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, I thank my noble friend Lady Hamwee for these amendments, which give me an opportunity to explain more fully how those responsible for young people and young offenders can work together. In Amendment 21D, my noble friend is right to highlight the impact that something like exclusion from the family home could have on a young person. It is worth reiterating here that the power to exclude is available only when a much higher test of violence or significant harm to others is met. As such, it is a power that is rarely used in the context of the current anti-social behaviour injunction and we expect that it will rarely be used with the new injunction. This is especially true with young people. There are a number of examples where young adults have been excluded from a family home because of the reign of terror they have created. However, I sympathise with the point my noble friend raises and I would like to consider it further, without commitment, ahead of Report. In doing so, I would want to consult with front-line professionals on this point.
Clearly, if the provision remained as it is and the court were to decide to exclude someone under the age of 18 from the family home, it would also have to consider what additional support, such as accommodation, would be necessary to make it possible. There would also be a duty on local authorities to consider what support they are obliged to offer to the young person in such circumstances. However, there may be situations where, for the benefit of victims, alternative accommodation —with other family members for instance—could be in both the young person’s interest and that of the community. I should add that there may be cases where a 17 year-old respondent lives alone and where exclusion may be an appropriate response to his or her threatening behaviour.
The local youth offending teams will also have a role in the process of applying for an injunction against a young person and will provide a balanced and considered input early on, so I am not persuaded that simply preventing exclusion in all cases where the respondent is under 18 is necessarily the right answer. That said, if my noble friend is content to withdraw this amendment, I will return to the subject on Report after further consideration.
Amendment 21G seeks to put in the Bill a requirement for agencies to use informal approaches against under-18s before resorting to more formal measures to stop or prevent their anti-social behaviour. Early and informal approaches can be successful in stopping anti-social behaviour committed by the majority of perpetrators, including young people. I agree that when dealing with young people, informal interventions should be considered first in most cases as they can help stop bad behaviour before it escalates. Our draft guidance reminds professionals of the importance of considering informal measures in the first instance. Informal approaches could include acceptable behaviour contracts or, as they are sometimes called, acceptable behaviour agreements. These contracts can be an effective way of dealing with anti-social individuals, especially where there are a number of problem behaviours. They can also be very effective at dealing with young people early, to nip problem behaviour in the bud before it becomes more serious.
However, more formal measures must be available in the minority of cases where informal interventions are not appropriate. I am reluctant to restrict professionals in the way the amendment suggests because they need to have the flexibility to respond in all situations. There are, however, safeguards to ensure that injunctions are used appropriately. Before an application against an under-18 is made, the applicant must consult with the local youth offending team. This will ensure that the youth offending team is involved at the earliest stage in the process. They can give their expert views on whether an informal intervention would be more effective in dealing with the anti-social behaviour, rather than the more formal power in the form of an injunction.
In addition, before an application for an IPNA against those aged under 18 is made to the court, the applicant must,
“inform any other body or individual that the applicant thinks appropriate of the application”.
We would of course expect this to include the young person’s parents or guardians. As I have said, we would expect that in most cases professionals will look to informal measures first, but these provisions act as a safeguard to ensure that they do not automatically move to seeking an injunction, and that the youth offending team is involved in finding a solution to the young person’s behaviour.
I hope that I have explained how the Bill will ensure that the needs of a young person will be assessed when agencies are considering applying for an IPNA against that young person. I hope, too, that my noble friend understands why I do not think it would be necessary to put provision for good behaviour warnings in the Bill. I hope that she will withdraw her amendment on the understanding that I will consider the matters she raised.
Lord Hope of Craighead (CB)
Perhaps I may briefly take the Minister back to Amendment 21D. He made a number of points to explain how in practice this measure will be dealt with in the case of people under the age of 18. I was looking at the draft guidance as he was speaking and some of the points that he made do not appear there. Certainly, the point is made that the power of exclusion would not be used often, as is the point about the high threshold and so on. However, for example, the Minister mentioned the function of the youth offending team but that is not mentioned at pages 25 and 26 in this chapter of the guidance. I can see a value in the continuing duty of the youth offending team when dealing with young people who are excluded from their home, but it would be helpful if that were to be put in the draft guidance. Will the Minister undertake to look at the guidance as well as the drafting of the Bill when dealing with the point that the noble Baroness raised?
Lord Taylor of Holbeach
We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.
