forces are increasingly entering into contracts with private sector organisations—I come from Lincolnshire, a county which probably pioneered that—many of which fall outside the SIA-regulated regime, but which should, none the less, be subject to investigation by the IPCC for wrongdoing. I think that the public would rightly expect this to be the case.
Amendment 95ZA raises similar issues in the context of the transit through the UK of people being extradited from one country to another. Again, I understand the noble Baroness’s concern to prevent untrained and potentially unsuitable individuals being given delegated authority for facilitating these transits.
Although I agree with the intention behind the amendment, I believe that we can achieve all this through other, more workable means. I say that because the Government plan to amend this clause in recognition of similar concerns raised by the Delegated Powers and Regulatory Reform Committee—namely, that the power to specify descriptions of those who might in future facilitate the transit through the UK of persons being extradited from and to another country is cast in wide terms. The committee felt that this should be seen in the context of the powers of authorised officers, which include the power to detain persons in custody, and therefore that the delegated power should either be circumscribed in the Bill or subject to the affirmative procedure.
We have listened to the views of the committee and, in response, have tabled an amendment which will apply the affirmative resolution procedure to this order-making power. This will mean that the only categories of persons able to undertake escort duties will be those approved by both Houses. An example of the type of persons who might undertake this escort role is Border Force officials. Whoever is empowered to carry out the role will be subject to the extradition codes of practice, which are based on the equivalent PACE provisions. I hope that the noble Baroness will be reassured that there will be proper oversight and scrutiny of those who undertake quasi-police functions and exercise police powers, and that she will be content to withdraw her amendment.
In relation to the SIA, the Private Security Industry Act 2001, which underpins the SIA’s regulatory activities, specifically states that licensing requirements do not apply to activities carried out by a detainee custody officer and a prison custody officer, both as defined by the Immigration and Asylum Act 1999. Therefore, the effect of this amendment would be to create conflicting legislation, with a question as to which Act was supposed to apply to these people. The SIA currently has no remit for regulating this type of activity; nor is it the Government’s intention for it to do so in the future.
I hope that the noble Baroness, Lady Henig—I keep thinking of her as “my noble friend”, although, according to the traditions of the House, I should not call her that—will accept my commitment on business licensing and on the determination of the Government to continue their policy objective of advancing the interests of the SIA. We see it as developing an increasingly important role in public protection in this country.
Lord Hope of Craighead (CB)
My Lords, perhaps it might help if I could balance out the contributions from the Cross Benches by speaking as someone who has never been a police officer or had any responsibility for policing in this country. I approach this amendment by looking at it on its own terms as something which is directed to Clause 126, on the assumption that the clause remains part of the Bill. I make no comment on Clause 126 itself, but I see merit in the amendment for one particular reason.
I have no reason to doubt the proposition that the Government care deeply about considerations of national security and intelligence. Approaching this matter from the sidelines, I would be very surprised if considerations of that kind did not cross the mind of those who were considering making these appointments; let us assume that as a given, in favour of the Government. The value of the amendment is that it counters the suspicion that some may have that these considerations are not in the mind of the Government. It also has a disciplinary effect, because the exercise that is being proposed here will, of course, be carried out in advance of any of these appointments being made. It will help to focus the mind and lay on the table the considerations which one would assume the Government will take into account in making these appointments.
If one thinks of the acceptability of the appointment through the entire police force, the fact that these considerations were on the table and so can be assumed to have been taken into account would add considerable weight to the appointment and the respect in which the appointment-holder would be entitled to be held. Purely from that standpoint, as a former judge and not as somebody who has any experience in the detail of the matter, I respectfully see value in the amendment.
Lord Rosser
My Lords, I will resist the temptation to go beyond the amendment that we are principally discussing, Amendment 105. We acknowledge that the Government appear to have a strong wish to bring personnel into the police from overseas, but there is an obvious concern that has been powerfully expressed tonight over the implications for the security responsibilities of the posts mentioned in Amendment 105 and their access to the highest classification of intelligence. The question has been powerfully raised of whether it is appropriate that the positions indicated in Amendment 105 should be held by a non-UK national on national security grounds. The strength of the amendment, as the noble Lord, Lord Hope, has indicated, is that it does not say no, but it requires that written advice be sought from the Intelligence and Security Committee as to whether there are any considerations of national security and intelligence that would need to be examined in relation to the appointment of a non-UK national to the posts mentioned in the amendment. Obviously, there is also the requirement that Section 126 would not come into force until the views of the Intelligence and Security Committee had been obtained and given to the Secretary of State and,
“a copy of those findings has been laid before both Houses of Parliament”.
I always say, “subject to what the Minister has to say, since he might persuade me otherwise”, but it seems to me that, in view of the concerns that have been raised— which seem legitimate—Amendment 105 is eminently reasonable. It is not giving an answer to the question, but it is saying that surely the issue is of sufficient importance that advice should be sought from the Intelligence and Security Committee. We will await the Minister’s response with interest, particularly on whether they have already assessed the security implications of a non-UK national filling one or more of the positions listed in Amendment 105 and have come to the conclusion that there are no national security considerations.
Lord Taylor of Holbeach
My Lords, this has been an interesting debate. One or two things have been said that I would have to refute. I disagree with the view of the noble Lord, Lord Elystan-Morgan, on police and crime commissioners, and they are not really the subject of this amendment or this debate. With the greatest respect, I have to say that I disagree with the noble Lord, Lord Imbert, on the views of this Government about policing. There is no way in which any member of the Government who I know holds the police in disdain, and there is no sense that the Bill is in any way about getting at the police, as the noble Lord implied. I must put that on the record because I owe it to all my colleagues to do just that.
There is a serious issue in these amendments and I am grateful to noble Lords for addressing them and to the noble Lord, Lord Blair, for bringing them to our attention. I am also grateful to the noble and learned Lord, Lord Hope of Craighead, for being a non-policing lay person who wishes to contribute to this debate. I hope that I can reassure the noble Lord, Lord Rosser, as well on this issue.
I understand the concerns that the noble Lord, Lord Blair, has raised, and I am grateful for the experience and knowledge of policing that he and his colleagues have brought to bear on this important issue. I agree that it is essential that those who are appointed as police officers undergo vetting appropriate to the role that they undertake. In the case of posts that have responsibility for counterterrorism policing, such as those that are pointed out in the amendment, it is of course vital that very stringent checks can be carried out.
Of the posts mentioned in the amendment, though, only the post of the Metropolitan Police Commissioner would be affected by the proposals in Clause 126. All the others are not mentioned in this clause or indeed relevant to it. Clause 126, as the noble Lord says, removes the requirement for an applicant to have served as a constable in the UK before being appointed as a chief constable or as the commissioner—where they have certain alternative relevant experience, which is important to emphasise as well. I have to say that there is no requirement under law to have served as a constable in the UK before being appointed as a deputy or assistant commissioner. With regard to the Metropolitan Police Commissioner, it will be for the Home Secretary to decide whether to include further restrictions beyond those set out in primary legislation in advertising for the role when a vacancy arises.
