House of Lords
Introduction: Baroness Neville-Rolfe
Introduction: Lord Haughey
Consumers: Vulnerable Consumers
Baroness Deech
To ask Her Majesty’s Government what steps they are taking to protect vulnerable consumers, including the elderly and those without digital skills or broadband access, who are being charged by organisations for receiving bills and statements through the post.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
There are already provisions in place to protect the more vulnerable. Utility regulators take steps to assess the quality and affordability of services for customers, including the vulnerable. Should companies wish to charge more for a paper bill they must make such charges transparent in advance and ensure that they reflect only additional processing costs incurred. The Government are increasing online access by accelerating broadband rollout, promoting simple bank accounts and increasing digital skills to use electronic payments.
Baroness Deech (CB)
I thank the Minister for his appreciation of the problem, but is he aware that 16 million people—and 4 million disabled people—are not on the internet? Even if they were, the cost of printing and ink is such that the companies are pushing the charges back on to the consumer. Extra charges and discounts add up to quite a lot a year. Does he agree that every consumer should be able to choose a paper copy of communications and bills from media companies, energy companies and so on without being penalised? Will he press the relevant regulators—Ofcom and Ofgem—to ensure that consumers are not so penalised?
Viscount Younger of Leckie
Interestingly, this is not an area where regulators receive many complaints and more vulnerable customers often have access to special tariffs. However, the noble Baroness raises an interesting point. I understand, for example, that BT charges £1.50 for paper bills, which relates largely to its broadband customers who clearly have internet access and can receive bills online. We believe that the charge is reasonable, covering costs such as printing and postage. Customers using a BT basic telephone service are not charged for paper bills.
Baroness Oppenheim-Barnes (Con)
Is my noble friend aware that the noble Baroness, Lady Deech, is to be congratulated on raising this issue? The problem is very widespread. The Government are not to be congratulated. People of all ages often choose not to go online even if it is available to them. Charges are made by the utilities because you have to use that very expensive telephone line, which has the most often-played recording of all time which starts, “We are encountering an extraordinary level of calls”. That means the call will cost even more. That is only one of the things that consumers have to put up with. The excuse given by all who make those charges is that it is more efficient and they can therefore charge lower prices. I have not noticed that happening. This is an urgent matter and I hope that the Government will take it seriously.
Viscount Younger of Leckie
My noble friend makes a good point that clearly some people still wish to receive bills through the post. However, a number of organisations across the UK offer free IT skills training and cater for the elderly and disabled, including the UK online centres funded by the Skills Funding Agency. We are keen to encourage more people to go online.
Lord Brookman (Lab)
My Lords, I do not speak much in this House but I am here regularly. As one of the younger Members of the House of Lords, I very much agree with the Question and the mood across the road there. I am still with the quill. I am computer illiterate and therefore hopeless at answering some of the mail and bills I get. Will the Minister please address the question posed?
Viscount Younger of Leckie
I have noted the noble Lord’s point. For the most vulnerable people the most important thing is that the right advice being available for their particular circumstances. For example, Citizens Advice and the Money Advice Service are there. Paper bills might not always be the best choice but, I say again, I recognise that some people will always require bills sent through the post.
Baroness Butler-Sloss (CB)
My Lords, with an ageing population where a very large part is getting much older, including me—I actually use a computer but do not always want to use it—the Minister is underestimating the importance of people not necessarily wanting to use the computer and the far too many, perhaps, who actually cannot. There is no point offering courses if they are really not up to it. The Government should listen to this.
Viscount Younger of Leckie
I reassure the noble and learned Baroness that I am very much in listening mode and say again that some people will always genuinely want to receive bills and statements through the post. Companies certainly recognise that. The issue is that if that is the case and there is to be any change to contracts, I need to give them a decent amount of time under the legal protection to do that.
Lord Cotter (LD)
My Lords, the Minister has responded somewhat defensively on this issue. Could he please listen? We are talking about 7 million adults, largely elderly, and vulnerable and disabled people who cannot have access to the net, and many rural areas still do not have good broadband. These are very serious issues. Companies are pushing people in the wrong direction, for example, by renewing contracts over the internet. People are not aware of this and then learn, some months later, that money has been taken out of their accounts to renew a contract they did not know about. There are big issues involved.
Viscount Younger of Leckie
Again, I note the point made by my noble friend. It is worth pointing out that providing information only online could, in certain circumstances, amount to indirect discrimination unless it is a proportionate means of achieving a legitimate aim. Consumers have the choice not to access the internet, but that choice may mean paying for a paper copy.
Baroness Bakewell (Lab)
My Lords, it is not a matter of lifestyle choice whether or not people prefer to use the internet: for many people it is a question of poverty. Some 44% of the older people who are not online, when asked why, said that they could not afford it. Does the Minister agree that this is adding to the disadvantage they already experience by virtue of being old and poor, and making it worse?
Viscount Younger of Leckie
I certainly note the comment that the noble Baroness made. It is in line with the other comments that have been made today and has been firmly noted.
Lord Elton (Con)
My Lords, if the utilities were capped as to the length of a telephone call they could charge for—to, say, a couple of minutes—would they not then have a pressing interest in cutting listening to this awful recording rather effectively?
Viscount Younger of Leckie
I note what my noble friend says. It is difficult to answer in more depth than that.
Baroness Hayter of Kentish Town (Lab)
My Lords, does the Minister acknowledge that there is nothing in the so-called consumer rights Bill that the Government will be imposing shortly to deal with such issues? Will he therefore open discussions with representatives of consumer organisations and the Opposition to make sure that the Bill will increase rights and not just codify them?
Viscount Younger of Leckie
We are not planning to include anything specific but the consumer rights directive is being implemented as part of the programme. This will mean that suppliers should obtain consumers’ express consent to any extra charges. They should not use a tick-box approach that requires consumers to untick boxes in order to avoid charges.
Human Rights: Vinter and Others v United Kingdom
(10 years, 6 months ago)
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Lord Lloyd of Berwick
To ask Her Majesty’s Government what steps they will take to implement the decision of the European Court of Human Rights in Vinter and Others v United Kingdom.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, the Government are considering the implications of the judgment and will set out their conclusions as soon as possible.
Lord Lloyd of Berwick (CB)
My Lords, the noble Lord will know that there are now 51 prisoners serving whole-life sentences. He will also know that on 9 July the Grand Chamber decided by 16 votes to one that whole-life prisoners are entitled to have their sentences reviewed after 25 years, a right which they always had under English law and practice until they lost it, by an oversight it seems, as recently as 2003. It is now 16 weeks since the decision of the Grand Chamber. Why has it taken so long for the Government to reach their own decision in this matter? How can that delay be regarded as fair on the prisoners themselves, who are waiting to know the answer?
Lord McNally
Let us be clear: the judgment gave an opinion about our law as it stands; there was no case that the outcome of such a decision should make the three prisoners concerned, or indeed any other prisoners, automatically allowable for parole or release. It was a judgment on our law and I think that we have every right to give due consideration to what we should do when we receive such a judgment. I do not think that there has been a delay. As I said in my reply, we will come forward with our response in due course.
Lord Morgan (Lab)
My Lords, this judgment was supported by, among others, the English representative on the European court. Does it not show, first, that we are virtually unique in Europe, since every other European country has either no life imprisonment or the possibility of revising or reducing it? Secondly, does it not show that the United Kingdom has a far more punitive penal philosophy in these matters? This philosophy ignores the possibility of review or, perhaps, of release. It ignores the basic principle of rehabilitation and denies, in the words of the court, “the right to hope”. The Minister is a humane and progressive man. Is he not anxious about presiding over such a policy?
Lord McNally
I am anxious about living in a time when both major parties advocate a more punitive approach to crime and punishment. I hope that the leaders of both parties will ponder a trend over the past 40 years in our society which looks more to punishment and less to rehabilitation. I should also mention the chutzpah of the Opposition because it was under their watch that this right was taken away in 2003. Whether that happened by mistake or by intention, I do not know, but it was under the previous Government that the provision covered by the ruling just made against us in Strasbourg was passed. We have had to pick up a lot of debris about human rights. The previous Government sat on the prisoner decision for five years and did nothing, so I will not take any kind of lectures from that side of the House.
Lord Marks of Henley-on-Thames (LD)
My Lords, does my noble friend agree that we must comply with the Vinter decision in July, given our treaty obligations and our respect for the rule of law? Will the Government now reintroduce a review procedure for whole life cases to give prisoners serving them some hope of eventual release, other than purely on compassionate grounds, if and when their imprisonment plainly no longer serves a public purpose?
Lord McNally
That is one possible outcome of the consideration now taking place. At the moment, we are reviewing the matter in the light of this judgment. I cannot take the House any further in that direction. Nevertheless, it is a very interesting and, if I may say so, a very liberal approach to the problem that we face.
Lord Elystan-Morgan (CB)
My Lords, I respectfully urge the Minister not to regard this as a political matter at all. On 9 July, the court clearly suggested that an error had been made, quite inadvertently, when the Criminal Justice Act 2003 was passed. Prior to that period, all life sentences were reviewable after a quarter of a century. It did not mean that anybody was thereby released; it meant that the sentence was reviewed. That is the narrow point. By failing to review, we are—according to the judgment of 16 to one, including the United Kingdom judge—in breach of Article 3. We must set the situation right as soon as possible.
Lord McNally
That is why we are considering the judgment. I will give way very quickly: I do not want to make this a party political matter, but perhaps the author of the 2003 Act can tell us whether it was a mistake or an intention.
Lord Tomlinson (Lab)
Does the noble Lord accept that the longer we vacillate on this, the longer we appear to be in conflict with the European Court of Human Rights and the worse our reputation is becoming among the other member states of the Council of Europe? Justice in this case should not be delayed any longer. We should comply with the 16-to-one decision. Then we will have the moral authority to talk about the importance of other people abiding by the European convention.
Lord McNally
The noble Lord knows that I agree with him that it is very important that we co-operate with the court and that we take the commanding heights in terms of defending human rights. We have throughout our history set a good example and I want us to continue to do so.
Internet: Regulation
Lord Giddens
To ask Her Majesty’s Government whether they plan to promote the regulation of the internet, and if so how and by whom regulation should be carried out.
Lord Gardiner of Kimble (Con)
My Lords, where something is illegal under UK legislation, this applies online as well as offline. The Government support a self-regulatory approach and work closely with industry, civil society and other stakeholders to ensure that the internet is a safe and trusted environment, delivering social and economic benefits. In particular, the Prime Minister and the Culture Secretary have made delivering measures to protect children online a priority, rightly reflecting the great importance that the public place on this.
Lord Giddens (Lab)
I thank the noble Lord for that Answer. I hope that he will agree that the internet is perhaps the most astonishing force of our era in terms of the pace of its advance and the scope of its reach. It brings many benefits, but it has a very dark side. I would like the Minister to pursue the issue of its impact on children, since very young children can have access to material which they could never have a generation ago. What kind of improved regulatory structures can be put in place? How can either the Government or Governments ensure that children do not suffer lasting harm?
Lord Gardiner of Kimble
My Lords, I think the truth is that we are living alongside a technological revolution and it is changing very fast. As the noble Lord said, it is very much a force for good but its capabilities have dangers, too. We must protect the young from harmful content online. Through the UK Council for Child Internet Safety, which is co-chaired by three Ministers across departments, more than 200 organisations come together to identify and address risks to children online. We believe that that is the right approach.
Baroness Howe of Idlicote (CB)
My Lords, in a speech to the NSPCC on 22 July, the Prime Minister noted that the time had come for action to address the corrosion of childhood by online pornography. What progress has been made following the voluntary agreement by the big ISPs to administer default filters for all new customers by the end of 2013? Have the ISPs taken action?
Lord Gardiner of Kimble
My Lords, the noble Baroness is absolutely right. The Prime Minister, in a very significant speech, made a number of points about how we best deal with the dangers involved, particularly for children and the vulnerable. Domestic internet filtering for new and existing customers was part of that, and not only by the four large internet service providers. We want to go beyond that. We need to ensure that this is a comprehensive package so that children are as safe as possible in this very changing world and environment.
Lord Harris of Haringey (Lab)
My Lords, why has so little been achieved in getting a robust system of age identification that can be used on the internet, and why have the Government done so little to promote that with those who might make it happen?
Lord Gardiner of Kimble
I was looking into age verification only this morning. There is a working party on this matter at the moment in which the UK Council for Child Internet Safety is involved. It is drawing up a number of options; it is looking at some Danish examples of solutions and at how UK schools are doing it. I assure your Lordships that this is being taken very seriously indeed, because it is a very serious point.
Viscount Ridley (Con)
My Lords, in considering the regulation of the internet, would the Minister bear in mind one law in particular—the law of unintended consequences?
Lord Gardiner of Kimble
My Lords, yes, this is why we think the self-regulatory approach is best. The situation is so changing that we could go down a legislative path and find ourselves in difficulties thereafter. That is why the approach of everyone working together—industry, parents, civil society—is at this time the best way.
Baroness Lane-Fox of Soho (CB)
Would the Minister agree with Sir Tim Berners-Lee, inventor of the world wide web, that in any regulation of the internet the core principles of openness and transparency must be at its heart?
Lord Gardiner of Kimble
I entirely agree with the noble Baroness. It is beyond my comprehension how anyone could have invented these technological advances. I have a lot of sympathy with people who have difficulties. They are, however, a force for good but we must make sure that they are open and transparent. That is why the work that the Government are undertaking is precisely to get the best approach.
Lord Stevenson of Balmacara (Lab)
My Lords, could the noble Lord explain to us, given that so much news is now transmitted on the internet, what the Prime Minister meant yesterday when he called on the Guardian and other newspapers to show social responsibility? How does that square with free speech?
Lord Gardiner of Kimble
There is a balance in all these things. Free speech is extremely important. It is—I have mentioned this before—something that we very much treasure. At the same time, it must be incumbent on us all, particularly in security matters, to be extremely cautious.
The Earl of Listowel (CB)
I welcome what the Minister said about schools. Can he say how teachers are being equipped to speak with confidence to children about such issues as the use of the internet?
Lord Gardiner of Kimble
My Lords, one of the key features of e-safety and schools is that this will be part of the national curriculum. It will be taught at all four stages. Clearly, it is absolutely essential that teachers are aware and feel comfortable with the teaching of it. It is very important that there is proper training for that.
Lord Sugar (Lab)
My Lords, I am sure that the Minister is familiar with the fact that the ISPs are capable of filtering the accessibility of undesirable material in the same way that they are able to stop unauthorised access to people’s accounts. This, of course, is a costly exercise and not part of their business model. Would the noble Lord consider widening the remit of Ofcom and making it a full-blown regulator for the internet—particularly in implementing the aforementioned filtering that I referred to—for the benefit of protecting children and some other disadvantaged consumers?
Lord Gardiner of Kimble
My Lords, I think the noble Lord is right that Ofcom has a role to play. Indeed, it has been charged with reporting on child internet safety and parental awareness of, and confidence in using, those safety tools. The report will be out next year. We want to see what that brings forward. As I say, the approach is that industry, parents and civil society need to work together to get the right approach because, among other things, things are changing so fast.
Food: Waste
(10 years, 6 months ago)
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Baroness Parminter
To ask Her Majesty’s Government what recent discussions they have had with supermarkets about food waste.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con)
My Lords, we are working with retailers through the Waste and Resources Action Programme to reduce food waste. We have set targets on reducing food and packaging waste for food retailers and manufacturers under the third phase of the Courtauld commitment which runs from 2013 to 2015. This phase targets a further 1.1 million tonnes of waste reduction. Forty-nine signatories have already signed up to the commitment, with a combined share of more than 90% of the UK grocery market based on sales.
Baroness Parminter (LD)
I thank my noble friend for that reply. Is he aware that only one supermarket—Tesco—has published its food waste figures? How can the appalling levels of waste be driven down without more monitoring and reporting? Will the Government require all major food businesses and supermarkets to publish their food waste figures in their annual reports?
Lord De Mauley
My Lords, retailers are already reporting their food waste figures to WRAP under the voluntary Courtauld commitment, so legislation specifically is not needed. Tesco’s initiative, which I warmly welcome, shows that the voluntary approach is working. Retailers like Tesco recognise that food waste is a global issue. Knowing where the waste is occurring is the first step to dealing with it and means they can focus their efforts in the right places.
Baroness Howarth of Breckland (CB)
My Lords, as this is a global issue, and indeed a European issue, what are we doing with Europe to look at the framework and to develop that in a European context?
Lord De Mauley
My Lords, we are working extremely closely with the EU. EU drivers of food waste policy include the landfill directive’s targets to reduce biodegradable waste going to landfill and the revised waste framework directive’s requirements to manage waste according to the waste hierarchy, recycle 50% of household waste by 2020 and ensure that biodegradable waste is treated sustainably. We will continue those discussions.
Baroness Jenkin of Kennington (Con)
My Lords, I echo my noble friend’s point about the Tesco waste figures, which are independently audited. It is also donating 2,300 tonnes of surplus fresh food waste, which is 7 million meals, to FareShare. While I agree that that shows that other supermarkets should do the same, will the Government please encourage them all to do as much as they can?
Lord De Mauley
My noble friend makes a very important point. Indeed, that is why we are continuing to pursue the Courtauld commitment initiative, which was started under the previous Government and which has been extremely effective.
Lord Knight of Weymouth (Lab)
My Lords, as the growth in popularity of TV food programmes shows, we Brits love our food but we also love a two-for-one offer and the convenience of bagged salad. Between bake-off and BOGOF is the contradiction that many of us throw away more and more food while the numbers becoming reliant on food banks are spiralling, as people struggle with the cost of living crisis. Is there not a need therefore for the Government to work with retailers, broadcasters and others to help educate consumers, rather than having an Education Secretary who stigmatises and blames food bank users while downgrading the importance of cooking in the curriculum?
Lord De Mauley
I was with the noble Lord until shortly before the end, which is why we place such store by the “Love Food Hate Waste” programme, which was initiated by WRAP. The good news, which the noble Lord may not know, is that “Buy one, get one free” deals represent a relatively small proportion of supermarket promotions. The majority of promotions are temporary price reductions: for example, “Was £8, now £6”. “Buy one, get one free” deals are often on non-perishable items or items with long lives, and WRAP is working with retailers to encourage alternative promotions for perishable foods.
Lord Palmer of Childs Hill (LD)
My Lords, in his initial reply, my noble friend the Minister mentioned excessive packaging. What success has there been in reducing excessive packaging? We still have lots of wrapping around our shirts and around cucumbers, all of it unnecessary, yet at the same time we are telling local authorities to increase recycling.
Lord De Mauley
That also is a very important point. We have some pretty aggressive packaging recycling targets, which go up to 2017. However, particularly in respect of food, there are relatively limited opportunities for more substantial reductions without resulting in product damage due to underpackaging. The environmental impact of that would be greater than that of the packaging itself.
Lord Vinson (Con)
My Lords, 100 years ago food waste was fed to pigs. Today, food that is consumed by humans one day is regarded as unfit or unsuitable to feed to pigs the next. Here is a natural, sensible recycling course to use up this waste. Will the Government look at the regulations, particularly those EU regulations, that prevent the feeding of surplus foodstuffs to pigs, with a view to opening up a sensible recycling route and saving a massive amount of waste?
Lord De Mauley
My Lords, of course human safety has to be our key concern. There is EU regulation in place, to which my noble friend referred, that restricts the feeding of food waste to farm animals, although I am sure he is aware that there are some exceptions with low-risk foods such as bread, vegetables and fruit. We keep the situation regarding disposal of food and catering waste under review but, as I say, the main focus must be on human safety. There are of course other routes for food waste, such as anaerobic digestion.
Care Bill [HL]
(10 years, 6 months ago)
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15:56 - Division on Amendment 1 - Ayes: 96 / Noes: 271 - Amendment 1 disagreed.
Lord Hamilton of Epsom
Lord Hamilton of Epsom (Con)
My Lords, I am a great supporter of the Care Bill, and my disagreement with my noble friend the Minister is on an extremely small point. When I went to see my noble friend the Chief Whip and stated my intention to press this amendment to a Division if it was not accepted by the Government, she said that she was very unhappy about people pressing Divisions at Third Reading. I have a lot of sympathy with her on that issue, but the problem is that when my noble friend Lady Barker tabled her amendment, it had a fantastic amount of support from all over the House—although not unanimous support, as the noble Lord, Lord Warner, had reservations. If he does not mind, I shall come back to those in a minute. My noble friend the Minister said that he would look at this matter again and come back at Third Reading—and that is where we are now.
I am a little naive and overoptimistic, and as the amendment tabled by my noble friend Lady Barker referred to spiritual well-being, I assumed that any amendment tabled by my noble friend the Minister would also include references to spiritual well-being. Instead, the government amendment would merely add the words “and beliefs”, so that local authorities would have to take into account,
“the individual’s views, wishes, feelings and beliefs”.
I do not regard that government amendment as meeting the legitimate desires of the noble Baroness, Lady Barker—with my support and that of many others—even half way. If anything, it takes us about a third of the way. It is a compromise, but it does not go very far towards meeting our original desire.
The problem is that the provision as amended would continue to deny the role of spirituality for carers and those facing chronic illness. The South West Yorkshire Partnership Foundation Trust says:
“Spiritual care can help you make the best use of all your personal and spiritual resources in facing and coping with the doubts, anxieties and questions which can arise in a health setting or when you are ill.”
That illustrates the problem that faces the Minister. The whole concept of spiritual well-being has not just been dreamt up recently by people who want to influence the Care Bill; it is a concept that has been adopted by the National Health Service since 2002, and it is already incorporated in NHS guidance for professionals and patients.
At the risk of boring the House, I shall read out some NHS advice:
“Provider units, including NHS trusts should make adequate provision for the spiritual needs of their patients and staff”.
That comes from NHS Management Executive, HSG(92)2. Here is another quotation from the NHS:
“NHS staff will … be sensitive to and respect your religious, spiritual and cultural needs at all times”.
That comes from Your Guide to the NHS, dated 2002.
“All NHS Trusts should ‘Make provision for the spiritual needs of all patients and staff from all faith communities’”.
That is from New Guidance DOH on NHS Chaplaincy, also dating from 2002. Indeed, my noble friend the Minister paid tribute on Report to the hospital chaplains, who perform an important role in the spiritual context. We have to ask why, if spiritual well-being is a commitment by the National Health Service, it cannot also be a commitment for local authorities.
I now turn to the concerns of the noble Lord, Lord Warner, who is chairman of the All-Party Humanist Group. He was concerned on Report that the clause might be discriminating against humanists. There is no question of that at all. The clause is focused on individual well-being. If an individual desired to have their spiritual well-being promoted, the local authority would be required to do that. On the other hand, if the individual expressed no desire to have their spiritual needs attended to then they would not get any form of spiritual counselling. That works well in the NHS, where you do not hear of an atheist’s interests being overridden. There is no reason why it should not work equally well with local authorities. Indeed, the Home Care Association, the London Borough of Hillingdon and the Social Care Institute for Excellence have all made reference to the importance of people’s religion and spiritual needs.
My amendment would not wreck the Care Bill. It is a tiny amendment that would make no difference whatever to the main purpose of the Bill. I am not asking the Minister to go the extra mile—merely the extra yard. Surely it is right to bring the local authorities into line on the question of spiritual well-being with the NHS. Surely it must be right to give solace to those many people who believe that there is a spiritual dimension to their lives. It would be particularly important for those in their declining years.
The Minister has rightfully won himself a reputation for dealing with your Lordships’ House with courtesy, politeness and understanding. I ask him now to show courtesy and understanding and to support my amendment.
Lord Cormack (Con)
My Lords, I support my noble friend, which is why I put my name to this amendment. I spoke briefly when it was first debated a couple of weeks ago and I am delighted to add my voice now.
I hope that the House will feel that what we are discussing is an important matter, but one that does not in any sense reflect on the Bill and would not impede the Bill’s limitation. All that it would do is give a degree of solace to many people for whom the spiritual dimension of life is crucially important. That is very simple but very profound. It behoves this House, of all places, to put this in the Bill.
I accept, without any reservation whatever, the good intentions of the Minister, for whom we all, in all parts of the House, have very high regard. He is a man of diligence and sensitivity, and he always tries to meet the legitimate concerns of his colleagues in all parts of the Chamber. I say to him today, with the greatest possible respect, that while he has tried to meet us, he has not quite succeeded on this occasion. The phrase “feelings and beliefs” is not a substitute for the word “spiritual”.
As my noble friend Lord Hamilton said, this would in no sense damage the concerns or interests of humanists and others. If someone did not wish to have spiritual care or to have their spiritual needs taken into account, then so be it. However, there are many people, especially, as my noble friend said, those in the evening of their lives, for whom this is an exceptionally important dimension of those lives. I urge colleagues in all parts of the House to recognise the profound importance of this simple amendment and, if my noble friend feels inclined to test the opinion of the House, to react sympathetically. I hope that that will not be necessary, however; my noble friend has referred to the misgivings of the Chief Whip over Divisions on Third Reading. Like him, I understand those reservations, but the fact is that the Minister said that this was a matter to which we would return at Third Reading, and that he would try to table something. He has been as good as his word in tabling it, but I do not believe that he has quite met the points that concerned my noble friend Lord Hamilton and I, and many others. Therefore, the best possible solution to our dilemma this afternoon would be for the Minister to accept this modest amendment. I hope that he will do that and avoid the Division which the Chief Whip would so regret.
Baroness Warnock (CB)
My Lords, I support this amendment because I think that the reason that the noble Lord, Lord Warner, for example, objects to it is that he associates the word “spiritual” entirely with religious belief. As a matter of fact, I think the word has a much wider meaning that has nothing to do with religious belief, although of course for many people it does refer to religious belief. However, there are many people who are not religious who would nevertheless accept the word “spiritual” as covering what, in a sort of 18th-century sense, might be referred to as matters of sentiment; not belief, but a deep and profound romantic sentiment connected with the concept of nature and man’s place in nature. These are thoughts that come into one’s head in one’s declining years.
Therefore, it is partly through a misunderstanding, and a narrowing of the concept of “spiritual” that people may object—indeed, the Government may object—to its inclusion in this clause. For my part, and I think I speak for many people, it is a much wider word and it is a matter of enormous importance and great comfort to suppose that it is in the Bill.
Baroness Emerton (CB)
My Lords, I support the amendment in the name of the noble Lord, Lord Hamilton, and agree with the views just expressed by the noble Baroness about spirituality. I ask for the forgiveness of your Lordships’ House for this late intervention on the subject. I speak as a retired nurse, but I am nevertheless aware of the situations that nurses are placed in concerning this issue.
Let me start at the beginning. The Nursing and Midwifery Council, places a requirement on every new graduate that each nurse, in partnership with the person, their carers and their families,
“makes a holistic, person centred and systematic assessment of physical, emotional, psychological, social, cultural and spiritual needs, including risk, and together, develops a comprehensive personalised plan of nursing care”.
When I was taught in the preliminary training school, holistic care was described as the physical, mental and spiritual well-being of the patient, as in the 1950s, language was not so sophisticated to call it holistic care with all the ingredients that the NMC spells out. Nevertheless, the principles were well rooted. As a student, I clearly remember the description of today’s holistic care likened to a three-legged milking stool: when one leg breaks, it affects the whole stool. Likewise, if there is a physical condition, the whole person requires attention, be that psychological or spiritual.
It became necessary in 2010 for the Royal College of Nursing to commission a survey on spirituality. It revealed that members wanted more education and guidance about spiritual care, clarification about personal and professional boundaries, and support in dealing with spiritual issues. Within the survey it emerged that there was agreement that spiritual care is a fundamental part of nursing currently much neglected through ignorance and misunderstanding. A pocket book was prepared for the use of nurses, which states:
“The practice of spiritual care is about meeting people at the point of deepest need. It is about not just ‘doing to’ but ‘being with’ them. It is about our attitudes, behaviours and our personal qualities … It is about treating spiritual needs with the same level of attention as physical needs”.
In 1988, as Hitchens quoted:
“Often it is not until a crisis, illness … or suffering occurs that the illusion of security is shattered. Illness, suffering … and ultimately death … become spiritual encounters as well as physical and emotional experiences”.
Spiritual care is not just about religious belief and practice or about imposing belief and values on another using a position to convert. It is not a specialist activity or the sole responsibility of a chaplain. It is about hope and strength, trust, meaning and purpose, belief and faith in self and others. For some, this includes a belief in a deity and a higher power, people’s values, love and relationships, morality, creativity and self- expression.
Eighty per cent of care is delivered by nurses in hospitals and hospices. Nursing homes and care homes are less well supported by registered nurses but again support workers need to understand the relationship between physical, mental and spiritual needs in order to gain the right support for the person being cared for. However, this can be achieved only if nurses have enough time to be with the patient to establish a relationship and to pick up where there is a need. It cannot be done in 15 minutes, but in 15 minutes a registered nurse may pick up the need and be able to pass it on to someone who can give the help that is needed.
I hope the Minister will feel able to support the amendment before us as the words “spiritual well-being” are more explicit about what is required than the word “beliefs”. I hope this short explanation of the depth and breadth in which the nursing profession has explored this subject reflects the enormous amount of work that is required by all caring staff in whatever capacity to understand that the need for holistic care to meet the needs of those being cared for and their families is not restricted to physical or psychiatric treatment but includes spiritual well-being covering many innermost personal needs at often the most vulnerable time in their lives.
Baroness Barker (LD)
My Lords, I thank the noble Lord, Lord Hamilton, for his kind words about the work I did on this issue. On Report, I tabled the amendment which stands in his name today because at that point the Government were working to a definition of well-being which was about emotional well-being, and it was my view that it did not sufficiently encapsulate the matters we would define as spiritual. My name is not on the amendment today because over the past few weeks I have discussed this at some considerable length with a number of people, not least with the Minister and the noble Lord, Lord Warner, on BBC Radio 4 at some unearthly hour a couple of Sundays ago.
I think the Minister has met us where we need to be because his amendment refers to “feelings and beliefs”, which is a fairly wide and inclusive term. It is important that we take his words, not the wording proposed by the noble Lord, Lord Hamilton, because most of the discussion this afternoon has been about health and healthcare in healthcare settings, such as end-of-life settings, but this Bill is about social care at its widest in the community. Therefore we are perhaps not talking about the well-being of people at the end stage of their life, and it is important that we stick to a wider definition of a person’s beliefs because we are not talking just about medical matters.
The way the Government have framed the argument is sufficiently wide to include spiritual beliefs. I think in the normal course of conversation, when we talk about beliefs, we have almost a hierarchy of them. Religious beliefs perhaps come fairly high at the top; then people would secondarily think about spiritual beliefs. They might go on to talk about political beliefs being important to a person’s well-being. That is why I think that this time the Government have got this right. It is sufficiently clear and sufficiently inclusive to reflect all the concerns that remain legitimate on behalf of people backing my noble friend Lord Cormack’s amendment.
On this occasion the belt and braces are unnecessary and the noble Earl, Lord Howe, has got the House to the point where it wants to be. I will be quite happy to support that, not least because I think if we reform it we go with that formulation of words. Then we will be able to do the one thing which I think the law has to do, which is to be there as a backstop for those people who believe that their feelings and wishes are not being acknowledged and are being abused. That is the primary purpose of this legislation. Therefore, it should be as wide as possible.
Lord Elton (Con)
What the noble Baroness has just said prompts me to point out a difficulty. We are in an age when there is controversy about spirituality, when people can actually lose their jobs over issues of spirituality. If there were to be a case arising under this legislation in which such a matter arose and spirituality was not mentioned in the Bill, the position of those people would be a great deal weaker than if the Bill was amended as my noble friend suggests. Like the Chief Whip, I know that it is contrary to our normal custom to divide at this stage, but it seems that this is an issue of sufficient importance on the one hand and of narrowness of scope on the other to make it both necessary and painless.
Lord Hunt of Kings Heath (Lab)
My Lords, as this is a new stage I will just declare my interest as chairman of an NHS foundation trust, president of GS1, and a consultant and trainer with Cumberlege Connections. With the noble Baroness, Lady Barker, I, too, was very interested in this discussion at an earlier stage of the Bill. Our concern is that the original Government view is that spiritual issues would be embraced by Clause 1(2)(b) under the words “emotional well-being”. The noble Baroness, Lady Barker, and I did not feel that that was sufficient. Indeed, we had some worries that spiritual well-being could actually be subsumed under the terms “emotional well-being”.
The noble Earl, Lord Howe, has, I think, met our concerns. As he said in his letter to us, adding “beliefs” to Clause 1(3)(b) enables spiritual beliefs to be encompassed within that term without excluding any other forms of belief that may not be described as spiritual. I think that meets the concerns that I had about this matter. I would like the noble Baroness, Lady Barker, to draw a distinction between that and the specific issue that noble Lords have raised in relation to the health service, which is clearly designed to ensure that the NHS employs a chaplaincy service and which I absolutely subscribe to. Indeed, I pay tribute to the chaplaincy service up and down the country. However, this Bill is about a different set of circumstances. To the noble Lord, Lord Elton, I say that employment issues do not arise in this regard. We are talking about Clause 1 of the Bill, which is about promoting the individual well-being within the context of the Care Bill. I understand the point that he raised, but I do not think it arises in this context.
I would, though, say to the noble Lords, Lord Hamilton and Lord Cormack, that, reading the Companion, they are definitely right to bring this issue up on Third Reading. It is quite clear that an issue was raised in the debate on Report and the noble Earl agreed to look into it. He has now brought forth an amendment, and the Companion is absolutely clear that amendments on Third Reading are,
“to enable the government to fulfil undertakings given at earlier stages of the bill”.
Lord Elton
My Lords, on the noble Lord’s response to me, if an employee is able to point to statute and say that they are carrying out a requirement of statute, that has a very considerable bearing on tribunal cases and should not be brushed aside.
Lord Hunt of Kings Heath
My Lords, I do not seek to brush it aside. However, this clause relates to the responsibility,
“of a local authority, in exercising a function under this Part … to promote that individual’s well-being”.
Spiritual issues are subsumed under the amendment moved by the noble Earl, Lord Howe. With the greatest of respect, this does not relate to an employment law issue between an employer and an individual. This is very much around the kind of support that should be given to an individual by the local authority. There is a distinction between the situation that the noble Lord raised, and the issue that is set out in this clause.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, before I move to the matter in hand, I thank noble Lords for the tremendous dedication that they have shown to the scrutiny of the Bill during its passage through the House. It is a landmark piece of legislation, and I hope that the House will agree that the changes that the Government have made in response to the debates that we have had have strengthened the Bill so that it will pass to the other place in an even better state. Many noble Lords across this House have dedicated impressive time and energy to improving the provisions in all parts of the Bill, but time does not permit me to thank all noble Lords individually, as I would like to. However, I thank again those noble Lords who played such an important role in improving the Bill as members of the pre-legislative scrutiny committee.
I turn to my noble friend’s amendment. Under Clause 1, local authorities must promote individuals’ well-being and must also have regard to individuals’ views, wishes and feelings. As I set out during our debate on Report, we consider that these provisions mean that a local authority would take a person’s spiritual views, wishes and feelings into account in promoting their well-being. However, in response to concerns raised by a number of noble Lords on Report, I have now tabled an amendment to make it absolutely clear that these matters should be considered where they are of importance to the individual.
My amendment adds “beliefs” to the matters to which a local authority must have regard when exercising care and support functions. Having regard to someone’s beliefs includes their spiritual beliefs; for example, ensuring access to an appropriate figure of religious authority during palliative care. This approach achieves the same aim as Amendment 1 in the name of my noble friend Lord Hamilton, but I suggest to him and to the House that the government amendment is preferable, for two reasons.
First, my amendment quite deliberately does not refer specifically to “spiritual” well-being, but applies instead more widely to beliefs, which was the point made very effectively by my noble friend Lady Barker. That is because we do not wish to exclude those who may not consider themselves to have “spiritual” beliefs. That issue was raised by the noble Lord, Lord Warner, on Report, in relation to humanists.