Baroness Hamwee
My Lords, we, too, will look at the guidance in the light of the debates. I say that as a promise rather than a threat—and I hope it is interpreted in that way.
My first amendment—as are so many amendments at this stage—is to some extent probing. I thought that the Minister made my case rather better than I did. I am glad that he will be consulting. I would not expect him to move forward on this without talking to the front-line professionals. I make just one comment on what he said: accommodation with other family members is unlikely to be available unless it was there without the need for an order. I am just thinking about the way that family dynamics work. As regards both amendments but particularly the second, I, too, will look at the guidance again and hope to provide some useful input to ensure that what the Minister describes as a longstop is a very long longstop. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.
The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.
It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.
Lord Taylor of Holbeach
I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.
As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.
My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.
There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.
Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.
However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.
It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.
My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.
I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:
“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”
Baroness Smith of Basildon
Those are wise words indeed, but will the Minister confirm that my noble friend Lord Bassam was speaking about anti-social behaviour in terms of harassment, distress and alarm, and not an IPNA, which is to cause nuisance and annoyance?
Lord Taylor of Holbeach
The noble Baroness will know that an IPNA can be applied also in cases where there may have been harassment, alarm and distress, so although nuisance and annoyance is the test for an IPNA, it is not the absolute or exclusive text.
Baroness Smith of Basildon
This clause would apply to those who have committed a breach of an IPNA by causing nuisance and annoyance. Would that be correct?
Lord Taylor of Holbeach
The noble Baroness is quite right, but what we are seeking to do is to enable the IPNA-based process—at the discretion of the court, which I must emphasise to noble Lords, and in conjunction with the advice of the youth offending team—to determine whether this is the best way of dealing with this young person.
Lord Deben (Con)
I hope that my noble friend will stick hard to this, because one of the issues that most affected one in a very long life as a constituency Member of Parliament was the number of people whose lives had been made absolutely intolerable by activities of this kind. It is important that we stick to this in the way in which he has proposed.
Lord Taylor of Holbeach
I thank my noble friend for those encouraging words. I feel that we are right on this issue and I suspect that all noble Lords will know that, with discretion on this matter resting with the courts, there will be proper evaluation of the issues before any decision is made. I would expect any court to take full account of the nature of the behaviour before deciding whether to impose such a condition. I might add that the Home Affairs Select Committee considered this point during the pre-legislative scrutiny of the draft Anti-social Behaviour, Crime and Policing Bill. In its report on the draft Bill, the HASC said,
“we are happy to leave the decision not to name a young person to the discretion of the judge”.
We agree that this is appropriately a matter for judicial discretion for all respondents under 18, whether older or younger than 16.
For these reasons, I am confident that the reporting of under-18s will be carefully considered and used only in circumstances where it is necessary. I hope that I have been able to put this particular issue into context and that my noble friend will withdraw her amendment.
Lord Hope of Craighead
I come back briefly to the point about discretion. Of course it is right that the court will have discretion as to whether to grant an injunction. In the case of an application made without notice, the clause is perfectly clear; it gives wide discretion to the court as to what to do. My concern is that if the court decides to make an order, where is its discretion if you remove the provision in Section 49 to restrict the publicity that is given to it? It is that element of discretion that I think concerns the noble Lord, Lord Ramsbotham, and the noble Baroness. There are two discretions here. One is certainly there, very properly, in the way that the whole of Part 1 is drafted as to whether orders are to be made. It is the particular point about the discretion as to whether publicity should be given that is of concern.
Lord Taylor of Holbeach
I am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am sorry if I struggled to get the place name right but I am delighted that he mentioned this point because I just received a note saying that Section 39 of the 1933 Act gives the court the discretion to impose reporting restrictions.
Baroness Hamwee
My Lords, I, too, was a little confused when the Minister referred earlier to Section 39, which the noble and learned Lord just mentioned. This will require some reading. The point, of course, is entirely right. It is how the court has discretion as regards publicity. I do not at all challenge the point on the injunction. I am very grateful to the noble and learned Lord, Lord Hope, for reminding the Committee that our courts are essentially public; that is where the concern comes from.
The Minister talked about the status quo. That confused me, because I thought that I was arguing for the status quo. He said that the status quo was good, but he challenged my amendment. I cannot see how we will not return to this on Report. However, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
I could not agree more with the noble Baroness about the importance of behaviour regarding the environment. All noble Lords would join in that sentiment. I do see this as an ongoing debate on how Parliament, the Government, and communities as a whole can deal with what is manifestly a big problem. I am grateful, therefore, for the opportunity to debate these issues through the amendments tabled by my noble friends Lord Marlesford and Lord Goschen. My noble friend Lord Marlesford has come back on this issue following his Private Member’s Bill and the amendments that he made to previous legislation on similar grounds.