That is the same position as now. As things stand, no policing posts are restricted to British nationals by legislation. I recognise that there will be some posts that will require UK nationals only. However, we do not feel it necessary to start specifying this in legislation. We have not done so up to now; why should we start? The Home Secretary has the ability to impose nationality requirements for the commissioner post if necessary, as indeed she did when the post was last advertised. Similarly, the Home Secretary can also impose this requirement when appointing the deputy commissioner and the director-general of the National Crime Agency. It is for the Commissioner of the Metropolitan Police to make the decision when it comes to assistant commissioners—they are not a Home Office appointment.
The noble Lord, Lord Blair, has explained why he does not believe that this is a sufficient safeguard, and that the Home Secretary and Parliament must be required to consider the advice of the Intelligence and Security Committee. However, it would be more appropriate for the Home Secretary to take advice from whom she thinks relevant when she is in the position to make these appointments, so that it is current and pertinent to the role being recruited at that time. However, I reassure noble Lords that, whatever nationality restrictions are imposed, no appointment would be made by this or any future Home Secretary that would put national security at risk. We would always expect the successful candidate to undergo the appropriate vetting procedures. If an applicant cannot be vetted, they will not be appointed.
I shall inform the House about current vetting requirements. The UK has reciprocal agreements with Governments of some EU and NATO countries whereby we recognise their vetting as equivalent to ours. Decisions will need to be made on a case-by-case basis. There is currently no bar to foreign citizens undergoing developed vetting, nor is there a requirement to have a British parent, but 10 years’ residency is usually required.
While I accept and acknowledge the expertise in the ISC, I do not believe we need to be obliged by law to refer this matter to it. I am satisfied that there are sufficiently robust vetting arrangements in place for these sensitive posts—they are, indeed, sensitive posts. Any change in the law to exclude foreign nationals being appointed to them would be introducing a requirement that has not hitherto applied. With these assurances, I hope the noble Lord will be content not to move his amendment.
Lord Rosser
Clause 129(4) gives the definition of anti-social behaviour. It is that it,
“causes or is likely to cause harassment, alarm or distress”,
rather than the nuisance or annoyance definition that relates to Clause 1 for the power to grant injunctions. That is the IPNAs. In Clause 94(6) on out-of-court disposals, anti-social behaviour is also defined as harassment, alarm and distress rather than nuisance or annoyance. I am not particularly expecting the Minister to give me an instant answer. If he is unable to do so, which I think may well be the case, I would be very grateful if he could subsequently let me know why there is a distinction and why it refers to the definition as being “harassment, alarm or distress” in Clause 129, which is different from the definition given in Clause 1 but is the same as the definition given in Clause 94(6).
Lord Taylor of Holbeach
My Lords, I will not seek to give an off-the-cuff answer to that question. If the noble Lord is happy for me to write to him I will do so, particularly as I am sure we wish to expedite the business. I hope that we can agree that Clause 129 should stand part of the Bill.
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.
Lord Rosser
“Review of provisions to address stalking
The Home Secretary shall carry out a review of progress and implementation of the provisions used by the police to address stalking.”
Lord Rosser
My Lords, in the discussions on the Protection of Freedoms Bill a cross-party alliance argued that stalking should be made an offence, which led to the Government accepting the point. However, there now appears to be a need to monitor the implementation of the new law and the progress of training provisions for the police. This is why we have tabled this amendment, which asks the Home Secretary to carry out a review of progress and implementation of the provisions used by the police to address stalking.
We have called for national standards on police training for domestic and sexual violence, including stalking. Victims repeatedly say—fairly or unfairly—that police officers do not understand stalking and are not aware of the new laws and, as such, are reluctant to intervene. Police information notices—often referred to, perhaps wrongly, as harassment warnings—are apparently sometimes being handed out rather as a matter of course in stalking cases to victims and the alleged perpetrators alike, which certainly victims regard—again, rightly or wrongly—as a failure properly to investigate the complaints.
As I understand it, the number of arrests in the first six months of stalking being an offence was just over 300. This is in marked contrast to the situation in Scotland. In the 30 months since its law was introduced, it had just over 1,400 detections recorded, and, of those, just under 1,050 had commenced prosecution. Of that figure of just under 1,050, 450 had resulted in convictions and 315 still await prosecution. This suggests that the figures for England and Wales are well below expectations taking into account the massive difference in population with Scotland, which has only approximately one-tenth of the population of England and Wales. Therefore, these figures are surprising and do not appear to reflect the seriousness of stalking.
Case material that has apparently been received by the National Stalking Advocacy Service shows outstanding training needs, particularly understanding the nature of the new laws, the need to consider all stalking behaviour when victims complain and the serious nature of this criminal stalking behaviour. Even though the Government have made stalking an offence, which obviously is major progress, this alone is not enough to make it work. Given some of the evidence that is now coming to light, there appears to be a case that a review is needed on the implementation of the provisions used by the police to address stalking, and that is what Amendment 56YF seeks to achieve.
Baroness Brinton (LD)
My Lords, I was one of those who spoke on a number of occasions during the passage of the then Protection of Freedoms Bill on the issue of stalking. Like others, I welcome the implementation of that Act.
I endorse the points made by the noble Lord, Lord Rosser, but wish to add two or three more. In addition to the worry about the numbers of arrests and charges, the geographical data are also very patchy. There have been 133 arrests in the Met area but none in Gloucestershire. Lancashire has had 36 arrests, there have been 20 in the Thames Valley, 14 in Suffolk, 12 in Bedfordshire but just two in Merseyside. These disparities are also reflected in the actual charge rates, should the issue progress to that. What these data seem to be saying is that some forces have trained and prepared their officers for the new offence but others have not. When the stalking clauses were discussed during the passage of the then Protection of Freedoms Bill, there was cross-party agreement that there would not be real change in stalking offences until the culture not just in the police but in the criminal justice system changed and they understood the new law and how to implement it. It is good news that the College of Policing will cover this training in the future, but can the Minister say where and how much training has been undertaken in the past 18 months since the legislation was concluded, so that those areas not implementing the new law are prodded into action?
Lord Rosser
I thank the noble Baroness, Lady Brinton, for her contribution and for the information that she gave. Of course, she drew attention to the significant geographical discrepancies, the question of whether it was harassment or stalking that was being pursued and whether it was the right charge in each case. That is a significant point.
I understand why the Minister asks, “Why pull out this particular offence and treat it differently as far as a review is concerned?”. But when discussions were taking place in 2012, there was a strength of feeling about this which led the Government to make the decision that they did. It is understandable that, having partially achieved what was wanted—namely, it is in legislation—the next part is to see whether anything is being done with that legislation.
We will want to reflect on what the Minister said before deciding whether to pursue this at a later stage of our discussions on the Bill. I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
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Lord Faulks (Con)
I endorse what my noble friend said about the need to protect those who are the victims of anti-social behaviour. Very often they are just the sort of people who are held up as being vulnerable to the effects of the provisions in the Bill. From my experience of a barrister practising for public authorities, I add the observation that it has become quite a regular feature of litigation that public authorities are sued for failing to take sufficient steps to protect those who are the victims of anti-social behaviour. The Bill will at least provide some form of additional power to give an answer to those sorts of claims.