Secondly, despite the comments of the noble Baroness, Lady Warnock—to whom I listened as always with great attention—spiritual well-being is not a well understood or defined concept. It carries a risk because it may confuse the practical application of the well-being principle on an individual level. There is another problem here. My noble friend’s amendment would effectively mean that local authorities had a duty to promote an individual’s spiritual well-being or beliefs. It is not appropriate to require a local authority to promote spiritual matters, except in so far as they affect the emotional well-being of a person.
Lord Cormack (Con)
This is a question not of local authorities promoting but of their protecting. There is surely a real difference there.
Earl Howe
I hope that my noble friend will on reflection agree that promotion is very much a part of the local authority’s role here. However, subsection (2) makes adequate provision as regards the emotional well-being of a person.
My noble friend Lord Hamilton compared what we are proposing in the Bill to the situation in the National Health Service. The NHS does not have a duty to promote spiritual well-being and, if it did, that potentially would have the negative consequences that I outlined. Having said that, the noble Baroness, Lady Emerton, is of course right—the NHS must take a patient-centred approach when planning and delivering services, and that would naturally include having regard to an individual’s beliefs where relevant. It is exactly this position that the Bill will replicate for local authorities when they plan and deliver care and support. To support the NHS in fulfilling its functions the Department of Health has produced best-practice guidance on NHS chaplaincy but I struggle to understand how that can equate to a duty in primary legislation on local authorities to promote spiritual well-being as my noble friend would have it.
Lord Framlingham (Con)
I am minded to vote for the amendment but perhaps the Minister can explain why there is a great deal of difference—or any difference —between the National Health Service and local government in terms of patient care.
Earl Howe
I tried to explain that there is none. There is no primary duty in statute on the National Health Service to promote spiritual well-being, which is why we are trying to make the Bill entirely consistent with that position. We have aimed for a system built around individuals and I have tabled my amendment to make absolutely clear that a person’s beliefs, spiritual or otherwise, should be taken into account in this personalised approach to care.
As noble Lords may expect, I asked my officials to consider my noble friend’s proposal and whether anyone could benefit under his amendment who would not do so under the Government’s amendment. The advice that I received is clear that no such example can be found. I struggle to understand why my noble friend might feel it necessary to divide the House on this matter if he is minded to do so.
Baroness Knight of Collingtree (Con)
Does my noble friend appreciate that only very recently we were given a sharp lesson? Unless a law is clear in its wording for those who have to live by it, any interpretation can be put on it. He will well remember what has happened regarding the Abortion Act. Because it was not thought necessary at the time to put certain wording in, it is assumed that it is legal to ignore it.
Earl Howe
I agree with my noble friend, which is precisely why I am resisting the word “spiritual”. I do not think that that is a concept that is well defined in law and I think that it could give rise to enormous confusion. It is for that very reason that I am resisting the suggestion of my noble friend.
I hope that noble Lords will agree that my amendment achieves the aim of ensuring that a person’s beliefs, including those of a spiritual nature, are taken into account where that is important to the individual concerned. I propose that local authorities may promote an individual’s spiritual well-being by taking their beliefs into account, while avoiding any negative consequences. I hope that the House will agree not to follow my noble friend in this instance.
Lord Hamilton of Epsom
My Lords, I must say that my noble friend has put before us a rather fine argument. It strikes me that if we are saying that spiritual needs cannot be named, but that on the other hand they are covered under the expression of taking into account “beliefs”, that does not hold a lot of water. I very much take my noble friend’s point—we must make this absolutely clear. People must understand the legislation. I do not think that just putting in “beliefs” will necessarily mean much to people. I am sure that “spiritual well-being” would mean something to people. As I said in my opening remarks, I think that it would give great reassurance. In the circumstances, I must test the opinion of the House.
Lord Lipsey
“( ) Regulations must set out how local authorities should facilitate access to financial advice regulated by the Financial Conduct Authority for those adults likely to benefit from it.”
Lord Lipsey (Lab)
My Lords, I remind the House of my interest as the unremunerated president of the Society of Later Life Advisers. Why has this matter come up again at Third Reading? It is because there were discussions in progress between the Minister, the two co-signees of this amendment and me, which had not yet concluded and the Minister generously agreed that we could bring it up at Third Reading. I think that the time has been well used. Certainly on the principles of the matter there is now complete accord between the Minister and ourselves. We are all agreed that taking financial advice must not be compulsory but equally we are agreed that it is not enough for the local authority just to hand over a list of names of advisers and say, “Take it from there”. In the fashionable words of today, we are agreed that they have to be nudged into doing what is invariably in their own interests as well as that of the council.
We are agreed that there is an important role for independent, regulated financial advisers in this field. We are agreed—despite the fact that I have tabled an amendment—that there is no need to put this in the Bill: it makes very good sense to spell it out in regulations. However, we are also agreed, and the Minister will confirm this, that it would be valuable, not only for this House but for outside interests, if he were to spell out in a little more detail the Government’s intentions in this regard. We have reached a position of great harmony. I thank him for all the time he and his officials have devoted to it and the sooner the House hears from the Minister, after one or two comments, the quicker this issue will be seen to have been satisfactorily resolved. I beg to move.
Lord Sharkey (LD)
My Lords, I will speak very briefly in support of the amendment. The noble Lord, Lord Lipsey, spoke with his usual clarity in moving the amendment and I shall not repeat his arguments, which seem to me to be compelling. However, I will point out that the amendment now before us is in effect the last remaining part of a discussion that started at Second Reading, continued in Committee and on Report and in private meetings with the Minister and his officials. At the start there were, broadly speaking, two concerns about information and advice. The first was about the Dilnot recommendation that there should be an extensive public awareness campaign about the facts and the implications of the cap. Our concern was essentially about the leadership, the scale and the monitoring of this campaign. I am very grateful to the Minister and his officials for all the discussions that they have had with us over this issue.
Baroness Greengross (CB)
My Lords, I was the third member of the delegation, so to speak, with whom the noble Earl met and I thank him for the time he put in to clarifying the issue through our amendment and his response.
I was worried about the same points as those raised by the noble Lords, Lord Lipsey and Lord Sharkey, particularly for the people who need rather different kinds of advice from that which we take for granted in financial advice. I refer to those people who might need additional advice on their housing or other needs that are broader than or slightly different to pure financial advice. The word “facilitating” is key. Local authorities must enable people, as well as they possibly can, to get the correct financial advice they need for their particular circumstances. I believe that we have arrived there and I thank my colleagues, and in particular the noble Earl, for meeting our requirements so well.
Lord Best (CB)
My Lords, speaking as president of the Local Government Association, I can confirm that the LGA supports this amendment and underlines the importance of sound professional advice before people, particularly elder people with care needs, make major financial decisions, not least in relation to the use of their homes as a source of finance for meeting care costs.
Facilitating access to such advice, of course, will add to the duties and burdens on local authorities. That must be recognised, as with the implementation costs for the so-called Dilnot arrangements, in the financial settlement that central government makes with local government. The costs involved for local authorities may not be very great but they should nevertheless be acknowledged. With that point in mind, I am delighted to give firm support to the amendment. I am sure that, as always, the noble Earl will respond helpfully and wisely.
Lord Hunt of Kings Heath
My Lords, perhaps I may raise a couple of points with the noble Earl, Lord Howe, on this. First, to reinforce the point made by the noble Lord, Lord Best, about the cost falling on local authorities in providing facilitation to independent, regulated financial advice, there is a much more general point about the capacity of local authorities to implement the measures in this Bill. The Bill leaves us, albeit with many amendments, with an underlying concern about whether local authorities will have the wherewithal to implement a raft of new responsibilities over the next few years.
Secondly when the noble Earl argued against similar amendments on Report, he spoke of the concerns of local authorities that they might be held liable if they referred a person who comes under the Act to a financial adviser who subsequently gave poor financial advice. We have heard from the noble Lord, Lord Best, that the LGA supports the general thrust of my noble friend’s amendment. Can the noble Earl confirm, first, that a regulated financial adviser will be subject to FCA requirements and come under its disciplinary and regulatory codes? Secondly, can he reassure local authorities that they can offer names of regulated financial advisers in the way that I understand a number of local authorities do at the moment without fear of subsequent action being taken against them? I was puzzled by the argument put forward on Report and it would be good to have this cleared up at this stage.
Earl Howe
My Lords, Amendment 3 brings us once again to the important matter of financial advice. As we have covered this subject at some length previously, and in the interests of time, I will endeavour to keep my response reasonably short. At the same time, I do not intend to make brevity a substitute for substance.
My discussions with the noble Lord, Lord Lipsey, my noble friend Lord Sharkey and the noble Baroness, Lady Greengross, and my officials’ discussions with the financial services industry have persuaded me that we are all seeking the same end point for financial information and advice. I believe that any apparent distance between the positions of the Government and noble Lords on this issue reflects only the way that I have expressed our intentions thus far. We want to ensure that when people take decisions about how to fund their care it is done in a considered and informed way. We agree that the local authority has a pivotal role to play in ensuring that this happens. I want to set out what I see that role as being in the hope that noble Lords will agree that we are indeed in concordance.
We believe that the local authority should take a proactive role. What does that mean in practice? Under the new system we expect many more people, a large number of them self-funders, to approach the local authority to start their meter running. This provides an invaluable opportunity for local authorities to reach out to these people and tell them about the support that is out there to help them better plan, prepare and provide for the costs of their care. It is particularly important for self-funders that this includes the relevance and the availability of regulated independent financial advice. To pick up the word in the noble Lords’ amendment, this should be a facilitative role for the local authority, providing a nudge in an appropriate direction.
In trying to define what we mean by facilitation, I wholeheartedly agree that handing out a leaflet or placing a page on a website is not sufficient. Instead, local authorities should talk to people and use the opportunity of contact with self-funders and others to give them individually tailored advice that suits their personal circumstances. They are likely to know something about a person’s financial situation and so will be able to tell them about the range of information and advice that might be most relevant to them in considering their care options, whether that is light-touch budget planning or advice from a regulated organisation. It would not be sufficient for local authorities just to tell a person about the types of information and advice available. They will also have to explain how it could be accessed and provide information to enable them to do so.
There is more work to be done before we can finalise what the guidance will say. To get it right, we will need to work collaboratively with stakeholders, including the financial services industry. We have begun to do that already and have had initial discussions and workshops involving representatives from the finance industry. They have confirmed what we all know of some of the necessary complexity in the system, so how and at what stage a person or their family is facilitated to take up regulated financial advice will depend on how and where they have made contact to obtain information and advice. We will gather examples of best practice to inform statutory guidance to help local authorities identify the types of information and advice that different people may need, inform them of those options at the right time and help them to access them.
In addition to the call for evidence and responses to the consultation on funding reform, background work has already been undertaken over the summer that supports the development of statutory guidance. Work commissioned through the Think Local Act Personal partnership has resulted in two publications on information and advice, principles for the provision of information and advice and an interactive map evidencing the difficult pinch points in people’s typical journey through the care system.
We have commissioned detailed work with six local authorities chosen from 40 examples of current practice collected earlier this year to draw together evidence on benefits and effectiveness in developing information and advice services. A number of those examples, including West Sussex, involve directing people to regulated independent financial advice. Helpfully, the ABI has invited my officials to participate in a workshop on access to financial advice being held on 14 November, which we expect further to support the development of guidance.
I am confident that no further amendments are needed to effect what I believe is a shared ambition. The Bill sets out the framework, the skeleton if you like, but it is the statutory guidance and implementation support that will put meat on those bones. What I have set out today is what we will put into practice through guidance. This guidance will be developed in co-operation with all interests, including the Association of British Insurers and the Society of Later Life Advisers, SOLLA, which will build on the good practice that already exists in many areas. We really want this to be the product of co-development which achieves the aims that I firmly believe that the noble Lord and I share.
The noble Lord, Lord Hunt of Kings Heath, expressed concern about what I said on Report about the possibility that local authorities could be held liable in the event that a regulated financial adviser gives poor advice. He pointed out, quite rightly, that such an adviser would be covered under FCA codes, and so on. The issue here is about the local authority making a recommendation to an individual adviser. We do not consider that there is any problem with local authorities providing a list of advisers from whom a person could choose.
On the impact of local authority responsibilities, we have established a partnership with the Local Government Association and the Association of Directors of Adult Social Services and have set up a joint programme and implementation board. We have a lot of ground to cover, and I think that no one would deny that we have our work cut out over the next few months, but I can tell the noble Lord that, together, we are absolutely committed to providing the support that is needed by local government to enable it to fulfil its functions. I hope that we have achieved a meeting of minds on this matter and that what I have said today will give the noble Lord, Lord Lipsey, sufficient reassurance to withdraw his amendment.
Lord Lipsey
My Lords, I could not have put it half as well myself. I beg leave to withdraw the amendment.
Earl Howe
My Lords, it will probably be of assistance if I speak to these two amendments. In moving Amendment 4, I shall speak also to Amendment 6. These amendments are designed to correct minor drafting errors in the Bill.
Amendment 4 concerns Clause 17, which relates to financial assessment. Subsection (10) clarifies that the regulation-making power to set a financial limit allows for regulations to provide for different financial limits for different types of care and support—or support, in the case of carers. Paragraph (b) states that the regulations may set,
“different levels for different levels of support”.
The amendment would correct this erroneous repetition and ensure that it reads instead:
“different levels for different descriptions of support”.
This ensures that the regulation-making power in subsection (10)(a) mirrors the regulation-making power in subsection (10)(b).
Amendment 6 relates to transition assessments of a young carer’s needs for support in Clause 64. The other provisions containing duties to carry out transition assessments—Clauses 59 and 61—require there to be “significant benefit” to the person in question. However, this clause only talks about “significant benefit” with no mention of the individual and so is quite abstract. This was an oversight. The amendment would therefore clarify that the significant benefit must be “to the young carer”, to bring it into line with the other similar provisions.
I hope that noble Lords feel able to support these minor and technical amendments, which will help ensure that the Bill is clear and works as intended. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I rise briefly indeed to welcome Amendment 6 and what I see as the further strengthening and joining-up between this legislation and the Children and Families Bill in relation to young carers. I particularly welcome the greater rights it gives to all young carers. I am really pleased to see the entitlements to both assessment and support for young carers as they reach that very critical age of transition at age 18. This will help because these young people often face additional barriers at that age as they are trying to access further education, employment and training, which is so important to their wider well-being and outcomes. I welcome it very much.
Lord Lipsey
“( ) The regulations may not specify any threshold of other assets above which a person is not eligible to receive a deferred payment loan.”
Lord Lipsey
My Lords, I am afraid that I cannot be so succinct this time. I might be acquitted of exaggeration if I say that the House's discovery on Report of the Government's proposed £23,250 limit on the non-housing assets people could have to qualify for the deferred payment scheme has caused something of a furore. I am not sure that Norman Lamb, the care Minister—a Minister for whom I genuinely have huge respect—will think that it was his finest hour when he described people with £23,250 in non-housing assets as quite wealthy. They may not be poor, but they are not likely candidates for the Chipping Campden set either.
My amendment would prevent the Government imposing such a limit. I have moved it in this form because we want to have a free-ranging debate this afternoon. I do not say that the matter will necessarily be resolved in this House this afternoon, and I make it clear that I am not an absolutist in this matter. The £23,250 figure is out for consultation—and following the furore a lot of people out there now know that it is out for consultation, which they did not know when it appeared in paragraph 150 of the consultation document. If at the end of that consultation, as I hope and expect, the Government decide to set a much higher figure, I shall reckon that a result.
Let us remember who this scheme is intended to help. It is not aimed at poor people who own their own homes, because they would not be sensible to avail themselves of its provisions. If they kept their homes under the scheme, they would have virtually no money in the bank and could not afford the little things that make life in a care home tolerable: presents for the grandchildren, a newspaper, sweets. At current interest rates, someone with £23,250 would have no more than £700 a year in income from that capital sum. They might have other bits of income but they are not going to be living a life of luxury in a care home off an income of £700 a year.
In arguing for the cap, the Government have tried to argue that it will not exclude most people. They claimed—or at least newspapers have reported that they claimed—that 35,000 of the 55,000 homeowners who enter care each year have assets of less than £23,250. These figures are contestable, as all asset figures are. A very good analysis in the Sunday Telegraph showed that the average 75 year-old had around £100,000 in other assets—a much higher figure than the Government were putting forward. However, that is not the main point I wish to make about the claim that most people have less than £23,250. My point, which I have been raising throughout, is not that the limit would exclude most people but that it would exclude most of the people who would sensibly take advantage of the Government’s proposal. That is why I have said, and maintain, that a £23,250 cap would kill the scheme stone dead and that if that figure remains unchanged, there will be practically no takers for it.
As I have already said, it makes no sense for the poor to do it. If they went down this line, they would be left with so little cash that they would not be able to afford the luxuries of life. But let us be equally clear that it would not make any sense for anybody at the top end of the scale to do it—the Chipping Campdens with millions in the bank who Norman Lamb rightly said would be excluded. If they go into a care home they do not have to sell their home anyway—they can pay the fees out of their investment income or by selling a few shares. They could follow the famous advice that Nicholas Ridley, as Environment Secretary, gave to people who were having difficulty paying the poll tax, to sell a few pictures. A cap excluding them will do no harm since they were not going to take advantage of the scheme anyway.
I can quite see why the Government might wish to avoid promoting a scheme that could easily be portrayed—wrongly, as it happens—as giving a handout to the rich. However, the scheme as devised by Dilnot, as accepted by the Government and as amended, sadly, by the consultative document, is not aimed at the poor or at the rich. It is aimed to help people on middle incomes who have worked all their lives and saved a modest sum. That is why the Daily Mail and the Telegraph—which have appointed themselves, fairly enough, as the spokesmen for such people—have mounted their admirable campaigns against the Government’s proposed cap.
Therefore, the question is, “What cap will ensure that these people benefit?”. The answer is not—I repeat, not—£23,250. When we look for another figure, there is a logic that points us in the right direction. Why £23,250? It is an odd little figure and not something which you would dream up overnight. It happens to be the present upper limit for getting help under the means test. If you have more than £23,250 in assets, you get no help under the means test; if you have less, you get some help.
However—this is quite curious, but I can only explain the facts—the £23,250 cap is going to increase dramatically. Under the Dilnot recommendations, as embraced by the Government, the upper limit will increase to £118,000 in 2016, when the new cap on care costs comes into force. Many more people will get help with their care costs, and there will not be the current precipice whereby people who have a small amount of money—although Norman Lamb describes them as being quite rich—will be disqualified. Instead there will be a much longer plateau stage, when people lose a little bit of money if they have more money in the bank.
If the limit is to be £118,000, it seems that the logical thing would be to say, “Let’s forget £23,250. If the new means-test limit will be £118,000, let that £118,000 also be the limit for the deferred payment scheme”. At a stroke, that would deal with the problem of middle-income people who have worked hard all their lives, while excluding the rich people who do not need help. Job done. That may not happen in this House this afternoon, but I am sure that it will be done when the Bill reaches another place.
This is all quite new stuff, which was only discovered in the past couple of weeks, and I want to make two points in conclusion. Some people worry that if we do as I suggest the scheme would impose a high cost on the state. They need not worry. Loans will be repaid in full with interest when the old person dies, and the average time in a care home is about two and a half years. So the Government’s cash flow will hardly be adversely affected for long, and the scheme certainly will not be loss-making.
The second reason why the scheme will not cost much is that not very many people would be well advised to take advantage of it. For most people it would mean either leaving their former home empty—with the roof rotting and the price that it will eventually fetch for their family, out of which the debt will have to be repaid, declining—or letting it out, which would not be easy for somebody in a care home to manage. For some people—those, for example, who have always had the dream of their children living in their house—it will be a huge comfort to see that dream realised when they go into a care home. I speak with some feeling, because my own mother, who is in a care home, has been able to give her home to her other son and that gives her, as well as him, huge pleasure.
This scheme would prevent forced sales at bargain prices when the market is particularly depressed. It would also give the old person, who might initially have said, “Well, maybe I might return home one day”, time to come to terms with the fact that that may not be so. That can take a bit of time—and some people, miraculously, can return home. The scheme would protect some people, but there will not be very many of them. I would expect the take-up to be in the low thousands, if that, and any cost to be exiguous.
Finally, some noble Lords have come up to me in the Lobby and said, “But surely it’s right that old people should use some of the assets they have accumulated in their lives to pay for their care”. This thought is reflected in the reported remarks of the noble Lord, Lord O’Donnell, about the benefits that we give to old people. I empathise strongly with that school of thought. Indeed, it is what has, entirely unexpectedly, led me to spend the past 15 years trying to stop the feeble-minded proposal of the majority on the Royal Commission on Long Term Care for the Elderly that the state should pay for free care for everybody, and then—with my noble friend Lord Warner—tackling the Government and succeeding in stopping the insane proposal of the Brown Government that care at home should be free for all when care in homes should be paid for. I remember the stout support that I had from the Minister for that successful campaign.
I want people to contribute to the cost of their care, but I believe profoundly that a deferred payment scheme will make that easier, for it will remove an injustice from the present system and therefore pave the way to a new public-private partnership in paying for care—a stable basis on which people can plan for their old age, freed at last from fear.
Lord Hunt of Kings Heath
My Lords, I am looking forward to the response of the noble Earl, Lord Howe, and hope that he can reassure the House on this point. It is important that the House should be reminded that the universal deferred payment scheme was discussed on pages 65 and 66 of the Dilnot commission report, which set out an analysis and evidence supporting its recommendations. It explained why the current arrangements and deferred payment schemes were not widely used, and why in the main report the commission recommended extending the current system to a full universal offer across the country.
In its arguments, the commission accepted that local authorities should be able to charge interest and recover their costs and that a scheme would be cost-neutral to the state, although it might require an initial cash injection. Dilnot also made it clear that the Government needed to strengthen and standardise the deferred payment scheme in the light of their decision on the level of the cap, means-testing and the contribution to general living costs.
I accept that the scheme was not intended to be generally available to the very wealthy and asset-rich. As my noble friend Lord Lipsey has so convincingly argued, though, being required to spend your assets down to £23,250 seems far too restrictive to deliver a viable scheme. Indeed, as it would be of no use whatever to people of middle income, it is very difficult to see if anyone at all is going to use the scheme. My question is: why have the Government been consulting on such a figure? Does that actually mean that they do not want the scheme to succeed? Do they recognise that it cannot possibly succeed if you have to get down to such a low figure before the scheme can apply?
My only reading of why the Government have consulted on this low figure is because of Treasury concern about the initial cash injection. Is that so? Will the Minister also acknowledge that there is a question about whether in the long term—or indeed in the short term, because the scheme will begin to pay for itself within a very short time—his department thinks that there is going to be a cost-neutral scheme? It will be interesting to hear from him about why the Government seem so cautious and have been consulting on what seems to be such a low figure.
For the reasons that my noble friend has persuasively put forward, although in the end the number of people who will use the scheme may be counted in their thousands rather than their tens of thousands, there is no doubt that having a scheme available will provide a great deal of comfort to many people and their families, and it would be a great pity if this was going to be stillborn. We need to see a scheme that will be practical and will not squeeze middle-income people. I hope that the Minister will be able to reassure the House that the Government are having second thoughts in this area.
Earl Howe
My Lords, Amendment 5 returns us to the issue of deferred payments. I begin by saying that I welcome the opportunity to debate this subject again. Unfortunately, the Government’s position on it has been fraught with misunderstandings, and I would like to take this opportunity to dispel at least some of those.
First, I remind the House that a consultation on funding reform has been running over the past three months, and it closed last Friday. During these three months, officials have travelled across the country explaining our proposals and seeking people’s views. What we have put forward so far are proposals—something for people to consider. These are not set in stone. We will listen to what we have heard through our consultation, and indeed in this Chamber, as we develop our policies over the next few months.
The purpose of this amendment, as the noble Lord, Lord Lipsey, has explained, is to ensure that anyone—even people with assets of great monetary worth in addition to their main home—can have a deferred payment agreement. I have to make it clear that if one takes this amendment literally, I disagree with that principle. I do not think the public purse should be helping people who do not need financial support to pay their care fees. This would seem a long way from the Dilnot commission’s view that deferred payments should be used to support people who,
“would be unable to afford care charges without selling their home”.
For a person with a substantial sum in their bank account or substantial liquid savings, a deferred payment agreement might be a cheap loan—a convenience, one might say—but it would not be serving its core purpose.
I hope that we can therefore agree that the principle of having an upper threshold for non-housing assets is a sound and a necessary one. If we agree that this is a sound principle, all that is left to do is agree on an amount. Our consultation sought views on that amount. The noble Lord, Lord Lipsey, asked what was wrong with an asset threshold of £118,000. From April 2016, we are extending means-tested support for people with up to £118,000 when the value of a person’s home is taken into account in the financial assessment. This determines when an individual may be eligible for local authority support with their care costs. Deferred payment agreements are designed to help people to pay for their care costs; their ability to meet these costs in the short term will be dependent on their liquid non-housing assets rather than housing wealth. I can say to the noble Lord that we are happy to consider using a threshold of £118,000 as we analyse the consultation responses. We are happy to consider a range of figures.
The noble Lord, Lord Hunt, asked why we proposed the £23,250 threshold. We were seeking to identify those people most at risk of having to sell their home to pay for their care. The reason we proposed £23,250 specifically is because it provides consistency with the threshold for means-tested support when the value of someone’s home is not taken into account, and with the principle that people with non-housing assets under that amount are likely to need state support to pay for their care costs. Indeed this is the same figure and the same reasoning that the previous Government applied in their White Paper. Therefore, from that point of view if no other, it is a little surprising to hear the noble Lord, Lord Hunt, arguing against it.
There is an interesting point about people with more than £23,250 in savings. About 60% of people entering residential care are state-supported, meaning that they have only limited assets. Of the remaining 40% who enter residential care as a self-funder, less than half have liquid savings of more than £23,250. This means that the proposed threshold of £23,250 excludes only the richest 15% of people entering residential care. By increasing the liquid savings threshold to £118,000, the scheme would be available to all but the richest 5% of people entering residential care. I hope that that is a helpful contextual analysis. However, I reiterate—particularly to the noble Lord, Lord Lipsey—that we are not wedded to the figure of £23,250. We will analyse the responses to the consultation before making any further decision.
To answer the question posed by the noble Lord, Lord Hunt, about whether the scheme will actually be cost-neutral, we intend and believe that in the long run the scheme will be cost-neutral. We have committed £330 million to fund the implementation of the cap cost system, and deferred payments to cover the initial set-up costs.
I hope that in the light of what I have said the noble Lord will, on reflection, agree that his amendment would be undesirable as drafted and that he will be content to withdraw it.
Baroness Oppenheim-Barnes (Con)
Before the Minister sits down, will he confirm that if a house has to be sold, after the repayment of the debt, the proceeds remain the property of the person whose house was sold? Would it be possible for the potential beneficiaries to pay the debt in advance so that the house does not have to be sold?
Lord Lipsey
My Lords, I thank the Minister for his reply. It is tempting to go further into the minutiae of these issues, but I think I have been in politics long enough to recognise when a Minister is elegantly preparing for a government retreat. Believing that we have just heard an exemplar of such a speech, I beg leave to withdraw the amendment.
Lord Patel of Bradford
“( ) Within one year of the coming into force of this section, the Secretary of State shall report to Parliament on the discharge by probation trusts of their responsibilities for safeguarding adults residing in approved premises.”
Lord Patel of Bradford (Lab)
My Lords, I once again thank the Minister for taking time to speak to me last week about my continued concerns in respect of ensuring that adults detained in prison or residing in approved premises have the same protection and care as all other vulnerable adults when it comes to safeguarding inquiries by local authorities.
Clause 75(7) expressly excludes adults detained in prison and those residing in approved premises from the Section 42 duty on local authorities to carry out safeguarding inquiries. I spoke about this on Report believing that it is a serious gap in the Bill in providing safeguards and protection to some of the most vulnerable people in our communities and prisons. On Report, I sought clarification about who would be responsible for carrying out safeguarding inquiries in prisons and approved premises, such as bail hostels. The response I received from the Minister was:
“Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners … Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community”.—[Official Report, 16/10/2013; cols. 623-4.]
In response to my specific question about approved premises, the Minister said that probation trusts have responsibility for carrying out safeguarding inquiries. I was a bit concerned by that response, but I accepted it. I decided to seek further clarification about how it would work in practice in local areas. What I found raised more issues and questions, which I shall briefly outline. I should say that I am very grateful to Jenny Talbot and her team at the Prison Reform Trust for their continued support and expert guidance on this matter.
I fully support the concept that all prisons and approved premises should have their own arrangements for safeguarding that include a comprehensive policy understood by all staff and should ensure that vulnerable adults are identified and given appropriate support within the local authority safeguarding process. I remain uncertain about what the Minister said about probation trusts having the responsibility for carrying out safeguarding inquiries in respect of adults residing in approved premises, so I sought further expert legal advice from people in the field. I was categorically assured that local authority safeguarding duties and, indeed, other community care duties extend to approved premises within the local authority area.
Lord Ramsbotham (CB)
My Lords, I support the noble Lord, Lord Patel, because I agree that this is an extremely worrying issue. Focusing on prisons, there is an increasing number of elderly prisoners, as has been reported, and it is quite clear that the prison medical authorities are not capable of looking after all their needs. For example, people have talked about dementia and other problems of increasing age, and it is of concern that those people are not being properly looked after.
I am also very concerned about the use of the words “probation trusts” because they are about to go. According to the Transforming Rehabilitation agenda, which the Ministry of Justice has released, they are to be replaced by directors of rehabilitation in various parts of the country and/or private companies acting as rehabilitation companies responsible for services. What we do not know from the Ministry of Justice is exactly how many people are to stay with the existing probation service, which has been given a lot of responsibilities that do not include running probation hostels, which is currently a probation responsibility. Nor have I seen any mention of this accommodation in the transforming rehabilitation agenda that has been produced. Therefore, this matter needs following up. Within a year would be a very useful timeframe, because it would allow a follow-up of what is happening in the Ministry of Justice to be conducted.
Baroness Wheeler (Lab)
My Lords, from what my noble friend Lord Patel has said, it is clear that the issue of safeguarding inquiries is not at all sorted. He has highlighted a substantial gap in the Bill that could have a very serious impact on some of the most vulnerable people in our communities and prisons. He rightly seeks equivalence of care and protection for adults detained in prison and those residing in approved premises such as bail hostels—care and protection that all other vulnerable adults have when it comes to safeguarding inquiries by local authorities. We take on board his deep concerns about prisons and what appears to be a lack of co-ordinated and clear responsibilities in respect of safeguarding inquiries. I ask the Minister to look further into the matter, as my noble friend suggested.
My noble friend raises some key issues on whose responsibility it is to carry out a safeguarding inquiry for adults living in the community in approved premises. Given all the uncertainty about future service delivery as a result of the Government’s major reorganisation and break-up of the probation service, if that responsibility is currently with the local probation trust, this amendment, which calls on the Secretary of State to report to Parliament within one year of this clause of the Bill coming into force, becomes even more necessary. To require the new community rehabilitation companies or their successor bodies to account for how they have discharged their responsibilities for safeguarding adults residing in approved premises is an acceptable way forward.
I look forward to hearing from the Government about how they intend to deal with the matter in the light of the serious concerns expressed by my noble friend today and in previous discussions on the Bill, and in light of the huge confusion that will result from the proposed changes to the probation service. I very much hope that the Minister will be able to support my noble friend’s endeavours to fill what is potentially a serious gap in the Bill, and to ensure future adequate protection of these vulnerable adults.
Earl Howe
My Lords, I will begin by making absolutely clear that we agree that all prisons and approved premises should have arrangements for safeguarding the adults in their care. They should have a comprehensive policy that is understood by all staff and which ensures that vulnerable adults are identified and given appropriate support. I hope that we also agree that we cannot relieve prisons and probation providers of their duty of care by imposing a duty on a local authority to make safeguarding inquiries into suspected abuse or neglect in a prison or approved premises.
We need clear guidance for prisons, probation providers and local authorities to ensure that the procedures within prisons and approved premises are informed by best practice and local expertise. My officials will work with the Ministry of Justice and the National Offender Management Service, together with the Association of Directors of Adult Social Services and other stakeholders, such as the Prison Reform Trust, to develop instructions and guidance for prisons, probation providers and their local authorities. Those instructions and guidance will be in place by the time the Bill is implemented and will give improved clarity about the Prison Service and probation providers’ roles and responsibilities in safeguarding adults in their care, including the need to have a whole-institution approach to safeguarding, and cover their relationship with the local safeguarding adults board.
The Ministry of Justice encourages prison and probation staff to be involved with local safeguarding adults boards. The guidance on how safeguarding should be carried out in conjunction with local authority partners can draw attention to the duty in Clause 6 that local authorities and their partners must co-operate in the exercise of their respective functions relating to adults with needs for care and support. The guidance will be consistent with the broader advice and guidance on safeguarding adults in the community to ensure that good practice on safeguarding policies and inquiries is routinely shared.
In addition, the guidance will set out clearly the need for locally agreed relationships with local safeguarding boards, including clear local protocols around the circumstances for involvement of local SABs. The guidance will also make clear how prison and probation staff can benefit from the expertise of social services and local authority safeguarding teams.
For approved premises, the probation provider has a clear responsibility in relation to safeguarding but there is nothing to prevent it seeking advice from either the safeguarding adults board or the local authority safeguarding team. This already happens in many areas. Since a local authority’s duties in relation to safeguarding would not extend to safeguarding adults who are at risk of abuse or neglect by reason of their detention or their offence, a joint approach would be much more effective where there is a particularly difficult safeguarding challenge in an approved premises.
Her Majesty’s Inspectorates of Prisons and Probation and the Prisons and Probation Ombudsman will take account of the guidance and local agreements and make recommendations for improved practice, if relevant, when inspecting services and investigating complaints within the prison and probation services.
I wish to be clear in answering the noble Lord, Lord Patel of Bradford, who said that the document No Secrets said that local authorities have responsibility for safeguarding in approved premises. Local authorities do not have a statutory duty at the moment. It is the duty to conduct inquiries that will not apply—not that local authorities cannot conduct an inquiry if invited to by the probation trust or provider. Guidance and probation instructions will provide further detail on how local authorities and probation trusts, as they currently are, can work together at a local level. The guidance will go to all probation providers who run approved premises. Probation services will be contracted out in due course, so these will be approved premises provided by the probation service and by voluntary or private providers. The guidance will make it clear that the provider running the accommodation has a duty of care and a safeguarding responsibility.
I hope that, with those assurances and clarifications, the noble Lord will feel able to withdraw his amendment.
Baroness Masham of Ilton (CB)
My Lords, how will the Government ensure that the guidance is carried out? Would a report not be useful?
Earl Howe
My Lords, the Ministry of Justice will want to ensure that the guidance is adhered to and the department will have oversight of the way that this works in practice, as the noble Baroness might expect. As I say, there is best practice already out there; we want to build on what we know works, with joint working across the prison and probation services and local authorities.
Lord Patel of Bradford
My Lords, I thank the noble Earl for taking time to talk to me about these concerns and providing a comprehensive response. I am really pleased about the guidance that is going to be produced and shared. The noble Earl said that comprehensive policies and procedures are in place, and I should say for clarity that I have no argument with that. A number of institutions do not have them in place and that is where the guidance will come in handy.
However, I have no desire to see the local authority relieving the prison or probation trust of any duty of care. What I was saying—although it is probably a play on words—was that the No Secrets guidance seems to suggest that a local authority is probably the only agency that would investigate or inquire into a safeguarding issue. I am not saying that probation trusts will not do so but the feeling is that that duty falls on the local authority at the moment. My big anxiety is that Clause 75(7) expressly states that Section 42 should not apply. The Bill therefore actually states that local authorities should not carry out a safeguarding inquiry for people in prison or approved premises. The fact that it says in the Bill that they should not do it, but at the same time we are giving guidance to say that if everybody works together it should be okay, leads me to ask the Minister how we square that circle. It gives an awkward flavour to the debate. I hope that the noble Earl is willing to go back and have a look at both the guidance and the clause, as I believe that that is where the problem lies.