I shall address his amendment first. I know that littering from vehicles is something that he feels about passionately. I have been in the House when he has raised this issue previously and I also know that many noble Lords share his concerns, as I do myself. I consider it a source of considerable annoyance to see the roadside littered—if I may use the word—with discarded litter, discarded by people who do not seem to care about the visual and other impacts on the environment and other people’s neighbourhoods. Therefore, I come from a position of saying that littering should be treated seriously. My noble friend Lord Crickhowell is absolutely right. It is simply unacceptable to drop litter. Littering from vehicles can also present a danger by distracting or even injuring other road users or by obstructing the highway. Littering is anti-social and this is an anti-social behaviour Bill. It demonstrates disrespect for the community and it incurs costs for the taxpayer. In many communities, a lot of litter collecting is done by voluntary community groups. In my own area, the local civic society takes on responsibility for clearing up irresponsibly discarded litter. The Highways Agency spends around £10 million a year clearing litter and this often involves closing lanes, which also causes delays to other road users.
As my noble friend explained, his proposed new clause seeks to make it easier for local authorities to fine people when littering is witnessed from their vehicle. My noble friend feels that more people must be punished for this anti-social behaviour and that, if more people were or could be punished, fewer people would commit the offence in the first place. The Government are at one with my noble friend’s intentions. However, as my noble friend Lord De Mauley advised my noble friend Lord Marlesford during the Second Reading debate on his Littering from Vehicles Bill earlier this year, we do not believe that the approach he proposes is likely to contribute significantly to the resolution of this problem, and I think that I owe it to the Committee to try to explain that.
At present, because littering is a criminal offence, we advise local authorities not to issue fixed penalty notices for littering unless they are confident that the evidence against the offender would stand up if the case went to court. It is, of course, for local authorities to satisfy themselves about this and to assess the strength of each case on its merits. The amendment would also mean that, as a matter of law, the registered keeper of a vehicle could be punished for an offence committed by someone else, such as a passenger, or a family member who also had the use of the vehicle. The amendment makes clear my noble friend’s intention that the registered keeper should be held liable whether or not they gave instructions or allowed the contravention to take place. People who are innocent of any offence would therefore have either to pay the fine or take on further inconvenience and expense in challenging it, while the actual offender would go unpunished. It is hard to see how this approach is going to change offenders’ behaviour if someone else bears the punishment for their wrongdoing. In law, fairness and proportionality are crucial in gaining public support for the use of fines to punish this type of behaviour, but under the amendment an innocent party might be punished for the crime of another.
I accept that there is a place for keeper liability when it comes to the enforcement of traffic-related offences, but it is a very big step to extend this principle to other categories of offences. Government guidance on the use of fixed penalties is very clear that people should be fined only when it is proportionate and in the public interest to do so, and fining the registered keeper for any littering offence committed from their vehicle, regardless of their guilt, is neither fair nor proportionate.
Enforcement is the issue, and I agree with all noble Lords who have spoken that we want the message to the public to be loud and clear: littering is a crime. However, the amendment would distort that message by essentially decriminalising littering from vehicles, and at the same time it would create a legal anomaly. Littering while standing on the pavement would remain a crime, but dropping the same litter from within a vehicle would be treated as a civil offence. That risks sending the wrong message—that littering from vehicles is not really so serious.
More importantly, we also doubt that this proposal will achieve my noble friend’s desired aim, as it relies on the offence being witnessed. Its effectiveness would be limited by the number of enforcement officers available to the local authority, and they cannot be everywhere all the time. It will not be of any help when the offence takes place in an isolated area, in the dark or at such speed that the vehicle registration cannot be recorded. In some cases, CCTV may help, but even CCTV has limits as to the level of detail that it captures.
When my noble friend raised this proposal in the context of the Localism Bill in 2011, the then Minister, my noble friend Lord Shutt, responded:
“It makes sense to learn the lessons from the application of that approach in London before moving to wider legislation”.—[Official Report, 10/10/11; col. 1370.]