Lord Rosser (Lab)
My Lords, the amendments with which we are associated relate to Clauses 86 and 89 and whether they should remain in the Bill in their present form. We also wait with considerable interest to hear the Government’s response to the different points that have already been made in the debate on this group of amendments.
As the government documentation on the Bill indicates, the existing grounds for possession for anti-social behaviour are discretionary and require the county court, on application from the landlord for possession on an anti-social behaviour ground, to decide that the ground is made out and that it is reasonable to grant possession. The Government say that it takes on average seven months to get an outcome from the courts in anti-social behaviour possession cases, and that the existing discretionary grounds apply only to anti-social behaviour and criminality in, or in the locality of, the property. Indeed, in the light of the riots two and a half years ago, the Government are also proposing later in the Bill to extend the scope of the discretionary ground so that landlords can seek to evict a tenant who adversely affects the lives of those in neighbouring communities through rioting and looting, or who attacks or threatens landlords’ staff away from their homes.
The purpose of the new absolute ground for possession, say the Government, is to speed up the possession process in cases where anti-social behaviour or criminality has already been proven by another court. The Government’s draft guidance states that the court must grant possession subject to any available human rights defence, provided that set procedures have been followed. In addition, the court’s discretion to suspend possession will be limited to no later than 14 days, or six weeks in exceptional circumstances.
It is worth reflecting on the conditions that have to be met for a grant of possession; at least one of them has to be met. The first is that a tenant, a member of the tenant’s household or a person visiting the property, has been convicted of a serious offence. The second is that the tenant, a member of the tenant’s household or a person visiting the property has been found by a court to have breached an injunction to prevent nuisance and annoyance—in other words, an IPNA. The third is that the tenant, a member of the tenant’s household or a person visiting the property has been convicted of breaching a criminal behaviour order. The fourth is that a tenant’s property has been closed for more than 48 hours under a closure order for anti-social behaviour. The last is that a tenant, a member of the tenant’s household or a person visiting the property has been convicted of breaching a noise abatement notice order.
These powers have potentially significant effects. Will the Minister say—this question has already been asked—whether the number of evictions is expected to increase as a result of these provisions, particularly in the light of the Government’s implied comments about the deterrent effect of the current length of eviction proceedings on landlords taking action? These would seem to imply that an increase in evictions is likely if the length of time to complete court proceedings is reduced.
Will the Minister confirm what will happen to those families who are evicted, including any children or elderly or disabled people? Who, or which body if any, will have responsibility for finding accommodation for such families who become homeless as a result? Alternatively, will such families simply be left to their own devices, even if that means being on the streets, on the basis that they will be deemed to have made themselves—including any women, children, elderly or disabled people—intentionally homeless?
As I understand it, the power to evict under Part 5 relates to those in social housing and to those in assured tenancies in the private sector. Will the Minister confirm that that is the case? The power to evict does not appear to apply to owner occupiers, including those living in a mortgaged house who might well have secured their mortgage under a state-backed scheme that is ultimately supported by all taxpayers, including by those in rented accommodation. To that extent, it does not appear that there is equality of treatment for victims irrespective of tenure. It would appear that under the Government’s Bill, which is intended to put victims first, a victim who lives in social housing and has had their life made a misery by a person or persons in a nearby owner-occupied property does not have eviction available as a possible solution—unlike a victim who lives in their own home and has had their life made a misery by a person or persons living in social housing or an assured tenancy.
If the Government’s intention is to put the victim first, why are there apparently two classes of victim, one for whom eviction of the perpetrator and their family is a possible solution, and another for whom it is not a possible solution and for whom there is no alternative additional sanction available? Will the Minister address this point? If I am right, will he confirm that the Government nevertheless regard this as totally fair and just, when there do appear to be two classes of victim?
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, Clauses 86 to 88 introduce a new absolute ground for possession for anti-social behaviour for secure tenancies generally—local authority tenants and some tenants of other social landlords in secure tenancies. Clause 89 makes equivalent provision for assured tenancies, which applies to housing association tenants or tenants in the private rented sector. This is about possessions of tenanted property. It is not designed to address owner occupiers, because they are not tenants. They are under a different form of possession.
Lord Rosser
Does the Minister not accept that that in itself means that there are two classes of victim? If you are a victim in an owner-occupied property, having your life made a misery by somebody in a rented property, eviction is a possible solution. However if you are living in a rented property, whether under a social or an assured tenancy, having your life made a misery by someone in an owner-occupied property, eviction is not a possible solution. Does that not mean that under the Bill there are two classes of victim?
Lord Taylor of Holbeach
No, under the Bill there are two categories of housing occupation. It is perfectly possible for someone living next door to an owner occupier who is being anti-social to use any of the other measures in this Bill. Eviction is not one that is currently open to the courts, but there are plenty of other measures. That is one of the reasons why we have discussed things such as the community trigger, about which the noble Lord asked me a lot of questions on the previous occasion the Committee met. Existing grounds for possession—
Lord Rosser
I do not want to put words in the Minister’s mouth, but I think he is agreeing with me that there are two different classes of victim. There is different treatment. If you are a victim living in an owner-occupied property having your life made a misery by somebody in rented accommodation, eviction is a possible solution. However, if it is the other way round and you are a victim living in rented property, whether social housing or an assured tenancy, and your life is being made a misery by somebody in an owner-occupied property, eviction is not a solution. I am asking the Minister not to tell me what is in the Bill but simply to agree that it creates two different classes of victim.
Lord Taylor of Holbeach
I think the noble Lord is being disingenuous on this point. There has never been a power of possession applied to owner occupiers in such cases as there is no landlord-owned property to possess; it is the property of the person living in the house. We have already debated the mechanisms whereby that sort of anti-social behaviour is dealt with both by individuals who might consider themselves victims and by authorities whose job it is to enforce those mechanisms. I do not accept the premise behind the noble Lord’s question.
Existing grounds for possession for anti-social behaviour under the Housing Act 1985 are discretionary. This means that the court may grant possession only if the ground is made out and it considers it reasonable to do so. In practice, this means that a significant amount of time is required for the court to consider the matter, leading to extensive delays. This prolongs the suffering of the victims who have to continue living next door to the perpetrators. Indeed, the evidence we have suggests that it can take an average of some seven months from application to the grant of a possession order, as the noble Lord said. The provisions in these clauses seek to short-circuit that process by removing the requirement on the landlords to prove to the court that it is reasonable to grant a possession order where criminal or anti-social behaviour has already been proven in another court.
Under the new absolute ground, the court will be required to grant possession, subject to any human rights defence, if any one of five conditions is met. These all relate to anti-social or criminal behaviour. The offence or anti-social conduct must have been committed in the tenant’s property or in the locality of the property, affected a person with a right to live in the locality, or affected the landlord or a person employed in connection with the landlord’s housing management functions. I would like to emphasise that it is not our intention or belief that the new absolute ground will increase the number of evictions for anti-social behaviour. The available evidence shows that eviction for anti-social behaviour is an exceptional course of action. There are, on average, some 2,000 each year in the context of 4 million social homes in England. Overwhelmingly, landlords look to alternative remedies and tools to address the anti-social behaviour and its causes before resorting to possession proceedings. However, where landlords do seek eviction, it will avoid duplication and delay in the process.