As regards safeguarding adults boards, I am very pleased that the noble Earl has said that prisons and probation trusts should join the safeguarding boards. Initially the Bill said that they should not be forced to do so. Then it was drafted to say that they “may” do so. I suggest that they should. This is crucial, as the noble Lord, Lord Ramsbotham, said, as otherwise their skill base is missing.
Those two areas are crucial. I do not know what will happen if and when the probation trusts are abolished, and what problems that will cause, but at least the amendment requiring that there is a report within a year will give us that information.
Lord Patel of Bradford
The fact that we each have looked at that provision in a different light suggests that it may be useful to look at that again when the guidance is produced so that we are very clear and we give local authorities the confidence to play the lead in co-ordinating this.
I again thank the Minister for taking away all the issues and re-examining them. I beg leave to withdraw the amendment.
Arrangement of Business
Lord Popat (Con)
My Lords, there are 39 speakers today for the Second Reading of the Bill. If Back-Bench contributions are kept to a maximum of six minutes, the House should be able to rise at around 10 pm tonight.
Baroness Smith of Basildon (Lab)
My Lords, it is rather unusual to start a debate on Second Reading at 5.15 in the evening. Many Members of your Lordships’ House will have important contributions to make, so while we appreciate the guidance and will do our best to stick to it, it seems rather unfair given the importance of the issues before us this evening.
Lord Popat
I accept what the noble Baroness says. If we extend the limit to seven minutes we should be able to finish by around 10.20 pm. Would that be okay?
Baroness Smith of Basildon
My Lords, it is not for me to advise noble Lords on how long they wish to speak. I was not trying to correct the noble Lord. The point I made is that many noble Lords have spent a long time preparing their comments on a very important Bill and will be disappointed that Second Reading started at this late hour. If there were a normal amount of time, even 10 minutes for each speech would take us beyond midnight. I am not asking for a change to the guidance but want to put on record that it is difficult for noble Lords who have prepared speeches on such an important issue. However, I do not wish to detain the House.
Lord Dholakia (LD)
My Lords, I endorse what the noble Baroness said. It has taken a lot of time to prepare our contributions and I hope that the Minister understands that this is an advisory limit.
Lord Popat
I accept what my noble friend said, but I ask that noble Lords try to keep contributions to a maximum of six or seven minutes. That would help Peers who would like to go home earlier than 10.30 pm.
Anti-social Behaviour, Crime and Policing Bill
(10 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, this Government have worked to cut crime and to reform the police, and our reforms are working. The most recent report of the independent Crime Survey for England and Wales was published earlier this month and shows that crime continues to fall. In the year to the end of June 2013, overall crime fell by 7% to the lowest level since the survey began in 1981. However, we cannot be complacent. Last year there were still 2.2 million incidents of anti-social behaviour, with 28% of adults having personally experienced or witnessed such behaviour. As we know, often the most vulnerable members of our communities are most affected by these problems.
Across the country the police, local authorities, social landlords and others are working hard to stop anti-social behaviour using a combination of informal and formal interventions. However, in order to protect victims and communities, they must have the right tools available to them. It is clear that the many existing statutory powers in this area are inadequate and ineffective. Anti-social behaviour orders, in particular, have not worked overall. More than half of them have been breached at least once and just over 40% have been breached more than once. That is why the Government have brought forward a new, streamlined, more flexible set of powers in this Bill.
The criminal behaviour order and the injunction to prevent nuisance and annoyance will replace the anti-social behaviour order and a number of other existing orders, and can be used to stop anti-social behaviour by individuals. Importantly, it will also be possible for the courts to attach “positive requirements” to help perpetrators address the underlying causes of their actions. The injunction is a wholly civil measure and is intended to be used to address problems quickly, before they escalate. The criminal behaviour order will be available for more serious cases where an individual already has a criminal conviction, although it will also be preventive in nature. Tough sanctions will be available to deal with breaches of the injunction or the order.
The new dispersal power will enable the police to move people on where they are causing problems at particular locations. The community protection notice, the public spaces protection order and the new closure power will deal with environmental anti-social behaviour which affects the community’s quality of life or ability to enjoy or access particular places. Part 5 of the Bill will strengthen the powers of landlords to seek possession where tenants blight the lives of their neighbours.
With these new powers the Bill contains important safeguards, including, in appropriate cases, judicial oversight. Such powers are necessarily always a balancing act between the rights of individuals who may be on the receiving end of an injunction, notice or order and those of the wider community who do not want their lives blighted by anti-social behaviour. We believe that the Bill gets that balance right.
Part 6 will empower local people through two measures: the community remedy and the community trigger. The remedy will ensure that victims have a say in the out-of-court sanctions used for low-level anti-social behaviour. The community trigger will empower victims to hold agencies to account for their response. Where a victim is suffering from persistent anti-social behaviour or feels that previous complaints have been ignored, the community trigger will require local agencies to conduct a joint review of the response. That is not to say that agencies do not need to act until there have been several complaints or until the trigger is used. We continue to expect that every complaint should receive an appropriate response. However, it is important that victims have this safety net for when things go wrong. I believe that, taken together, these reforms will focus the response to anti-social behaviour on the needs of victims and their communities, ensure that professionals are able to protect the public quickly and effectively, and tackle the underlying drivers of anti-social behaviour.
I now turn to the issue of irresponsible dog ownership. There are two broad elements to the Bill’s provisions here. The first is primarily preventive. The anti-social behaviour powers that I have described will allow agencies—local authorities and the police—to address emerging problems. For example, when a dog causes a nuisance because it has not been trained properly, the owner could be required to keep it on a lead and attend training classes. The Bill also makes amendments to the Dangerous Dogs Act 1991 to strengthen the response where a dog presents a risk to public safety. This includes extending to all places the Section 3 offence of owning or being in charge of a dog that is dangerously out of control. Your Lordships will all be aware of the recent tragic case in which attacks took place at the owner’s home and therefore no prosecution could be sought under the Dangerous Dogs Act. These provisions seek to address that gap.
Noble Lords will also be aware of the debate in the House of Commons on the penalty for this offence. There was a broad consensus that the existing two-year maximum penalty for the aggravated offence is inadequate. I can now confirm that the Government will bring forward an amendment in Committee to increase the maximum penalty to 14 years in a case involving the death of a person, to five years where a person is injured and to three years in any case involving the death or injury of an assistance dog.
I now turn to firearms. Part 8 strengthens the law in respect of illegal firearms to target the middle men who supply weapons to street gangs and organised crime groups. While gun crime is thankfully relatively rare in this country, when it does occur it has a devastating effect on its victims, their families and communities. The evidence suggests that a reasonably small number of weapons are used in these crimes, with middle men hiring out guns to criminals. The Bill will accordingly introduce a new offence of possession of a prohibited firearm for sale or transfer. It will also increase the maximum penalties for the illegal importation, exportation and manufacture of firearms to life imprisonment.
I turn now to sexual offences. Part 9 of the Bill brings me to measures to protect children and vulnerable adults from sexual harm. These provisions respond to an independent report by Hugh Davies QC and to amendments proposed in the House of Commons by Nicola Blackwood MP, supported by 67 other Members of that House. They seek to address serious weaknesses in the existing regime of civil preventive orders under the Sexual Offences Act 2003. Taking a similar approach to the one we have taken to anti-social behaviour, Part 9 rationalises and strengthens the powers available. Three existing orders will be replaced by two new ones: the sexual harm prevention order and the sexual risk order. They can be used where a person poses a risk, either following conviction for a relevant offence in the case of the sexual harm prevention order, or without a conviction for the sexual risk order. Both orders may impose restrictions that a court considers necessary for protecting the public from sexual harm. For example, restrictions could be placed on foreign travel. The new orders will be more flexible than the existing powers and will help professionals act to prevent harm. Our aim in making these reforms is to give enhanced protection to children and vulnerable adults, both in the UK and abroad.
Providing victims and potential victims of forced marriage with enhanced protection is also the purpose of Part 10 of the Bill. These provisions introduce new offences of forced marriage and breach of a forced marriage protection order. The legislation will complement the important work done by the Government’s Forced Marriage Unit, charities and others to tackle the serious harm caused by forced marriage. The new offences will send a clear message that this appalling practice will not be tolerated and will ensure that those who perpetrate it face appropriate penalties.
Part 11 of the Bill includes measures that continue the important work of police reform to build on the significant steps that the Government have already taken in this area. First, it gives statutory powers to the new College of Policing to prepare regulations, codes of practice and guidance to support its role in developing the professionalism of the police. Police leadership is extremely important to the future of the police and we recognise the need to recruit the brightest and the best to senior roles. In addition to the college’s work to nurture talent within our police forces, it may sometimes mean recruiting exceptional candidates from outside. Part 11 accordingly enables police and crime commissioners to appoint as chief constables officers with suitable experience in forces overseas.
The provisions in respect of the Independent Police Complaints Commission enhance its powers in order to improve public confidence in police integrity. They include the extension of the IPCC’s remit to cover private contractors used by forces and a power to require forces and other bodies to respond publicly to the IPCC’s recommendations.
Part 11 also takes forward recommendations made by Tom Winsor in respect of the mechanisms for considering police pay and conditions. It abolishes the ineffective and inefficient Police Negotiating Board and establishes in its place an independent review body to make evidence-based recommendations on officers’ remuneration. This is similar to the system already used for many public servants, including the Armed Forces and the NHS.
We are building on the role of police and crime commissioners in their local communities by conferring on them new powers to commission services for victims and witnesses. They will be best placed to determine local needs and they should be empowered to provide victims with the appropriate support.
Alongside these structural reforms to the way in which police forces and other institutions operate, Part 11 also deals with the powers used by front-line officers. In particular, it continues the work we started in the Protection of Freedoms Act to ensure that counterterrorism powers protect the public but do so in a fair and proportionate manner. The port and border security powers in Schedule 7 to the Terrorism Act 2000 are a vital part of the United Kingdom’s security arrangements and an essential tool in countering the threat from terrorism. The provisions in Part 11 will reduce the potential for these powers to be used in a way that is disproportionate or unnecessary, while maintaining their operational effectiveness. These include reducing the maximum period of detention from nine hours to six and providing for persons detained at ports to have access to legal advice. We will naturally consider very carefully any observations and recommendations made by David Anderson QC, the independent reviewer of terrorism legislation, in his report on the examination of David Miranda, but I am sure noble Lords will agree that we should wait for his report rather than take any precipitative action.
The Government’s concern to ensure proportionality and fairness also underpins Part 12, which reforms our extradition arrangements. The Home Secretary, my right honourable friend Theresa May, announced in the summer that she would introduce legislation to reform the operation of the European arrest warrant in the UK and increase the protections offered to those wanted for extradition, particularly British citizens. Accordingly, the Bill addresses many long-standing concerns about extradition. These include introducing a bar to extradition where a judge considers it is not proportionate, measures to address the problem of lengthy pre-trial detention and making it clear that dual criminality must apply in all cases where part of the conduct occurred in the UK.
Finally, Part 13 contains criminal justice provisions and I will speak briefly about three of them. The first clarifies the test for determining eligibility for compensation where someone has been the victim of a miscarriage of justice. At present, the test is subject to definition and redefinition in case law, which has led to a lack of clarity for applicants and numerous legal challenges. The new test will provide much-needed certainty in this area by putting on a statutory basis the test that operated between 2008 and 2011. It is not our intention to reduce the number of applicants who receive compensation—which at present is around two to four a year—but we want to reduce the number of complex, expensive and generally unsuccessful legal challenges that currently arise.
The second relates to prosecutions for low-value shop theft. As I said earlier, one of the policing reforms we are making is to free up police time to focus on fighting crime. Extending police-led prosecutions—and avoiding the unnecessary passing of cases between the police and the CPS—is an important element of this work. Provisions in this part would bring a further 50,000 cases of shop theft into the scope of police-led prosecutions, empowering front-line officers and bringing retailers swifter justice.
Finally, the Bill provides that the Lord Chancellor may set fees for certain proceedings in the civil and family courts and tribunals, and for services provided by the Office of the Public Guardian, at an enhanced level above cost. Enhanced fees are a critical part of our plan to ensure the courts are properly resourced so that access to justice is maintained. In the context of the need to reduce spending and to tackle the fiscal deficit, we believe it is fair that those who use the courts, and can afford to pay, should make a greater contribution to the overall costs of these courts. The Government are not proposing specific fees now. We want to take some time to make sure our proposals are set at the right level and aim to consult on detailed proposals before the clause is considered in Committee.
I recognise that some noble Lords may have concerns that enhanced fees could lead to a denial of justice. I want to reassure the House that that will not be the case. The Lord Chancellor will continue to be under a duty to ensure that the principle of access to justice is not denied. Fee remissions will continue to be available for those who qualify and the clause has a number of safeguards built in. However, I have no doubt that we will return to this provision, as we will many others, in due course.
The Bill covers a wide range of issues but there are a few important principles that run through it. Front-line professionals and the courts must be properly equipped to protect the public from harm. Reform must continue so that our police enjoy enhanced professionalism and public confidence. The powers exercised on the part of the state must be fair and proportionate and, perhaps most importantly, the rights and interests of victims should be central to our response to anti-social behaviour and crime. I commend the Bill to the House.
Baroness Smith of Basildon (Lab)
My Lords, I was almost too keen to respond to the Minister on that point.
I am grateful to the Minister for outlining the measures in the Bill in such detail. It is a long, detailed Bill of 14 parts. A Home Office Bill often seems to me to be a bit like the old-fashioned Sunday afternoon drive. You head off in one direction, take various twists and turns, never knowing quite where you are going to end up, but inevitably at some point it is down a cul-de-sac. In that regard, the Bill does not disappoint.
It was introduced into the other place with 142 clauses and seven schedules, amounting to 148 pages. It has already grown to 161 clauses and nine schedules covering 200 pages. After reading through the Commons Official Report on the Bill, I believe it is a credit to your Lordships’ House that the other place puts such great value on our scrutiny role. From all sides of the other place there were genuine concerns that debates had been curtailed by the Government and that inadequate consideration had been given to a number of issues, especially when new government amendments and clauses were tabled during the passage of the Bill but were not fully considered. By Report stage, there were 89 pages of new amendments, and clearly not enough time was allowed for full debates on each of them.
There are parts of the Bill we welcome but there are also parts which raise great concerns, sometimes because we feel that they do not go far enough in addressing the issues or they weaken existing measures. There are also omissions, but we will be backing new clauses to tackle the problems that affect public safety and security. For example, it seems strange that such a wide-ranging Bill has no measures to tackle the issue of drugs and so-called legal highs when clearly existing measures are not working. There is nothing in the Bill to prevent attacks on those working in public-facing roles.
Parts 1 to 6 on anti-social behaviour are the only parts of the Bill that received pre-legislative scrutiny, with first a White Paper and then a draft Bill scrutinised by the Home Affairs Select Committee in the other place. I should perhaps confess at this point that my response to anti-social behaviour is influenced by my 13 years as a constituency Member of Parliament. There are relatively few cases of very serious anti-social behaviour but it cannot be seen as just low-level incidents involving noisy neighbours or naughty kids. At its worst, it is the ongoing aggravating, at times terrorising, behaviour that grinds individuals down to the point of despair and fear of even being in their own homes. That has to continue to be tackled and prevented. Action must be proportionate and effective and we must do our best to ensure that any measures have a preventive element.
The Government have often said that they oppose the one-size-fits-all approach and yet they are reducing the measures available to tackle anti-social behaviour. I am not necessarily against streamlining but I feel uncomfortable with the position of having to squeeze a number of different kinds of problems into fewer solutions. I am sure the Minister will hear from other noble Lords of their concerns about the IPNA—an injunction to prevent nuisance and annoyance—which replaces a number of measures with a civil injunction. As such, it has a weaker threshold and does not have an automatic criminal sanction.
For an ASBO to be issued it had to be considered necessary to protect members of the public from harassment, alarm or distress. The new IPNA can be issued where behaviour is,
“capable of causing nuisance or annoyance to any person”.
The court has only to be convinced that this would be just and convenient on the balance of probabilities. That is a low-level test.
There are also concerns about the criminal behaviour order, which can be issued on conviction of a relevant offence, as the Minister said, and a breach of that order is in itself a criminal offence punishable by up to five years’ imprisonment. I do not know whether noble Lords heard this week, as I did, an interview on Radio 4 with a member of a police force. I do not know whether he was from ACPO—I think he was—but he was speaking about the level of proof required for IPNAs and CBOs and whether it was appropriate. His comment was that the judge would still have to apply the test of reasonableness. That is one of the issues that worry me in a number of places in the Bill. If we do not have clarity it becomes a matter for the courts to resolve. If already the backstop is that we will have to rely on a judge or magistrate to test the reasonableness of new legislation, then your Lordships’ House must consider whether the legislation is appropriate. Surely, as the Joint Committee on Human Rights reported,
“the Government should make the appropriate standard of proof clear on the face of the Bill”.
I have two further concerns that we will probe further in Committee. The Government have long argued against ASBOs as being ineffective. I am not particularly wedded to any specific tool in tackling this problem—I would have been happy to have had meaningful discussions on effectiveness—but we could find ourselves in the position of having more IPNAs because of the weaker test, with less impact because of the weaker sanctions.
Owing to the time constraints I will not have time in my opening comments to address all the issues we will wish to pursue in Parts 1 to 6 on anti-social behaviour, but we will wish to probe further, including on the issues of tenancies and evictions, dispersal and other powers.
We welcome action on dangerous dogs and appreciate that the Government will be tabling new amendments relating to increased penalties, as promised in the later stages of consideration in the other place. However, I am not convinced that these measures fully address all the concerns that have been raised or would have prevented or dealt appropriately with some of the more serious cases we have all read and heard about.
On firearms, I am very disappointed with the inadequacy of the Government’s proposals, which do not address the serious problems. No one has the right to own a gun—it is a privilege—and those who do so have a duty to behave responsibly, and the vast majority do. However, noble Lords will know of cases. I refer specifically to the murder of Susan McGoldrick. Ms McGoldrick, her sister, Alison Turnbull, and her niece, Tanya, were murdered by Susan McGoldrick’s partner, Michael Atherton. Mr Atherton had the gun legally and yet he had a history of domestic violence and abuse.
The Government’s new guidance is welcome and I readily accept that, even with the most watertight legislation, not every abuse or tragedy can be prevented. However, we have a duty to do our best to strengthen the law and to do all we reasonably can to prevent further such tragedies. We will want to examine the presumption of refusal of licences in circumstances where there is evidence of a history of mental illness, domestic violence or drug abuse. We will also want to examine with the Minister whether the police are adequately resourced to undertake the checks and assessments required. This may also be an opportunity to examine the case put forward by the Home Affairs Select Committee nearly three years ago to bring together all the 34 difference pieces of legislation relating to firearms.
My noble friend Lady Thornton will be speaking to Parts 9 and 10 of the Bill on protection from sexual harm and forced marriage. We welcome the measures to tackle this issue. Action to improve the protection of vulnerable children at risk of sexual harm is crucial and we shall seek clarity about how these measures will apply to under 18s and probe further how they will be supported.
Forced marriage is a terrible violation and can destroy people’s lives. Effective support for victims and prevention through education and work in the communities concerned are essential. We will ask the Minister whether he considers that the level of the resources available is adequate for the work. We have concerns about such support, particularly in the light of cuts to legal aid. We believe it is right to have a discussion to make clear the case for criminalisation and to listen to all the different views expressed.
Part 11 deals with what the Government call “Policing etc”. I am always slightly nervous about the “etc” as it can allow anything that is almost relevant to be dumped in. I hope we see no more amendments under the heading of “etc”.
We support a College of Policing, although there is a discussion to be had around police standards and the management and accountability of covert operations. We accept that in many cases undercover police operations are vital in the fight against serious and organised crime and terrorism. We recognise the bravery and dedication of the police officers involved. But—and this is a serious “but”—such operations must be subject to the highest ethical and operational standards. We are all aware of those cases where, in the reasonable judgment of most of us in your Lordships’ House and outside, such standards have not been met. That has caused enormous and justified distress to those affected. Those who have been inappropriately and wrongly targeted by such operations have really suffered, including my noble friend Lady Lawrence in the shocking case that showed an appalling lack of judgment on the part of the authorities responsible. There are also alarming cases where undercover officers have instigated sexual relationships, fathered children, and then abandoned and discarded their new families along with their undercover identity. That is wrong. Our view is that any such operations need greater oversight and better accountability. They must be carried out only when they are deemed necessary, and their use must be proportionate and sensitive. The Minister in the other place said that enhanced oversight would be undertaken by secondary legislation. However, the noble Lord will know the limits that places on your Lordships’ House and further discussion on this issue is essential.
It is welcome that the Government have agreed with us that the IPCC should also cover private companies. We look forward to further discussions on the range of policing issues in the Bill. This part of the Bill also proposes changes to the Terrorism Act, about which the Joint Committee on Human Rights has expressed reservations. It said that,
“the legal framework should distinguish between powers which can be exercised without reasonable suspicion, such as the power to stop, question, request documentation … and more intrusive powers such as detention, strip searching”,
and,
“the taking of biometric samples”.
Clearly, on these issues, it would be right for the Government to explain fully why they consider such proposals justified.
Extradition is a sensitive issue and the amendments now in Part 12 were tabled late in the day at the end of Committee stage in the Commons. I look forward to further debate and the expertise of your Lordships’ House on this issue.
I know that the Joint Committee welcomes the proportionality test. However, we remain concerned that the Government are seeking to remove the automatic right of appeal for people being extradited from the UK. It would mean that an individual could appeal only with the permission of the High Court.
My noble friend Lord Beecham will speak to the issues in Part 13, but it might be helpful if I briefly outline our position. We are very concerned about the proposals in which the Government seek to redefine the compensation test, when an individual has been convicted of an offence but has then been deemed in law to have been wrongly convicted. The Government’s proposals would limit this to,
“if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
I am not a lawyer, but we seem to have moved a long way from being found not guilty to having to prove innocence. We have heard the Government's explanations for this and are not convinced. We will therefore seek to amend this clause.
I regret that this is a long speech, but I hope that I have conveyed to your Lordships’ House something of the way in which we will be approaching this Bill. The issues are all serious and, in many cases, difficult, and I know that the Bill will benefit from your Lordships’ scrutiny. That was recognised in the other place by Members on all sides of the House. The Government have to accept that they cannot simply legislate to try to cut crime and anti-social behaviour when they take other decisions that make it harder to tackle these problems. There is great inconsistency in the Government bringing in new legislation that they say will tackle crime and then taking other actions that do the opposite. The issues of the numbers of police and PCSOs and the huge 60% cuts to community safety budgets come to mind. Although we have seen crime reduced, we are also seeing convictions coming down and anti-social behaviour reports increasing.
There are other examples of such actions. In my local authority area in Essex, cuts to its budget mean that it is going to switch off all the street lights every night, apart from those on some main routes. Clearly, that will have an effect on people’s attitudes and fear of crime. Local communities value CCTV as a crime prevention measure, but the Government tie up those cameras with so much red tape that it will cost between £14 million and £30 million to comply, which I suspect will lead to a reduction in CCTV. My noble friend Lord Harris has written about the same concerns regarding the DCLG’s approach to the crime prevention measures in Secured by Design.
Everyone has a right to feel safe in their home and in their community. Despite including measures that we welcome, this Bill is a missed opportunity. However, over the coming weeks, we will do our best to make it a Bill that can really make a difference.
Baroness Hamwee (LD)
My Lords, scrutiny can be misunderstood. Criticism, however gentle and constructive, can be heard as objection. Therefore, I apologise to my noble friend the Minister that tonight I focus on what concerns me in the Bill—many aspects of which I welcome. However, I am explicit in welcoming my noble friend Lord Paddick.
The focus of the Bill is the issue of victims, which is hugely important. As I thought about anti-social behaviour, which can have an enormous impact, I also thought that identifying all victims is not always easy. Perpetrators may be victims, too. Those who engage in conduct capable of causing nuisance and annoyance may themselves be the victims of health problems, learning difficulties or the failings of society. They may become society’s victims because the response, through measures such as these, is neither appropriate nor effective. They may be victims in the traditional sense—for instance, beggars run by criminal groups.
I welcome the inclusion of positive requirements to help turn around behaviour, which, of course, is resource-intensive. However, there seems to be a blurring of lines between the civil and the criminal. We have due process for a reason: to differentiate between the factually guilty and the factually innocent, and thus between those who should and should not be subject to sanction. However, here we are without the criminal standard of proof that would be appropriate and strict liability means that we risk using orders against those who do not comprehend fully their actions or their impact. That, of course, is once we get past whether we should address through these measures conduct of as low a level as nuisance or annoyance, in the normal sense of those words. The terms are very wide; you do not even have to travel on the Clapham omnibus to invoke them.
Indeed, some people truly regard as a nuisance what is to others the exercise of civil liberties—many of your Lordships will have heard representations from naturists on this point. Other people will regard conduct that is a nuisance to some as simply normal. Some immigrant communities gather on the street because that is normal to them, but it may make other local residents uncomfortable. ACPO commented yesterday on the importance of not becoming,
“intolerant to normal child-like behaviour”.
It is alert to this, of course, because the police have to respond. We all know that legislation cannot do everything but, to quote ACPO again, talking about the importance of diverting young people from committing anti-social behaviour,
“A small minority of children and young people commit anti-social behaviour so enforcement responses need to be proportionate and effective”.
I would like to understand better why ASBOs have not been successful, given that there is such a high rate of breach. I am depressed that the impact assessment for this Bill assumes a breach rate of 40% for IPNAs, which must mean considerable reliance on the criminal or contempt of court proceedings without, for adults, the possibility of community penalties.
I will mention two other aspects. In the criminal courts, the default position is not to name and shame a child or young person for reasons of rehabilitation and safeguarding. I would like to see the same approach here. In my view, imprisonment as a sanction for breach of a CBO, an IPNA or a dispersal order, particularly in the case of a child, is not proportionate. Surely any action that justifies detention will be an offence under other legislation. In 1997, the then Government said that ASBOs would rarely be used against under-18s but that has not been the case. It is a reminder that legislation needs to be precise.
The response to many of these points often directs us to guidance and judicial discretion to mitigate harsh impacts. Even if it is appropriate that a matter gets as far as a court, I, for one, would prefer to rely on the law as expressed in statute. My noble friends Lord Dholakia and Lady Linklater, who are voices of compassion—including for those at risk of harm, whom I do not want to be thought to be ignoring— and experience of the dangers of stigmatising and criminalising, will have a lot to say on that part, I am sure.
The community remedy documents, which have been mentioned, involve the community, and I welcome that, but, as their object needs to be solely punishment, should we have concerns such as those which this House expressed when police and crime commissioners were introduced? In preparing these documents, a PCC, for electoral reasons, might not take a rounded view but might respond in a rather simplistic manner.
Having talked about proportionality and reasonableness, noble Lords will not be surprised by my reservations about dispersal powers, which I fear are too restrictive for a society that values its freedoms. I do not even get as far as mere reservations about riot-related powers of possession. Generally, the powers of eviction that the Bill introduces worry me intrinsically and for practical reasons, including the duties of local authorities whose role across the Bill needs more exploration. Nor will noble Lords be surprised at my view that public spaces protection orders are potentially oppressive. That is one issue where we are asked to look to guidance. My noble friend Lord Greaves will have a good deal to say on that.
My noble friends Lady Doocey and Lord Redesdale will talk about dangerous dogs. I take the view that the legislation should be about dangerous owners. No doubt my noble friend Lord Marks of Henley-on-Thames, along with the other stellar cast of lawyers, will address the extradition provisions in forensic detail. I warn him that I will join in on the issue of compensation for miscarriage of justice. Happily, far fewer people are affected by that than by other parts of the Bill—which is an argument in itself for not rolling back the law—but it is ironic that the burden of proof is lowered at the start of the Bill and then raised at the end when it deals with individuals who suffer a miscarriage of justice at the hands of the state. They should not have to prove their innocence, a concept not used elsewhere in the criminal justice system.
Many of my noble friends will speak about forced marriages. I give no guarantee that their views will be the same. I confess that I am not convinced about criminalisation. It has not eradicated female genital mutilation. The danger of increased underreporting because of fear of incriminating family members seems real to me.
My noble friends Lady Harris of Richmond and Lady Doocey have long been concerned about the powers and effectiveness of the IPCC. The accountability and professionalism of the police is particularly topical. So is the extent of the Schedule 7 powers under the Terrorism Act. My noble friend Lord Avebury and I will have a good deal to say in Committee on this, when we will want to understand the justification for powers that are still very broad. I welcome the proposed changes as far as they go, but without justification for the changed powers and how they are exercised in practice public confidence is jeopardised.
I return to and finish on the early clauses. These are not my words but those of Kevin Brown of Newcastle University, whose work on this I read with interest. He said that balancing can become a zero-sum game when policymakers assume that by taking rights away from one set of people they can improve the lot of another.
Lord Ramsbotham (CB)
My Lords, I must admit that when I saw the streamlined proposal, as the Minister described it, contained in the 200 pages of the Bill, I groaned at the thought of yet another dog’s breakfast of unconnected legislation that we would have to slog through.
When I read Part 1, I was immediately reminded of the words of Winston Churchill on 20 July 1910 that the way in which it treats its crime and criminals is a true test of the civilisation of any country. I say that because I was struck by the immediate reference in Part 1 to the fact that we were dealing with 10 year-olds under the Bill. I was therefore struck today by the brief sent to us by Justice, which many noble Lords have no doubt read, which states:
“The overall restriction of a person’s liberty should be proportionate to the seriousness of the illegality that the order seeks to restrain and to the status of the order as a civil preventative measure”.
I read on, but immediately had two thoughts.
First, I spent nearly 41 years in the Army trying to ensure civilised conditions in which all our children could grow up. I little thought that, 20 years later, I should be standing in this House feeling that I was fighting for the same. I was then tempted to suggest that I might take out an injunction against Part 1 to prevent a nuisance or annoyance.
I then reflected on two other things. One was an extraordinary conversation I once had in Belfast with a Republican woman called Kitty O’Kane who used to encourage small boys to throw stones at soldiers. We were able to include her in a picture of an incident, which I gave her; we knew her well enough to describe her to the artist. Asked why, when she knew that we were there to try to restore law and order, she put those boys into danger and at risk of being shot, she said to me, “Have you got a map?”. I said yes, and she said, “Take it out”. I took it out of my pocket. She said, “There are no football fields”. She was absolutely right. Where was there in all that part of West Belfast a place for young people to let off the inevitable steam of growing up?
I then thought of the infamous phrase of Mr Tony Blair when, as shadow Home Secretary, he promised to be,
“tough on crime, tough on the causes of crime”.
Somewhere along the route, he found an “r” and became tough on the causers of crime rather than the causes. It is the causes that we need to tackle and which have been avoided. The trouble with being tough on causers is that he cranked up that toughness over and over again, and we now have a tough Minister of Justice who announced that he wants to be tough on mentally disordered offenders but failed to tell us how he intends to do that. Parts of this Bill, although it is welcome, follow that cranking and have taken some things to a new level of toughness which, to my mind, stand starkly against the civilisation of which Winston Churchill talked.
Many noble Lords will mention—some have already mentioned—some of the areas which I find very difficult in Part 1. There is the injunction to prevent nuisance and the low burden of proof that a person,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”.
For heaven’s sake, just think. We have all been parents or grandparents of 10 year-olds. Can we think that there has never been an occasion when they gave us an opportunity to say, “You are causing an annoyance, or you look as if you are likely to cause an annoyance”? Now we are threatening them with detention for three months or imprisonment for two years and eviction from their houses. What are we doing as a civilised society? No wonder that the Home Affairs Select Committee said that the power was far too broad and that the Joint Committee on Human Rights said that this part ought to be removed.
There are already terrible problems with breach. Fifty-seven per cent of those on anti-social behaviour orders breached between 2000 and 2012, and 53% were given an immediate prison sentence, cranking up the prison population. Thirty-eight percent were under-18s—who are said to be rarely likely to be given an ASBO. I am always suspicious when I hear “rarely used”. That applied to under-18s on ASBO and to people on indeterminate prison sentences. Look what has happened. What are we going to do? Are these people, having been sent into prison for breaching, to be given the supervision orders that are part of the transforming rehabilitation programme coming from the Ministry of Justice? Are they to be subject to supervision for a year? Who is going to provide it? Where is it going to come from? Has this been worked out?
I come to naming and shaming. Why should, suddenly, Section 49 of the Children and Young Persons Act 1933 not apply? I am very worried about evictions and this riot-related possession because I do not think that this thing has been thought through enough. Again, the Joint Commission on Human Rights and the Law Society say remove it. I believe therefore that there is a great deal to be gone through in Part 1.
There is no time to go through all the various measures, but I have one other thing to say to the Minister. I am very disappointed that there is one omission in another clause of the Bill, which is to do with extradition. This issue falls much wider across the criminal justice system and the system involving the employment of private sector companies to conduct public services. I refer to the regulation of the individuals employed to carry out services. The Minister will remember the case of Jimmy Mubenga, the Angolan killed by G4S guards while under restraint on his way back to Angola. The Crown Prosecution Service will have to go back and reconsider their decision not to prosecute because the coroner in the case recently found that this was unlawful killing.
In inquiries—one that I led and one that the Home Affairs Select Committee led—we discovered that there is no supervision at all of these individuals employed from private security companies by the Security Industry Authority. What I hoped for and expected in the extradition part of this Bill was that the mechanisms for enforced removal would receive supervision, and that that would include the regulation of individuals employed by the Government to carry out that extradition on their behalf. That, of course, leads me to worry about the supervision or regulation of those supervisors who will be employed in community rehabilitation companies by the Ministry of Justice to replace the functions of the probation service. Time does not allow me to expand on that, but why has this been excluded and what is the Home Office to do about this regulation? The position of the Security Industry Authority needs looking into.
The Lord Bishop of Lichfield
My Lords, there is much to welcome in this Bill. The strengthening of the laws on firearms and on forced marriage, for example, are obvious steps forward. The measures for prevention of sexual harm, while raising important issues about the need for caution in restricting the freedoms of unconvicted people, will make possible swifter and more effective action to protect potential victims. The College of Policing has made an encouraging start. I am pleased to welcome the draft code of ethics. It sets a strong, ethical and I would say spiritual basis for law and its enforcement, which is a key concern for us all.
The emphasis on communities—people working together for the common good—has run through the long gestation period of these proposals. The principles of restorative justice and restorative practice, especially in local communities, are built into the efforts of churches in every part of this country to serve their local communities and especially those who are most vulnerable. In my part of the world, 80% of young people typically reoffend in the first two years after their sentence. However, with those who are taken on board by church monitoring and mentoring groups, even with the more difficult cases, the rate of reoffending is less than 20%.
If that can work with young prisoners, I suggest this kind of community mentoring could also work for lower-level criminality. It is at this local level that community remedies, community triggers and other measures which the Government has largely drawn back from prescribing in detail, but has left to be worked out in response to local conditions, can be made effective and constructive rather than simply becoming another layer of bureaucracy. On the same theme of practical attention to local need, I am glad to support the proposal of a requirement on courts to consider the immediate care needs of the children of those committed to prison, and I commend the Families Left Behind campaign for pressing this point.
As with a number of other noble Lords, I suspect, the notes of caution which I wish to sound relate chiefly to the measures on countering anti-social behaviour. Noble Lords will recall the four aims set out in the White Paper which began this process: to focus the response on the needs of victims; to empower communities to get involved in tackling anti-social behaviour; to ensure professionals are able to protect the public quickly; and to focus on long-term solutions. These were and are sound aims, and there is much in the early parts of this Bill which supports them. I hope that we shall keep these four aims clearly in view as we steer a course between tolerating bad behaviour on the one hand, and on the other hand taking an overly punitive and controlling approach to those whose behaviour can just be annoying. I am not here thinking of street preachers or those who sing hymns very loudly—though a balance has to be struck even in those instances—but chiefly of young people and the more vulnerable among adults.