I know that my noble friend Lord Marlesford feels that the powers under the 9th and 10th London Local Authorities Acts have been in force in London for a year and that we should therefore have had time to assess their operation by now. However, the current evidence suggests that these powers have not been widely used. It has taken a long time for the boroughs to put in place the necessary appeals system and paperwork. Barely a handful of civil penalties have been issued so far, and the new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour—
Lord Crickhowell
I am grateful to my noble friend. He is giving one lot of statistics but does he have any statistics relating to the number of occasions when criminal prosecutions have been effectively brought for the same offence anywhere in the United Kingdom?
Lord Taylor of Holbeach
I apologise to my noble friend because I do not have such figures. I am not quoting any figures here; I was saying that I understand that only a handful of civil penalties have been issued. I shall certainly write to my noble friend if I am able to obtain the answer for the number of littering crimes that have been committed. As I said earlier, enforcement is the issue. The new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour of the general public. After this debate, it would be interesting for me to talk to my noble friend Lord True about his experience in his borough and to find out how useful he has found these provisions under the London Local Authorities Acts.
The lesson we have learnt so far is that the evidence does not support this approach as being so effective in tackling the problem as to justify rolling it out on a national scale. While we share my noble friend’s sentiment and respect his persistence, we cannot support this amendment and I hope that he will withdraw it.
We have heard a number of speeches. My noble friend Lord James of Blackheath sought to get to the bottom of several issues, but we doubt that my noble friend’s proposal will assist us in dealing with the problems mentioned by many of the speakers in this debate.
I now turn to the amendment from my noble friend Lord Goschen. He alluded to a number of matters on which I can now inform the Committee. This amendment brings to our attention the problem of fly-tipping. Like littering from vehicles, this is another example of individuals having little care or concern about the impact of their actions on the environment.
I am pleased to be able to reassure my noble friend that there are currently seizure and disposal powers in respect of vehicles used for illegal waste disposal. These are set out in Section 6 of the Control of Pollution (Amendment) Act 1989 and they apply in Scotland, England and Wales. However, we will be improving on these powers when we commence provisions in the Clean Neighbourhoods and Environment Act 2005 to repeal and replace them.
The new, wider powers relate to the seizure of vehicles used or about to be used in the commission of offences under Section 33 of the Environmental Protection Act, which relates to the unauthorised deposit of waste and includes fly-tipped waste, under Section 34, which imposes a duty of care to ensure that waste is transferred to an authorised person, and under Regulation 38(1) or (2) of the Environmental Permitting (England and Wales) Regulations 2010, which require waste operations to be carried out in accordance with a permit. It will also make it easier for local authorities and the Environment Agency to exercise their powers—for example, by removing the need for a warrant before seizure and for the retention of the vehicles pending investigation or completion of court proceedings.
The new, wider powers also provide for the forfeiture of seized vehicles following convictions for offences under Section 33(1) of the Environmental Protection Act or Regulation 38(1) of the Environmental Permitting (England and Wales) Regulations. The new Environmental Protection Act powers have already been commenced in relation to Wales and are in the process of being commenced for England. The related secondary legislation is in the process of being drafted and finalised. Subject to the normal clearance procedures, these powers are due to be brought into force as early as possible in 2014. Given that the powers sought by my noble friend’s amendment already exist and are in the process of being improved, I do not think the amendment is necessary and I hope that he will feel able not to press it.
Lord Rosser
I certainly await with interest what the Minister has to say in response to these amendments. Subject to what he may say, at the moment it is not entirely clear why Clause 21(3) does not say that the court has to be satisfied “beyond reasonable doubt”. After all, other parts of the Bill lay down the standard of proof, whether that be reasonable doubt or the balance of probabilities.
The draft guidance on criminal behaviour orders, under the heading “Test” on page 29, states:
“If the court is satisfied beyond reasonable doubt”.
Therefore, one thinks that the term is in the draft guidance, although it is not considered important enough to be in the Bill. However, when one turns to page 30, under the paragraph headed, “The Test”, it states:
“For a CBO to be imposed, the court must be satisfied that … the offender has engaged in behaviour”,
et cetera. There is no reference to “beyond reasonable doubt”.
So there is one case where the draft guidance states “beyond reasonable doubt”, and on the following page it is not put in. On page 31, under “Standard of proof”, the guidance states:
“It is expected that courts will follow the reasoning in”—
the case of Clingham v Royal Borough of Kensington and Chelsea—
“and apply the criminal standard of proof”.