The noble Baroness, Lady Young of Hornsey, was concerned that these new arrangements might lead to an increased number of evictions. The noble Lord, Lord Rosser, also asked about that. I wish to cite a few examples from evidence that was given to the House of Commons. Angela Mawdsley, Anti-Social Behaviour Manager at Leeds City Council, said:
“It takes a significant period of time to get possession orders through the court. For a lot of these crimes or offences, we would be looking to take possession action anyway, so I do not think it will increase the amount of possession action that we take. I agree with my colleague that it is about the amount of time it is taking to get through the court, and it is very difficult to keep witnesses on board while a court case goes on for more than 12 months”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 18/6/13; col. 32.]
Chris Grose, anti-social behaviour adviser and senior consultant at the Chartered Institute of Housing, said that,
“although we see the proposed absolute ground for possession, we do not necessarily see that there will be a lot more evictions. As I said before, we are really good at nipping things in the bud and getting in there early with early intervention work”—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 18/6/13; col. 31.]
People want to sustain their property. These are just the points that have been made by my noble friend Lord Deben.
Anti-social Behaviour, Crime and Policing Bill
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Lord Paddick (LD)
My Lords, I support my noble friends Lord Faulks and Lady Berridge, although I am not on the Joint Committee on Human Rights. At the time of the riots in London and across the country a couple of years ago, I supported severe punishment by the courts of otherwise minor relatively offences, because those offences took place during a riot. I do not support lenient treatment of minor offences committed during a riot. However, as my noble friends have indicated, the provision to order possession of a property when the offence has absolutely nothing to do with protecting neighbours, for example, from anti-social behaviour, is a step too far. It is politically motivated and is not driven by the needs of justice. Therefore, it should be no part of this Bill.
Lord Rosser (Lab)
My Lords, Clause 91 is headed “Offences connected with riot” and presumably the intention is again to put victims first. In that case, I come back to an earlier point: why are there two classes of victim of riotous behaviour? Riotous activity by a tenant of social housing or an assured tenancy can lead to eviction, but riotous activity by an owner-occupier cannot, and there is no redress of comparable severity that would apply to an owner-occupier but not to someone in rented accommodation. Will the Minister address this point? In a Bill intended to put the victim first, what is the thinking behind the Government’s apparent decision that there should be two classes of victim when it comes to action that can be taken against those who cause misery through the activity defined in Clause 91?
Under Clause 91, tenants, including the individual convicted of riotous activity, who have caused no nuisance, annoyance or harassment, alarm and distress to anyone living in their own locality could be evicted. Children could be evicted. This clause appears to have more to do with punishment over and above that handed down by the court for riotous activity. This additional punishment is not evenly applied, since it can affect only those in social housing and assured tenancies and not owner-occupiers. Is that fair and just?
Finally, Clause 91 refers to,
“an offence which took place during, and at the scene of, a riot in the United Kingdom”.
Could this include an offence unrelated to the riot, but at the scene of the riot, such as careless or dangerous driving, or a minor assault? If so, could a family in rented accommodation face eviction for such an offence as a result?
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
With regard to the question that the noble Lord asked me before our tea break, I have nothing further to add. The two classes of tenure are different. Therefore, the possession of property which is owned by someone and the possession of a property which is tenanted by someone are not comparable. The noble Lord is seeking to introduce a red herring. It adds nothing to whether anti-social behaviour should be grounds for possession.
Lord Rosser
I understand what the Minister is saying, but he seems reluctant to admit that under this Bill someone in rented accommodation can be treated much more severely than an owner-occupier. He seems unwilling to face up to there being, for the same offence, unequal treatment and indeed considerably more drastic treatment for those in rented accommodation, who can lose their homes while owner-occupiers cannot. There is no penalty of equal severity for an owner-occupier that does not apply to someone in rented accommodation.
Lord Taylor of Holbeach
I am grateful to my noble friend for his intervention, which points to a difference. There is a difference in the treatment; there is not a difference in the way in which the victims are dealt with.
Lord Rosser
I am always interested to listen to a lawyer explaining the law. However, that point does not answer the point that I have made: for the same offence there is a much more drastic penalty for somebody in rented accommodation than for an owner-occupier—namely, loss of their dwelling.
Lord Taylor of Holbeach
The noble Lord has made that point several times. It is up to other noble Lords to judge whether it correctly identifies anti-social behaviour, which is what the Bill seeks to address.
I would like to talk about the subject of this debate—that is, the specific proposals in Clause 91. As the law stands, thuggish behaviour against neighbours or in the locality of a tenant’s home may be a basis for eviction. However, looting, or other riot-related criminal activity, by tenants further away from their homes would not usually be taken into account. I do not think that is right, although the noble Lord may think that it is. People who wreck other people’s communities through riot-related offences should face the same consequences that they would if they carried out such behaviour in their own neighbourhoods. Clause 91 enables that to happen. It also sends out a strong and important message for the future that if you get involved in a riot, whether that is near your home or not, there may be consequences for your tenancy.
However, I emphasise that we would expect landlords to seek to evict under this new ground for possession only exceptionally. With regard to the concern raised by the Joint Committee on Human Rights—that the ground amounts to a punishment and may disproportionately affect women and children—it is important to note that safeguards will be in place. The new ground is discretionary, and so, just as is the case for the existing discretionary grounds for possession for anti-social behaviour, the court would have to consider whether it was reasonable to grant a possession order in the light of the facts of the case. The impact on the whole household and any young children is likely to be a relevant factor in this.
Amendments 56AM and 56CC to this clause would mean that possession action under the provisions of Clause 91 could be triggered only where the tenant, and not a member of their household, had been convicted of an offence. Amendments 56B, 56C, 56D and 56E would mean that only convictions for “serious offences”, as defined for the purposes of the new absolute ground for possession, could trigger possession action under the provisions of Clause 91.
As I have said before, it is an established principle of tenancy law that a tenant is held responsible for the behaviour of members of their household. There is also an issue of wider parental responsibility here. In practice, though, the landlord would need to prove that it was reasonable to grant possession, and we consider it unlikely that the court would find this to be the case where a child of a tenant has, as a one-off, got caught up in, and committed, an offence during a riot. Clearly, a tenant, or any other parent, should be held more responsible if their teenage child makes their neighbours’ lives a misery over a period of years than if they just let them out of their sight for a few hours. Similarly, in practice we would not expect this new ground for possession to be used where the conviction was for a minor offence. We would expect these provisions to be used only exceptionally and in relation only to serious riot-related offences. Therefore, a landlord might, for example, consider possession action where one of their tenants had been convicted of a serious assault on a police officer, but not where they had stolen a pair of trainers from a shop. Again, even if a landlord were to apply for possession on the basis of a minor offence committed at the scene of a riot, we would not expect the court to consider it reasonable to grant possession. Therefore, we would, in practice, expect the impact of Amendments 56AM, 56CC, 56B, 56C, 56D and 56E to be limited.