The very broad definition of anti-social behaviour, as has already been noticed, as that which is,
“capable of causing nuisance and annoyance”,
doubtless has its place in the social housing context to which it applies in the 2003 Act, but it could easily be used to make too many aspects of the “public square” fall silent; and perhaps more importantly, it would be likely to restrict unreasonably the normal activities of young people.
The net is further widened by the reduction in the standard of proof to the balance of probability. The impact on those under 18, or people vulnerable through mental-health and other issues, would be aggravated by the presumption in favour of naming the individual and the threat of imprisonment in case of breach. An injunction to prevent nuisance and annoyance becomes potentially so severe as to be capable of driving its recipient further into anger and a sense of grievance and exclusion.
I began by welcoming much, indeed most of this Bill. If the emphasis on helping communities to resolve problems and restore relationships drives our approach to anti-social behaviour, and enables us to temper some of the more heavy-handed provisions of this Bill in bearing down on such behaviour, then the judgment of history may well be kind to it.
Lord Faulks (Con)
My Lords, this Bill, in 14 parts, will need a great deal of scrutiny. While I would like to address a number of parts to the Bill, your Lordships will be relieved to know that I do not propose to do so.
As a member of the Joint Committee on Human Rights, I have had the opportunity to look closely at the Bill. Many noble Lords will have seen a copy of our report, which includes the Government’s human rights memoranda and their lengthy responses to the various questions we posed.
As a committee, we looked at the Bill primarily through the prism of the Human Rights Act, but even if there were no such legislation, it would still be important closely to examine the scope of the Bill where it concerns the tension between civil liberties and the capacity of the police and other agencies to exercise control over anti-social behaviour. Much has been said already—and I expect will be said again—about the need to protect children and vulnerable adults from the potentially oppressive exercise of powers under this Bill, when their liberty can depend upon what is inevitably a subjective interpretation of what constitutes a nuisance and annoyance. This is a source of potential anxiety.
However, it is important to focus on the reason behind the legislation: the acute need to protect the victims of anti-social behaviour. It is in reality the poor, the mentally ill, the aged and the most vulnerable in society who are usually the victims of anti-social behaviour and whose lives can be made intolerable by it. They look to the police and other agencies to protect them. The Bill attempts to improve on existing powers and to provide better protection for them. It was to meet this need that the party opposite introduced ASBOs, and it was significant that during debate in the other place there was no suggestion from any members of any party that powers of this sort were not needed. With respect, Members of the other place, being in touch with their constituents, are in a good position to help on these issues. In fact, the shadow Home Secretary said that she thought that the provisions were “too weak”.
Although there are areas which will need careful examination, I broadly welcome the Bill. Of those areas that cause concern, one is clearly the expression “nuisance and annoyance”. It is considered by many to be too low a threshold, even though it has a pedigree in the housing context. I, along with many other noble Lords, have been lobbied by the Christian alliance, naturists and other not very homogenous groups who are concerned about the potential for their lawful activities to offend someone and thus fall foul of the legislation. The Minister will need to reassure your Lordships about this. The amendment suggested by our committee was not to scrap the clause, as the noble Lord, Lord Ramsbotham, said, but that the definition should be amended so as to refer to conduct that “might reasonably be regarded” as being capable of causing nuisance or annoyance to any person. This imports a degree of objectivity into the definition and might, together with reassurances given by the Minister in the other place, serve to allay some anxieties.
Removing people from their home is a drastic step and the committee was concerned that there were adequate safeguards in this regard. I am not at all convinced of the need for the power to evict those involved in riots. I do not doubt for a moment that rioters such as we had in the summer of 2011 should be dealt with firmly and swiftly—but that is precisely what happened. Evicting them seems a step too far. The current sentencing powers are quite sufficient.
I would like to say something about forced marriage but I will wait until Committee. Similarly, miscarriages of justice and their compensation may benefit from a prolonged debate, which they did not have in the other place. It is an exquisitely difficult problem, which noble Lords will have to confront, that successive courts have tried vainly to come up with a satisfactory definition of a miscarriage of justice. The proposal in the Bill has the benefit of clarity. The question for your Lordships’ House is whether its clarity and simplicity will in fact work an injustice in some cases.
Finally, I come to stop-and-search provisions. It was the committee’s view that the statutory power to stop, question and search travellers at ports and airports was not inherently incompatible with Articles 5 or 8 of the European convention. In our view, the Government had clearly made a case for a without suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism. The question is whether there is a need for more intrusive powers being exercisable without reasonable suspicion and whether these powers should be exercisable only after an examiner or officer reasonably suspects that the person has been involved in terrorism. The Minister will be well aware of the evidence that the independent reviewer of terrorism legislation, David Anderson QC, gave in this regard to the committee. Your Lordships’ House will need to be satisfied that the powers need to be quite as extensive as they are in the Bill.
Nevertheless, I am concerned about a wholesale challenge to the anti-terror powers—those, incidentally, exercised in the Miranda case. I know, as the Minister said, that the Government are awaiting a report on the Miranda case from Mr Anderson. The case that concerns me is one brought by a Mr Malik, who is apparently seeking to strike out these provisions, which originally come from Schedule 7 to the Terrorism Act 2000, and has obtained permission to go on to a full hearing—this whole-scale challenge being entertained by the Strasbourg court, notwithstanding the fact that the Home Office has made it clear that Schedule 7 examinations have produced information which has contributed to long and complex intelligence-based counterterrorist investigation. We as a committee found that there was a clear case to retain those powers, albeit that their extent might be questioned. Can the Minister reassure us that the Government propose to contest Mr Malik’s case?
There is a great deal to say about this Bill, and there are areas which we covered in our report and will cover in Committee. Your Lordships’ House is well equipped to examine the Bill carefully and I look forward to taking a prominent part, or at least a part, in the process.
Lord Beecham (Lab)
My Lords, this Bill is not so much a curate’s egg as a curate’s omelette, with some distinctly unsavoury ingredients mixed in with some reasonable proposals. Before addressing some of the substantive measures included in the Bill’s 200 pages which have emerged, after scant debate, from the House of Commons, it is necessary to complain yet again at the cavalier way in which this Government go about churning out legislation that deals with sensitive aspects of public and social policy even when they impinge on important areas such as human rights and access to justice.
Once again the Joint Committee on Human Rights—which has just four Labour members in its membership of 12—has been driven to express serious concerns not just about some of the Bill’s proposals but about the procedure employed. The committee drew attention to a number of government amendments to the Bill that have human rights implications and to the lack of time allowed to scrutinise them. It is pursuing its,
“concerns about the recurring inadequacy of the time available”,
for such scrutiny,
“with the Leader of the House”.
Can the Minister tell us what has transpired on that score?
Even more pointedly, the committee complains that two pieces of information in relation to controversial matters—in respect of Schedule 7 to the Terrorism Act, and the suggested change in compensation for miscarriages of justice—were promised for 29 July but delivered on 7 October, 48 hours before the committee met to consider its report. What justification if any can the Minister advance for such conduct, and what assurances can he give for the future?
Turning to some of the proposals in the Bill, I acknowledge the importance of the issue of anti-social behaviour. It has been a problem in parts of the ward that I have represented in Newcastle for the last 46 years and it requires a co-ordinated approach from the courts, the police and the local authority, by listening to and working with the community affected. I am currently dealing with a case in which a young council tenant has been subjected to constant harassment by a group of youths not resident in the estate. I well recall how two streets in my ward suffered so badly from the behaviour of a small number of families who moved in after being evicted from their homes in an adjoining ward that, in the end, the streets were demolished. These were at all times private tenants. The Bill extends the procedure to enable such people to be dealt with to other tenures, subject to an authorised procedure. As we have heard, however, it worryingly adopts, in effect, the notion of guilt by association in respect of those who have been participating in riots—not just for the rioters but for their families—so that the innocent householder and their family may be evicted after such a person participates in a riot taking place anywhere, not even in the immediate locality.
As we have also heard, the Bill does little to ensure that the interests of children—both the practical ones in terms of their accommodation, and the legal ones in relation to their human rights and the Convention on the Rights of the Child—are sufficiently taken into account when sanctions are imposed on their family. Of course, eviction in such cases may well lead not just to problems for the child but, in the short or longer term, to increased pressure and cost on hard-pressed children’s services. The same reservations arise, as the Joint Committee stresses, in relation to new civil injunctions on children as young as 10, the use of detention for breach of such an injunction for children over 14 and the possible removal of reporting restrictions in relation to children in injunction proceedings.
Moreover, the shift in the case of these new injunction proceedings from the need to show that an order is necessary and proportionate to what is just and convenient, is deemed by the Joint Committee to be incompatible with the European Convention on Human Rights, not least because the injunction procedures apply to cases where the conduct complained of is,
“capable of causing nuisance or annoyance to any person”.
We have heard that phrase used before tonight. It is a loose, unsatisfactory and highly subjective test.
Another troubling issue is the provision in relation to compensation for miscarriages of justice, under which someone whose conviction has been overturned will, as we have heard, now have to prove their innocence in order to secure their compensation. This effectively reverses the burden of proof. Indeed, it comes close to importing the Scottish “not proven” verdict into English law. By chance, the other night on the radio, I heard part of the serialisation of a dramatised version of an apparently famous Scottish case in which one defendant secured such a verdict—“not proven”—which she described as meaning, “We know you did it but we can't actually find you legally guilty on the evidence”. Effectively, that is now to be applied to those seeking compensation for a miscarriage of justice. It is unacceptable to import such an approach by the back door—not least when, as we have also heard, only a couple of cases a year result in a payment.
Other areas that we will wish to explore in Committee include extradition, about which we have heard something tonight, and the notion that costs in courts and tribunals should not merely be set to achieve full recovery—itself a challenging concept, given what has happened to legal aid and advice—but should also generate a surplus as a contribution to reducing the deficit. This could, of course, be the thin end of a very large wedge. If that principle is applied to the courts and tribunals, why not to the National Health Service or to education? Perhaps the Government already have that in mind. Does the proposal also imply that the Government will further ratchet up the fees for employment tribunals so recently and controversially imposed?
The role of local government does not seem to be adequately reflected in some of the new provisions—for example, in relation to dispersal powers or in the new community remedy approach set out in Clause 93 and the community protection notices in Clauses 40 to 54, which have yet to be evaluated. As the Home Affairs Committee pointed out in its scrutiny report on the draft bill, interagency working is essential if the issues of anti-social behaviour and disorder are to be tackled effectively.
The Bill as it stands is flawed in a number of respects. I hope the Government will listen seriously to the concerns it arouses and respond constructively to attempts to improve it, with the twin aims of tackling significant social and other problems while preserving our reputation for upholding civil liberties and human rights. I am sure that your Lordships’ House will offer many positive suggestions to improve the Bill.
Baroness Doocey (LD)
My Lords, there are some welcome provisions in the Bill, but I am concerned that many of the reforms will cost money, yet no additional budget appears to have been proposed to make the necessary changes, at a time when police and local authorities are facing significant financial challenges.
I shall focus on just a few of the specific issues. There is no doubt that if the dispersal powers proposed in Part 3 of the Bill are used well, they can prevent tensions rising in an area, and can also prevent other serious illegal activity. But although dispersal will give short-term relief at a particular site, longer-term work will be needed to avoid displacement to a nearby location. We must also recognise that “intelligence-led” preventive dispersal orders on, say, a housing estate may be unfair if those subjected to such an order are resident on that estate.
Very significant powers are already available to the police for public order offences, so care must be taken to see what value will be added by creating these new powers. The most effective solutions to anti-social behaviour tend to be community based rather than legislative, so the focus of our attention should be on rebuilding coherent communities, which would produce all kinds of social benefits besides reducing anti-social behaviour. The proposed “community remedies”, whatever their merits, are not a substitute for this.
Part 5 of the Bill makes provision for the possession of secure tenancies on anti-social behaviour grounds. In practice, this would usually apply to social housing. But there could be real conflict about the definition and threshold of anti-social behaviour. I believe that this is better tackled by clear application of tenancy terms and by mediation between tenants.
There is also the question of alternative accommodation. The lack of alternative accommodation and the capacity needs of many of the tenants already severely limit local authorities’ capability to evict, as they have a duty of care towards the tenant. Moving tenants of social housing may mean moving them significant distances, particularly outside densely populated areas. What will be the consequences for schooling the children? Will this create more problems than it solves?
Part 7 of the Bill covers the problem of dangerous dogs. I very much welcome the fact that the new legislation will extend current police powers into private premises, which means offences committed on private property can now be dealt with. However, I am concerned that the Bill does not address the problem of dogs being deliberately bred as weapons, or for fighting, or to be used as “bait” in fights, which is quite common. This is quite distinct from the problem of irresponsible owners. The Bill is a missed opportunity to put things right. Indeed, the proposed “trespasser” defence risks encouraging the keeping of dogs as defence weapons at home, and provides an unacceptable defence in court against charges of deliberate ownership of such dogs.
The increased powers proposed for the Independent Police Complaints Commission in Part 11 of the Bill, are broadly welcome, but we must ensure that any reforms restore public confidence. The main reason for the lack of public confidence is that the IPCC conducts relatively few investigations itself, but in the vast majority of cases allows the police to investigate themselves. The Bill provides an ideal opportunity to remedy this failing.
It is not simply a question of the IPCC carrying out a higher proportion of investigations. These investigations should not be carried out by police officers or former police staff working for the IPCC; otherwise there will remain a lack of public confidence in the independence of investigations. For this reason, transferring resources from individual police forces’ professional standards departments and other relevant areas to the IPCC is the wrong approach. There are already far too many former police officers working for the IPCC. According to the IPCC’s annual reports, in the past two years all senior investigators have been former police officers or police staff, as have half of all deputy senior investigators and over a quarter of all investigators. The IPCC must live up to its name and build an independent investigation team large enough to do its work, which is drawn from other investigation services, in a similar manner to the way in which local authority and fire authority investigation and enforcement teams work.
There are some very welcome provisions in this Bill, but I remain concerned that many of its provisions could have unintended consequences. I trust that the Government will listen to concerns from noble Lords in all parts of the House and respond by tabling amendments to address some of those concerns.
Lord Condon (CB)
My Lords, I declare my registered interest in policing. I too look forward to the maiden speech of the noble Lord, Lord Paddick, my former colleague, and I wish him well with it.
I intend to focus on the clauses relating to policing, and I say at the outset that I broadly support all those clauses. From the time of my appointment as commissioner I have argued for a totally independent police complaints process, and simpler and more effective ways of dealing with police misconduct. Much has changed for the better, but the Independent Police Complaints Commission still needs strengthening, and improved resourcing. For that reason I support the progress that will be made through Clauses 121 to 125, which will enhance the role of the IPCC in five important areas. I shall not go into those areas at this stage.
I believe that the majority of police officers are courageous dedicated professionals doing a good job in tough circumstances. However, a small minority of officers continue to behave badly, and commit criminal offences. They, disproportionately, do terrible damage to the reputation of the police service and jeopardise public confidence. The reforms set out in Clauses 121 to 125 are necessary, sensible and proportionate. Good police officers have nothing to fear from a very strong independent IPCC, and I hope that public confidence will be enhanced if these measures are enacted.
If enacted, Clause 126, on the appointment of chief constables, would clear the way for suitable candidates from approved overseas forces to be appointed as chief constables or indeed as commissioner. In these challenging times for the police service, nothing is more vital than good police leadership. In my opinion, it would be wrong to continue to disqualify all overseas candidates unless they have served as a constable in the United Kingdom. There should be the potential for outstanding candidates to be considered. We have a Canadian Governor of the Bank of England, an American has recently been appointed to a senior National Health Service role and, in the recent past, British police officers have been appointed to the most senior chief police officer roles in Australia. I fear that it risks professional arrogance to insist on the continued disqualification of all overseas police candidates from senior police roles in this country. I am not arguing for a mass influx of overseas candidates, but we must look to the very best around the world for our police leadership.
Clause 126 makes sensible arrangements for the College of Policing to designate which countries, which police forces and which ranks could be considered, and these designations will have to be approved by the Home Secretary. Similarly, it makes very good sense for the College of Policing to develop a process to integrate the chief constable appointed from overseas. Much will depend on the mood music behind these appointments. The mood music that suggests, “I don’t think any of you police chiefs are up to this so I’m going to look anywhere in the world for an alternative”, is a bad message, but mood music that says, “We need the finest police leaders from around the world for these challenging roles, and open and fair competitions may well appoint an overseas candidate”, is the right message that we should be giving to the public.
I support Clauses 117 to 120, which transform the review bodies for police remuneration. Based on the recommendations of Tom Winsor’s review, and after widespread consultation, these clauses, if implemented, will enable the abolition of the Police Negotiating Board. In a previous life I sat through hours, days and sometimes weeks of fruitless negotiation in these bodies. The PNB’s replacement by a police remuneration review body to consider the remuneration of police officers up to the rank of chief superintendent, with the Senior Salaries Review Body considering the remuneration of chief police officers, will be a vast improvement. These are sensible changes that will simplify the current complex, labyrinthine layers of negotiation which all too often default to arbitration.
The police clauses in the Bill are necessary and largely pragmatic. I hope that they will improve policing and public confidence in the police service, and I support them.
Baroness Newlove (Con)
My Lords, I am very pleased to welcome the Bill into the House. For me, it contains a number of important clauses on two aspects that are very close to my heart and work. These are the powers around tackling anti-social behaviour and the focus on victims. Perhaps some noble Lords will know my story and will therefore know that, when I speak about anti-social behaviour services and support for victims, I speak from the heart. When we say “anti-social behaviour”, there are some who will truly understand what it means, how a victim feels when they are subjected to it and what the repercussions can be, not just for the victims but for their families. Anti-social behaviour is very real, and I believe that it is a growing problem in our communities. I know this first-hand as the result of going around the country as the Victims’ Commissioner for England and Wales.
We all know about the tragic cases of Fiona Pilkington and David Askew, and so many others in this country. My late husband’s name is also on that list. If I may, I shall briefly share my experience with noble Lords again, because it is important to demonstrate what the Bill is trying to tackle. What does it feel like for victims? I can tell the House. In 2007, I lost my late husband through the mindless actions of a group of alcohol-fuelled and drug-fuelled youths. Before that, though, I was an activist in my community because of all the anti-social behaviour that it was suffering and enduring every weekend. My first-hand experience was that everyone was powerless, as anti-social behaviour was not even considered important enough to be dealt with. The police and local agencies did not do enough. All the while, victims of anti-social behaviour were suffering, and I know both from meeting people and from the letters that I still receive that many still are, many of them in silence. I assure the House that anti-social behaviour is not a low-level crime.
For me, it was essential to get a place where these concerns could be addressed and this behaviour could be brought to a stop. I remember clearly that as I walked back from a community meeting one day with a neighbour, I said, “Nothing will change until someone is murdered”. Sadly, that someone was my late husband, Garry. That is why I welcome the Bill, and I welcome the powers that will make it far easier for victims to be heard and to have a say through the community remedy; and for the police and crime commissioners, local authorities, social landlords and other forces to be able to deal immediately with the anti-social behaviour that blights our country and its citizens—that is, the community that is the majority.
I know how devastating the impacts of anti-social behaviour and crime can be, so it is imperative that communities and professionals have the right powers to enable them to deal with such matters. I think that the move from 19 powers to six goes some way towards addressing that. There is a good range in these powers: the criminal behaviour order, the public spaces protection order and the police dispersal powers, to name but a few. These will allow various authorities the power to deal expeditiously with a number of anti-social behaviour-related matters, allowing victims a chance for their concerns to be heard and for some respite. There is a need to publish some of these data so that the community is aware of the hot spots and can hold their police and crime commissioners to account; so that we all know how many requests there were for the community trigger and how many met the criteria; and so that if adjustments need to be made, in a world that changes and moves so rapidly, the police and the authorities can move with it and victims are not left powerless.
I have said this before but I believe that it is worth reiterating: as the first point of contact for most victims of anti-social behaviour, it is important that police officers and local agencies have the skills to support and protect them quickly and effectively. This includes having access to powers that they are familiar with and find easy to use. I am confident that the powers in the Bill will be used by the police to good effect. I am pleased that the Government have prepared and laid draft guidance to support front-line professionals in understanding and guide them in the use of the powers set out in the Bill. I am sure that officials consulted with professionals before preparing the document, but the fact that it is available in draft is good indeed because it can be refined where necessary. I hope that the Home Office is open to taking on board feedback from victims, professionals and communities if need be.
However, I am concerned about the community trigger and the expectations it could raise. I fully support the idea of a review of responses to complaints of anti-social behaviour, and the fact that any individual can call for a review means that the anonymity of witnesses can be preserved. Even one incident of anti-social behaviour is too many. Of course I understand that police and local authority resources are limited, so there must be a proportionate response, but as each area will have its own threshold of incidents before a trigger could be activated I remain of the view that this should be renamed so that it does not raise expectations. I have previously suggested that this could be “community review” or “community alert”, which I hope that the Minister will consider.
I fully support the provision in Clause 129 which would mean that the police and crime commissioners were rightly, as elected representatives of their communities, responsible for commissioning the bulk of victim services. They are best placed to provide the depth and breadth of services required to meet the individual needs and circumstances of victims, and to identify the effective services currently operating in their area, including the small grass-roots organisations working to support particular groups of people which have sprung up in response to specific needs in the community.
Many of these organisations provide outstanding services to victims and witnesses which should be recognised and properly funded. This is an excellent opportunity to engage with local people and assess what works for their community and what further resources are needed. It is a chance to define standards of care more clearly, in partnership with victims, and to work with their communities to address gaps in provision and ensure that all services—from the biggest statutory agencies to the smallest specialist charities—work together to provide the best possible support to allow victims to cope with and, as far as is possible, recover from the impacts of crime.
I am against a system where the Government prescribe how services are commissioned. Police and crime commissioners must have the flexibility to commission services based on local needs assessments and not on instructions from the centre. That variety and quality of support has been missing from current service provision and cannot be provided at a national level. It is time to move away from the one-size-fits-all approach, which simply does not work, so I am pleased that this clause is contained in the Bill.
In my written evidence I said that the type of protection arrangements provided to vulnerable victims should not be dependent on their willingness to be involved in criminal proceedings; it should be entirely dependent on the risk to their safety. I maintain that view and I fully support these changes to current legislation, which will help ensure that statutory-based protection is available to all those who may need it.
As the Victims’ Commissioner, I am proud to represent the voices and concerns of the many vulnerable people who sadly feel forgotten or unsupported. As a mother of three beautiful daughters, whose father, Garry, was murdered as a result of anti-social behaviour, I know from the pain in my heart and the sadness in their eyes what can result if anti-social behaviour goes unchallenged. Therefore, I stand here today in support of the majority of this Bill and hope that the Minister will take on board my concerns.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I shall speak mainly to Parts 1 to 6 of the Bill. I remind the House that I sit as a magistrate in central London, although I am speaking in a personal capacity.
The Government are essentially proposing to replace ASBOs with two orders: the IPNA—the injunction to prevent nuisance and annoyance—and the crime prevention order. As we have heard, the IPNA is a civil injunction that replaces a range of current orders and there is a maximum penalty for breach of two years’ custody. The crime prevention order, which will be available on conviction through the criminal courts, has a maximum penalty of five years’ custody on breach.
The Government’s objective is to reduce the number of civil orders available, and to reduce the perceived bureaucracy of the current system. The flaw in the Government’s approach is to have fewer orders covering a wider definition of nuisance and annoyance, and with fewer legal safeguards, in a bid to reduce bureaucracy. The point is forcefully made by the Home Affairs Committee in its February 2013 report on the Bill, which said:
“Each time successive Governments have amended the ASB regime, the definition of anti-social behaviour has grown wider, the standard of proof has fallen lower and the punishment for breach has toughened”.
Annoyance and nuisance in local communities are indeed a blight on people’s lives. I look forward to the contribution from the noble Lord, Lord Pannick, this evening because I am sure he knows better than many about the blight of annoyance and nuisance. I do not mean the noble Lord, Lord Pannick, but the noble Lord, Lord Paddick—although the noble Lord, Lord Pannick, knows about it as well.
Changing the names of orders and tinkering with the definitions may make some procedures simpler. However, changing procedures always leads to agencies having to find new ways to process things and that can be a significant problem. What really matters is that victims have the confidence in the procedures and sentences given, and offenders are deterred from repeat offending.
I read over the Home Office’s White Paper Putting Victims First and I agree with the central two observations: that anti-social behaviour remains stubbornly high, and that victims’ needs are not addressed quickly enough. However, it remains true that there are many thousands of victims who do not report low-level crimes to the police because they have little confidence that they will receive a proper response. My own view on this is that all victims, witnesses and defendants should be able to log on to a website to see the progress of their cases, the requirements of particular sentences and how these requirements may change as the sentence progresses.
I have some personal experience of administering ASBOs and it has certainly been my experience that they have been more appropriately sentenced in recent years. When I first started as a magistrate about eight years ago, it was quite common to have breaches of ASBOs where you could genuinely say that the offender was set up to fail. In my experience, that is less common these days.
The introduction of the proposed changes in the Bill have to be seen in a wider context, and that wider context is the explosion of out-of-court settlements that we have seen over the past 10 years. At present, nearly 50% of all recorded violent offenders receive a caution. I acknowledge that Chris Grayling has made an announcement on this, and indictable-only offences will not be able to be cautioned, and that is a step in the right direction. Nevertheless, that is a huge figure for the number of people receiving cautions for violent offences.
The thing that I believe most profoundly is that there needs to be proper scrutiny of the cautions that are applied. I understand that the appropriate legislation is in place for scrutinising police cautions, but in my experience, this is simply not happening; it is simply not happening here in London. I argue that the proper scrutiny of cautions, so that they are not applied inappropriately, would do more to enhance victims’ confidence in the criminal justice system than changing the names and definitions of particular orders. I believe that is of profound importance.
I, like others, have received the Liberty briefing. Liberty believes that the overuse of ASBOs and similar orders,
“dangerously blur the distinction between serious criminal activity and nuisance, create personalised penal codes that set the young, vulnerable or mentally ill up to fail”,
and can have the effect,
“of fast-tracking individuals into the criminal justice system rather than diverting them away”.
I take the point made in the Liberty briefing, but we have seen exactly the opposite effect, particularly in our youth courts, where we have seen a massive reduction in the number of youths who come to court. Very often, when they come to court, they are up in front of the youth court on very serious charges and have a long and established history of pre-court interventions that have not worked. So there is another side to the story of fast-tracking people into the criminal justice system. Sometimes the criminal justice system does not pick up people appropriately early enough.
I am not saying that Liberty’s point is wrong and that I am particularly right about when people go into the criminal justice system, but I am saying that public confidence is key to the whole administrative process. I believe that poor administration of cases does more to undermine people’s faith in the criminal justice system than any other matter.
I shall speak briefly about three specific aspects of the Bill. The first is Clause 86(5) and covers the point the noble Lord, Lord Faulks, made about the recovery of possession of dwelling houses. I live in the London Borough of Wandsworth. I contacted a local councillor, Tony Belton, about what happened after the riots because Wandsworth was well publicised for trying to evict council tenants where youths under 18 had taken part in the riots. What actually happened is that nobody got evicted in that situation. The council, which is a Tory council, did not pursue the evictions. The only people who were evicted were single men who were sent to prison for long periods of time. So I ask the Minister: what is the problem? That seems to me to be a reasonable outcome. The council did not even pursue the evictions that were so well publicised.
The second point I want to make is about theft from shops where the value is less than £200. There are other pre-court interventions which can be administered. First, there is a penalty notice for disorder where you can be fined £80, and the next is a caution, which requires an admission of guilt, but you do not have to go to court, so it could be on the third or more offence of shoplifting that you get into court. That seems to trivialise the offence. In addition, many shoplifters have drug, alcohol and homelessness problems, and when they come to court they can be picked up and suitable sentences applied.
My third and final point is a very specific point about the victim surcharge for youth offenders. At the moment, magistrates and judges are obliged to put in place the victim surcharge. I have several times had cases where a youth has assaulted their parent or guardian, and because of this order, the court has been obliged to make the parent or guardian pay the victim surcharge when they were the one who was assaulted. It is absolutely ridiculous, but the court has no discretion in the matter.
On the Labour Lords blog today, my noble friend Lady Smith described this Bill as a “Sunday afternoon drive” with,
“many twists and turns and the inevitable dead end”.
I would liken it more to a drive around southern England yesterday afternoon, after the storm had ravaged the countryside. Yes, there are twists and turns and dead ends, but the road map is not very helpful and the Government do not know where they are going.
Lord Paddick (LD)
My Lords, I think the noble Lord, Lord Ponsonby of Shulbrede, was confusing my name with my current state of mind. In 1977, when I was a police constable walking the streets of Holloway in north London, I never believed that I would ever come to say: “My Lords, it is an honour and a privilege to address this important and, from where I am standing right now, rather daunting place”. I thank your Lordships most warmly for the welcome that has been extended to me and for the support and help that I have received, which I am sure I will continue to receive, thanks to the generosity of the Members and staff of this place.
Now there may be some who, not for the first time in my life, consider me to be either brave or foolish on this particular occasion for making my maiden speech the day after my introduction. Indeed, I recall the rather dubiously encouraging words of the noble Lord, Lord Stevens of Kirkwhelpington, who, when he was my boss in the Metropolitan Police, said, “Brian, I like a man who takes a risk, provided it comes off”. However, I have some first-hand experience of the matters this Bill seeks to address, and I want to share some of that experience with your Lordships today. I am acutely aware of the conventions of the maiden speech, and while there are matters in the Bill that cause me some concern, on this occasion I will restrict myself to highlighting the positives.
My policing career spanned more than 30 years. During that time, I visited and dealt with the issues facing families on some of the most rundown council estates in London as well as the rich, the famous and the political elite. Those experiences have left me with the conviction that if everyone had a reasonable standard of living, a “living” rather than a “minimum” wage and a decent place to live that they could genuinely afford, there would be far less anti-social behaviour, far less crime and this country would be a far safer place for everyone.
In all that time, it was of great concern to me that anti-social behaviour was not always being addressed effectively. Many senior police officers, driven by centrally imposed targets, did not take the issue seriously enough and then latterly, albeit with the best of intentions, legislation blurred the distinction between the criminal and civil burden of proof. Senior police officers have to strike a difficult balance between giving priority to what some consider relatively minor offences that blight the lives of many people or concentrating on serious offences that affect relatively few. Where to focus time and resources is often a matter of professional judgment and, it must be said, this judgment sometimes goes awry.
However, there is no doubt that anti-social behaviour has very serious consequences for communities and, as we have heard this evening, individuals. What is more, when anti-social behaviour is allowed to continue unchecked, it is sadly all too common that those involved go on to be caught up in more serious crime. It is in the interest of the police, victims, communities and, indeed, the perpetrators themselves that we give police officers and other agencies the tools they need to tackle this behaviour.
As a Liberal Democrat, I also believe that we need to be responsive to the needs of our communities. That is why I am pleased that this Bill tries to ensure that the genuine concerns of decent people cannot be ignored by introducing a community trigger requiring action by local authorities, the police and others when anti-social behaviour occurs.
Although anti-social behaviour orders—ASBOs—helped to focus police attention, the fact that they were originally granted on the balance of probabilities but breaching them was a criminal offence undermined the safeguard in our judicial system that no one can be held to be a criminal, and perhaps even deprived of their liberty, unless their guilt is proved beyond all reasonable doubt. The Bill goes some way to addressing this concern through civil injunctions to prevent nuisance and annoyance without an automatic power of arrest if they are breached. Further, rather than simply imposing that injunction, the Bill proposes that the subject should be helped to comply and in the case of young people, that the local youth offending team is consulted. Providing this kind of positive support can help steer people away from negative behaviour and give them the direction they need to get on in life.
Another concern that I had as a senior police officer was that ASBOs were used in inappropriate cases, particularly those involving young people with underlying behavioural issues, such as hyperactivity or attention deficit disorder, which almost guaranteed their inappropriate criminalisation. Whether child or adult, the criminal behaviour orders proposed in this Bill when someone has been convicted of an offence can be granted only where it can be shown that the order will help to prevent reoffending.
Like my noble friend Lady Doocey, the other major issues in the Bill that I am particularly concerned about are the way in which the police are held to account and the role of the Independent Police Complaints Commission. I have very serious concerns about the whole process of the investigation and prosecution of complaints of police misconduct which I believe from my own experience serve neither the public nor police officers well. Strengthening the powers of the IPCC, as proposed in the Bill, is a necessary step in the right direction, but I believe we need to go much further.
I will have more to say on another occasion, but I am very grateful to have had the opportunity to address your Lordships today. I hope always to be helpful, informative, and respectful, and if I fail on any count I ask that your Lordships tell me directly. I promise that this former police officer will try his hardest not to get ideas above his station.
Lord Dholakia
My Lords, let me congratulate my noble friend Lord Paddick on his excellent contribution. He brings with him his vast policing experience and it is right that we will have further contributions from him on these subjects. We also must not forget his experience as a mayoral candidate in London, which brought him into contact with our very diverse communities. A word of polite warning to my noble friend: his experience on the TV programme “I’m a Celebrity… Get Me Out of Here!” no longer applies because he will find that until the House of Lords is reformed he will remain here.
My objective in looking at any proposed legislation is to see what priority is being given to crime prevention in its broadest sense and to diverting young offenders from the criminal justice system. This may sound a soft approach, but we pay little regard to the strictly limited contribution that courts and prisons make in reducing crime. The end product of judicial decision has little impact on the overall pattern of crime. Prisons, to many, are a revolving door and an expensive way to regulate behaviour. Public expectation of prisons to prepare inmates for their eventual release is high, but the ability of prisons to deliver that is fairly limited. Of course, prison confinement is appropriate to those whose offending makes other alternatives unacceptable, but it would solve many problems if we ensured that those sentenced to prison stay there no longer than absolutely necessary. That is my starting point in this debate.
I welcome many of the measures in the Bill, including provisions to improve the law and practice relating to anti-social behaviour, sexual offending, forced marriages, dangerous dogs, policing, and extradition. In common with a number of other noble Lords, I have reservations about some aspects of the Bill, including those relating to victim support and the eviction of families of those engaged in anti-social behaviour. I hope the Government will be prepared to listen to arguments and consider amendments on these points in Committee.
I am pleased to see that the Government propose to abolish the discredited ASBO, which is a crude and thoroughly flawed measure. ASBOs have a high breach rate overall and a particularly high breach rate for young people. One of the central flaws of ASBOs is that their provisions are purely negative. In other words, courts can include provision in an ASBO requiring somebody to refrain from doing something but cannot require somebody to take part in positive activities to provide them with support and rehabilitation. It is true that courts can provide support for a young person by making an individual support order alongside an ASBO, but in practice they do this only in a small fraction of cases. In the absence of support, it is hardly surprising that young people in dysfunctional families with chaotic lifestyles so often end up repeatedly breaching the order.
I therefore welcome the abolition of the ASBO and various related orders, and their replacement by the new injunction to prevent nuisance and annoyance in the criminal behaviour order. I welcome the fact that the injunction will be a civil order and that breach will be treated as a civil matter with a maximum penalty on breach of two years’ imprisonment rather than a criminal conviction and five years’ imprisonment, as is now the case. This was always a draconian penalty for behaviour which was anti-social but did not amount to a criminal offence. The fact that the new injunction is a civil order will avoid unnecessarily criminalising young people for breaching the order, which the current ASBO does.
Although I consider the orders a distinct improvement on the ASBO, I have some reservations about the details—these can be considered in Committee. We should reconsider whether the new injunction should be available for conduct which merely causes nuisance or annoyance rather than the stronger test of harassment, alarm, or distress which applies to the ASBO. I would also like to see a stronger prohibition on the reporting of names of children subject to this proceeding. The naming and shaming of children is almost always counterproductive. It can seriously hinder a child’s rehabilitation. In some cases people react by regarding this notoriety as a badge of honour. Then they try to live up to their reputation by increasingly extreme behaviour to look hard in front of their friends. I would like to see the law include a strong presumption against reporting children’s names in these proceedings.