Therefore, in one version it is expected that that is what the court will do. The reference to the test on page 30 does not say anything about the court having to be satisfied beyond reasonable doubt. However, on the previous page—29–when reference is made to the test, the words “beyond reasonable doubt” are put in. There is an inconsistency in the draft guidance over the wording and there is no reference at all to it in the Bill. I think that the noble Baroness, Lady Hamwee, is making the point that it has to be beyond reasonable doubt.
I have a further issue with the criminal behaviour order. The draft guidance states:
“The prosecution, usually the Crown Prosecution Service … may apply for the CBO after the offender has been convicted of a criminal offence … The CBO hearing will occur after, or at the same time as, the sentencing for the criminal conviction. The CPS will rely on the police or council to build the case to be presented to the court”.
However, the following paragraph states:
“There is no scope for retrospective applications”.
Does that mean that if the application is not made at the same time as sentencing but is done after the offender has been convicted of a criminal offence, there could be a separate hearing into the criminal behaviour order, with the police or the council having to present their case to the court and prove it beyond reasonable doubt? Perhaps the Minister can confirm that if the application is made in that way, the case has to be proved beyond reasonable doubt.
How long after the offender has been convicted of a criminal offence can the application be made for the CBO—bearing in mind that the next paragraph appears to say that there is no scope for retrospective applications? Does that just mean that there cannot be a retrospective application in a case that has already been heard and dealt with? It would be helpful if the Minister could clarify how long after the offender has been convicted of a criminal offence an application can be made for a CBO. Is it envisaged that it will be heard on the same day? What happens if the conviction occurs at 4 pm? If the police and the council have built up a case to present to the court, do you then continue on that day with the case being presented for a CBO? Do you adjourn the proceedings? How long can they be adjourned for? It would be very helpful if the Minister, as well as responding to the issue about reasonable doubt, could tell us something about how the logistics of an application for a CBO will work in the light of what is in the draft guidance.
Lord Taylor of Holbeach
My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.
For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.
Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.
Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.
The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.
Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.
Baroness Hamwee
Indeed, I am partially satisfied and I will not repeat the argument I made about the distinction between IPNAs and CBOs for the purpose of Amendment 22D.
I am puzzled as to why, if the Government expect the criminal standard of proof to apply and then—it is not quite the same—say that it “will” apply, they are reluctant to spell that out. It is a new offence and I would have thought that it would be better to spell it out, but there we are.
I did indeed intend to raise the evidential burden regarding Amendment 22C. For something to “help” is a very low threshold. It is rather a small objective and achievement. I hope it answers the noble Lord, Lord True, if I say that I was linking it back to Clause 21(3) because Clause 21(4) refers to “such behaviour”. That behaviour is described in Clause 21(3) as having “caused” or being,
“likely to cause harassment, alarm or distress to any person”.
We are talking about a criminal order so it seems to me that it is proper for there to be a more exacting test. However, having said that, I am grateful to the Minister for the partial consideration and I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, the noble Earl, Lord Listowel, made some interesting and useful points. We sympathise with the comments that he made and with these amendments. As the noble Baroness, Lady Hamwee, said, I do not want to repeat the comments made in the earlier debate on the amendments of the noble Lord, Lord Ramsbotham. However, I asked questions in that debate that the Minister did not answer, and similar questions apply in this debate.
The Minister will recall that I asked about the evidence base for the proposals brought forth by the Government. In that case, it was about what assessment had been undertaken to evaluate the safeguarding of the risk to children. He was not able to reply then and I am happy for him to write to me. The same questions apply here. They concern the evidence base on which the Government are bringing forward these clauses. A number of children’s and young people’s charities have contacted Members of your Lordships’ House with concerns about whether, in the clauses we are debating and in our previous debate, the breach of civil orders is against the rights of children and whether it would do more harm than good.
As I said then, I hoped that the Government have an evidence base on which they are bringing forward these amendments, but the Minister was not able to answer. I hope that he can on this occasion. One part of my question is about consultation around these proposals and the previous provisions. The second part of it is on the assessment that is undertaken to evaluate, in the previous case, the risk and, in this case, the effect of the Government’s proposals. Are the Government prepared to have a review period in both cases to see whether they have been effective and what changes should be made?