I recognise, however, that, through these amendments, my noble friends—I was also grateful for the speeches made by my noble friends Lady Berridge and Lord Faulks—are seeking to ensure that we establish in law that only serious offences committed at the scene of a riot by a tenant could provide a trigger for possession under the new ground. I am, therefore, ready to consider these amendments further, without commitment, in advance of Report.
Amendments 56CA and 56CB would enable the court, when granting possession against a tenant, to order that the tenancy be transferred to another individual. There may be occasions, for example where relationships break down, where it is appropriate for a court to determine to whom within a household a new tenancy should be granted. In general, however, decisions about who should be allocated available social housing locally should rest with the landlord or, where nominations agreements are in place, with the local authority. They, not the courts, understand who is most in need of social housing locally, and are best placed to make decisions in the light of that knowledge.
In short, I believe that these provisions make entirely appropriate changes to the discretionary grounds for possession available to landlords. It will still be for the landlord and the courts to decide whether possession is reasonable in all the circumstances. That said, in relation to the riot-related provision, I will, as I have indicated, take away Amendments 56AM, 56CC, 56B, 56C, 56D and 56E and consider them further. With that assurance, I commend Clauses 90, 91 and 92 to the Committee.
Baroness Hamwee
My Lords, I confess that I am a little confused by the comments of the noble Lord, Lord Rosser. As I understand it, he supports the concept but takes issue with differentiation between tenures. However, in supporting the concept and saying that different tenures should be dealt with in a similar way, I assume that he is talking about confiscation of a property. However, we do not have to go there as that is not what is provided by the Bill. Obviously, I am very grateful to my noble friend—
Lord Rosser
I said that no redress of comparable severity would apply to an owner-occupier as opposed to somebody in rented accommodation.
Baroness Hamwee
As I said, the noble Lord is concerned about differentiation. That is where my logic—perhaps not his—takes me. I am grateful to the Minister. My amendments on the transfer of a tenancy sought to ameliorate the situation, although I recognise landlords’ concern. As regards what is reasonable for a court or a landlord to do, I am not sure whether the reasonableness concerns the seriousness of the offence or the nature of the household—for instance, whether there is a child in the household. I have a bit of a difficulty there. Having said that, my noble friend made my argument extremely well. I am very glad that this matter will be considered further and will not take up any more of the Committee’s time on it tonight. I look forward to coming back to it on Report, whenever that is. It is probably quite soon. I beg leave to withdraw Amendment 56AM.
Lord Rosser
My Lords, I shall be brief. I shall certainly be interested to hear the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee. Subject to hearing from the Minister, it is difficult to see what the problem would be with inserting “two” rather than “one” in Clause 93(3). As the noble Baroness, Lady Hamwee, has also pointed out, when it comes to Clause 93(5), although there is consultation, it does not seem as if local authorities are going to get much of a look-in. If the Minister was going to move to two rather than one of the objects having to be carried out, it would be even more important to consult with local authorities.
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.
Police: Public Trust
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Lord Rosser (Lab)
My Lords, I add my thanks to those that have already been expressed to the noble Lord, Lord Paddick, for securing this debate. I also congratulate the noble Baroness, Lady Jones of Moulsecoomb, on her very-easy-to-listen-to maiden speech, which made it clear that a lack of forthrightness will not be a feature of her contributions in your Lordships’ House.
Among the things that have become clear during the past three and a half years are the reservations felt by the Government about the police. The creation of police and crime commissioners, the setting-up of the Winsor inquiry and some of the provisions on policing in the current Anti-social Behaviour, Crime and Policing Bill are a reflection of the Government’s apparent feeling that the police are no longer one of us. It seems at times that the fact that crime has been falling for a considerable number of years appears to the Government to have happened despite the police rather than, at least in part, because of the contribution of the police.
I have been fortunate enough to take part in the police parliamentary scheme and to have spent some time with the Metropolitan Police and learnt something about the considerable range and depth of police work that they undertake. I also spent some time with officers on immediate response duties and with the traffic police, as well as with police community support officers. You certainly see and begin to appreciate some of the frustrations and aggravations that police officers have to put up with daily and the importance of the ability to keep calm, to keep one’s temper and in potentially very heated or dangerous situations to think rationally and coolly, and act decisively in order to prevent things getting totally out of hand. While there are certainly glaring exceptions to this, I think that, overall, the police do a far from easy job very well indeed.
The very helpful briefing that we have had from the Library provides some firm information on trust in the police. It refers to a recent Ministry of Justice report which analysed data from the 2010-11 Crime Survey for England and Wales and considered long-term trends which suggest that, from the early 1980s until 2001, there was a gradual decline in public ratings of the police but that, more recently, public ratings of the police have improved. On current levels of confidence in the police according to the Ministry of Justice report, approximately three-quarters of the sample agreed that they had confidence in the police in their area, 13% disagreed that this was the case and 15% expressed no opinion. Approximately 85% agreed that the police would treat them with respect if they had contact with them for any reason.
The Library briefing also refers to a report using data from the European Social Survey to compare levels of trust in the police across Europe. An article summarising this report indicated that in the United Kingdom and Ireland residents consistently trusted and legitimised their police and court systems at well above average levels although to a lesser extent than their Scandinavian counterparts.
The Ministry of Justice’s report to which I referred a few moments ago considered levels of trust in the police among different genders, ethnic groups and socioeconomic groups. The analysis undertaken indicated that opinions of the police were more favourable among women than men, among younger and older people compared to those who were middle-aged, among those in full-time employment compared to those who were unemployed and economically inactive, and with relatively little variation by ethnicity.
The results of those two surveys do not suggest that everything is perfect and that nothing needs to be changed or addressed, but nor do they indicate that trust and confidence—or, rather, the lack of them—in our police is quite the cataclysmic issue that has been suggested or implied by some, although not here this afternoon, unless there has been a shift in attitude over the past three years that has not been reflected in serious studies. There are some indications that that might conceivably be the case.
Certainly concerns have been expressed, particularly in the light of some recent events and disclosures, including that the system for dealing with complaints no longer seems adequate. It is regarded by many as taking too long, with remedies that are not clear. The body in charge of pursuing misconduct is not seen as being strong enough, and too often in serious cases the police end up investigating themselves.
As many have already said, trust and confidence are vital, and that is no doubt one reason why suggestions or evidence of any police failure to conduct themselves in a manner justifying such trust and confidence make the headlines. As the noble Lord, Lord Paddick, said, without trust and confidence there will be less likelihood of communities and individuals working collaboratively with the police, providing information, reporting suspicions, coming forward as witnesses and reporting crime. That then affects the ability of the police to address and prevent criminal activity and behaviour and to bring those responsible before the courts.
