Anti-social Behaviour, Crime and Policing Bill
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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.
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.