There is one aspect of the new powers in relation to the anti-social behaviour order which I am unable to support: the provision of the mandatory eviction of whole families because one of the family has breached an injunction to prevent nuisance or annoyance. Courts should have the discretion to order possession when this is appropriate in all circumstances, but the Bill gives the courts very little discretion. This could lead to a large number of families rendered homeless and destitute because one family member has been involved in offending or anti-social behaviour. As homelessness increases the chances of criminal behaviour, this is more likely to increase crime than reduce it.
There are other issues that, again, we need to look at in Committee. For example, there is the provision in the Bill to protect the victims of forced marriage. By making breach of forced marriage protection orders a criminal offence, the Bill will ensure that the police always have the power to arrest those who breach the order. The new offence of inducing someone to leave the United Kingdom and travel to another country to be subject to a forced marriage is another valuable provision, but we all know that changing legal powers is not enough by itself to tackle the problem of forced marriage. Legal change needs to be accompanied by much greater efforts to enable people at risk of forced marriages to seek help in the knowledge that they will receive it. Much more also needs to be done to educate teachers, health workers and other professionals to recognise and act on the signs that someone is at risk of forced marriage if the provisions of the Bill are to have maximum effect.
The Bill includes important provisions to strengthen the power of the Independent Police Complaints Commission. I was delighted to listen to the views expressed by my noble friend Lord Paddick, such as on the extension of the IPCC’s jurisdiction to include complaints against subcontractors. At a time when an increasing number of police functions are outsourced to private contractors, this is an important safeguard. Alongside the strengthening of the IPCC, I am delighted to see that the Bill makes statutory provision for the establishment of a College of Policing, which will help to promote professionalism and standards across the police service.
The Bill includes some important reforms to the powers of the police, and immigration and customs officers to detain travellers at ports and airports under the Terrorism Act in cases where there are no grounds for reasonable suspicion that the person is involved in terrorism. I particularly welcome the reduction of the maximum period of examination in these cases from nine to six hours, the extension of the right to inform other people and consult solicitors, the restriction of the grounds on which strip-searching can take place, and the repeal of the power to seek samples of blood and other body fluids.
I would certainly like to see the Government go further and end the power to detain people without any suspicion. I also favour further safeguards for people detained in these circumstances, including the video and audio recording of these examinations. However, the provisions in the Bill are a valuable move in the right direction and the Government obviously ought to be congratulated on taking this important step.
There is one other area of the Bill that we have failed to mention so far and on which I hope the Government will be prepared to think again: the provision to devolve funding for victim and witness support from central government to police and crime commissioners. At present the Ministry of Justice provides funding to a range of organisations which support victims and witnesses. The central backbone of these services is provided by the excellent organisation Victim Support. The existence of a properly funded national organisation guarantees that high-quality support from well-trained volunteers is readily available to victims in all areas of the country. The staff and volunteers are supported by an experienced organisation with 35 years’ experience of providing high-quality services to support people who have suffered loss, injury, damage, abuse and distress from crime. It is difficult to see the sense in proposals to break up this high-quality service and to leave the provision of victim support provision to the varying decisions and priorities of police and crime commissioners.
In conclusion, I welcome the Bill, which includes many valuable reforms that will improve the quality of justice in many areas of the law. I trust that with a constructive attitude on all sides of the House and openness on the part of the Government, we can work together in Committee to change a good Bill into an even better one.
Baroness O'Loan (CB)
My Lords, I congratulate the noble Lord, Lord Paddick, on his eloquent and humorous maiden speech. We look forward to hearing much more from him.
I welcome many of the provisions of this legislation, in particular those in relation to forced marriage, dangerous dogs and the additional powers given to the IPCC. In particular, and most importantly, I welcome Clause 123, which provides for access to information—a critical tool for an investigator. I also join with many of the comments that have been made in relation to anti-social behaviour and the deficiencies of the Bill as currently drafted. I also draw attention to the 20 or so recommendations and observations of the Joint Committee on Human Rights, to which I belong, in relation to that section of the Bill alone.
I will speak on the issue of compensation for miscarriages of justice. Clause 151 provides that compensation will be payable for a miscarriage of justice,
“if and only if the … newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.
The UK has a long and proud history of the presumption of innocence in criminal matters unless guilt is proved beyond reasonable doubt. The European Convention on Human Rights, which was drafted largely by United Kingdom representatives, maintains this presumption in Article 6(2) of the Convention. It is one thing to be able to prove that there is reasonable doubt as to the safety of a conviction, and even that will normally take years, during which the person wrongly convicted will serve a prison sentence. The CCRC process and the process of the Court of Appeal do not involve a retrial. The person seeking to overturn a conviction is often in a very lonely place—it is not an easy process. The Minister has told us that Clause 151 is intended by the Government to bring much needed clarity—as the noble Lord, Lord Faulks, said, it does. However it is, in fact, a total change in the law. Never previously has the victim of a miscarriage of justice had to prove innocence beyond a reasonable doubt.
As I have said, the business of disproving guilt is not easy. A court may, as the Minister in the other place stated, determine that a person’s conviction is overturned; for example, because DNA evidence comes to light showing that they could not have committed the offence. That may seem a very simple example, but it is not. In many cases, both here and in Northern Ireland, there will be people convicted long before DNA testing became available, where the evidential material, which may well have contained exculpatory DNA evidence, has been destroyed for a variety of reasons. Most commonly, evidence such as clothing was destroyed because blood contamination was regarded as constituting a health risk. That should not happen now, but the cases in which there is a referral to the Court of Appeal by the CCRC are not recent cases, and they are only the most serious ones. People may also be convicted on what turns out to be false expert evidence, as in the cases of parents whose children died suddenly and who were wrongly convicted. If it transpires that the evidence is not reliable, the conviction will be overturned. That will not prove the innocence of the mother or father. There are many other reasons why a person may be incapable of proving their innocence to the standard required by this test. Obviously I cannot give examples of all of them in the time allowed.
If we legislate in the way suggested by the Government, we will create two types of “not guilty”. There will be those who are fortunate enough to be able to present evidence that proves conclusively that they are innocent; they will be entitled to compensation. Others, not so fortunate, will only be able to prove that they should not have been convicted. Since they cannot prove their innocence, while they may assert that they did not commit the offence they will not be able to claim compensation, and it is inevitable that some people will conclude that they are not innocent because they are not innocent beyond all reasonable doubt.
In a number of cases people were convicted on evidence fabricated by police officers. I think, for example, of a schoolboy in his late teens who was convicted of murder on the basis of a confession and other evidence secured as a result of wrongful behaviour by police officers. The boy in question did not commit the murder, but could not prove that and served over a decade in prison before being released. His conviction was overturned, but that evidence, which should never have been presented to the court, does not prove his innocence. It is something completely different to ask the victim of a miscarriage of justice to prove his innocence.
Such victims would effectively have to reinvestigate their own case in order to prove their innocence. In many cases they would not get the right of access to documents, to question witnesses, to get expert evidence checked, or to get access to retired police investigators, who would not assist them. Have the Government considered how such a person is supposed to satisfy that test, which is not the test required by the Court of Appeal?
It has been pointed out that had this clause been law at the time of the cases of the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward, they would all have been highly unlikely to meet the test. In criminal law people do not have to prove their innocence; the prosecution has to prove their guilt beyond reasonable doubt. When the state has held that a person was wrongly convicted, years after the event, it is very likely that it will just not be possible to marshal the necessary evidence to prove innocence.
Compensation is given for the wrongful conviction and for the time served in prison. If a court declares a conviction to be unsafe, the person who is released will have to try and rebuild his or her life. They will usually have spent long years in prison. They will have lost their opportunities to be educated, marry, have children, build a life and contribute to society. Above all, they may have lost contact with their family, or their relationships may have broken down to the extent that they are not repairable—and all that because they were wrongly convicted. Now the Government propose to remove the right to compensation from anyone who cannot prove their innocence beyond reasonable doubt. This matter was discussed briefly in the other place, and amendments were tabled that sought to address this. There was some debate, but it was decided in the end to leave the matter to this House. They said,
“leave it to the other place to find the right answer”.—[Official Report, Commons, 15/10/13; col. 610.]
The Minister told us that there are two to four cases a year in which compensation is paid. Can he tell the House whether that number covers England, Wales and Northern Ireland, or whether it is England and Wales only? If it does not cover Northern Ireland, can he give us the Northern Ireland figures? Can he also tell the House how many unsuccessful legal challenges there are each year? I suppose that I am really asking the Government, “Is this really mischief which requires to be remedied through legislative change, or is it something that will damage forever the reputation of law in the United Kingdom?”.
Baroness Gale (Lab)
My Lords, I, too, add my congratulations to the noble Lord, Lord Paddick, on his excellent speech.
I wish to speak on Part 7 of the Bill about dangerous dogs. In doing so I am aware of the great service that dogs give to our community. We know that dogs are great friends, they can be of great comfort to lonely people and children love them as pets. However, dogs also attack. There were 6,450 hospital admissions in the 12 months up to April 2012 caused by dog injuries and they cost the NHS £3 million.
I should like to tell your Lordships’ House a story of which I am personally aware involving a friend of mine. Dilwar Ali’s six year-old son was attacked in his own garden by a neighbour’s dog. Dilwar told me the story of what happened to his son. He said:
“On 2nd September 2011, my six-year old son was helping my wife bring in the washing from the back garden of our home in Llandaff North, Cardiff. Suddenly the fence came down and the dog from next door bounded into my back garden. The dog, a Rhodesian Ridgeback, bit my son on both sides of his face, taking a chunk out of his right cheek and hand. I’m told that these dogs were bred to hunt lions. I do know that it took two men to restrain the dog. The dog has since been destroyed. My son was rushed to the University Hospital of Wales, then to Welsh Centre for Burns and Plastic Surgery at Morriston for emergency surgery. Miraculously he was not killed but he is scarred for life and will have to undergo several operations on his face over the next 10 years. It is over 22 years since the Dangerous Dogs Act 1991 was passed. Public money and resources have been spent by police forces seizing dogs suspected of being a particular breed regardless of whether they are behaving dangerously or not. Yet dog bite incidents continue to rise proving that the Westminster Government's response in 1991 has not provided a solution. I do not believe that in most cases it is the dog which is at fault. Whilst genetics affect a dog’s temperament, its environment and training are far more important. These issues are down to the owner and the way the dog is, or is not, cared for. It is time for the law to be changed; time for a Dog Control Act encouraging responsible ownership and holding irresponsible owners to account”.
That was Dilwar Ali’s experience and his son will have to live with that for the rest of his life.
The Bill introduces community protection notices for general use in containing anti-social behaviour, including irresponsible behaviour by dog owners. All the experts agree that specific dog control notices are the better tool to give to local authorities to enable them to take steps to prevent dogs going out of control and to bring dogs back under control. There are differences between a community protection notice and a dog control notice. First, a community protection notice can be issued only after multiple incidents have occurred in practice, after a written notice has already been given to the dog owner and after someone has complained about the owner’s failure to prevent persistently aggressive behaviour on the part of the dog. Secondly, the criteria for issuing a CPN are broad. They focus on a threat to the quality of life for whole communities and do not take into account one-off, isolated attacks that threaten the quality of life of an individual.
A dog control notice would in effect be an early warning system allowing dog owners to address their dog’s behaviour before multiple incidents occur and punishments are handed out. Intervening early may also improve dog welfare because DCNs would ensure that dogs are retrained and owners re-educated in conjunction with the advice of local authorities. This makes a DCN more specific to an incident and therefore much more effective. A DCN looks at the warning signs and puts preventive measures in place. It takes action before an out-of-control dog attacks and it promotes responsible ownership. Dog control notices lay greater responsibility on the dog and its owner by providing a fairer and more balanced law that prevents the need for punitive measures, and it can save money. Enforcers do not need to resort to costly court proceedings, notices and prosecutions, thereby making better use of limited resources and time by nipping the problem in the bud. Perhaps the Minister can comment on that in his reply.
Clause 98 amends the Dangerous Dogs Act to include private property as well as public places and is to be welcomed. However, can the Minister say whether this would include the case I spoke of earlier—that of a dog that jumps over the garden fence and attacks a child playing in his own garden? Would this clause deal with such cases—that of a dog entering a private garden and attacking a person? The Minister said in his opening remarks that the clause would cover all places and, I assume, all incidents of that nature.
The Minister will be aware that the Welsh Government have withdrawn their own Bill on dangerous dogs and are working with the UK Government on this Bill. I understand that working together has been beneficial to the United Kingdom Government, given that a lot of work has been done by the Welsh Government. As I understand it, the Welsh Government have retained their right to introduce legislation if the UK Government do not cover all the aspects that the Welsh Bill would have covered. Can the Minister comment on that? I understand that the Welsh Government are working now with his department in order to produce a good Bill that will cover the aspects that we want in Wales.
Lord Hope of Craighead (CB)
My Lords, I wish to speak briefly on two issues. The first relates to Part 1 and in particular to the threshold that Clause 1 sets regarding the power to grant an injunction under it. The second issue relates to the test in Part 13 regarding compensation for miscarriages of justice under Clause 151. Of the two, the first issue is much the most important because Clause 1 will enable a court to grant an injunction against a person aged as young as 10, and because of what the breach of such an injunction, whatever the person’s age, may lead to.
Of course there is a real social problem about anti-social behaviour that must be addressed, as the noble Baroness, Lady Newlove, in her moving speech reminded us. However, one must surely be very careful to set an appropriate threshold for what constitutes such behaviour within the meaning of the statute. What is or is not appropriate will depend very much on the context. The nature of any sanction and its consequences will be crucial to that decision. What is proposed is the granting of an injunction to stop the behaviour. An injunction is one of the most powerful weapons in a court’s armoury, never to be granted lightly because a breach of an injunction will be treated as a contempt. Here Clause 86 tells us that a breach may lead to recovery of possession of a dwelling house in which the child lives or which he visits, which could have damaging effects on the family life of others who are living there. Indeed, it may affect whole families, as the noble Lord, Lord Dholakia, told us. Schedule 2 tells us that it may lead to the person’s detention. These are very serious matters. I have never, in all my 40 years of experience, heard of a court granting an injunction against a child, let alone one as young as 10, so to provide for this by statute is a very significant step, not to be taken lightly. If a court is to be enabled to do what is envisaged by this clause, three things surely are fundamental to the way that the power may be exercised. First, the threshold must be set at an appropriate level; secondly, the court must be satisfied that the person fully understands what he is being told to do or not to do; and thirdly, the language of the court’s order must be clear and precise so as to leave no room for doubt on that matter in that person’s mind.
Let us take first the threshold that appears in subsection (2). Every word used here to describe what the person has been doing, or is threatening to do, is important. We find the words “conduct capable of causing”, “nuisance or annoyance” and “to any person”. Contrast that phrase “nuisance or annoyance” with “harassment, alarm or distress”. Why is the threshold being reduced so much? Will the Minister explain the problem that has led to the decision to do this? It is a very significant reduction, let there be no doubt. I have searched the case law over the past 50 years as much as I can, for some guidance as to what a court would be likely to make of this formula. Most cases where the issue has arisen are about noise: shouting, banging doors, loud quarrels between people. However, it does not have to reach a very high level to fall within the expression “nuisance or annoyance”. Those two words, “nuisance” and “annoyance”, are put together as if they are a reasonably high threshold. However, the two words mean the same thing; putting the two together does not add anything. That which is a nuisance will annoy, and that which annoys will be a nuisance. Let us face the fact that this clause is simply dealing with people who are thought to be a nuisance.
Mention will be made, no doubt, of judicial discretion. There is a case in the books, from 1958—Raymond v Cook—that illustrates the problem. It was a case about an ice-cream man. His chimes disturbed the sleep of two night workers who had to sleep during the day. They complained, and the magistrate found the ice-cream man guilty of causing a nuisance. The Court of Appeal had a look at the case and refused to interfere, as it said that this was a matter of fact for the magistrates. It was not necessary to prove that the inhabitants generally were annoyed. The defence led people from the neighbourhood who said that they were not disturbed at all by the ice-cream van, but that made no difference: those two night workers found it to be a nuisance.
What then of the formula used here, of,
“conduct capable of causing nuisance or annoyance”,
and the words “to any person”? Even the best behaved children are often noisy. Are children whose noise when playing wakes up people who have to sleep during the daytime to be exposed this regime? I cannot believe that the Minister really intends that. If that it is so, surely that should be made clear. Even injecting “serious” into the phrase would help to some extent, but surely it would be far better to retain the ASBO formula unless something is demonstrably wrong with it. Indeed, we find it used in Clause 21(3) for criminal behaviour orders. At the very least, an explanation will be needed in Committee as to exactly why the threshold is being so drastically reduced.
It is also disturbing to find nothing in Clause 18 about the making of special rules for cases involving children under 15 or persons with mental disabilities. Should the court not be required expressly to explain the purpose and content of the injunction, to ensure that children and other vulnerable people really do understand what the order means and what its consequences will be if it is breached? The rather loose wording of Clause 1(4), which uses the words “do anything” in relation to what may be put into the order, is another point of concern. These prohibitions and requirements ought to be related precisely to the behaviour that has given rise to the injunction. These points are just as valid, whatever the wording of the threshold may be that must be crossed.
I turn very briefly to Clause 151, concerning miscarriages of justice. Of course the number of cases likely to be affected will be very few, but it is important that we get the wording of the clause right and, as the noble Lord, Lord Faulks, said, this is quite a difficult issue. The Supreme Court examined the issue in Adams. I must declare an interest, as I was a party to that decision. We will of course discuss the issue much more fully in Committee, but I will make two points now. The first is that I do not claim any primacy for the majority view in that case at this stage. I believe that it is right that Parliament should take a fresh look at this issue and should do so with an open mind. It is also right to seek to promote clarity and certainty in this difficult area.
The second point, which follows very much what the noble Baroness, Lady O’Loan, said a moment or two ago, is that it is at least doubtful whether the test that this clause lays down will cover all cases of miscarriage of justice where it is just that compensation should be available. It is not difficult to envisage situations where sheer proof of innocence, whatever the standard might be—it does not really matter whether it is beyond reasonable doubt or just on the balance of probabilities—will be simply unattainable. No doubt there will be cases where DNA evidence will resolve the issue. However, that evidence may have been lost or disposed of, and not all crimes are open to proof of guilt or innocence by that kind of evidence. It may, in the end, simply come down to one person’s word against another’s and, if you are dealing with the evidence of a wrongly convicted person who was not believed by the jury which convicted him, how can his word alone be enough to prove his innocence?
These are difficult issues. We will come back to them, and I am sure will examine them with very great care, when the time comes in Committee.
Lord Hodgson of Astley Abbotts (Con)
My Lords, it is a slightly daunting experience in a Second Reading debate on a criminal justice Bill to follow such a distinguished lawyer as the noble and learned Lord, Lord Hope of Craighead, who has a lifetime of experience of these matters, which he has just deployed to the great advantage of the House over the last few minutes. I, as a non-lawyer, have no equality of arms whatsoever.
I shall focus my remarks on two points. The first concerns the contents of the Bill, the second the process of the passage of the Bill. In regard to the contents of the Bill, I will confine my remarks to Part 12, which concerns changes to our extradition laws. I immediately declare an interest as a trustee of Fair Trials International, a charity which, as its name implies, focuses on miscarriages of justice and sees some of the practical results of the operation of the Extradition Act—in particular, the operation of the European arrest warrant, hereinafter referred to as the EAW.
It is not surprising that Ministers of all parties underline the value of the EAW by referring to the most high-profile cases: terrorism, child exploitation—the teacher running off to France with a pupil—murder, major financial crime. To be sure, the EAW has been extremely valuable in ensuring the swift return of alleged offenders to face justice. However, the majority of the cases are, unsurprisingly, of much lower profile and concern offences where the circumstances are not always open and shut and, in some cases, are downright dubious.
It is worth reminding ourselves just how speedy the process under the EAW can be. A warrant served in London will require a preliminary hearing within 48 hours, at which the individual will be defended by the duty solicitor, who may or may not have a knowledge of extradition law. Within 21 days, there must be a full hearing and, if the case is proved, within 10 days thereafter surrender takes place. So the process can be as short as 34 days. If this were to happen to a Member of your Lordships’ House, we are all capable of finding the right button to press to make sure that we are represented properly. However, I am afraid that not all our fellow citizens are so fortunate. They can therefore be removed speedily and find themselves in a country where they do not speak the language, accused of a crime the full nature of which is not entirely clear to them, operating under a legal system that is entirely unfamiliar, defended by a lawyer who may or may not be competent and with a prison and/or judicial system that may in certain circumstances have features that would not be found acceptable in this country. Therefore, I argue that we need to ensure that a proper level of safeguards is built into this process.
In his opening remarks, my noble friend on the Front Bench reminded us all of the improvements that have been made, and the Government are to be congratulated on that. Sir Scott Baker’s review introduced a number of changes, which the Government have fully implemented. They include the forum bar and the removal of the Home Secretary’s discretion in Part 2 extradition cases. Further changes are planned to deal with trivial offences and to try to avoid lengthy pre-trial detention by the requesting state. However, the Bill provides an opportunity to take this process further and to make the operation of the EAW completely fair and balanced. Therefore, I hope that the Government will look with some favour on amendments to Clause 137 which will seek to address some residual concerns about delays in cases coming to court, would remove some of the ambiguities in drafting and ensure that, in considering whether a case is trial-ready, judges take into account evidence external to the content of the warrant itself, including that relating to the past record of the issuing state in this regard.
Clause 138 addresses the issue of proportionality. While this is an entirely welcome development, it remains a limited test. Therefore, there is a question of whether amendments should remove the judicial discretion as to whether a proportionality assessment should be carried out and extend the list of “specified matters” which a judge may take into account, including the human impact of extradition, the passage of time since the alleged commission of the offence, the costs of extradition, and the public interest in extradition being carried out.
Further, a number of aspects of the operation of the temporary transfer regime envisaged under Clause 140, and the restrictions on the right to appeal envisaged under Clause 141, referred to by the noble Baroness, Lady Smith of Basildon, in her opening remarks, also deserve some discussion and scrutiny by your Lordships’ House. The same applies to the question of the power of a UK court to seek further information when a case of mistaken identity is suspected—a power which I think the court does not currently have.
So much for the Bill itself. I turn to my second point and conclude with a couple of words on the parliamentary process—an issue that has been raised by other noble Lords. I hope that the House will agree that some of the concerns I have raised about extradition procedures are serious ones. In my view, like other aspects of the Bill, they go to the heart of the structure of our civil liberties, painfully built up over the centuries. Yet when the amendments that I have been discussing tonight were tabled in the other place, not one was discussed or debated because of the operation of the guillotine.
It is not for me to comment on the proceedings in the House of Commons but I fear that the reputation of the Government—a Government whom I strongly support—would not be enhanced if the desultory way that the Bill was proceeded with in the House of Commons became more widely known. In particular this is true because many of us, often speaking as shadow spokesmen from the Front Bench in the period before the 2010 general election, were very critical indeed of the widespread use of timetable Motions by the then Labour Government and the consequent impact on the quality of legislative scrutiny. What is sauce for the goose is sauce for the gander.
Lord Harris of Haringey (Lab)
My Lords, I start by declaring my interests as co-chair of the All-Party Parliamentary Group on Policing, as chair of the anti-forced marriage charity, Freedom, and as an adviser to Airwave Solutions and to Lockheed Martin.
This debate has been enlivened by the maiden speech of the noble Lord, Lord Paddick. Having twice sat on Metropolitan Police appointments panels which promoted him, and indeed having sat on a third panel which did not promote him and where he accused me of heckling him, I look forward to his future contributions in your Lordships’ House.
This Bill is a strange pot-pourri of measures. It reminds us that this coalition Government have run out of steam. And what do Governments do when they are short of legislation to make themselves look busy and purposeful? Why, they turn to the Home Office, because the Home Office can always be relied on to produce a ready-basted, oven-ready Bill, and this is the 2013 offering.
In fact, I support significant parts of the Bill—for example, the extension of the role of the IPCC, some of the new child protection measures, the creation of the new firearms offences, the extension of dangerous dogs legislation and the making of forced marriage an offence. However, it is counterintuitive to be weakening the powers to combat anti-social behaviour at the same time as 80% of the population believe that the problems have got worse in the past year. No doubt the Minister will explain that to us.
However, what is missing is the context. Overall, crime has declined in the past 15 years or so. The trend in burglary is particularly marked and has been remarkably consistent. However, the significant change in the past couple of decades is that new developments—homes, both new build and refurbished, schools, play areas, hospitals, and many others—have been informed by and have adopted the principles of Secured By Design. Indeed, this morning I spent an hour and a half looking at some of the homes that have been built on the new Olympic park site. They have all been built using Secured by Design principles.
Since its inception under the auspices of the Association of Chief Police Officers in 1989, Secured by Design has achieved a great deal. Secured by Design developments—those using the products and materials that it has approved—are half as likely to be burgled and they show a 25% reduction in criminal damage. This is at a modest cost. The additional cost of using Secured by Design standards in the average home is only £170. In one year alone, some 700,000 burglaries could be thwarted if appropriate security devices were installed, representing an annual saving of more than £1.97 billion. Indeed, the Association of British Insurers has estimated that the introduction of Secured by Design standards across the UK would bring more than £3.2 billion-worth of savings to the economy over 20 years.
This is a success story and one which I am sure the Government and the Home Office would wish to trumpet. Is it not strange then that this same Government are now seeking to undermine this success story? The Department for Communities and Local Government published—in the depths of August, typically—a consultation document seeking views on the results of the recent review of building regulations and housing standards. The proposals it is putting forward on the security of buildings suggest a two-tiered standard: a basic minimum level that could be generally required and a so-called enhanced standard.
The basic standard is demonstrably inadequate and has been shown to have little security benefit. Frankly, there is little point in specifying stronger locks. They are not much of a deterrent if the door in which they are located may be so flimsy that it can be kicked in with one firm kick. Even the enhanced standard would be lower than the existing Secured by Design standards, and they could be required by a local authority only where what is described as a “compelling” case existed for the higher standard to be applied in the case of an individual development. To make this compelling case, a local authority will have to demonstrate that the development will be subject to an “elevated” risk of burglary and that there will be a higher than normal impact of burglary on the tenants.
It goes without saying that this is a test that is almost impossible to pass in respect of a new development. What is more, the test has to be applied site by site in a way which is likely to produce confusion and added uncertainties for developers, who, when they submit a proposal, will not know whether the authority will be able to apply the enhanced standard. However, as has already been said, this enhanced standard will not be as beneficial as the existing proven Secured by Design guidelines. It will not be open to a local authority to require those proven guidelines, and to apply even the enhanced standards it will have to go through complicated processes to demonstrate the compelling case required by the DCLG, with all the implicit threats of legal action that that entails.
This is the antithesis of localism. I may need to be corrected on this but I believe that it is a policy of this Government that localism is a good thing. But this is saying that local authorities shall not apply these higher standards that have been drawn up and are proven to work. Surely it should be for local people through their locally-elected councillors to decide what level of security is appropriate for their own neighbourhoods. Instead, those same local people are being forced to accept a centrally driven dumbing- down of standards, which puts their communities and individual householders at risk.
This is all being put forward as a simplification of the planning process and that somehow these Secured by Design standards, which on average cost £170 per dwelling, have been the cause of stalled developments. What world are DCLG Ministers and officials living in? Have any of them had to live in an area blighted by excessive crime facilitated by poor design and inadequate security standards? Local authorities should be able to choose the level of security standards that they consider appropriate for the communities that they represent. What is the problem that Ministers think they are going to solve by preventing that local democratic discretion? What is more, we can only assume that no consideration has been given by the Government to the consequences down the line. This change, which will curtail police influence on planning for secure facilities, is dangerous and short-sighted.
What it risks is that the progress that has been made over the past two decades in designing out crime, reducing burglary and making anti-social behaviour harder will be put into reverse. What it risks is adding to the costs of the criminal justice system. If we throw away the advantage that designing out crime has given us, how will our communities cope in the future with a diminished police force and neighbourhood policing being no more than a distant memory while the threat of crime rises again? Who benefits from this short-sighted policy? The only people who will benefit are the developers who will see an increase in their profits. Yet again we see a Government who neglect the many in favour of the privileged few.
What representations did the Home Office make about these ill thought out proposals? Is the Home Secretary powerless in stopping her Cabinet colleague, the Secretary of State for Communities and Local Government, discarding 20 years of progress in reducing crime? May we perhaps have an assurance that, even at this late stage, Mr Pickles will be reined back? If we do not get some progress on this there is frankly no point in having this Bill, worthy though some elements of it may be. We might as well acknowledge that this Government are prepared to give up the fight against crime, solely to placate a handful of privileged developers.
Unless we get some serious assurances from the Minister on these points, this Bill will be rendered an irrelevance. We might as well pack up now. Unless we get some assurances tonight, I for one am not prepared to support this Bill receiving its Second Reading and will be not content.
Lord Avebury (LD)
My Lords, first, I join in the congratulations that have been expressed on the outstanding maiden speech of my noble friend Lord Paddick. We can tell from his speech not only that he has a great contribution to make in future to the matters covered by this Bill, but that he has a tremendous sense of humour which we will welcome in any debate in which he chooses to engage.
Like my noble friend Lord Dholakia, I welcome the changes that have already been made by the Government in this Bill to the extreme powers that were formerly in Schedule 7 to the Terrorism Act, but they do not go far enough. The case referred to by my noble friend Lord Faulks—of David Miranda, the partner of the Guardian journalist Glenn Greenwald, who was stopped and detained for nine hours while transiting Heathrow in August—is now the subject of an inquiry by David Anderson QC. My right honourable friend the Deputy Prime Minister has said that if Mr Anderson recommends further restrictions on the Schedule 7 powers, the Government should use this Bill for that purpose. We understand that his report may be delayed because of ongoing legal proceedings. I would be grateful if my noble friend the Minister could elaborate on that, because ideally the report should be available while it may still be of assistance to your Lordships during the passage of this Bill.
As far as I know, Mr Miranda has not been arrested or charged with any offence. However, the police are examining the tens of thousands of documents stored on his laptop, mobile and other electronic devices, to see whether they constitute evidence that he,
“has been concerned in the commission, preparation or instigation of acts of terrorism”.
I ask my noble friend: would the mere possession of material acquired by former NSA whistleblower Edward Snowden related to the monitoring of telephone calls by the agency amount to terrorism? I understand that the Guardian had copies of all the files, and so did other media, so if there is an offence that could be used to charge Mr Miranda, it could be used against the Guardian and other media as well.
GCHQ obviously knows, from its general monitoring of communications, that Mr Miranda is a person of interest to it. It flags up his passport so that when he presents it to a scanner at a port of entry to the UK, he is detained and questioned under the powers of Schedule 7, even if at that point there is no reason to suspect that he has been engaged in committing, planning or instigating terrorism.
I am afraid that he is not the only person to have been stopped under Schedule 7 because his passport triggers a warning. A friend of mine, a British citizen of Bahraini origin, has been stopped three times, once at Heathrow and twice at St Pancras, within a 12-month period. I wrote to the Security Minister, James Brokenshire, in August and he replied a month later referring me to the police. I wrote to the Metropolitan Police and had an acknowledgement a week later. The matter was taken over by the IPCC on 1 October. On 15 October I met two police officers for a discussion on the case. That discussion consisted almost entirely of me giving them further background on the case, underlining the fact that a black mark existed against my friend’s name on the computer and that he wanted it removed.
Knowing how friendly we are with the Bahraini autocracy, and that the regime had asked us to consider an extradition treaty with it to enable it to harass Bahraini dissidents in the UK, I suspect that the use of Schedule 7 against my friend and other Bahraini exiles in the UK is politically motivated. This is a good illustration of the need to amend the power so that it can be used only to detain a person when there are reasonable grounds for suspecting his involvement in terrorism, as the Liberal Democrat autumn conference recommended.
Last week I had a meeting with senior officials of the Muslim NGO, ENGAGE, to discuss Schedule 7 among other matters. In their submission to the consultation they had detailed what they regarded as evidence of disproportionately large numbers of Muslims being stopped and searched—a concern which needs to be addressed for the sake of good community relations. I took up the case of a distinguished British imam who was stopped at Heathrow Terminal 1 in December 2008, detained and compelled to give a DNA sample and fingerprints. There was no reason why he should have been suspected of terrorism, but it took me 15 months and 57 rounds of correspondence before I could persuade S015 counterterrorism command to destroy the sample and fingerprints. It is such cases that provide grounds for Muslims to believe they are being singled out.
We have an excellent blueprint for reform of Schedule 7 in the shape of the JCHR’s report on the Bill. The other place unfortunately did not have the time to consider its recommendations on this, as on other matters, because they were only published four days before Third Reading, with a weekend in between. Why did the Government not publish the responses to the consultation in full, as the JCHR had already recommended in its report on the Justice and Security Green Paper?
Do they accept that the powers that continue to be available under the amended Schedule 7 are still too widely defined, and will they publish their responses to each of the further amendments proposed before we get to Committee stage? On the code of practice, are they going to discuss paragraphs 15 to 18 with the EHRC with a view to reducing the danger that the powers are used disproportionately against Muslims and other minority groups? Do they agree that records of examinations should include the self-declared religion of the person examined? It would save time in Committee if the Government would respond positively to the JCHR recommendations in the Minister’s winding-up speech this evening.
Lord Hylton (CB)
My Lords, I wish to raise just two points on this Bill—the first concerns prisoners’ families and children; the second, the notorious ASBO and its replacement orders.
I had the privilege of being president of the Northern Ireland Association for the Care and Resettlement of Offenders for many years. The association, inter alia, provided services to prisoners’ families and children. It described the impact of sentences, especially long ones, on the wives and children as “the silent sentence”. That is why I support the coalition of NGOs in this jurisdiction that wishes to amend this Bill to ensure that courts, the probation service and social services have a duty to arrange proper care and advice for the children and any vulnerable adults dependent on a person remanded in custody or in prison. Acceptance of an amendment on these lines will help to break the cycle of offending. We know already that children of prisoners are twice as likely as others to experience mental health problems. Some 65% of boys with a father in prison will later themselves offend. Their employment prospects are reduced and they are more likely to abuse alcohol or drugs. The impact on the children of a woman prisoner who suddenly disappears from her family may be even worse emotionally. We are therefore seeking both crime prevention and health improvement. An amendment has already been drafted and I urge Her Majesty’s Government to accept it or perhaps to take it away and gold-plate it.
The second point to which I draw your Lordships’ attention concerns “annoying conduct” and its definition under Clause 1. The phrase itself is subjective, because what is annoying to one person will seem quite ordinary to another. The new injunctions replacing ASBOs will have a lower threshold, going wider than causing “harassment, alarm or distress”, and a lower standard of proof. This has already been criticised by the Home Affairs Select Committee and the Joint Committee on Human Rights and even by the Association of Chief Police Officers. The new powers should be examined to ensure they are grounded in necessity and not just in convenience. The Government should turn their mind to the standard of proof and to the apparent lack of a defence of reasonableness.
All these matters, and Clause 33, deserve the most careful scrutiny. I say this having previously argued that acceptable behaviour contracts should be used before resorting to an ASBO. If I have been right to raise these two points, of which I have a little knowledge, it seems likely that the rest of this 200-page Bill will also need much improvement.
Lord Borrie (Lab)
My Lords, reading the House of Commons Hansard in relation to this Bill, I noticed that one Conservative Member of Parliament said that it was,
“a Christmas tree of a Bill”.—[Official Report, Commons, 15/10/13; col. 696.]
That makes it very difficult to discuss many of its aspects due to lack of time. Even in the last few minutes of Third Reading in another place, a second Conservative MP said,
“we are yet to have a proper debate on the extradition provisions”.—[Official Report, Commons, 15/10/13; col. 700.]
I think I am right in saying that there never was an opportunity to discuss the extradition provisions, hence the importance of this House debating these matters becomes enormous. A Bill of this sort with 13, 14 or 15 parts, with a very disparate group of subjects to discuss, means that even in this House we shall find it quite difficult to do proper justice to all the matters that should be raised.