Some commentators have suggested that levels of trust in the police and in the criminal justice system as a whole have a greater impact on levels of compliance with the law than any perceived deterrent effect of the criminal justice system. Others have argued that perceptions of fairness in the way the police conduct themselves are an important determining factor in the level of trust in the police and, with it, compliance with the law. A further school of thought argues that trust is related to the extent to which the police force is perceived as representative of the society that it serves, which might mean that the lower levels of trust in the police among ethnic-minority groups are, in part, a result of the low representation of ethnic minorities within the police ranks. Indeed, the Metropolitan Black Police Association suggested quite recently that the police force remains “institutionally racist”.
The Government have taken various measures since they came into office, some of which have hardly contributed to increasing confidence and trust. They abolished the target introduced in 2009 under which police forces were expected to achieve an improvement in public confidence, as measured by the British Crime Survey. The policing pledge, which introduced a set of 10 standards for the police, was also abolished. It is interesting to see that, having done that, the Home Secretary has now expressed astonishment that the police do not have a code of ethics and has decided that such a code should be brought into existence.
Issues that will also affect questions of confidence and trust will be the visibility and availability of the police and their success rate in preventing and solving crime. More than 10,000 police officers have been taken off the front line since 2010, with neighbourhood police teams being cut. While the government response to that is, in effect, “So what?”, the president of the Association of Chief Police Officers says that the thin blue line is in danger of reaching a tipping point, and that police forces are, in his words, “hanging on”.
After years of falling crime rates, we are now seeing some worrying signs, with increases in the numbers of mugging and shoplifting incidents across the country and violence against the person increasing in 13 police force areas in England and Wales. Evidence indicates that police forces are taking longer to respond to 999 calls, and there has been a reduction in the solving of overall crime in 22 forces, with nearly 14,000 more crimes unsolved in a year than when this Government came to power.
The latest statistics show that the number of rape allegations handed to prosecutors in England and Wales has hit a five-year low, despite a 30% increase in the number of rapes reported to police. There is a similar trend in respect of child sexual abuse cases. Then there is the crime that is rising fast—namely, fraud. This crime, particularly when it occurs online, often goes unreported because people feel embarrassed at having to admit that they have been taken in, and they also have real doubts as to whether the police will be able to catch the perpetrators anyway.
Much of the police work on online fraud and scams is geared to disrupting such activities when they are identified, rather than the all too often likely fruitless task of successfully identifying, building up a robust case against and then apprehending those behind such offences. It is an area of police work that is seriously underresourced, no doubt in part because so many victims do not often hit the headlines amid strident calls for action. As long as there is a continuing failure to provide the resources to get on top of, or even contain the rising rate of fraud-related crime, it will slowly gnaw away at the issue of confidence in the police.
There are a number of issues and factors that influence and determine the level of trust and confidence in the police, and in police officers and staff, the overwhelming majority of whom do a magnificent job that not too many would wish to take on in their place. However, while the quality of police leadership is crucial and now very much under the microscope, Governments, decisions and policies, including change programmes and how they are implemented, also have an impact on morale, which ultimately is reflected in trust and confidence in the police. We await hearing from the Minister whether that is something the Government accept or will seek to deny.
Anti-social Behaviour, Crime and Policing Bill
Lord Rosser Excerpts(10 years, 5 months ago)
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Lord Harris of Haringey
My Lords, I echo the remarks made by the noble Lord, Lord Faulks, because I do not understand what this clause is about. Maybe it is my failure to read it properly, but this seems to be about a mechanism for challenging process. It is not an appeals process so it does not do what is says on the tin or in the Explanatory Notes. This is solely about the validity of orders. The noble Lord, Lord Greaves, is concerned about the Ramblers’ Association acting on behalf of ramblers who use a path. The association would only be able to challenge an order on the basis that the local authority did not have the power to make that order, or the particular variations, or that it had not complied with the process described elsewhere in this clause. I rather assumed that an appeal would be for somebody to look again at the principles going into that decision, not whether the process was followed correctly. This is not the clause described in the Explanatory Notes. It is something very different.
If it is the Government’s intention to create an appeal mechanism of some sort, this is not it. However, if the Government’s intention, irrespective of what is said in the Explanatory Notes, is to provide a mechanism for challenging the validity of the process, I do not understand why we have this one, given that all those cases would be amenable—as I understand it—to judicial review. It would be helpful if the Minister told us if this clause is meant to reflect what is said in the Explanatory Notes or what it says in the clause heading “Challenging the validity of orders”. If it is the latter, what is the point of having nicely bound Explanatory Notes that do not tell us the Government’s intentions?
Lord Greaves
Perhaps I could speak before the noble Lord, and then he could speak last before the Minister. I am grateful to my noble friend Lord Faulks and the noble Lord, Lord Harris of Haringey, for clarifying my thoughts on this. I must admit that my thoughts were muddled after reading this. I think that they are clarified now but perhaps the Minister will muddle them again—I do not know. I ask him one question. If this process is indeed one of judicial review of the process as opposed to a normal appeal on the merits of the case, will the judicial-reviewable process include the guidance as well as what is set out in the Bill?
Lord Rosser
My comments will be much in line with those already expressed. It is worth recalling the very considerable powers given to a local authority with a public spaces protection order. It has the power to impose such an order for a period of up to three years without, apparently, any requirement to secure the approval or agreement of any other individual groups, bodies or organisations, including the courts.
There are just two conditions that a local authority must satisfy. First is that,
“activities carried on in a public place … have had a detrimental effect on the quality of life of those in the locality”,
or that,
“it is likely that activities will be carried on in a public place … that … will have such an effect … The second condition is that the effect, or likely effect, of the activities … is, or is likely to be, of a persistent or continuing nature … is, or is likely to be, such as to make the activities unreasonable, and … justifies the restrictions imposed by the”,
public spaces protection order.
The only check on that local authority power is that:
“An interested person may apply to the High Court to question the validity of … a public spaces protection order”,
on the grounds,
“that the local authority did not have the power to make the order … or to include in particular provisions or requirements imposed by the order”,
or,
“that a requirement under this chapter was not complied with in relation to the order or variation”.
Bearing in mind the potentially significant but apparently unchallenged powers that a local authority will have to make a public spaces protection order, it is important that the Minister places clearly on record how weak or strong are the proposed provisions to challenge the validity of such orders and how, in practice, they are expected to operate.
What do the Government believe that Clause 62(2) means in practice? That is the clause referring to the grounds on which an application can be made to the High Court, to which I referred a few moments ago. In an early debate this evening, the Minister said that the fact that activities carried on in a public place had to be,
“of a persistent or continuing nature”,
and “unreasonable” was adequate protection, but each local authority will interpret those words as it sees fit. How regularly does an activity have to be carried out to be persistent or continuing? Can that issue be taken to the High Court in challenging the validity of an order? On what basis might it be deemed that a local authority did not have the power to make a public spaces protection order or to include particular prohibitions or requirements imposed by the order? Would that include a challenge that the two conditions referred to in Clause 55(1) and (2) had not been met? If so, why does the Bill not set that out clearly in Clause 62(2), or does a local authority not having the power simply mean that the challenge can be only on the basis that the area to which the order relates is not a public place?