Lord Taylor of Holbeach
My Lords, I thank the noble Earl, Lord Listowel, for picking up the amendments of the noble Lord, Lord Ramsbotham, and presenting them in the way that he has. In replying, I am very happy to have a meeting with those Peers who are interested in the impact of the Bill and its provisions in general on young people. That would be useful. We have had some productive debates on the issue here in Committee. I hope that I have been and am able today to show that we see our role in seeking to prevent anti-social behaviour as one that tackles the difficulties that some young people have, and in rehabilitating and supporting them.
This brings us back to whether it is right for young people to face the full range of criminal sanctions when they act in a way that is seriously anti-social: I emphasise “seriously”. I understand the points that have been made by all noble Lords who have spoken: the noble Earl, Lord Listowel, my noble friends Lady Hamwee and Lady Linklater, and the noble Baroness, Lady Smith of Basildon. They have all expressed the importance of rehabilitation, especially in cases concerning young people. That is why it is so important that the injunction under Part 1 and the criminal behaviour order that we are discussing here can include positive requirements to help them turn their lives around.
Youth rehabilitation orders are often a fair and proportionate way to deal with a young person who has been convicted of an offence as an alternative to custody. Use of such orders is in line with the intentions of the Bill: that informal interventions and rehabilitative approaches should be used first and foremost, in particular, when dealing with young people. However, it is right that tough sanctions are available on breach.
Amendments 22KB and 22KC seek to restrict the sanctions on breach of a criminal behaviour order for under-18s so that a youth rehabilitation order must be made. Breach of a criminal behaviour order is an offence. There is no danger of this criminalising someone for the first time because an order can be made only once they have been convicted of a criminal offence. It is worth remembering that the criminal behaviour order is aimed at tackling the most serious offenders, and that by the time that it is breached an offender may already have failed to respond to positive requirements aimed at addressing the underlying cause of their anti-social behaviour. They may also already have had a youth rehabilitation order made in respect of their offending. We would expect the youth courts to do all they can to ensure their rehabilitation when considering the sanction for a breach. This may well be a rehabilitation order but it is right that they have the discretion to impose the most appropriate penalty in a given case, including a fine or, in the most serious cases, custody.
On the dispersal power, there needs to be an effective and serious consequence to breaching a dispersal order which is imposed by a police officer. Clause 37 provides the option to apply a fine or a prison sentence of up to three months. We expect the court to use these sentences appropriately and proportionately in accordance with sentencing guidelines. The three-month sentence is the maximum sentence available to the court and it may impose a lower sentence if appropriate, including a youth rehabilitation order if the offender is under 18. However, there may well be some young people for whom a fine or even detention is appropriate, and I would not wish to tie the hands of the youth courts which, after all, will have access to all the evidence and will be best placed to make a decision in individual cases.
I hope I have been able to reassure the noble Earl that the sanctions available on breach of the CBO and the dispersal power will help the courts. From the comments of the noble Baroness, Lady Smith, one could be forgiven for thinking that breach of an ASBO was not an offence subject to a maximum penalty of five years’ imprisonment, which is what the previous Government legislated for. This sanction applies to the ASBO and the sanction of imprisonment applies to young people as it does to adults. Like the previous Administration, we believe that tough remedies should be applied on breach where it is appropriate. It is for the courts to test what is appropriate, and the test for the CBO is analogous to that for the ASBO, as the noble Baroness would expect.
The Earl of Listowel
My Lords, I thank the Minister for his careful reply. I hear what he says and will take it away and consider it. I am concerned about looked-after children, who have often been so badly failed by their family. While the state is improving in its job as a corporate parent and the Government are doing good work in improving the consistency and quality of social workers, still so often the young people I meet are let down left, right and centre by the state itself by having too many different social workers and not being properly cared for in their residential care.
I am concerned that young people who will be caught by these measures will be troubling, but often very troubled themselves. They can be such a nuisance and so difficult to deal with that the risk is of a kind of unintentional ratcheting up of the response by the state until these terribly troubling—and terribly troubled—young people, who have often been very poorly treated in their own home, get punished by the state because their parents were not good enough for them. It falls to us to try to be as careful as possible to get a positive influence and impact on their lives.
For instance, in a children’s home, one might find that if a child is acting out in an aggressive and unhelpful way and if you have poorly trained staff, in the worst instances they will hit back at a child. They simply will not know how to respond. In the best establishments, one finds that the staff are really well supported and very thoughtful. They get in there really early on, before the child starts acting out, and prevent the escalation to where the police are called and the child gets reported and put into the criminal justice arena. I am being a bit longwinded here. It is so easy for Governments to ratchet up their response to these children because they are so difficult. One does not want to see a return to the past where we had the highest rate of juvenile imprisonment in Europe, which was a shame on this nation.