I thought that one matter in this Bill was very welcome and indeed fairly bold. Perhaps the Government have their finger on the pulse when they propose that to be a chief of police you do not necessarily have to have been a police constable in the UK. That is a very welcome proposition because many professions over the years have been extremely restrictive in their approach, particularly the legal profession. It took a great deal of effort to get the law changed and to get the desirability of competition accepted across the different parties in this country. It is very useful that the opportunity is being taken to say that, from time to time, it may be desirable for the police to do what the Bank of England has done and choose a boss from another country, provided that he or she fulfils the requirements designated by the police college. I do not suppose there will be many new chief officers of police who have not been a police constable on the beat because that is surely a useful qualification. The difference is that it is only a desirability to be taken into account and is not necessarily required. I was pleased to hear the speech of the noble Lord, Lord Condon, who is not in his place at the moment. As an ex-Metropolitan Police Commissioner, he takes the broad view that I mention.
I was also impressed by the speech of the noble Baroness, Lady O’Loan. She referred to the provisions in the Bill dealing with miscarriages of justice. She made it quite clear—as would everyone in the Chamber make it clear—that it is part of the rule of law in this country that no one can be found guilty of a criminal offence unless it is proved beyond reasonable doubt. She made a good case for saying that that proposition is brought into question if on an occasion when someone seeks to establish a fact after being found guilty of an offence—someone who seeks to establish a miscarriage of justice by reference to new facts and new matters that he or she wishes to bring before a court—there is a clash in the attitudes of the different stages of the procedure. Yet here we have it. The noble Baroness, Lady O’Loan, made it quite clear that under Clause 151 someone can establish a case for a miscarriage of justice to claim compensation only if he or she can show beyond reasonable doubt that he or she is innocent. The clash between that and the normal aspect of the rule of law in establishing guilt was made very clear.
In the case of Adams—which was referred to by the noble and learned Lord, Lord Hope, because he wanted to mention that he was involved in that case—the Supreme Court had such a matter in front of it. The deputy president of the Supreme Court, the noble and learned Baroness, Lady Hale, said:
“A person is only guilty if the state can prove his guilt beyond reasonable doubt”.
She continued:
“He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now”,
“now” meaning in establishing a miscarriage of justice before the Supreme Court. The Government want clarity, but what is the advantage of clarity in relation to what the Government are proposing? Why is that more clear than clarity based on the judgment of the Supreme Court in the case of Adams, to which I have referred?
I want to refer to one other matter—shoplifting. Noble Lords may think that this is an unimportant part of the Bill but I was fascinated to find a clause about shoplifting because in the 1950s, as a young barrister, I used to prosecute accused shoplifters up and down Oxford Street. They came into the magistrates’ courts and normally pleaded guilty but, even if they did not, they certainly did not want a jury trial; they wanted it all over there and then.
I find it difficult to consider where Clause 152 has sprung from. I do not think the word “shoplifting” has ever previously been found in a statute to describe what is involved in shop theft or market stall theft. Nowadays the prosecution is of course conducted under the Theft Act 1968; in my long and distant days it was the Larceny Act 1916. We got rid of the word “larceny”, which is good because it is a technical phrase, and the word “theft” is understood by everyone. To call theft “shoplifting” rather lends credence to the idea that some people have that shoplifting is somehow not as serious as real theft. I see no point in Clause 152 and no sense in distinguishing between the theft of £200-worth of goods and something less than £200-worth of goods. I shall be glad to hear from the Minister whether there is a real case for that particular provision in the Bill.
Lord Redesdale (LD)
My Lords, unlike my noble friend Lord Paddick, who made such an excellent maiden speech, I am a serial offender on the issues that are being raised today. I shall speak on dogs, as I have often before. In fact, I have raised two Private Member’s Bills on dangerous dogs.
I welcome the initiative brought forward by the Government. Like many of the organisations that deal with dogs, I would have liked a Bill specifically focused on dogs and the issues around them. However, I can understand why the Government have taken the course that they have. We are looking at the amendment of 12 different pieces of legislation, which causes problems for those people who try to administer issues around dangerous dogs. It is complicated and involves a number of different issues: the breed of the dog, the type of the dog, the behaviour of the dog, the behaviour of the owner and the circumstances of the incident.
Nevertheless, I welcome this Bill because dogs, like archaeology—another issue that I have raised over many years—always seem to be tagged on to the end of other pieces of legislation. It is good to see that many of the issues are being brought forward. I would very much like the opportunity to discuss the guidance document on dogs with the Minister; the noble Lord, Lord De Mauley, has been most helpful. I understand why it is a complicated document, but it now runs to around 100 pages. That gives the impression that we will have difficulty in understanding what that guidance actually contains, and that is, perhaps, a recipe for slight issues. I hope that a one-page précis can be given out to those who try to enforce it, because a number of agencies will have to administrate it—not just the police but dog wardens and other appointed parties.
I want to raise a number of other issues in the very brief time allotted for these speeches. Considering how many hours I have spent talking about dogs, I think that six minutes is very parsimonious. I know that the Dogs Trust is hoping for dog control notices, and that issue will be discussed. There are also provisions on dogs attacking trespassers on their own property. While I very much welcome and have pushed for provisions on dog attacks on private property to solve some of the problems that we have seen, we need to discuss the defence of owners, which is an important aspect. We forget that there are 8.2 million dogs in this country; most owners are extremely responsible and would be horrified by the idea that they might be labelled as owners of dangerous dogs.
The whole point of any legislation around dogs is that it is the owner who is responsible. The important point is which end of the lead is actually responsible for the behaviour of the dog. A key aspect of the legislation that the Government are bringing forward is to make sure that owners understand their responsibilities. On that basis, I welcome the severe tariffs that are associated with owners who have used dogs as a weapon. There have been several cases, and at least one conviction, where a dog has been used as a murder weapon. That is totally unacceptable. I believe, therefore, that the tariff should reflect the seriousness and the heinous nature of such a crime. Many people who own dogs for intimidation do so because it does not have the same tariff as carrying a knife. We have to take that issue into account.
The other issue is that of protected animals. Under the 2006 Act, protected animals are specified. I am glad to see that frogs are not included because I have a cockapoo who lost a fight recently with a frog—it is a long and complicated story, so I will leave it, given the time of night. However, there is an issue with dogs attacking other dogs. We know from the figures that dogs that have been used to attack other dogs often attack people. The Blue Cross is particularly concerned about making owners aware that it is unacceptable to use their dogs to attack other animals, such as cats. I think that that will cause some controversy.
I give the Minister prior notice that “protected animals” includes farm livestock. This just shows the difficulty of introducing legislation in this area. As a farmer, the Minister knows that there is a severe financial penalty for sheep worrying. Indeed, the NFU gave the figure of £1,500 in some recorded cases. Unfortunately, the offence is handled under the 1956 Act, where the maximum penalty is £10. I very much hope that we can revisit this to make sure that owners are aware of the great burden that can fall on sheep farmers, especially when the income of hill farmers is not at its highest. I declare an interest as the owner of two hill farms, so I know that the income from them is not high.
Baroness Stern (CB)
My Lords, it is a long time since I have been involved in a Home Office Bill about anti-social behaviour. Reading the Bill, I am reminded of how much we have now come to take for granted and accept that, in my view, we should not take for granted or accept.
I refer specifically here to Parts 1 to 6, in so far as they affect those who are under 18—children, teenagers and adolescents. Clause 1 is striking. The Government propose that the full majesty of the law should be invoked and an injunction imposed on a 10 year-old child if that child is engaged or threatens to engage in,
“conduct capable of causing nuisance or annoyance to any person”,
and that it is “just and convenient” to grant the injunction to prevent the child carrying on with the threats to cause nuisance and annoyance. Liberty describes that power as “breathtakingly wide”. I am very grateful to the noble and learned Lord, Lord Hope, for his forensic demolition of those powers, which I am sure that the Minister found very helpful.
If it is just and convenient to impose an injunction, the injunction will stop the 10 year-old from doing anything described in it. Presumably, there are limits to what can be described in the injunction, although I am not sure where they are set down. It may also require the child to do anything described in the injunction. The court deciding on the injunction can also decide that the child can be named in public, which means that the child will be searchable on the internet for life and the record gained aged 10 will always be there.
When the child defaults on any of those obligations—the noble Baroness, Lady Hamwee, helpfully reminded us that 40% are expected to do so—the child will be in more trouble and could have a supervision order imposed, which could include measures such as curfews and electronic monitoring that are normally given by the courts to people convicted of offences. Should the child have reached the age of 14, this “just and convenient” way could lead to some time in detention.
In case the Minister reminds me that I have not noted it, I note that, compared with the previous regime, a child will not have a criminal record when an injunction is imposed. I note that, under the previous regime, custody could be imposed for breach from the age of 12 and the Bill raises that age to 14. I note that the maximum sentence of detention for breach of an injunction is three months under the Bill, compared to the current regime which provides for five years. Those reductions in the draconian nature of the measures do not make them acceptable.
That is not to say that children and young people do not behave very badly. They can cause great misery to vulnerable people. To cite the noble Baroness, Lady Newlove, that is very real. Surely there must be a better way to respond to a very naughty child. Surely there are dedicated professionals working in the field who can find another route than the one set out in the Bill to find the assistance that such children need, to help their hard-pressed parents to fight for access to the child and adolescent mental health services that they know they need but which they cannot get, and the appropriate education services, to make arrangements that are, to cite our international obligations to children,
“in the best interests of the child”.
Can the Minister tell the House if any other country in the world is a signatory to the Convention on the Rights of the Child that has similar legislation in place? Also, can he tell us why the Government produced a substantial analysis of the compatibility of the Children and Families Bill with the Convention on the Rights of the Child, but failed to do so for this Bill?
I briefly mention two other matters. First, I endorse what has been said so effectively by my noble friend Lady O’Loan about the presumption of innocence in Part 12. I also support the remarks of the noble Lord, Lord Dholakia, about devolving the funding for witness and victim services to the police and crime commissioners. This seems to me to be a very worrying step—not as a reflection on police and crime commissioners as such but from a concern about the quality of service for victims. This country’s arrangements for victim support have been a model for the world and many countries have learnt much from us.
My particular concern is about the response to victims of rape and sexual assault. When they responded to my report of 2010 on how rape complainants are dealt with by public authorities, the Government made a very positive statement about services for victims of rape. They said that there must be a coherent approach that victims can rely on and that society has a positive responsibility to help and protect victims, aside from the operation of the criminal law. The Government have achieved a great deal with funding for rape support centres, Rape Crisis and other services. Once these services become subject to locally, politically driven decisions, rape victims will not get a consistent response that they can rely on. Can the Minister tell the House how the Government intend to ensure that these services continue to exist and meet the needs of women and girls, men and boys, who have been raped or sexually assaulted?
Lord Marlesford (Con)
My Lords, I thank and congratulate the Minister on the illuminating tour he took us on of the Christmas tree that this Bill is, shining his torch on the various baubles hanging on it. Some of them were pretty, some less so. Many of us would agree, frankly, that there is much too much legislation. The Home Office plays its part in that. Very often, of course, these are pieces of legislation brought in to correct defects in previous legislation.
I always remember that when I first arrived here in the days of the John Major Government, the Home Office had persuaded the Government to bring in a Bill, which became a law, saying that judges were no longer allowed to take account of previous offences for which people had served a sentence. This astonishing idea actually got through. It did not last very long. Of course, it was removed. Now we have had the devastating dissection of the drafting defects of this Bill from the noble and learned Lord, Lord Hope. We have a Bill that could be argued as having at least 10 separate Bills contained in it. I am not very good at arithmetic, but to be told that we have five hours for Second Reading will mean, it seems to me, not much more than a half hour Second Reading per Bill.
That may have been agreed between the usual channels. I hope that the usual channels will be more realistic when it comes to Committee stage. We must start to scrutinise these Bills carefully and properly. We cannot go on like this. The House of Commons has no hope of doing so, as was pointed out by my noble friend Lord Hodgson, with the combination of the guillotine and a standing committee which is appointed and cannot bring in particular experts. All these subjects in this Bill are much too important to be sloshed through in such a sloppy manner, as is inclined to happen.
I propose to talk a little about Part 1 and to make a suggestion which I hope will help the Government, and which I hope that my noble friend might look kindly upon, regarding anti-social behaviour. I noticed with interest that in the useful publication which we were given, Reform of Anti-Social Behaviour Powers: Draft Guidance for Frontline Professionals—I was rather flattered to be given a copy of that—the first example of this behaviour was littering. It happens that I introduced to your Lordships a Bill on litter, the Littering from Vehicles Bill, which is still with us. It had its Second Reading on 19 July, when 10 Members of your Lordships’ House took part. All supported it, except the Minister. As a matter of interest, I wonder whether littering came into my noble friend’s 2.2 million anti-social behaviour incidents. I do not think that it can have done because you would have to multiply that figure by about 100. At any rate, the Bill clearly covers litter.
I suggest that the main point in my Bill should be incorporated into this Bill. That point was to introduce,
“a civil penalty for littering from vehicles”,
to make,
“the registered keeper of the vehicle”,
from which the litter was thrown the automatic recipient of the penalty. That would be a change in two respects. First, it moves it from being a criminal offence to a civil offence and, secondly, it greatly simplifies something which in the past has proved unworkable. I was therefore rather disappointed to have a very long letter from my noble friend Lord de Mauley, giving me all the reasons which the civil servants had put forward as to why my Bill was not acceptable. Unfortunately, different people had obviously put different reasons and although those reasons were self-contradictory, they appeared in the same letter.
First, the letter says that the change clearly raises questions of proportionality and civil liberties in its suggestion to make littering something where the keeper is responsible, as he is for parking a vehicle. That is apparently seen as an infringement of civil liberties and proportionality, and was therefore regarded as being much too drastic. Then we have a great thing, which I rather agree with, regarding anti-social behaviour,
“which demonstrates a basic disrespect for the community and the local environment”.
There is one other wonderful bit of it. Regarding keeping the charges as criminal, the letter points out that,
“unspent criminal convictions, including those for littering, will also of course show up on any criminal record check carried out by a prospective employer and must be declared when applying for a visa to travel to certain countries”.
I am not sure that littering is necessarily dealt with by such severity.
The example and the lesson in all this is that when you have something that needs doing, you do it as simply as possible and at as low a level as possible. You do not make things criminal when they do not need to be. The system of criminal offences does not actually work—it is a great pity—because the criminal law requires you to know who has thrown the litter from the vehicle, which people are not prepared to own up to. Nothing can therefore be done and there are no convictions. This is an example where, in a very small way, I would add one little bauble to the Christmas tree, which I hope might be well received.
I do not want to go on very long but I must say one word about the police, because this is so serious. I wonder whether the leaders of the police, particularly the Police Federation, realise just what damage is done by the lack of integrity illustrated by some of the recent incidents. It is about not just public confidence but, I suspect, the willingness of juries to convict on police evidence. I am not a lawyer, but there are plenty here who will say whether I am right. I am glad to say that we had an excellent maiden speech from my noble friend Lord Paddick, who clearly also feels that the present arrangements are unsatisfactory.
I was appalled that the Commissioner of the Met should have agreed, let alone proposed, that the Met should itself investigate the plebgate affair. The public will ask, “What hope have I, if the police can stitch up a Cabinet Minister?”. I am a great supporter of the police and crime commissioners, and I hope that they will take on board, as one of their most important duties, the need to do what they can to improve the integrity of police forces.
Lord Judd (Lab)
My Lords, I have found this debate particularly interesting. Some of the speeches will be well worth reading again to ponder more deeply. I include in those the splendid and powerful maiden speech by the noble Lord, Lord Paddick, and the speech by the noble Baroness, Lady Hamwee, which I found very telling.
We have talked a great deal about ASBOs in this debate. When I was in the other place I had an inner-city constituency and I was brought face to face, very rudely, with the realities. Quite a small number of people can certainly make a living hell for people in a community that is already disadvantaged, and where there are frail people, elderly people and frightened people. It is all very well for those of us who live in more affluent areas to talk about this in terms of high policy, but we have to face the realities on the ground.
That is exactly what makes me worried about our approach to such things in terms of containing and managing, as distinct from solving and overcoming. If we are to solve and overcome, we have always to ask why: we have always to ask about the causes of the unacceptable behaviour that confronts us. If we get that wrong, we are likely to aggravate the situation. We shall accentuate alienation and stigmatisation, and drive people into chronic delinquency and quite sinister criminal communities.
What are the causes? What lies behind it? This is not sentimental stuff; this is hard thinking, if I may say so. Of course deprivation, broken and dysfunctional families, domestic brutality and alcoholism are all highly relevant to the situation. Of course we need a matrix approach to tackling it. We need an education system that at all levels, in all parts of society, emphasises social responsibility and citizenship as much as achieving and success. We also need to introduce, in practical ways, a matrix approach, which must engage community workers, social workers, counsellors—and, indeed, local councillors—youth workers and conciliation services. If we do not have that kind of matrix approach, just trying to shove things back by managing the situation with punitive measures will not lead to any kind of worthwhile future at all. The problem is that it is exactly these areas that we see being prioritised for cuts—cutting back at the very time when, if we are really serious about this, we should be enhancing and strengthening the matrix work.
Of course we as a society need to be clear about what is acceptable and what is not; my own conviction is that the law should be clear on that. However, in keeping with my own understanding of justice and its importance to our ethos as a nation, these practical measures—the steps that we have to take as envisaged in the Bill—are there to underpin that ethos. I remember that when I was Defence Minister, a very senior officer said to me once on a visit to an establishment, “Of course the Queen’s regulations are important, but the officer or NCO who walks around with a copy of the Queen’s regulations under his arm is lost”. That underpins the point: it is about ethos, consistency and credibility.
That means that our understanding of what is acceptable behaviour and what is not, and indeed what is anti-social behaviour, has to apply at absolutely every level of society. We should be condemning bankers and financiers who act irresponsibly in terms of anti-social behaviour, as we should anyone at the bottom of the pile. How on earth are we going to have credibility with people at the bottom of the pile unless the same principles clearly apply to those who are at the peak of society, as we like to regard it?
I shall finish with four points that I personally shall be watching carefully as the Bill proceeds. First, we talk about a responsible society, but how can we claim responsibility when it is still the case that when parents or carers go into prison, or into custody on remand, there is not necessarily a proper inquiry about their children—how many they have, who is looking after them and what the plans for them are? How can that be responsible? It is likely to lead to aggravation of the very issues that we claim to be concerned about. We need to look at whether the Bill helps to strengthen our behaviour in that respect.
Secondly, I find myself in agreement with those who say that to talk about “nuisance” or “annoyance” is very subjective. One thinks of children playing tag or football in the street or cycling around in it; one thinks of exuberance in the community playground; one thinks of cooking aromas. To different people, these will be very objectionable and anti-social. We must have clearer language here about what we are really talking about.
Thirdly, we need to look at the consequences of mandatory evictions. If we are just driving people into more insecurity and worse behaviour, and driving children into more disorientation than they have already encountered in their lives, how does that help? We must have a social policy that goes alongside any use of evictions. I am not very happy about evictions anyway, but we cannot just talk about mandatory evictions in certain circumstances.
Fourthly, whether directly or indirectly, if any behaviour or consequence of it is likely to lead a person into the stigma of criminality, we really cannot go on talking about the balance of probabilities; we have to talk about “beyond reasonable doubt”. That has been central to our legal system in the past, and it needs to apply in these situations every bit as much as anywhere else.
Baroness Harris of Richmond (LD)
My Lords, I remind the House of my interests, which involve many years of working with the police service in various roles, and of chairing the police authority in North Yorkshire for a number of years. I will limit my speech to Part 11 of the Bill, which involves policing matters. I too welcome my noble friend Lord Paddick and congratulate him on his excellent maiden speech and I know we will hear much more from him, certainly on police matters.
I want to again bring up the concerns of the Police Federation of Northern Ireland, the PFNI, about the move from a pay negotiating board to a pay review body. First, it was not properly consulted on these matters, and it makes the point that Scotland, which has devolved policing, is not to have this move thrust upon it. It also made the point to me that it is much better able to articulate the views of the rank-and-file officers by way of round-table negotiation as opposed to submitting papers and proposals to people it has never met and who, almost certainly, will not know the complexity and danger that the PSNI, the Police Service of Northern Ireland, face in that Province.
I remind your Lordships that in the context of Northern Ireland, with the ongoing terrorist threat facing police officers there and the volatility of public order incidents, the officers feel they must have the opportunity of articulating their views and concerns about fair pay and conditions of service. I agree with them. In the past 18 months, 689 officers have been injured—something that, if it happened in England or Wales, would be utterly and completely unacceptable. The PFNI simply wants the right to represent its members thoroughly and properly. I hope that the Minister will be able to reassure me that a decision on this matter will be taken at the earliest opportunity.
I would certainly wish to see the National Crime Agency extended to Northern Ireland and I am dismayed that some politicians there are resisting its implementation. What is stopping these people from encouraging the NCA to help clear up organised crime, fuel laundering, smuggling, dealing in prostitution, drug dealing and the like? It is absolutely essential that the PSNI has the services of the NCA to help bring the paramilitary organisations to justice, and enable it to help Northern Ireland to the shared peaceful future it deserves. Those politicians who are resisting this must look to their consciences and make the right decision to support the inclusion of the NCA into Northern Ireland legislation.
Remaining in Northern Ireland, I want to touch on the part of the Bill which deals with miscarriages of justice and which has already been referred to by other noble Lords. Much was said in the other place about this and I will not weary your Lordships with repetition of Hansard in this matter, but Clause 151 would change the law significantly, and put the onus on the individual to prove themselves to be innocent. That cannot be right. Everyone is entitled to due process and legal protection in this country.
I move now to other matters in the Bill. I welcome the work that is going to be done by the College of Policing. However, I am concerned that the membership is not reflective of the importance of the wide-ranging work that it will have to undertake. It is in its infancy and it is to be hoped that there will be fewer ACPO chiefs and former chiefs and it will give way to a more diverse membership. A good start was made with its independent chair, but much more needs to be done if it is to shape the future of the police service. It has a huge job to do with the recent, awful policing revelations and I hope that it will commit to developing a strong code of ethics for police officers, the vast majority of whom give great service to this country and who are now under severe scrutiny because of the abject failure of some of their colleagues. The Home Secretary trialled the idea of a code of ethics back in March when she was speaking about police corruption, and I am advised by ACPO that it is now out for public consultation. Will the Minister ensure it gets the widest possible publicity for a meaningful consultation document?
The Independent Police Complaints Commission, the IPCC, will need really excellent resources if it is to undertake the enormous amount of extra work it is now being asked to do, especially dealing with issues like the tragic case of Fiona Pilkington and her daughter, who committed suicide because the police had not acted on her complaints in spite of her contacting them 33 times over a number of years. It will need excellent officers to get beneath the horror story that is Hillsborough and other dreadful events. Dame Anne Owers is the very best person to chair it, and I wish her well. As we have already heard, we need a truly independent complaints procedure, something I have been calling for in this House for many years, and I can only hope that this Bill will give it to us. I will look at any amendments with interest.
Another issue facing the IPCC is the importance of business licensing for people engaged with the private security industry. When these people work alongside the police, they need to be properly regulated so that inappropriate people—should I say cowboys?—are driven out. Will the Minister assure me that this will be looked at and action taken if it is felt that people working alongside the police are not properly licensed? It is a shame that the Security Industry Authority is no more, and it would be interesting to learn whether unscrupulous people are making inroads into security firms, since there appears to be nothing to stop them doing so now.
Policing is in a pretty awful place at the moment. In my 35 years of taking an interest in these matters, I have never known morale to be so low. Police officers are generally fond of having a good moan, but at the moment that is becoming a cry of despair. They simply do not think anyone is listening to them, and the massive changes they are undergoing are destabilising them. Modernisation is absolutely necessary. They know that and are prepared to countenance a large part of what is proposed, but at the moment they also need to be acknowledged for the good work they do, and they feel as if they are being particularly targeted and used as scapegoats. So the Bill, while welcome in many ways, must take account of those parts which relate solely to policing issues and recognise the concerns I have raised this evening. I hope the Minister will do so.
Lord Brown of Eaton-under-Heywood (Non-Afl)
My Lords, I propose to focus on just one clause in this lengthy Bill. I refer to Clause 151, in Part 13, concerning compensation for miscarriages of justice. Let me make plain at the outset that far from opposing this provision, as a great majority of those who have spoken about it today appear to do, I support it although, as I shall shortly explain, I could accept a slight modification to it, a modest dilution of its effect. Instead of the person seeking compensation having to prove his innocence beyond reasonable doubt—that is the criminal standard of proof for guilt to be established—it may be thought preferable that he need establish innocence only on the balance of probabilities. But I believe that establish his innocence he must, not of course, to have his conviction set aside and to go free, but to secure monetary compensation.
Let me explain why I support the proposal and believe that, contrary to the suggestion of the Joint Committee on Human Rights that this offends against the human rights convention, it is entirely compatible with the presumption of innocence. I should perhaps say at this stage that in the Supreme Court case of Adams, which was decided two or three years ago and has already been mentioned more than once today, I was in the minority of four to five—we sat as a court of nine justices. Clause 151 appears designed, essentially, to give effect to our minority view. I am not concerned here simply to refight old battles, but rather to support a provision which to my mind would not only restore clarity and simplicity in this area but reduce the number of occasions when large sums of money—sometimes they are very large indeed, up to £1 million—would otherwise fall to be paid out to those who, albeit that their criminal convictions have been overturned as unsafe, are nevertheless highly likely in fact to have committed the offences for which they are now seeking compensation.
My concern thus appears to go rather wider than what the Minister, in opening this debate, suggested is the Government’s concern to clarify the law and reduce the number of misconceived claims and the expense of contesting them. I readily acknowledge that there can be few ordeals in life more awful than being wrongfully convicted and imprisoned, sometimes for years, for a crime which one has not committed. At first blush, one’s instinct is to say that anyone in that position ought without more ado to be entitled to compensation for his ordeal and that that should be so in all cases in which the initial conviction is overturned. That is, however, very far from the position, and I think that nobody is suggesting that that should be the position. Certainly it is not necessary, as the underlying section here, the compensation section in the Criminal Justice Act 1988, seeks to do, to give effect to our international obligations under the International Covenant on Civil and Political Rights.
On the contrary, it must be recognised that the whole compensation scheme applies only to a narrow and exceptional group of cases in which convictions are quashed. There is no right to compensation unless the appeal was brought out of time. Sometimes that is a matter of chance—for example, if a lawyer has missed the time limit. No right to compensation arises unless the appeal succeeds on the ground of a new or newly discovered fact, for the previous nondisclosure of which the appellant is in no way responsible. No right to compensation exists unless the new fact shows beyond reasonable doubt that there has been a miscarriage of justice. As the international covenant provides, the claimant has to show conclusively that there has been a miscarriage of justice.
No one suggests that all those whose convictions are overturned on a late appeal because of new facts have by definition suffered a miscarriage of justice— far from it. As stated in the Explanatory Notes to this Bill, what this new clause does is to restore the position generally thought to have been established some while back whereby the claimant had to show that he was clearly innocent. Classically that would be the case where, for example, new DNA techniques showed that he could not have been guilty or where, as sometimes happens, another person eventually admits or is proved to have committed the crime in question.
In the Adams case, five members of the court, however, decided that the case would also qualify as a miscarriage of justice where the new fact,
“so undermines the evidence against the defendant that no conviction could possibly be based upon it”.
This test was later redefined in the Divisional Court as:
“Has the claimant established, beyond reasonable doubt, that no reasonable jury properly directed as to the law could convict on the evidence now to be considered?”.
The fact that the majority’s test in Adams needed later clarification and redefinition is perhaps an answer to the question posed by the noble Lord, Lord Borrie, as to why any further clarity is required.
The problem with the test, even as reformulated, is that all too easily it can require compensation to be paid to those in fact guilty of the offence. I will illustrate this by reference to a case called Maxwell which we had in the Supreme Court in a rather different context. Two brothers had been jointly convicted of two robberies and a murder. They had been targeting a number of elderly, vulnerable victims. The conviction was largely based on the evidence of a supergrass although it was generally supported by a jigsaw of other evidence. Some 12 years later their convictions, everybody agreed, had to be set aside because it became apparent that the police, behaving disgracefully, had secured the supergrass’s continuing co-operation in the prosecution by conferring on him a whole raft of benefits, including taking him to a local brothel.
As it happened, one of the brothers had, in the years after his conviction, admitted in a series of interviews that they had been guilty, probably in the hope that his case for parole would be improved. On the basis of those confessions, in his particular case a retrial was ordered at which he eventually pleaded guilty, but no such order for retrial could be made in the case of the brother who had remained silent, and he simply went free. However, under the test laid down by the majority in Adams, and since reformulated, I can see no answer to a compensation claim by that silent but surely guilty brother.
As to the Joint Committee’s suggestion that the proposed new test is, on its face, incompatible with the convention, I respectfully disagree. There is no time to discuss this in depth, but having read and reread the case of a recent Strasbourg decision on which that opinion was based, I simply disagree. On the Joint Committee’s approach, the lesser test also would offend the convention. The committee’s view really proves too much. Logically the only approach that would be compatible with the presumption of innocence on that approach would be to compensate everybody whose convictions are quashed on a late appeal because of new facts, and, plainly, Strasbourg does not require that.
On whatever test is applied, some people—who I accept are truly innocent—will go uncompensated. As to the possible modification of the clause to require proof of innocence only on the balance of probabilities, I doubt whether that would be likely to affect the outcome of many cases. Logically, the test proposed of “beyond reasonable doubt” is a better implementation of the convention requirement to show the miscarriage conclusively, although cosmetically it may be preferable.
Finally, it is true, as the Joint Committee noted, that comparatively small savings will be achieved by imposing this new test. However, the principle of the thing concerns me. It is, quite simply, wrong to have a test by which the taxpayer must compensate those whom the Secretary of State reasonably believes are, after all, probably guilty. To free those whose conviction is judged unsafe is one thing, but to compensate them is quite another.
Baroness Kennedy of The Shaws (Lab)
My Lords, the Bill sailed through the other place without much fuss, but I am glad to see that there has been a bit of fuss here with regard to some of the changes advocated. I, too, welcome the noble Lord, Lord Paddick, to this House and congratulate him on his speech. I hope that in future he will not be as restrained as he has been today and that he will join us in examining the Bill with great care, and possibly even criticism.
I have always had very deep reservations about the ASBO because there are plenty of laws and by-laws that deal with real anti-social behaviour: criminal damage charges, breach of the peace, vandalism, drunk and disorderly, insulting words and behaviour—there are lists of crimes that can deal with the sort of behaviour we are talking about. I have always felt that it was a measure introduced to compensate for inadequate policing, and that good community policing should deal with anti-social behaviour under existing law. However, politicians always want to reach for new ways of restricting liberty. There was a particular temptation, encouraged by the police, that the lowering of the standards of proof would be a good way forward. We created a hybrid in law, a legal development that should have caused us much greater concern.
However, I have real unease about its replacement. Some aspects of it may seem to be an improvement but there is a real problem when you have something that is so ill-defined. At least with the ASBO as created by Labour the law required you to have caused or been likely to cause harassment, alarm or distress, whereas this new law says that you just need to be capable of causing nuisance or annoyance. This House is full of people capable of causing nuisance or annoyance, and long may it be so.
I am therefore very concerned about this new invention, and I am not sure that it is a very real improvement. What is even worse is that the test will be that the police think that the injunction is just and convenient, and that it will be on the balance of probabilities whether a person might be a nuisance or not. The conception of the provision is flawed and I hope that we will test it hard in this House.
I wish to respond to the noble and learned Lord, Lord Brown, who gave some credence to the idea in Clause 151, which I think is totally disreputable and contrary to the high standards that we should be proud of in our common law. The noble Baroness, Lady O’Loan, described it well. Quietly and in measured tones she made a powerful speech about the real problems with this clause. I acted in the Guildford Four appeal. I had colleagues who acted in the case of the Birmingham Six. I chaired an inquiry into the sudden infant death cases involving young mothers convicted of killing their babies and who were ultimately acquitted after it was clear that there had been miscarriages of justice. I acted for a woman who was convicted and spent 11 years in prison for causing the death by arson of two people, and it became clear that she was totally innocent. There was something I always remember about acting in those cases. After the Irish miscarriages of justice—those mentioned by the noble Baroness, Lady O’Loan: the Maguires, the Birmingham Six and so on—the senior judiciary ran around the Inns of Court insisting that the defendants were probably all really guilty, despite the fact that they had had the hell beaten out of them by the police. Lord Denning disgraced himself by suggesting that it was a vista that was too terrible to imagine that the arm of the state might have behaved in such bad ways. Members of the judiciary found it very hard because they had been in their own way at fault due to the ways in which they had allowed those miscarriages of justice to take place.
Miscarriages of justice are something terrible in our system. Happily they happen rarely but when they do they are a source of shame. When people seek compensation it does not matter whether we think that they may in fact be guilty. The point of compensation is to remind the state of its responsibility to hold those who act for it to the highest standards. That is the purpose of taking compensation out of the state’s coffers—to make sure that we do not let it happen too easily. That is why we, constitutionally here in this House, have to maintain very high standards when it comes to the whole issue of criminal justice. I therefore remind the noble and learned Lord, Lord Brown, that there are good reasons in place for saying that when someone is acquitted ultimately after it has been shown there has been a miscarriage of justice, particularly because of police bad behaviour, it is right that that person should be compensated because the state has to hang its head in shame. That is the purpose of compensation.
I move on to Schedule 7 of the Terrorism Act, which is also dealt with in the Bill. It introduces a number of other factors. Many of the changes are designed to rein in the powers available to police officers and other authorities. That is a good thing. However, what remains is the exceptionally broad discretion that allows for individuals to be stopped for no good reason. That should be a cause of concern to us as civil libertarians. In our legal system the norm is that the police should stop and search people only when there is a reasonable suspicion that they have committed a crime or might be about to do so. Under this proposed law, people can be stopped whether or not any grounds exist for suspecting that they may have been involved in terrorist activity. There does not even need to be a suspicion. It is almost as though everyone becomes a suspect and so you are stopped in order to rule yourself out. It is rather like that business of having to show that you are really innocent. I ask the Minister why this extraordinary power is deemed justifiable. Of course we are seeking to deal with terrorism, and that is an important and challenging problem for our society, but maintaining high standards in the law is one of the best ways of countering the insult and assault made by terrorism. This is a break from the common-law principle and is not just about an abuse of human rights.
The powers will continue to allow the seizure, copying and retention of significant personal data when personal electronic devices such as smart phones are seized without justification. Phones and computers can be completely cloned by the authorities without any reason being forthcoming at all; it can simply be random. We should be concerned about that. These powers were brought into particular disrepute because of the detention recently of David Miranda, the partner of the Guardian journalist responsible for many of the Snowden articles about the surveillance activities of agencies of the state.
The Government have reduced the length of time that a person can be detained at an airport for questioning from nine to six hours and I welcome that reduction. However, I encourage the Government to think harder and to consider reducing it possibly to three hours—a more reasonable period of detention at an airport.
The operation of Schedule 7 has been a consistent cause for concern for many and the subject of real concern for the Equality and Human Rights Commission, because the use of these powers has serious implications for equality and human rights and because it is having particular impact on people from ethnic minorities. The effect of that discrimination really does not help us to gather intelligence and deal with the threat of terrorism.
There are many things in this Bill that I think should be a cause of concern to this House. It is about lowering standards where standards in fact should be maintained, because that is what makes our legal system—and this country—great.
Baroness Linklater of Butterstone (LD)
My Lords, I add my congratulations and welcome to my new friend on these Benches, my noble friend Lord Paddick. It is always a pleasure to follow my dear friend, the noble Baroness, Lady Kennedy of The Shaws. I am afraid that I will repeat some of what has already been said by others this evening.
This is a large and wide-ranging Bill that, like the curate’s egg, is good in parts but also raises considerable grounds for concern. I intend to confine my few remarks to the anti-social and criminal behaviour orders, in particular as they relate to young people and children. I had a quick look at the Anti-Social Behaviour Bill of 2003 and found that the same issues persisted and concerned us then as now. Indeed, I was momentarily tempted just to lift my speech from that occasion as it would have fitted now. If we really are going to make the right changes to improve the situation, we must look at what is relevant and proportionate to the needs of both victims and offenders.