Perhaps the Minister could give some examples of what might be deemed a prohibition or requirement that the local authority had imposed on the order which it would not have the power to impose under the Bill. Clause 62(2) also refers to a challenge on the basis that a requirement under this chapter was not complied with in relation to the order. Does that ground relate purely to process, or would it include other issues? If so, can the Minister give some examples?
How quickly do the Government think that an application under subsection (2) would be heard in the High Court? If a local authority has made a public spaces protection order preventing use of, let us say, a public footpath in the light of objections from landowners and nearby residents—or, alternatively, a local authority has made a public spaces protection order preventing the use of a large public square in a major city which is regularly used for the purpose of rallies or public protest meetings, in the light of opposition from local residents or businesses—the question of how quickly access to the High Court can be made is not unimportant.
As an individual can apply to the High Court, how much is it likely to cost to make such an application and will the use of professional lawyers be mandatory or optional? Will legal aid be available? If so, to which categories of interested people will it be available? Does the reference to an interested person making an application to the High Court mean that a business or other organisation cannot make an application to question the validity of a public spaces protection order? If that is the case, what is the Government’s argument for taking that stance?
Clause 62(5) states that,
“the Court may quash the order … or any of the prohibitions or requirements imposed by the order”.
Does that include the length of time of up to three years for which the order has been imposed by the local authority?
The Government say that the Bill is about victims, but people on the wrong end of an unjustified local authority public spaces protection order will also be victims, so what provisions in the Bill will enable support to be provided to such individuals, including support in taking a challenge to the High Court? On the face of it, one might conclude that the proposals for public spaces protection orders are fair and reasonable. If they are applied by reasonable people acting in a reasonable manner, they almost certainly will be. However, the question is: what are the safeguards in the Bill to prevent abuse of this power? What or who is there to stop a local authority from acting unreasonably in making an order in the first place? Is there in reality nothing?
Lord Faulks
Is the answer to the noble Lord’s question not that if an authority acts unlawfully its acts are amenable to judicial review, just as any other administrative acts are?
Lord Rosser
I am waiting to see what answer the Minister gives me. The noble Lord himself raised a particular reference to Clause 62, so perhaps he is also waiting for an answer to his point.
I ask the question again. Is there in reality nothing, with the only redress being an application to the High Court by an interested party? If the answer is that you go to the court on some other issue of judicial review, it comes back to the point about what this clause is doing in the Bill. If that is the case on the question I have raised about the specific grounds on which the validity of the order can be challenged in the High Court and how restrictive or otherwise those grounds are, I suggest that that is very relevant—as is the speed with which an individual can get a hearing at the High Court, along with the cost of doing so and the support that will be given to them.
There is obviously some confusion about what Clause 62 means; that is clear from the contributions made by a number of noble Lords. I hope that the Minister will be able to provide detailed answers to these questions and thus resolve any confusion there may be about what this clause is meant to mean, and in what circumstances and on what basis it will be applied.
Lord Taylor of Holbeach
I thank noble Lords for raising this issue because it gives me a chance to provide some detail and, to the extent that I am not able to answer all the factors, I will certainly write to all noble Lords who have spoken on these amendments.
Perhaps it would help if I explain briefly how Clause 62 provides a process by which a public spaces protection order can be challenged. The heading is “Challenging the validity of orders” and that is what the clause seeks to achieve. Within six weeks of an order being made or varied, any interested person can appeal to the High Court to challenge its validity. It is only right that those with an interest in the area should be able to do this and, as such, this route is not open to those who do not live in, regularly work in or regularly visit the area.
A challenge can be made on two grounds. The first is that the local authority did not have the power to make the order. The noble Lord, Lord Rosser, is quite right to draw the attention of the Committee to Clause 55, which stipulates the power that the order is designed to provide for. For instance, this could be in cases where the person challenging the order believes that the test for making an order had not been met. The second ground is if the requirement in this part of the Bill was not met; for example, if local community representatives were not consulted as required by Clause 55(7)(b).
The court has the power to quash the order, uphold it or quash any of the individual elements, including its time and duration. The court can decide to suspend the public spaces protection order in full or in part until the proceedings are complete. However, it does not have to do so; an appeal does not necessarily mean that restrictions are lifted. But this appeal mechanism acts as a valuable safeguard to ensure that local authorities do not use the order disproportionately.
My noble friend Lord Greaves has tabled Amendments 55 and 56, which raise the question of who should be able to challenge the issue or variation of a public spaces protection order.
I stress that it is important that we strike the right balance between councils being able to protect communities from harm and providing the right opportunities for people affected by it to challenge such action. That is why, as I have explained, we have sought to restrict the ability to challenge an order to those who have a direct interest—namely, those who live in, regularly visit or work in the area. I believe that in doing so we have given the right people an appropriate safeguard. There is, of course, nothing to stop national bodies raising a challenge through a local group or even an individual, but someone directly affected by an order should at least object to it for it to be challenged. Our reforms are all about putting the victim first, and it is only right that they have the ability to shape the local solution.
I hope I have been able to satisfy my noble friend, although I suspect not, because he strongly believes that national organisations should be involved in this process. That is not the Government’s view.
I shall seek to answer some of the particular questions that have been raised. The High Court is the appeal route for the three orders being replaced; the designated public places order, the gating order and the dog control order all have an appeal to the High Court. The noble Lord, Lord Rosser, asked when the restriction could be challenged when conduct does not justify the proposed restriction—so, in other words, there is improper balance. That is in Clause 55(3)(c). The noble Lord also asked why no one need agree to an order for it to be made. The council will have to consult the police and any community representatives they think appropriate. They may not reach agreement on the order but, none the less, if they were unreasonable in not reaching agreement in that consultation, that, too, would provide grounds for review. The intention is not to close the door on judicial reviews.
I will reflect on the noble Lord’s point on the whole business of the balance between the High Court application and judicial review—and, if I may, I shall write to him about it, because he raises a lot of detailed questions, particularly on the question of legal aid, and suchlike.
Lord Rosser
I thank the Minister for that. Until he made the comment about writing to me, I was going to ask him whether, if somebody considered a public spaces protection order to be unreasonable in any way at all, the Minister would say that they should pursue it under Clause 62 or do it through other legal channels. I gather that that is one issue that the Minister is going to consider and write on.
Lord Taylor of Holbeach
I certainly give that commitment. The noble Lord, Lord Rosser, also asked how long it would take to get an appeal heard. As he will know, that is a matter for the courts having regard to a number of factors, including the urgency of the case. He also asked how quickly a PSPO could be made; each one must be made following the requirements of the Bill, especially the consultation requirement. This will take different times in different circumstances; what is appropriate will include an assessment of the need for immediate and urgent action if this is the case. I have said already that the High Court can suspend a PSPO pending the outcome of the challenge under Clause 62, so I hope that the noble Lord will accept that. There was a lot of detail in his questions, which I think that only correspondence will be able to settle.
Lord Rosser
Does the Minister accept my interpretation of what the Bill says or not? It is an individual who has to take the case there—presumably, they must use professional lawyers and, presumably, there is a cost involved. Presumably, they have to feel sufficiently confident to take a case to the High Court, if it is the case that an individual has to take it and an organisation cannot take it on their behalf.
Lord Taylor of Holbeach
I have made it clear that this does not pre-empt the judicial review route, if that is considered preferable by the individual.
Lord Rosser
Then I come back to the point to which I know the Minister will respond. Is this the key clause for dealing with the belief that a public spaces protection order is unreasonable or unfair, or is judicial review the appropriate channel? The question that has just been raised goes to the heart of whether it is Clause 62 or judicial review, which is obviously not covered in the Bill. I hope that the Minister will clear up what the Government’s intentions are when he writes.
Anti-social Behaviour, Crime and Policing Bill
Lord Rosser Excerpts(10 years, 5 months ago)
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Lord Rosser
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.
Lord Rosser
“( ) Within a year of this section coming into force, the Secretary of State shall review the length of time taken by consultations under this section with local youth offending teams.”
Lord Rosser
We acknowledge that there was broad support for the requirement that the youth offending team be consulted before an injunction under Clause 1 is sought against somebody under 18. However, there appears to be no timescale for the consultation with youth offending teams, and as a result there could be—not necessarily will be—delay. For that reason, the time taken for consultation with local youth offending teams should be reviewed. That is the purpose of the amendment. Surely we need to keep an eye on how long the process is taking and to check on whether there are hold-ups when the legislation comes into force.
I appreciate that the Government’s view is that the necessary consultation with the relevant youth offending team will take place with a proper sense of urgency and should not be unduly delayed by protracted consultations. A clear commitment to a review would further strengthen that position and make clear the need to carry out such consultation expeditiously. That is what those who may be victims certainly wish. In the light of the statement in the draft guidelines that the consultation requirement does not mean that the youth offending team could veto the application, will the Minister say what would constitute consultation being completed? Does the person applying for an injunction have to have received a response from the youth offending team for consultations which have been completed? If the response is that the youth offending team is not in favour of the injunction, would discussions have to continue before the terms of Clause 14(1)(a) had been met?
Would a failure by the youth offending team to respond at all within a certain timescale mean that consultation could have been deemed to have taken place? If so, what would the Minister consider a reasonable minimum period for a response? Would a failure to respond by a youth offending team within a certain time be grounds for an application without notice under Clause 5? Could the youth offending team oppose an application for an injunction under Section 1 for someone under the age of 18 in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?
Baroness Hamwee
My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.
We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,
“the local authority for the area where the respondent resides”,
meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.
Lord Ahmad of Wimbledon
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.
Lord True
My Lords, I need a little help on Amendment 22C. I heard what my noble friend said about applying a test of necessity. It seems that this potentially weakens the ability of the court by adding that it,
“is necessary to protect any person”.
The kind of practices with which we are dealing here can relate to manner and habit. It may not be that there is a proximate need to protect an individual from a specific act. It could be that I as a lawyer do not understand this, but it seemed to me that the court is surely best placed to decide. The broader definition, which does not add in the need to protect a specific individual against a specific act, seemed to me to be satisfactory. I was content with the drafting presented by the Government.
Lord Rosser
I certainly await with interest what the Minister has to say in response to these amendments. Subject to what he may say, at the moment it is not entirely clear why Clause 21(3) does not say that the court has to be satisfied “beyond reasonable doubt”. After all, other parts of the Bill lay down the standard of proof, whether that be reasonable doubt or the balance of probabilities.
The draft guidance on criminal behaviour orders, under the heading “Test” on page 29, states:
“If the court is satisfied beyond reasonable doubt”.
Therefore, one thinks that the term is in the draft guidance, although it is not considered important enough to be in the Bill. However, when one turns to page 30, under the paragraph headed, “The Test”, it states:
“For a CBO to be imposed, the court must be satisfied that … the offender has engaged in behaviour”,
et cetera. There is no reference to “beyond reasonable doubt”.
So there is one case where the draft guidance states “beyond reasonable doubt”, and on the following page it is not put in. On page 31, under “Standard of proof”, the guidance states:
“It is expected that courts will follow the reasoning in”—
the case of Clingham v Royal Borough of Kensington and Chelsea—
“and apply the criminal standard of proof”.
Therefore, in one version it is expected that that is what the court will do. The reference to the test on page 30 does not say anything about the court having to be satisfied beyond reasonable doubt. However, on the previous page—29–when reference is made to the test, the words “beyond reasonable doubt” are put in. There is an inconsistency in the draft guidance over the wording and there is no reference at all to it in the Bill. I think that the noble Baroness, Lady Hamwee, is making the point that it has to be beyond reasonable doubt.
I have a further issue with the criminal behaviour order. The draft guidance states:
“The prosecution, usually the Crown Prosecution Service … may apply for the CBO after the offender has been convicted of a criminal offence … The CBO hearing will occur after, or at the same time as, the sentencing for the criminal conviction. The CPS will rely on the police or council to build the case to be presented to the court”.
However, the following paragraph states:
“There is no scope for retrospective applications”.
Does that mean that if the application is not made at the same time as sentencing but is done after the offender has been convicted of a criminal offence, there could be a separate hearing into the criminal behaviour order, with the police or the council having to present their case to the court and prove it beyond reasonable doubt? Perhaps the Minister can confirm that if the application is made in that way, the case has to be proved beyond reasonable doubt.
How long after the offender has been convicted of a criminal offence can the application be made for the CBO—bearing in mind that the next paragraph appears to say that there is no scope for retrospective applications? Does that just mean that there cannot be a retrospective application in a case that has already been heard and dealt with? It would be helpful if the Minister could clarify how long after the offender has been convicted of a criminal offence an application can be made for a CBO. Is it envisaged that it will be heard on the same day? What happens if the conviction occurs at 4 pm? If the police and the council have built up a case to present to the court, do you then continue on that day with the case being presented for a CBO? Do you adjourn the proceedings? How long can they be adjourned for? It would be very helpful if the Minister, as well as responding to the issue about reasonable doubt, could tell us something about how the logistics of an application for a CBO will work in the light of what is in the draft guidance.
Lord Taylor of Holbeach
My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.
For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.
Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.
Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.
The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.
Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.
Lord Greaves
My Lords, Amendment 22KA is a modest attempt to help the Government to get their legislation correct. It refers to the review of criminal behaviour orders which has to take place under Clause 27. Clause 28(2) states:
“The chief officer, in carrying out a review under section 27, must act in cooperation with the council for the local government area in which the offender lives or appears to be living; and the council must co-operate in the carrying out of the review”.
Clause 28(4) states:
“In this section ‘local government area’ means—
(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.
That definition is archaic and does not apply to the local government map of England as it now stands. It misses out large tracts where there are no districts and where there are unitary counties.
There are other parts of this legislation—under IPNAs and community protection notices, for example—that get it right and refer to counties where there are no districts. They clearly have to be added. My amendment adds this so that large parts of England are simply not missed out. Since the Bill refers at the moment to districts or London boroughs, I assume that the district or lowest level is meant. Where there is a unitary authority only—a county such as Cornwall, Northumberland or various others—that needs to be added. This is in the spirit of being as helpful as possible to the Government, as I always am.
Lord 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.