There are elements in the Bill that are interesting and to be welcomed. The notion of the community remedy, where each local policing body will be required to draw up a document with a list of appropriate actions that might, in its opinion, assist in a person’s rehabilitation and make reparation as well as punish, is interesting. Its aim will be to promote public confidence and it will be carried out in consultation with appropriate community representatives and others, which is an excellent way of bringing communities together in addressing essentially local problems in a restorative and reparative way. This is a proposal to be applauded.
The plan to simplify the current range of orders also must be a good thing, particularly the use of positive requirements to make them more effective, which is always more likely to be the case than with negative ones. There are currently no less than 19 powers to deal with anti-social behaviour, of which the ASBO is but one. These are being rationalised to six, of which the injunction to prevent nuisance and annoyance, the IPNA, and the criminal behaviour order are the ones most prominently under consideration.
The roots of anti-social behaviour inevitably are established in early life. You just do not have happy, thriving, well adjusted, achieving young people from supportive families persistently out on the streets at night, causing havoc through anti-social behaviour. Instead, these are likely to be people with a complex range of significant needs. Theirs is behaviour which can be deeply unpleasant, often very unnerving, frightening and dangerous for those in whose communities it is prevalent. It is a real scourge. It also reflects social and emotional alienation, where they neither give nor get any respect, and they require an integrated response not only from the police but from a range of agencies, services and communities working together. This is in part, as I understand it, what the community remedy seems to be suggesting and it offers a very constructive way forward, particularly in its restorative implications, which I welcome.
However, the crux of the Bill revolves around the new definition of anti-social behaviour. Hitherto, it has been defined as that which is likely to cause “harassment, alarm or distress”. That is pretty clear and it has formed the basis of an order. It is now, as we have heard from several speakers, to be replaced by a new injunction, addressing instead,
“conduct capable of causing nuisance or annoyance to any person”—
just “capable”. This IPNA, an injunction to prevent nuisance and annoyance, clearly has a far wider, open-ended definition, which, as the Home Affairs Select Committee has stated,
“is far too broad and could be applied even if there were no actual nuisance or annoyance whatsoever”.
The Joint Committee on Human Rights states:
“We consider that ‘conduct capable of causing nuisance or annoyance to any person’ is not sufficiently precise to satisfy the requirement of legal certainty required by both human rights law and the common law. We recommend that the Bill be amended to make the test for anti-social behaviour more precise”.
That is pretty clear. The Association of Chief Police Officers and several PCCs are on record as saying that the new definition risks being “too subjective” and that it could “unnecessarily criminalise” children.
Those are observations and recommendations that the Government must take very seriously if their stated aim of taking a more constructive approach to anti-social behaviour with more positive outcomes for young people who get caught up in this way is indeed to be realised. These young people need all the guidance they can get, but the widening of the definition through an IPNA inevitably opens the door to still more children being scooped up and caught up in what could, potentially, become criminal activity created by these new designations. Difficult, vulnerable children and their families need help, but a route via injunctions and the subsequent criminalising of children is only damaging. However keen the authorities are to take positive remedial action through a range of possible positive or negative requirements, which are not clearly specified, inevitably more children will be drawn into the world of injunctions, courts and possible breach. Seven out of 10 children currently breach their injunctions, and the longer the order, the more likely breach becomes.
Imprisonment remains available as a sanction for breach by children from the age of 14 upwards, as well as adults, and indeed currently 38% of children who breach an ASBO are imprisoned. It is a given in the criminal justice world that the imprisonment of children should be reserved for the most dangerous, difficult young people committing the most serious offences. It is monstrous that they should be tagged on to these kinds of orders. The YJB is a model in this respect in promoting alternatives to custody. It is disproportionate therefore that imprisonment should be considered at all for a child who breaches a CBO, possibly for up to two years, an IPNA, or a new dispersal order, perhaps for up to three months. The Joint Committee on Human Rights finds that this is not in accordance with the UNCRC requirements, and I sincerely hope that this is something on which the Minister can give me some assurance, as it gives cause for grave concern.
If we are to succeed in reducing and stopping this kind of problem, the measures must be relevant, appropriate and proportionate. We need safe streets and safe children. Once children have been criminalised, their future—and ours as a society—is damaged. The high breach rates and subsequent incarceration of children indicate that much needs to change if we really are to meet properly the needs of people in law-abiding communities on the one hand and this group of very difficult children on the other. I urge the Government to have a good look at this once again.
The Earl of Lytton (CB)
My Lords, speaking so late in the batting order enables me to cross out a large number of things that I would otherwise have said, which will be to the benefit of your Lordships.
I acknowledge that the Bill, so eloquently introduced by the Minister, contains many good and useful measures. As he knows, I am something of a crime statistic sceptic. I shall not dwell on that, although he introduced that point in his introduction to the Bill. Suffice to say that at least the matter is now being looked at by the Public Administration Select Committee, and it is fair to leave matters there for the time being.
Some of the proposals I particularly welcome—on the trade in illegal firearms, the question of sexual harm and violence, and forced marriage are commendable. I will not touch on extradition—that is well above my pay grade—and I shall steer clear of dogs for the time being. I acknowledge the issue and tragedy of appalling behaviour that blights lives and, in terms of my profession, affects property values and utility. It distresses people and persecutes them. More particularly, from the point of view of public resource, it causes disproportionate costs to social landlords, the police and others, and is a burden on the public purse. We have to deal with it, but the question is whether the means are proportionate. Bypassing the legal safeguards, as appears to be apparent in Part 1 of the Bill, is rarely the appropriate way forward. That has been mentioned by many other noble Lords.
As I say, I come to this from a property angle. I am often involved in neighbour disputes. One thing to realise is that it has nothing to do with the property; it has to do with lifestyle, dogs, noisy children, music, and maybe with race or colour, and things like that. These are the things that feed into some of the loose legislation that we already have, and in that context I think of the Protection from Harassment Act. I was recently sent some correspondence highlighting just how variable the approach to enforcing that Act is. Indeed, the test for what constitutes harassment is so loose and undemanding of proof that it almost seems to be a fibbers’ charter. That probably explains why it is so often the case that with the benefit of hindsight the person claiming to be harassed turns out to be the primary perpetrator. I cannot tell noble Lords the number of occasions when I have felt that that was the situation, so definitions are vital.
In this Bill we risk falling into the same trap. I acknowledge the huge problems caused by anti-social activity but we have to have plausible, possible and legally proper procedures. I am not a lawyer so all my information on this is totally second hand. The Bill has the potential to make a difficult situation worse. It has the novel invention of making what used to be, or certainly as I understood it, the last resort equitable civil remedy of an injunction the first resort coercive measure or tool of behavioural compliance, if you please. Forgetting for one moment the legal test for something that is also tied in with criminal sanctions ultimately and with criminal activities, under this Bill one has to consider the lower civil standard of legal proof. Putting to one side the legal practicality, precedent and social propriety of attaching an injunction to a minor, Part 1 of this Bill promises to do something that it cannot in practice achieve. I would have much preferred to see some alteration to the ASBO regime. If ASBOs are considered to be substantially inoperative, why should anyone imagine that what we have here will cut any more mustard with the typical offender? That escapes me.
Under this Bill an injunction can be obtained with no cross undertaking on costs or for damages, losing the greatest single safeguard against abuse. I wonder why we should suddenly make this a free bet for the enforcer against the person accused—accused, I might add, on some of the flimsiest evidence you could possibly come across. It will generate numerous appeals and be a burden on public expenditure.
Part 2 continues with this approach. Even those found guilty by the courts are entitled to fair dealings and due process. So how does a fair and objective assessment on what has,
“caused or was likely to cause harassment, alarm or distress”,
operate and what is the convicted person to deduce from the application of such an open-ended and loose definition? That society is going to treat him fairly? Hardly. Or that he should mend his ways? Maybe. The right reverend Prelate the Bishop of Lichfield touched on this point. I can recommend a solution: introduce proper triggers, tests and defences into this Bill, identifying the nature of the act based on fact and not hearsay, supposition or mere irrational fear and let us not try to muddle up the criminal and the civil evidential test.
I now turn to Part 3. Clause 32(2) seems equally lacking in substance on its trigger provision. The bottom line is that an officer needs only to be satisfied on reasonable grounds that there is likelihood of someone being alarmed or distressed. No wonder all sorts of fair-minded and sober types such as the Open Spaces Society and, dare I say it, the naturists, have been on to me, concerned that it might be used against them. In fact, it could be used against a wide variety of people engaged in quite straightforward activities. Part 4 is no better. It rests on a concept of undefined detrimental effect. The process seems to be based on strict liability and the authority implementing it seems to have complete non-recourse powers.
I will touch on Part 11 briefly. This is nearly my final point. In March I raised matters to do with crime figures, policing and the concept of police accountability. That is the pivotal point. It seems to be the nub of what has happened since, what has been through the press and what we have heard about evidence before the Home Affairs Select Committee and so on. That cannot go unuttered in the context of this Bill. Accountability rests on several key principles. First, there will be a completely independent referral body over which there is no police influence. The noble Baroness, Lady Doocey, mentioned aspects of that. Secondly, there will be a power to recommend and insist on adoption of recommendations. Thirdly, when there has been a failure, even without criminality or malfeasance—which are actionable anyway—there will be consequences and sanctions so that the public have confidence in what is being done in their name. At the moment, none of the checks and balances we have match that template.
As I see it, the current regime is weak, although to be fair to the Minister, it is a great deal better than it was three years ago and I acknowledge some of the great strides that have been taken and the courage with which they have been pursued. However, we cannot be at all complacent.
My final point is a question. Two weekends ago, one of the Sunday papers put forward the suggestion that many civil actions taken against the police for poor performance or injustice of one sort or another have been settled out of court with the details never divulged. Of course this cuts both ways: is it people taking a free-bet pop at the police or are the police at fault? We do not really know. I am sure some of them must be worked on a no-win, no-fee legal principle. Can the Minister inform the House, or perhaps write to me, of what the numbers are by category in the period since May 2010, and whether he has any view, or can obtain any figures, on what the cost is to the public purse? As I say, the police should not be subject to free pot-shots, but also the citizenry need to know where they stand. It is important that transparency informs what we do and what we debate in this House.
Baroness Berridge (Con)
My Lords, there are many principles in this Bill of many parts but I shall mention briefly the IPNAs, forced marriage, the IPCC and miscarriages of justice.
I have the privilege of serving on the Joint Committee on Human Rights and I am pleased to hear that our recent report on the Bill is being relied upon in your Lordships’ House and, with one notable exception, being agreed with. However, it is important to remember the context outlined in that report at paragraph 11:
“Preventative measures against anti-social behaviour are in principle a welcome fulfilment of the positive obligation on the state to protect people against having their rights interfered with by others.
An Englishman’s home is his castle and many of us take for granted that yesterday’s storm was an unusual intrusion on a quiet night’s sleep. One only has to glance at the fly-on-the-wall TV programmes filmed in some of our neighbourhoods to realise the need for legislation in this area that is easily enforceable. It is sad that the law is being used not only to protect you from your criminal neighbour but to try to make your neighbour be a considerate one.
I found it most illuminating to speak to lawyers who practise in this area. This brought home to me not only the type of behaviour that has been outlined in your Lordships’ House but the lengths to which witnesses have to go to provide appropriate evidence for the current ASBO and ASBI regimes. Usually it involves months of diary-keeping, spending time every evening detailing the day’s events, recording the exact time of the spitting through the letterbox, for how long the music was blaring, which other people witnessed the dog defecating for the umpteenth time on your front doorstep, and who else can confirm that the cannabis smoke that was wafting into your children’s bedroom was indeed cannabis. However, sometimes the threshold of tolerance apparently just grows so that none of the above registers on the Richter scale of annoyance any more. Often the diary ends abruptly. When asked in court why that is so, sometimes the answer is, “Someone in the family got cancer so there were other things to focus on”.
Many months, of course, often elapse between the behaviour starting, the behaviour becoming persistent, the complaint being made to the authorities, the decision being made by the authorities to take action, the evidence being gathered, proceedings being issued and a directions hearing being heard at court. There is already a huge ask of witnesses who, of course, are telling all this while living in the neighbourhood when this behaviour is still going on. So I welcome the streamlining of the powers, the increasing number of agencies that can apply and the attachment of a power of arrest.
It is also welcome that the breaching of an injunction to prevent nuisance and annoyance will not be a criminal matter. Many children go through phases when they are a nuisance to a neighbour—they knock and run a bit too often, are too loud and maybe for a while they are just caught up in the wrong crowd—but it will now not mean a criminal record. However, I, too, see that some form of reasonableness needs to be added to the test outlined in Clause 1, as recommended in the Joint Committee on Human Rights report.
I would be grateful if my noble friend, before Committee, could clarify Clause 1(5)(a) in relation to the effect of injunctions and the right to hold religious beliefs, which is an absolute right. It is only the manifestation of one’s religion that can be subject to limitation by law as necessary in a democratic society, not the holding of the beliefs per se, as Clause 1(5) currently states.
As I have read the statute, it does not deal with a situation where offences are committed by groups of offenders. Sometimes some of the offenders are over and some under the age of 18, and they need to be tried in one set of proceedings. This should be a simple change. It would be an undue burden on the witnesses I have mentioned to have to attend court twice. I believe a simple amendment has been put forward by the Law Society.
On forced marriage, there has been much debate as to whether to criminalise this matter and I support the Government’s decision to do so. That sends important messages about the basic role of consent in marriage and sexual relationships, of the right of the individual to choose and, conversely, of the appropriate place for cultural, community, family and religious views.
In the ITV programme “Exposure”, I found the comments of the Chief Crown Prosecutor in the north-west, Mr Nazir Afzal, illuminating. The reported cases of forced marriages involved Sikhs, Hindus, Jews, Christians and Travellers, as well as reflecting the appropriate proportion of Muslims. Mr Afzal’s labels are all communities, so criminalisation could assist individuals in those communities to defy the leaders or families and assert their own wishes—in fact, their own human rights. Sadly, however, this legislation recognises an anomaly in Clause 108(3). For the purpose of the criminal offence of forced marriage, it does not matter whether the marriage is a religious ceremony that is not a legally recognised marriage under UK law. As I understand the legislation, someone can be forced into a marriage, which would be a criminal offence, and the spouse who forced them into the marriage would be imprisoned. However, if it was merely a religious ceremony, then the woman—it is usually the woman—has none of the protection of the division of family assets available in our divorce courts. Will she suddenly be entitled to be given the family assets under the Proceeds of Crime Act? Will Her Majesty’s Government please take this opportunity to look at the religious marriages that are not legally binding in UK law that are misleading women, and perhaps look at putting responsibility on the religious leaders who conduct such ceremonies?
With regard to the IPCC, I welcome the fact that the Government are enacting some of the recommendations from the Home Affairs Select Committee. However, the Select Committee also said,
“it is vital to have a body that is truly independent and competent”.
I have to wonder how this is achieved with the proposed transfer of resources from the police forces’ own professional standards departments—the same departments of which it was said by the Select Committee:
“It is unacceptable that Police Standards Departments had made the wrong decision in 38% of appeals”.
Will this really enhance the IPCC’s reputation of independence from the police it investigates, or the credibility of those investigations?
Finally, will Her Majesty’s Government please consider the Select Committee’s recommendation to change the name of the IPCC to the Independent Policing Standards Authority? This would reflect its broader functions—over, for instance, Her Majesty’s Revenue and Customs. It would also serve another purpose. Last week, during the latest plebgate episode, the following actors were on the media stage: three police officers from something called the Police Fed, three chief constables, a Home Secretary, a Prime Minister, a PCC and an IPCC. The accidental similarity of the acronyms of the latter two bodies may also be fudging in the public mind the different roles that they perform. I had to listen very carefully to the news coverage to work out which body they were actually referring to.
Whether one agrees with Blackstone’s formulation,
“It is better that ten guilty persons escape than that one innocent suffer”,
there has always been great protection for the innocent in common law by the presumption of such innocence. When a miscarriage of justice is proved, I am very proud of our history of paying compensation in appropriate cases. I am also proud that our law in this area has recently been upheld by the European Court on Human Rights in the case of Allen v the United Kingdom. The changes outlined in Clause 151 of the Bill are not, apparently, to save money but to make the system more certain for applicants and simplify the case law to apply. However, as your Lordships have seen, there is significant disagreement about whether Clause 151 reintroduces the old case law of having to prove clear innocence to receive compensation. I speak as a lawyer, but to avoid the Committee on this Bill being blinded by the case law, I hope that the Minister will convene a meeting so that Members can hear the arguments of the Home Office, the Joint Committee on Human Rights and of any other interested Members of your Lordships’ House. On a practical note, as our law has already been all the way to Strasbourg, the Government may inadvertently be starting that journey again by changing it—even if the intent is to simplify that law.
Many of these matters will come back to your Lordships’ House in Committee. I am concerned to have the best evidence to present at that stage. If time allowed I would make submissions on Schedule 7 to this Bill. I hope that my noble friend the Minister will assist me and any Members of your Lordships’ House as I have made a request, which the parliamentary police service scheme is seeking to fulfil, to go and see Schedule 7 in action at our ports and airports. It is unusual that they have the power to stop people without reasonable suspicion. I hope that my noble friend can assist in that matter.
Lord Touhig (Lab)
My Lords, I join other noble Lords in welcoming the noble Lord, Lord Paddick, to the House. I found his contribution amusing, interesting and informative and echo the hope of my noble friend Lady Kennedy of The Shaws that he will become a critical scrutiniser of the legislation that the Government put before your Lordships’ House.
When a person is remanded in custody or sent to prison, there is no requirement for courts to identify children or dependent adults who an individual in those circumstances may leave behind. Nor is there an obligation to consider what arrangements, if any, have been made for their care—a point made by my noble friend Lord Judd.
Through the Bill, we have the opportunity to rectify that failure and help to protect those who are often put in extremely vulnerable positions when their parent or carer is sent to prison. The Families Left Behind campaign, which is supported by Action for Prisoners’ Families, the Prisoner Advice and Care Trust and the NSPCC, wants that changed, and I believe that it is right. There should be a duty on courts to ask about dependants and caring arrangements at the point that a custodial sentence is passed or bail refused. The courts can then make a referral to the relevant local authority if a child or vulnerable adult appears to be left at risk. That is a sensible measure that will identify and assist those without immediate care before they reach crisis point, and I hope that it will receive support from all sides of the House.
The scale of this issue is far from negligible. An estimated 200,000 children in England and Wales experience the imprisonment of a parent every year. Although many will have appropriate arrangements in place, the consequences for those who do not may be disastrous. The charities supporting this campaign are only too familiar with the plight of children left in the care of people who are unprepared, unwilling or unable to provide the support that they need.
One example is that of Yvonne. When she was sent to prison, her seven year-old son was left with her friends. It gradually transpired that he was not being properly cared for and was regularly left alone in their house at night while they went out to parties. They also prevented him visiting or phoning his mother. The immense anxiety experienced by both mother and child is an outrageously unjust punishment caused simply by a small and easily remedied oversight in existing legislation. Ultimately, after more than nine months, Yvonne’s son was taken into care, but throughout that nine-month period he was consistently neglected and isolated from his mother.
That is just one distressing example of an entirely needless situation that currently exists. In some cases, children have been left alone or passed to other adults without the parent’s knowledge, and it has taken hours or even days to establish their whereabouts. On Brenda’s first night in custody she was not even aware of her child's whereabouts. Her support worker had to contact four different local authorities before eventually discovering that her daughter had been hospitalised. That is a horrific situation for any parent to be in, compounded by the trauma of imprisonment. Similarly, older or disabled people are put at risk under the current system.
There is no official estimate of how many offenders provide care to a friend or family member prior to their imprisonment, but the figure could realistically run into the thousands, considering that the current prison population stands at about 84,000 and approximately one in eight of Britain’s adult population has caring responsibilities.
When a carer does not return from court, even a short interruption to the support that they normally provide can have a significant impact. That is especially so when it involves help with medication or preparing meals. Identifying caring responsibilities at the point when bail is refused or a custodial sentence is passed should therefore be of the utmost importance.
Beyond the very clear moral case, there is also a strong economic argument for early intervention if people are left in a precarious situation when their parent or carer is sent to prison. If a child’s safety is put at risk, necessitating police involvement, or if a vulnerable adult is left without care and their health deteriorates as a result, the cost invariably falls upon the public purse. Yet many such situations could realistically be averted by requiring courts to make a straightforward inquiry about dependants and an appropriate referral if necessary. Early intervention is always best for those concerned and invariably the most cost-efficient measure. It would not require any new or extra services; it would simply help to ensure that those needing support are recognised at the earliest opportunity and signposted towards the assistance that they are entitled to.
It is a key principle of our criminal justice system that innocent people are not punished for the actions of others. In another case brought to my attention, that of a woman named Hope, I discovered just how the current gap in legislation sees entirely innocent people punished for others’ misdemeanours. On Hope’s imprisonment the burden of care for her six children fell on the shoulders of her 19 year-old son. The burdens unfairly placed on this young man meant that he struggled to access services to which the family were entitled, and eventually an acquaintance started demanding money from him. Regardless of the circumstances surrounding an offender’s imprisonment, we should take every step possible to mitigate the impact on their dependants and never leave anyone without a decent standard of care.
Of course, I do not expect an immediate response from the Minister today but I invite the Government to examine the merits of this argument and perhaps bring forward amendments in Committee to guarantee that in these situations children, older people and those with disabilities receive the support they need and deserve.
Lord Hussain (LD)
My Lords, I first congratulate my noble friend Lord Paddick on an excellent maiden speech. I look forward to working with him in the future.
This Bill covers a range of issues which I am sure will be covered in full elsewhere. I intend to focus my comments on the Bill’s provisions on forced marriage. Forced marriages in the UK came to light in the past 15 to 20 years. The full scale of the problem is still not known, as only cases of challenged forced marriages become public knowledge. However, forced marriages must not be confused with arranged marriages, which are quite common in some of the minority communities of the United Kingdom and have a very high success rate. I must declare an interest as someone who has enjoyed an arranged marriage for the past 35 years.
Forced marriages are not limited to any one community or any one particular faith. However, most cases registered with the Home Office Forced Marriage Unit are from the Pakistani Muslim community. Forced marriage is not permitted under any faith and the Islamic guidelines are very clear that the marriage is valid only with the consent of both people involved.
To look for solutions to bring an end to this terrible practice that ruins the lives of many young people—most of the victims are known to be young—we need to look at the background and the culture of these communities. We need to look carefully at whether, by declaring those involved in forcing others into a marriage against their will to be criminals, we are going to help resolve the issue or are going to push it more under the carpet. I welcome the fact that the Government are taking this issue as seriously as it should be taken, and I understand why they have come to the conclusion that forced marriage should be criminalised. However, my opinion is that many victims would not want to see their parents, who are normally the main culprits in forced marriages, behind bars. Thus, many cases may not get reported and the proposals in the Bill may have an adverse effect and be counterproductive.
Instead, I argue for more awareness among the potential victims and the schools, colleges and family doctors. Particular emphasis should be given to educating the parents. Most of the victims of Pakistani-origin families are forced to marry either one of their first cousins or a close relative. The medical evidence shows that this may lead to adverse effects. A study done by the University of Bradford concluded that:
“Marriage to a blood relative accounted for nearly a third”—
31%, to be precise—
“of all birth defects in babies of Pakistani origin”.
It was also reported that:
“The risk of having a baby with birth defects—usually heart or nervous system problems which can sometimes be fatal—is still small, but it rises from 3% in the general Pakistani population to 6% among those married to blood relatives”.
I strongly welcome the Government’s drive to reduce prisoner numbers by seeking alternatives that help prevent behaviour which we may consider wrong or dangerous. We should apply a similar approach to the issue of forced marriages. We must look into the awareness and education aspect, rather than creating another category of criminals.
Educating people about the rights of individuals, freedom of choice and mutual respect, along with sharing the findings of medical research, may be more helpful and productive than sending more people to prison. I look forward to discussing these issues further during Committee and I hope that the Minister will reflect on some of the concerns raised about whether criminalisation is the right tool to tackle what we all agree is a problem.
Lord Dear (CB)
My Lords, in addressing this omnibus, complex, 200-page Bill, I am conscious that it seeks to shine a very bright light indeed on anti-social behaviour. We have heard a lot about that in your Lordships’ Chamber today. It is behaviour that, at its worst, can cause an absolute blight on society and on the individuals caught up in that action. I think that the words of the noble Baroness, Lady Newlove, moved us all when she explained just how, in extremis, that can affect individuals.
I had thought—and I think that the noble Lord, Lord Ponsonby of Shulbrede, shares my view—that there was some evidence that the existing law, held in the Crime and Disorder Act 1998, was beginning to work with regard to anti-social behaviour orders. I have a couple of questions, not for the Minister to answer today but to hang in the air as we go through to the Bill’s later stages. Are there any compelling reasons why we should redraft sections of that Act? Is there anything that cannot be addressed by changes in policing practice, better targeted policing and embracing to better effect the other statutory services? I will not go on at great length as much of what I had planned to say, inevitably at this late stage, has been said but I, too, am concerned about the imprecise wording which, as we have heard, has already been criticised by Justice, Liberty, the Home Affairs Committee, the Joint Committee on Human Rights and others. The Bill seeks to extend the number of potential claimants originally set out in the Act. It is a fact that it is quite unprecedented to authorise injunctive relief in civil proceedings, even though the public authorities concerned may not have a direct interest in the relief that they seek. That is a very considerable extension of power.
The eyebrows go up even further on the burden of proof. The McCann case brought in the enhanced civil burden—the criminal burden of proof under the existing Act—and we are now seeking in the Bill to drop that onto the balance of probabilities. Taking that particular point, I want to focus on one set of words and to remind the House again that for anti-social behaviour orders under the existing Act the operative words are “harassment, alarm or distress”. I have no problem with those, and I think that the courts and the practitioners have no problem either. The concept of harassment is very well rooted in various statutes in our lexicon of law, “alarm” means fear or fright, and “distress” is fairly obvious as well.
Yet under what we are now calling IPNA—the injunction to prevent nuisance and annoyance—we drop all that and go back to using the words “nuisance or annoyance”. There is no ready reference to those terms in the criminal law, only in housing law. I have a distinct feeling of déjà vu in connection with the words “nuisance “ and “annoyance”, because it is almost exactly a year ago that I stood on the Floor of the Chamber to talk about an amendment that I had tabled to remove the word “insulting” from Section 5 of the Public Order Act 1986. Noble Lords might remember, if they were there, that that section criminalised,
“threatening, abusive or insulting … behaviour” .
“Threatening” is no problem, “abusive” is no problem, but the definition of “insulting” had been widely abused for many years. It was used by vindictive complainants to urge the police to take action when otherwise they would not, and by over-zealous police officers to deal with something that could have been dealt with by the exercise of common sense. Whether or not the individual went to court, it had a distinct chilling effect on the exercise of free speech. The amendment was whipped against, but it was solidly backed by many Members of your Lordships’ House, and was carried by a substantial majority.
I mention this because the word in play at that time was “insulting”, and the two words that we are specifically looking at here are “nuisance” and “annoyance”. “Insulting” was vague and led to all sorts of difficulties in the exercise of the criminal law. I would confidently expect that if we leave in the phrase “nuisance or annoyance” that will lead to the same thing.
In fairness to the Home Office, I have to say that only today I was given a document called Reform of anti-social behaviour powers—Draft guidance for frontline professionals. This is a draft practice document that I understand is going out for consultation, and it seeks in an honest way to give practitioners an idea of what they might bear in mind when they are looking at those words. According to the draft guidance, the test is whether:
“On the balance of probabilities, the respondent has engaged or is threatening to engage in conduct capable of causing nuisance or annoyance to any person; and … The court considers it is just and convenient to grant the injunction to stop the anti-social behaviour”.
The reference is to the court, so the chilling effect will still go on. If we leave it to the court, I guarantee that the practitioners will still wheel in cases and let the court try to deal with them, and we will get into the same position that we did with Section 5 of the Public Order Act.
I congratulate the noble Lord, Lord Paddick, on his excellent speech. He talked about the need for balance, proportionality and reasonableness, and I am entirely in accord with what he said.
Having criticised part of the Bill, I shall conclude by racing quickly to touch on the parts that I shall have the greatest pleasure in supporting, certainly in very broad terms. Here, I remind the House of my previous service in the police. Those are the provisions on forced marriages, the implementation of the College of Policing and all that goes with that, the attempts to strengthen the IPCC—we have heard much about that, and I am entirely in accord with what has been said today—and the moves to abolish the Police Negotiating Board and establish something much better called the Police Remuneration Review Body. On dangerous dogs, I, too, agree that it is the owners who are at fault. I spoke to my two Labradors only yesterday and they assured me that the owners, not the dogs, are always at fault. The possession of firearms for supply is also covered.
Lastly, there is something that is drawn from those excellent two reports by Mr Tom Winsor. I refer to the appointment of chief officers of police from other countries. That would have to be taken in parallel with what he has also recommended regarding two-tier entry into the police and direct entry to the rank of superintendent. All that is wrapped up together in an envelope called “leadership”. Noble Lords may recall that I have spoken on numerous occasions in this Chamber on the urgent need for a far higher standard of leadership across the board, recognising that there are some very fine leaders in the service already but not enough. We need to get hold of the leadership issue in the police service. The part of the Bill dealing with the appointment of chief officers of police from abroad will have my complete and utter support.
I look forward to the debates that will come in the later stages of the Bill and will do all that I can to support it.
Lord Wasserman (Con)
My Lords, I, too, congratulate my noble friend Lord Paddick on his maiden speech and welcome him to this House.
We have devoted a good deal of time in this Session to discussing crime and disorder. Earlier in the year we debated the Bill establishing a new National Crime Agency, and more recently we debated the Government’s decision to opt out of all the police and criminal justice measures agreed to prior to the Lisbon treaty—and, incidentally, to opt back into a number of them. However, these debates focused on only one aspect of our crime problem—namely, serious and organised crime.
For most people, what matters most is not the fight against international drug and human trafficking but the quality of their everyday lives. For those who do not live in houses as grand and isolated as Downton Abbey, the quality of their lives depends largely on the behaviour of their neighbours. When those neighbours engage in vandalism, graffiti, street drug dealing, drinking in public or worse, the lives of everyone in those communities become almost unbearable. Parts 1 to 6 of the Bill aim to deal with this kind of anti-social behaviour. It is clear from tonight’s speeches that we are to have some very lively debates about these proposals, but I am not going to anticipate them now—I merely commend the Government for addressing this subject and for making time for it in their legislative programme.
I also commend the Government for giving our police and crime commissioners a key role in their strategy for tackling anti-social behaviour. It is less than a year since the 41 PCCs took office, but already we are seeing signs of a more holistic approach to crime prevention and public safety at the local level. Giving PCCs power to provide or commission services, particularly support services for victims and witnesses of crime and anti-social behaviour, as the Bill proposes in Clause 129, is very much to be welcomed. I hope that in due course the Government will go much further along this road of giving PCCs more responsibility for local criminal justice and emergency service systems. For further reading on this subject, I recommend that the Minister get hold of the recent Policy Exchange pamphlet entitled Power Down: A Plan for a Cheaper, More Effective Justice System; there are plenty of ideas in that.
I am also delighted to see that the British Transport Police has found a place in the Bill. It is a first-class force which does a great job in keeping us safe and secure on our rail and underground networks. Putting that force on the same footing as the 43 Home Office forces in respect of firearms is long overdue, and recognises that the BTP supplies the same standards as those forces when it comes to selection, training and assessment. I have long thought that it would be sensible to make more use of the specialist skills and unique national coverage of this force by extending its responsibilities beyond our rail system to our airports and motorways, thus freeing up local forces to concentrate on neighbourhood policing, including tackling anti-social behaviour.
Noble Lords may not be surprised to hear that I welcome the provision in Clause 126, which makes it possible for someone who has not served as a constable in a UK force to be appointed to lead a Home Office force. I also welcome the support for this clause from the noble Lords, Lord Condon and Lord Dear, both of whom have held very senior posts in our local policing system with great distinction. Therefore, both may be assumed to know a thing or two about the role of the chief constable and what it takes to be good at it. However, I wonder why this clause specifies appointment as a chief constable rather than as a chief officer. Might it not sometimes be useful to be able to appoint someone from abroad as a deputy chief constable or an assistant? Perhaps I have missed something here; if I have, I would be grateful if the Minister would put me right when he winds up this debate.
Finally, I want to say a few words about the new College of Policing, which features prominently in Part 11. Among its other responsibilities, the college is responsible for identifying, developing and promoting ethics, values and standards of integrity for the police service. It is in this context that the college is preparing the code of ethics for police officers which attracted so much media attention last week. In answer to a question about this code on “The Andrew Marr Show” last Sunday, noble Lords may have heard the president of ACPO describe the college as follows:
“We have a new College of Policing, led by a very senior chief constable, Alex Marshall, who’s driving this agenda forward on behalf of a leadership which I have the privilege to represent this morning”.
I understand why Sir Hugh described the college in these terms. As one of the members of the college’s board of directors, he is used to sitting around a table with 13 others, four of whom are either serving or retired chief constables; two are serving police officers of other ranks; and another two, both appointed as independent members, have worked closely with police forces for many years. Of the remaining five members, three are PCCs and one is Millie Banerjee, the chair of the British Transport Police Authority. Only one member of that board, the distinguished academic who chairs it, is truly independent in the sense that she had no professional dealings with the police before her appointment.
If the college is to be given statutory backing as proposed in Part 11, it cannot be, nor be seen to be, a subsidiary of ACPO. It cannot be led by a senior chief constable on behalf of other chief constables. The college has to be led by its independent chair on behalf of the public. It is the public, after all, whom the police are employed to serve. If there is a principal customer for the work of the college, it must surely be our police and crime commissioners and their equivalents in London. It is they who have statutory responsibility for keeping us safe by maintaining efficient and effective police forces. It is they, therefore, who have the most direct interest in the success of the college as an institution devoted to improving the professional and ethical skills of our police officers and ensuring that these higher standards are maintained.
It seems clear on the basis of what the president of ACPO has said, what I have read in the media and what I have heard, that if the college wants to establish public confidence in its role of,
“identifying, developing and promoting ethics, values and standards of integrity”,
it needs to expand its board of directors to include many more truly independent members. I am sure that there is no shortage of individuals of outstanding character from the worlds of business, the church, the military, the Civil Service and the voluntary sector, who would be willing to serve. With these few suggestions, I commend this Bill to the House.
Baroness Thornton (Lab)
My Lords, I start by welcoming the noble Lord, Lord Paddick, to this Chamber. We look forward to working with him over the coming years.
Other noble Lords have said that this is a Christmas tree Bill. I have always thought that Home Office Bills are more like snowballs: as they roll down the parliamentary hill, more and more things stick to them. My noble friend Lady Smith gave a very clear explanation of this complicated Bill and the areas where we on these Benches believe there needs to be probing, discussion, challenge and change.
I intend to address only two areas, Part 9 and 10, and will be raising these issues and probing them in detail in Committee. I give noble Lords notice that these will be the first parts to be taken in Committee on 12 November—the Bill is being taken slightly out of order—so that they can put the date in their diaries if they wish to take part in those discussions.
Part 9 concerns sexual harm prevention orders and sexual risk orders, which aim to improve the protection of vulnerable children at risk of sexual harm. Part 10 concerns forced marriage. As my noble friend Lady Smith said, we all agree that forced marriage should never be tolerated. We would like to see effective and properly resourced support for the victims and prevention through education and work in the communities concerned. We also believe that it is right to have a thorough discussion which makes a clear case for criminalisation and how it might work.
Turning first to Part 9, I thank the following organisations for their excellent joint brief about this matter: the NSPCC, Barnardo’s, the Children’s Society, Action for Children and Save the Children. They have extensive expertise in supporting children who are victims of or at risk of sexual abuse and exploitation. They generally support the sexual harm prevention orders and sexual risk orders as set out in Part 9. The two new orders will replace existing powers, and the threshold for risk will be lowered to cover any case of sexual harm, not just cases of serious sexual harm. These orders seek to improve the protection of vulnerable children at risk of sexual harm.
If these orders simplify the current system, they are to be welcomed. In relation to non-conviction behaviour, reducing the number of acts of harm required for an order to be used from two to one means they can be more easily obtained. Extending the ability to use these orders to protect all children under 18, including 16 and 17 year-olds, recognises that older children are still vulnerable and can be subject to child sexual exploitation and abuse. The inclusion of vulnerable adults in the SHPO and SRO is welcome because we know that young adults with learning difficulties or special educational needs are targeted by individuals looking to exploit them.
It seems likely that further work needs to be done in relation to how young people under 18 subject to the orders are supported. Some young people who may be subject to the new order may have been the victims of sexual exploitation themselves or may have become involved as a means of self-preservation, as the brief describes. We will be seeking safeguards from the Government for young people under 18 who are subject to the orders to ensure that they receive the support they need, including an assessment of their emotional, welfare and behavioural needs, and therapeutic and/or educational support.
We are concerned that breach of the child SHPO without conviction, or the SRO, can result in five years’ imprisonment when a child has not actually committed a criminal offence. We know that custody may not be the most effective way to tackle children’s criminal behaviour, and custody for under-18s should be used only as a very last resort in the most serious and violent offences. One therefore has to question whether it is appropriate where children have not been convicted of an offence. We are very concerned about the use of custodial sentences for under-18s, and we hope the Minister can give us some guidance on this either now or in Committee. For example, what measures do the Government propose for under-18s subject to these orders? Will the Government consider prescribing in guidance the use of therapeutic support and/or education and an assessment of needs when the orders are applied to under-18s? Will the Government review and evaluate the effectiveness of the orders when applied to under-18s, such as the rates of reoffending and the effectiveness of any assessment of needs? Children’s organisations are not alone in their concern about this, as Liberty has included it in its brief on the Bill.
Turning to forced marriage, Clause 107 makes breach of a forced marriage protection order a criminal offence with a maximum penalty of five years’ imprisonment, and Clause 108 makes it a criminal offence for a person to use violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage without their free and full consent. An offence is committed whether the violence, threats or other forms of coercion are directed at the victim of forced marriage or at another person. The maximum sentence in a magistrates’ court is a fine or six months’ imprisonment. In a Crown Court it is seven years’ imprisonment.
Sections 5 and 6 cover extraterritorial jurisdiction so that if the prohibited acts are committed abroad by a UK national or permanent UK resident, or to a UK national or permanent UK resident, it will be an offence under domestic law and triable in the courts of England and Wales.
Forced marriage is one of the manifestations of modern-day slavery. Thanks to the work of my noble and learned friend Lady Scotland, the former Attorney-General, and my noble friend Lady Ashton, the former Children’s Minister, as well as the exemplary work of the Forced Marriage Unit and a number of charities, this country is a world leader in tackling this horrendous practice. The introduction of the civil forced marriage protection order has afforded some protection to victims or potential victims, but people who seek to consign their victims to a life of miserable servitude should face the full rigour of the criminal law.
All of us who talk about this issue should, however, be clear about the difference between an arranged marriage and a forced marriage and be careful in the language we use.
We know forced marriage is a serious concern that affects thousands of young people across the United Kingdom, but there are no reliable figures on it. The Government’s Forced Marriage Unit indicates that the number stands at 1,500 to 1,700 a year, but experts and agencies alike admit that it is a hidden problem. There may be as many as 5,000 or 8,000 or possibly more.
In Committee, the Commons received written evidence and interviewed witnesses from two organisations, the Freedom Charity and Karma Nirvana. The Freedom Charity was set up with the primary aims of making forced marriage a criminal offence and working on its prevention. It made the powerful point that many schools fail young women who are victims of forced marriage. The schools are not equipped to recognise the signs, they have not trained their teachers, and occasionally they have not responded to pleas for help. I think we must explore this in Committee. Karma Nirvana said in Committee that it did not think this went far enough. In other words, both these organisations are in favour of the Government’s proposals.
There was, however, written evidence submitted to the Home Office inquiry and to the Committee from several long established women’s organisations, including the Southall Black Sisters; Ashiana, which runs the only forced-marriage refuge in the country; and Imkaan, a much respected BME women’s organisation consisting of academics, judges and others who disagreed with the evidence given to the Committee. I have read the evidence of these organisations. They raise serious questions about criminalisation, and they give proposed alternative routes. I think it is a shame that these organisations were not interviewed by the Committee at the time because, as a result, balanced scrutiny of this issue did not adequately take place in the Commons, and there was little recognition that there were two sides to this argument. That was recognised by the Joint Committee on Human Rights, which makes exactly this point on page 28. Concerns have also been raised by the Children’s Commissioner.
That is why, on these Benches, we would like there to be a much more considered debate about criminalisation and its implication. We take very seriously suggestions that victims may be more reluctant to report an offence if they believe that their family members, such as parents, may be criminalised and sent to prison. Some of these organisations have suggested that, rather than create a specific offence of forced marriage, we could treat forced marriage as an aggravating factor of those serious crimes. Did the Minister consider that approach? Has he heard the arguments on the other side of the debate on criminalisation? What is the evidence that this is the right road to take? We need to see it. We need the Minister to agree to meet these organisations if he has not done so.
Liberty said to the Committee that it believed that the Government needed to make the case for criminalisation. We are not at all opposed to strengthening and building on the work done to stop forced marriage, but we hope to see the evidence and arguments spelled out in Committee.
Lord Marks of Henley-on-Thames (LD)
My Lords, I join noble Lords in congratulating my noble friend Lord Paddick on his extremely well judged maiden speech and welcome his decision to make it in this debate so soon after his introduction. He has a great deal to contribute on the issues raised in the Bill, which will be very welcome as we continue to scrutinise it.
Approaching the end of a long debate on the Bill, much of which I, too, greatly welcome, I will confine myself to coming back to the concerns I share with the JCHR—and with many others who have spoken in this debate and in another place—about the proposed new injunctions and criminal behaviour orders. With others, I fear that these new orders are likely to affect children and young people disproportionately. The Ministry of Justice’s own statistics show that in 2011 38% of ASBOs were imposed on children and young people aged between 10 and 17, who together comprise only 13% of the population.
It is true that for adults these injunctions are to be granted by civil courts and so may be called civil injunctions. For lawyers, the distinction between civil injunctions and criminal sanctions may be clear and meaningful, but for those who will be subjected to these injunctions I suspect that it means nothing. For children and young people they will be granted by the youth courts. That is understandable and probably right, but it illustrates the point that for the young people on the receiving end, injunction proceedings will be in practice almost indistinguishable from criminal proceedings. They may not get a criminal record, but even that protection is undermined by the fact that the courts may allow them to be named.
There is a serious risk that young people, whose misbehaviour might never have brought them into contact with the criminal justice system, will now be dragged into the courts by the Bill. The prospect of breach proceedings presents a particular danger for young people, with a possible sanction of three months’ detention for defaulters from 14 to 17. The threshold conduct required for an order is both too trivial and too ill defined. The phrase:
“Conduct capable of causing nuisance or annoyance to any person”,
could cover almost anything, as many noble Lords have pointed out. Speaking for too long in this Chamber would clearly suffice. The noble Lord, Lord Dear, is absolutely right to draw the comparison with insulting words and behaviour. Conduct should not qualify unless it actually causes or at least is likely to cause—not is merely capable of causing—harassment, alarm or distress, not merely nuisance or annoyance to any person.
Like others, I cannot understand why the imposition of a sanction for misconduct imposed by a court, which for those involved is effectively a criminal sanction, can require only the civil standard of proof, which is that a court finds that the conduct is more likely than not to have occurred. Not just the imposition of the injunction is at stake; there is the prospect of a power of arrest in any case involving the use of violence or the threat of violence or a significant risk of harm to others. I agree that a power of arrest is an appropriate way to make injunctions effective, but its availability serves to increase the need for full proof of the conduct concerned. The prospect of breach, contempt proceedings and punishment is at stake, and presents a real danger in a process that starts with an evidential test that most lawyers would regard as failing to meet the demands of justice.
The second condition for the grant of an injunction in Clause 1, that it should be,
“just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour”,
involves a very low hurdle, which risks encouraging courts to grant such injunctions far too readily. When a statutory test like this is both insufficiently demanding and poorly defined, implementation is likely to be far too variable, both geographically and over time, so that reasonable uniformity and predictability are unattainable. A test of necessity would be much more appropriate and strike a better balance than the Bill now does between civil liberties and the rights of the wider public not to be subjected to anti-social behaviour.
I also suggest that there should be a statutory maximum term for all such injunctions, not just for respondents under 18, and a requirement that the term of all such injunctions should be no more than is necessary and proportionate. Lack of such restrictions risks particular respondents being picked on by courts and again risks irrational inconsistencies between courts and over time.
I should say that in respect of criminal behaviour orders under Part 2, two of the objections I have raised are absent. There has to be a conviction that at least imports the criminal standard of proof at that stage, and the threshold for conduct is based on harassment, alarm or distress. However, an indefinite criminal behaviour order is to be a possibility for adults, which is potentially oppressive and, as with injunctions, the positive requirements that may be imposed in such an order are entirely undefined, which is wrong.
On sanctions for breach, I agree entirely with the noble and learned Lord, Lord Hope of Craighead, in respect of the dangers of contempt proceedings against adults and of proceedings under Schedule 2 against children and young people in breach. Although there are restrictions on detention for those aged between 14 and 17, the fact that it is perilously easy to be exposed to the imposition of an injunction in the first place carries with it a serious risk of substantial injustice. I also agree with my noble friend Lord Dholakia and the noble Lord, Lord Judd, in particular that it is simply unfair that whole families should face eviction from their homes because one resident or even a visitor has breached an injunction or criminal behaviour order.
There is much else in the Bill that will require our detailed attention in due course, but we will need to be especially vigilant to ensure that the protections afforded to our generation as young people by our criminal justice system are not watered down by this and similar legislation about anti-social but non-criminal behaviour.
Lord Trees (CB)
My Lords, I, too, welcome the noble Lord, Lord Paddick, to this House and compliment him on his fine maiden speech.
The Bill has been described by several of your Lordships as a Christmas tree Bill. I am not sure where dogs come on the tree but perhaps they are around the bottom of it, legs cocked. This is by way of saying that I wish to talk about Part 7, which amends and improves legislation applying to so-called dangerous dogs. I declare my interest as a veterinarian and a long-time member of the British Veterinary Association.
It is important for us to remember that dogs provide great value to human society and we should not lose sight of that, but unfortunately they occasionally can frighten, injure and sadly even kill people or animals. It is important, too, to realise that only a tiny proportion of the 8.5 million dogs in this country are responsible for that harm. The Dangerous Dogs Act 1991 was an attempt to deal with this problem but is widely recognised, as I am sure your Lordships will agree, as being a less than adequate piece of legislation. The fact is that an estimated 210,000 people are attacked by dogs each year; last year approximately 6,500 incidents resulted in hospital admissions and a cost to the NHS of £3 million a year.
The Government have rightly appreciated that the problem with dogs is not so much the dogs but their owners, as several noble Lords have mentioned, and that aggressive dogs are but one tool by which aggressive people express their aggression. As such, it is logical to embrace measures directed at dogs and dog owners within measures directed at other forms of anti-social behaviour, howsoever expressed. However, in designing generic solutions there is a risk of losing the merits and benefits of specific measures. I will elaborate on that in a moment.
The other general point of concern is that while inappropriate training and care by an irresponsible owner may create a potentially dangerous dog, even the most benign dog owned by the most responsible owner may find itself in a situation where the dog exhibits aggression. As a vet, I well appreciate that—try bringing a dog into a strange environment and sticking a needle into it.
So, legislation needs to balance protection of the public with common sense and pragmatism. In the context of this legislation, this is particularly important with respect to aggressive behaviour by a dog on its own property towards an intruder. In general, I welcome the attempt here to enhance the legislation relating to dog behaviour. The extension to private property, for example, addresses the fact that 70% of dog attacks currently occur on private property. However, there are two areas that I will highlight where the proposals fall short of what, in my opinion and that of the BVA and a number of animal charities, is desirable.
With dog-related aggression, our key objectives should be to prevent apprehension, injury or death. It is little comfort after a serious dog attack to know that one can prosecute the owner. There is a view widely held by those most interested in this subject that low-threshold, prophylactic intervention, as provided by dog control notices, would specifically and more effectively prevent problems than the proposed generic community protection notices, which would be served after problems of a “persistent or continuing nature”. Dog control notices can be used in a constructive way as improvement notices and of course they have been adopted in the Scottish legislation on the control of dogs in 2010. Moreover, community protection notices relate to various non-specific threats and the seizure of a dog, for example, requires rather more specific knowledge and experience than the seizure of some inanimate object. I do, however, appreciate that dog control notices require dedicated, trained personnel to serve and enforce them effectively.
There is a second area where I feel that the Bill falls short of the desirable, for while it extends protection beyond humans to assistance dogs, it stops there. There are countless cases of serious injury to animals as a result of unprovoked dog attacks. A vet practitioner whom I was speaking to recently recounted how in his Lancashire practice alone they had seen four or five dogs which had been “shredded” by dogs this year. Indeed, one had died. Bearing in mind that there are some 4,500 practices in the UK, while we have no accurate statistics of non-human injury, aggression against other animal species, with the attendant distress that causes to the owners, certainly is a considerable problem. Moreover, it is important to note that it is likely that the owners who allow aggressive behaviour against other animals will also be irresponsible with respect to protecting humans. So action against dog-on-dog or other animal attacks arguably is a constructive measure that could reduce and prevent injury and distress to humans.
In conclusion, I welcome a number of measures in this Bill, but feel that there is an opportunity to go a little further to ensure adequate protection of humans as well as safeguarding animal health.
Baroness Oppenheim-Barnes (Con)
My Lords, as a speaker in the gap, I propose to say only a very few words. I am here principally to speak about the part of the Bill that deals with dangerous dogs. I particularly wanted to listen to the noble Lord, Lord Redesdale, whose legislation in the past I have supported wholeheartedly, especially the part that seemed to deal, for the first time, with dangerous dogs attacking other dogs. I had personal experience of that when, in the park, my two Jack Russells were first threatened and then finally attacked by a Weimaraner, which had only a little girl to hold the lead. When the case arrived in court, the magistrate ruled that we could use the park at different times. However, he concluded that, in his view, there was no such thing as an innocent Jack Russell.
The Dogs Trust, which we all highly respect, has a number of concerns about specific information relating to the regulations and how they will be interpreted. It is not yet satisfied that the regulations will meet all its wishes and requirements. I think that that will be something that we pursue fully in Committee and I look forward to that.
Finally, being the “wedge” speaker, I have had the benefit of listening to many interesting speeches given by people with many years of expertise and I have learnt a good deal. I think it is fair to say that the glory of your Lordships’ House rests in debates of this nature. I wish that they could be more publicly quoted than they are, as I know that appreciation would follow.
Lord Rosser (Lab)
My Lords, this has been a lengthy but interesting debate in which there have been many powerful contributions based on direct first-hand knowledge and experience of specific issues and areas which the Bill seeks to address, not least from the noble Lord, Lord Paddick, in his considered and eloquent maiden speech. We wait with interest to hear on a later occasion, as indicated by the noble Lord, which aspects of the Bill he regards with less enthusiasm.
During this debate, many doubts and reservations have been raised about specific aspects of the Bill, and these will no doubt be pursued in Committee and on Report. The Bill is either wide-ranging or a dog’s breakfast, depending on one’s overall view of it. The Government have tried to give this possible Pandora’s box of a Bill a theme in a bid to generate an appearance of cohesion to their proposals. That theme appears to be putting victims first. That can certainly be an objective, but surely the overriding purpose of a Bill such as this should be to reduce the number of victims.
There is much in the Bill that we support. We support the new criminal offence for possessing a firearm with intent to supply. We support the initiative on a new College of Policing, which will afford an opportunity to provide training and to set standards. We also support in principle the police pay and negotiation proposals and the Police Remuneration Review Body. The Minister referred to the Armed Forces Pay Review Body as a favourable comparison. Interestingly and perhaps wisely, he did not quote the body for the Commons, IPSA, as being in that category as well. We support extending the powers of the Independent Police Complaints Commission to oversight of private contractors and staff employed by police authorities—a measure proposed by the Opposition last year.
The measures on forced marriage have cross-party support. We also welcome the measures on sexual harm prevention notices, although there will be issues that need to be discussed regarding the detail.
We support giving immigration officers some additional powers in the light of the nature of terrorism that we have at the moment, but once again the detail of how and in what circumstances the proposed measures will be implemented, their nature and how far they go will need to be considered carefully.
We support the principle of community remedy under Part 6. We strongly believe that restorative justice and community resolutions should be used when dealing with anti-social behaviour, although the Government will need to be rather clearer about exactly what they intend should happen in practice and what resources are going to be made available.
We will want to look at the proposed changes in the powers of police community support officers. That applies as well to the changes for police and crime commissioners, for whom the Bill seems to be trying to provide additional work. We will look at the clauses on witness protection measures and victim services but we, like others in your Lordships’ House, have concerns about their fragmentation through commissioning by police commissioners and the impact that that will have on national commissioning and standards.
We welcome the measures against dog attacks in the home. However, on dog control notices, there is the significant question of whether the measures in the Bill are sufficient to address the problem with which we are faced. The Government say that they are, but the Committee in the other place described the proposals as “woefully inadequate”. Dog control notices would ensure the muzzling of dogs in places which the public access, the neutering of dogs and the owner and dog having to attend and complete training courses.
I suspect that a considerable amount of time will be taken discussing the anti-social behaviour proposals. We all deplore anti-social behaviour and the impact that it can have. However, we do not regard the proposed changes to the anti-social behaviour order regime or the developments on the injunctions to prevent nuisance and annoyance—IPNAs—as helpful or a forward move. The Government assert but have yet to produce the hard evidence that anti-social behaviour orders have not been an effective solution and claim, once again without hard evidence, that the lack of criminal sanction in future under this Bill will not weaken but rather strengthen the ability to tackle anti-social behaviour. It was, after all, the Minister who told us in his opening speech that crime had been falling—falling, he could have added, each year since ASBOs were introduced.
We will need to look at what will be regarded as behaviour capable of causing nuisance or annoyance. Some people seem to find the decisions of a referee at a football match annoying, and it is not unknown for some landowners to regard walkers on a footpath through one of their fields as a nuisance. I assume that the Government will say that at least the first example is a ridiculous one and would not come within the terms of the wording in the Bill. But I am not so sure about the Government’s view on the second example and that those responsible will interpret the wording in the Bill and the associated guidance in a sensible manner.
Different people will interpret generalised or ambiguous wording in a different way. There does seem to be a clear message being given by the change in the criteria from behaviour causing, or being likely to cause, harassment, alarm or distress, as at present for an anti-social behaviour order, to behaviour causing nuisance or annoyance for the new IPNA, and in the change in the burden of proof from beyond reasonable doubt to balance of probabilities. That message is surely that the Government want much more behaviour—some would say including normal behaviour of many young people—to be liable to be caught under the terms of the IPNA with a much lower threshold necessary to establish and prove the case. That is a message that could result in IPNAs being issued, metaphorically speaking, like confetti for little or no meaningful effect.
We will also want to be clear about the possible consequences of a breach of an IPNA. I appreciate that the Government made some amendments on Report in the Commons, which mean that the ability to exclude a person from his or her own home will be available across all tenures and not just to the social housing sector. I am not sure that this principle applies in other circumstances. It appears that for those living in rented housing a breach of an IPNA could result in eviction. If that is the case, could the situation then arise that a family in rented housing could be evicted following a breach of an IPNA by one member of the family on the basis that the conduct of that individual was making life intolerable for nearby neighbours living in owner-occupied property, but that if a family next door who owned their own home also had one member of the family who had breached an IPNA, and the conduct of that individual was making life intolerable for nearby neighbours living in rented housing, they would not be evicted? Perhaps the Minister could say whether that could or could not be the case under the breach of an IPNA clause in the Bill. If it could happen, could he say whether the Government do or do not believe that these clauses potentially treat some sections of the community rather differently from others for the same offence? The same issue would appear to arise in connection with possible eviction for those in rented housing who have been convicted of an offence at and during a riot, wherever that involvement might have taken place. The Government say they want to put resources into sorting out the problems that overwhelm so-called problem families. I am not sure that that objective will be assisted if the ultimate effect of the IPNA proposals in this Bill proves to be that more such families end up on the streets.
We have received from the Government a copy of the draft guidance for front-line professionals on the proposed reforms of anti-social behaviour powers in this Bill. It is 65 pages long and, in places at least, appears to be strong on verbiage and weak on clarity. It bears all the hallmarks of having being written by a committee lacking unanimity of view. However, at this stage, I am willing to accept that during the passage of this Bill the Minister may be able to convince us all that this is a document free of ambiguity and in essence is not so ambiguous that it basically hands over to others the job of trying to interpret what this Bill actually means.
I may have misunderstood, for example, the wording on injunctions to prevent nuisance and annoyance. If I have I am sure the Minister will put me right. I would hate to think that he is as uncertain as I am about the exact meaning of parts of this Bill, since this Bill is his baby. Page 24 states:
“Anyone seeking to apply for an IPNA must have evidence … that the respondent has engaged in, or is threatening to engage in, conduct capable of causing nuisance or annoyance to another person. They will also need to satisfy the court that it is just and convenient to grant the injunction”.
Later, the same page states that,
“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not”—
and “should not” is in bold—
“be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities”.
If one of the tests that the guidance indicates is that behaviours must have caused or be likely to cause harm to victims or communities, then why does the Bill not refer to causing harm and clearly define it—causing harassment, alarm or distress, for example—rather than simply referring to conduct causing nuisance or annoyance? There is a difference between causing nuisance and annoyance and causing harm. Which is correct: the Home Office Bill, the Home Office guidance or neither? Are the Government simply passing the buck for sorting that out to someone else, whether they be sitting in a court or working outside one?
There are a number of other issues we will want to discuss as the Bill goes through this House. These include measures to tackle covert policing, protection of people from assaults at work, reductions in the potential for gun use and reductions in domestic violence. We will also want to discuss the issue of legal highs and reducing their availability in our communities, and the redefinition of the compensation test for those who have been wrongly convicted.
The important issue of extradition was dealt with in a rush towards the end of the proceedings in the House of Commons. One government MP, lamenting this, said:
“Of course, the House of Lords is stuffed full of experts—lawyers and others who are au fait with the issues—and I am sure that there will be proper scrutiny in the other place”.—[Official Report, Commons, 15/10/13; col. 697.]
That is probably one expectation that we can meet, including whether the proposals are fair and just, will actually deliver the declared objectives and not also have some potential unintended consequences.
The Government’s proposals on anti-social behaviour in particular will need to be backed up by adequate and appropriate resources, both human and financial, if anything is to be achieved. Other proposals will also depend on proper resourcing being provided. Bearing in mind the cuts that have been made in a number of key areas, such as weakening the DNA provisions, reducing CCTV, reducing police numbers, reducing community safety budgets, leaving local authorities financially less able to maintain youth services, and now, it appears, the potential undermining of the Secured by Design standards, to which my noble friend Lord Harris of Haringey has drawn attention, we will want to find out from the Government as we consider the Bill in detail whether their proposals are simply words or whether the necessary resources and powers will be provided—and, if so, in what form and to what level—to deliver the claimed objectives for the many changes set out in the Bill.
Lord Taylor of Holbeach
My Lords, this has been a wide debate, which is not surprising given the content of the Bill. It is a testament to the House that we have been able to hear, from the direct experience and judgment of its Members, interesting and useful observations on the Bill. I hope this will help us in our scrutiny of it as it goes through the House. I thank all noble Lords who have contributed. As I say, it has been a good debate. I was particularly pleased to hear the maiden speech of my noble friend Lord Paddick. He brought to it a touch of humour, good grace and a wealth of knowledge from 30 years in policing. When we come to Part 11 of the Bill, I look forward to hearing of his experience and knowledge in that area.
The evidence from today’s debate is that there is widespread support for a number of the measures in the Bill. Indeed, the noble Lord, Lord Rosser, identified a number of areas where the Benches opposite are happy with the proposals, which is a helpful start. These include the measures to tackle illegal firearms and forced marriages; the extension of the Dangerous Dogs Act to cover dog attacks that take place on private property; and the measures to strengthen the IPCC and to reinforce the College of Policing in professionalising the police.
As is to be expected, we also heard some concerns around the House about certain aspects of the Bill, in particular the test for the new injunction under Part 1. There were also some learned criticisms of the test for determining eligibility for compensation for miscarriages of justice. In the time available I shall do my best to cover the points made. Where I am unable to do so, I undertake to write to noble Lords on the points they raised during the debate.
Let me start with the beginning of the Bill, which generated the greatest oratory. I have a list of Peers who spoke about the IPNA test—I will not recite it—and I thank all noble Lords for raising their concerns. My job as Minister is to reassure noble Lords and I will seek to do so as we take the Bill through Committee.
The nuisance and annoyance test is based on the current statutory test, which has worked well in the housing sector since 1996. It is readily understood by the courts and it will allow agencies to act quickly to protect victims and communities from more serious harm developing. This test was reaffirmed by the previous Government in the ASB legislation passed in 2003. So it is not a new test.
In considering an application for an injunction, the court must have regard to the principles of proportionality, or fairness, in deciding whether it is just and convenient to grant the injunction. There is a judicial test against which the injunction is granted. As my noble friend Lady Newlove said, we must not lose sight of the needs of victims of anti-social behaviour. I wholeheartedly agree, and this view has been widely expressed by noble Lords around the House. The test for the injunction will ensure that swift action can be taken if it is needed.
A number of noble Lords—including the right reverend Prelate the Bishop of Lichfield, the noble Baroness, Lady Stern, the noble Lord, Lord Ramsbotham, and my noble friend Lady Linklater—mentioned their concern about the impact of the new injunction on young people. I share their desire not to criminalise young people at an early age. We are keen that professionals have the discretion to use informal measures such as restorative justice or acceptable behaviour contracts where they are appropriate for the victim and the community. I believe that such measures will be appropriate for many young people, and our draft guidance makes this clear. Normally a Minister stands here trying to persuade the House to accept that draft guidance is coming, usually saying that it will be here shortly or after the passage of time. However, we actually have the draft guidance and I will make sure that all noble Lords who have spoken in this debate get a copy of it. I think that in some ways it will assuage some anxieties that noble Lords have expressed. With the guidance in place, I believe it will assuage some of those fears.
The professionals and the courts also need to have the necessary powers to protect victims from the small minority of young people who persistently behave anti-socially. Where an injunction is appropriate, it is right that strong sanctions should be available if it is breached. However, unlike the ASBO, these will not result in a criminal record. I am sure that will be seen as a welcome step by the House.
I hope that the noble Lord, Lord Harris of Haringey, will forgive me if I do not give him a detailed response to the point that he made. I have full details here but time is short. I will write to him on the issue that he raised about the Secured by Design measures and the consultation that is going on at the moment.
Lord Harris of Haringey
My Lords, I am grateful to the Minister. I do not wish to detain the House. I appreciate that, because of the mismanagement of the day, we are very late. Can the Minister just enlighten us as to whether the Home Office made representations that this was indeed a crazy thing for the Department for Communities and Local Government to be doing?
Lord Taylor of Holbeach
The Home Office works closely with the Department for Communities and Local Government. It is fair to say that we are engaged, as we are on all measures, in discussing every aspect of government where we share interests in common. I do not want to go into detail on the Floor of the House, but I certainly will write to the noble Lord in this regard.
A number of views were expressed about eviction. Some noble Lords, including the noble Lord, Lord Beecham, and my noble friends Lady Hamwee and Lord Faulks, expressed concern about the strength of the powers to evict persons convicted of a related offence. As we saw in 2011, those who riot and trash communities can take away people’s livelihoods and homes. Although the law currently enables the landlord to seek to evict those who riot in the locality of their home, it does not capture the sort of riot tourism that we saw in 2011. The Bill puts that right. It will allow for landlords to apply to evict tenants where they or members of the household have been convicted of an offence at the scene of a riot anywhere in the United Kingdom where the behaviour takes place. That unashamedly sends out a strong message that rioting will not be tolerated and may carry housing consequences wherever it occurs.
However, I reassure noble Lords that we expect landlords to seek to evict in those circumstances only exceptionally and, where they do, important safeguards will be in place. In particular, the court needs to be satisfied on a case-by-case basis that it is reasonable to grant possession. The impact on the whole household and any young children is likely to be a relevant factor. Existing eviction powers make it clear that tenants are responsible for the anti-social behaviour of members of their household. This provision follows that well established principle.
The noble Lord, Lord Trees, my noble friend Lord Redesdale and the noble Baroness, Lady Gale, gave us the benefit of their views on the dog measures in the Bill. I believe that the provisions in the Bill will assist front-line professionals in tackling dangerous dogs, not only once an attack has occurred but to prevent such attacks. There have been calls for dog control notices today, echoing those from animal welfare organisations. The rather bright tie that I am wearing is a Dogs Trust tie; I thought that it would be appropriate to wear it today. The work of such organisations is vital to improve responsible dog ownership through education and providing support for those unable to look after their pets.
However, I do not agree that a bespoke dog control notice is needed. The Bill contains a number of anti-social behaviour powers which can be used in exactly the same way as a dog control notice. The community protection notice, for example, can be used to require a dog owner to have their dog neutered, to keep it muzzled, to keep it on a lead in a public place and to attend dog training classes. The draft practitioners’ manual explains that comprehensively. To provide for another class of notice that does exactly the same thing as existing provisions in the Bill would undermine one of our key objectives, welcomed by practitioners, which is to streamline the existing, complex mix of overlapping powers.
It was helpful to hear from my noble friends Lord Dholakia and Lord Hussain and the noble Baroness, Lady Thornton, about forced marriage. We know that the introduction of legislation is not of itself enough. The Government’s Forced Marriage Unit provides direct assistance to victims. It also undertakes a full programme of outreach activities to front-line practitioners and communities to ensure that people working with victims are fully informed as to how to approach such cases. Overseas, the unit also provides consular assistance for victims to secure their return to the UK, but I look forward to debating that at later stages in the Bill’s progress.
The noble Baroness, Lady Thornton, also raised the clauses dealing with sexual harm prevention orders and sexual risk orders, generally welcoming them. I will write to her on the impact of those orders in the way that she described.
Concern was expressed about PCCs commissioning victim services and whether that would lead to some services not being delivered as they have been. My noble friend Lord Dholakia mentioned that, and the noble Baroness, Lady Stern, was concerned about the impact on rape counselling. Although it makes sense for support for victims of such crimes, which have high impact but are low in volume, such as homicide, rape and human trafficking, to be commissioned centrally, the majority of victim services are best commissioned locally. That is how this issue will be divided. Police and crime commissioners are best placed to decide on the sort of issues that are needed within their communities. Major crimes will still be addressed through national funding.
PCCs will be able to respond to local needs and ensure the best use of funding. In his evidence to the House of Commons Public Bill Committee Adam Pemberton, assistant chief executive of Victim Support, agreed that the move to local commissioning of victims’ services provided an opportunity for better integration of local services in support of victims. We agree. That is why we are legislating to ensure that PCCs have clear powers. I welcome the support of my noble friend Lady Newlove for these provisions.
There has been widespread support for the Police Remuneration Review Body. It is good to hear from the noble Lords, Lord Condon and Lord Dear. Indeed, my noble friend Lady Harris of Richmond referred to the new policies for determining police pay. The Police Remuneration Review Body will deliver pay and conditions that are fair not only for police officers but for the public as well. The move to an independent evidence-based method of determining police pay and conditions is the right way forward. The current negotiating system is time-consuming, inefficient and adversarial. I can, however, assure my noble friend Lady Harris that police officers will continue to have a voice in determining their pay, as their representatives will have the opportunity to inform the annual remit letter, which will be provided by the Home Secretary and sets out issues for the body’s consideration. They will also present evidence to the new body in the same way as any other interested parties along with the Government and police and crime commissioners.
My noble friend Lady Harris asked about the applications of these provisions to Northern Ireland. Policing, as noble Lords will know, is a devolved matter in Northern Ireland. This provision was introduced with the full support of the Minister of Justice for Northern Ireland. However, this is an important change for Northern Ireland. The Department of Justice has consulted policing organisations, including representatives of police officers in Northern Ireland—those who, between them, are responsible for maintaining the police service in Northern Ireland—to ensure that they have a full opportunity to feed in their views. The Minister of Justice for Northern Ireland is considering those views and will respond in due course. I might say, while we are talking about police matters, that I greatly valued the observations of my noble friend Lord Wasserman.
A number of noble Lords, including my noble friends, Lady Berridge, Lord Faulks, Lord Dholakia, Lord Avebury, and the noble Baroness, Lady Kennedy, referred to the changes we are making to the powers in Schedule 7 to the Terrorism Act. I welcome the conclusion of the Joint Committee on Human Rights that,
“the Government has clearly made out a case for a without suspicion power to stop, question and search travellers at ports and airports”.
I also welcome the committee’s support for the amendments to the Schedule 7 powers we have made in the Bill. These are important changes, including a reduction in the maximum period of detention by a third.
The difference between the Government and the Joint Committee is whether the changes in the Bill to Schedule 7 go far enough. In particular, there are some who would continue to argue that the provisions in Schedule 7 are disproportionate and at odds with the convention rights and that these modifications are insufficient to cure that. Given the continuing threat we face from terrorism, the Government profoundly disagree. This is not simply the view of the Government, the police and the intelligence agencies. I refer the House to the judgment of the High Court in proceedings brought by an individual examined under Schedule 7 earlier this year. In that judgment, the court said that,
“we have concluded that the Schedule 7 powers of examination survive the challenges advanced before us. In short, the balance struck between individual rights and the public interest in protection against terrorism does not violate the fundamental human rights in question”.
I hope that noble Lords will agree with that as we debate this issue. I should add that it is our aim to respond to the JCHR’s report before we enter Committee.
Lord Avebury
Does my noble friend agree that, during the whole period when these powers have been in operation, not one single case has been unearthed by stop and search at the airports or seaports of an individual who has been engaged in acts of terrorism, other than those who were known to the police before they were stopped?
Lord Taylor of Holbeach
The use of these powers is part of our general drive to ensure that we repress terrorism in this country. The exact way in which those powers are used is not really a matter that I would want to discuss on the Floor of the House at this stage. I can reassure the noble Lord that these powers are an important part of our war against terrorism, in this country and elsewhere.
There have been a lot of comments on the compensation for miscarriages of justice. The provisions in the Bill in respect of compensation were raised by a number of noble and learned Lords. It has been good to hear the Rolls-Royce minds of lawyers at work. As a number of noble Lords pointed out, the concept of a miscarriage of justice is not a simple one. Over the years, that has been left open to interpretation by the courts. This has resulted in a lack of clarity for applicants, leaving Governments susceptible to frequent unsuccessful legal challenges and their associated financial implications, with the taxpayer footing the bill. The amendment to current legislation will ensure that compensation is paid in cases where the new fact on which the applicants’ conviction was overturned shows them to have been innocent of the offence. This is a clear, open and transparent test, and one that was successfully operated between 2008 and 2011. That being the case, we are satisfied that it is a perfectly proper test to enshrine in statute. I welcome the support of the noble and learned Lord, Lord Brown, in this matter.
I have run out of time. I have been prompted that I have spoken too long and that it is late, but I am grateful to noble Lords for the constructive and thoughtful way in which they have conducted the debate this evening. There are many areas where we can agree on the Bill. It makes a positive contribution in improvements to protect the public and further modernise the police. It is clear that there are areas where there is further debate to be had as we move into Committee. I hope that we will be able to meet and discuss those. I will certainly be writing to a number of noble Lords. However, I hope that in my closing remarks I have been able to deal with some of the issues raised by noble Lords during the debate. I am sure we will return to many of those issues. In the mean time, I commend the Bill to the House.