Lord Taylor of Holbeach
Perhaps I might intervene to reassure the noble Earl that what we are seeking to do with the Bill is to get early intervention of the type he is suggesting. When we are talking about CBOs, we are talking about people who have been convicted of a criminal offence. Our task must surely be to try to avoid people getting to that stage. That is why we are looking to build in early intervention and, even when criminality has occurred, to look at methods of rehabilitation as a vehicle whereby we can address the issues, which I agree are extremely sensitive, in the way that the noble Earl suggests. I hope that he does not mind me interrupting him.
Baroness Smith of Basildon
Having listened to the noble Lord, I am sorry that I missed that debate. However, I get his point about locality and location; I just seek further clarification on how that can be dealt with.
I have a couple of other points. The 48 hours that the Government propose for these dispersal orders are twice the period in the Anti-social Behaviour Act 2003. I understand that the only other legislation that permits dispersal powers in this way is the Violent Crime Reduction Act. I would understand why a longer timescale would be used in connection with violent crime. However, we are not talking about violent crime but about anti-social behaviour. There must be some evidence base for why the Government think that 48 hours rather than 24 hours is appropriate.
It would be helpful if the Minister could talk us through “Directions excluding a person from an area”. I have had conversations with those who could be practitioners in this area of legislation, and some of them seem to be slightly confused by how it will work. It is quite clear how the current process works, but how will such a direction to exclude an individual or group of individuals from an area work? If they are to be excluded from a locality for 48 hours, does somebody draw a handwritten map—“This is the area that you’re going to be excluded from”—to make clear where it is? Who else should be notified? Forty-eight hours is quite a long time. If there has been no local authority consultation and it has all been done very quickly, how do the person and other authorities know that they are to be excluded for 48 hours? If the direction is to be withdrawn or varied, how will they and others be notified? This lack of involvement and consultation with the local authority gives rise to a number of practical questions. I would be grateful if the noble Lord would on this occasion be able to answer my questions—which he has not, so far, been able to do on any other occasion, although I am getting used to it—and talk us through the process.
Lord Taylor of Holbeach
My Lords, I might have preferred to be participating in the passage of the CRoW Act, although it seems to have been a merciful release that I was not here to be involved in those debates. This is the first time we have had a chance to talk about dispersal orders, so it would be useful to give the background of what we want to achieve by them and try to answer the questions that noble Lords have asked me.
The new dispersal power will allow the police to deal quickly—I emphasise that word—with anti-social behaviour centred on a particular locality, nipping such behaviour in the bud before it escalates and providing immediate respite to the victims of the anti-social behaviour that is the cause of the difficulty. The new power combines the best elements of the current legislation into a single, more effective and less bureaucratic tool. When I come on to the business of liaison with local authorities, I think that the noble Baroness and the noble Lord, Lord Harris, will see what I mean by that.
The current process can be very slow, and as a result victims and communities can suffer for a number of months before the police can act. Part of the problem is that the existing dispersal power can be used only once a dispersal zone is in place, and a zone can be designated only following consultation with the local council. The new power will not require prior consultation, so it can be used more quickly. However, we recognise that there should be some supervision of the new power, and in this respect the provision has benefited from scrutiny by both the Home Affairs Select Committee and the Joint Committee on Human Rights. Responding to points made by the HASC, we have included the safeguard that the dispersal power must be authorised by an officer of at least the rank of inspector. The authorisation may be given if the officer is satisfied on reasonable grounds that use of the dispersal power may be necessary in a specified locality during the specified 48-hour period.
The requirement for the officer to be satisfied “on reasonable grounds” was included on the recommendation of the Joint Committee on Human Rights. We had intended it to be part of the test when the Bill was introduced, and we believed it to be implicit. However, in this instance we agreed with the committee that it would be clearer to have that explicit in the Bill. I am grateful to the committee for drawing this to our attention. The addition of “reasonable grounds” further emphasises that the test for authorising use of the power is objective.
On Amendment 22L, tabled by my noble friend Lady Hamwee, the two elements of the test will mean that officers consider whether use of the dispersal power is a proportionate response to the problem at the particular time and locality. As a public authority, the police must also exercise their powers proportionately under general public law principles and human rights obligations. It is not, therefore, necessary to include “proportionate” in the Bill. I am firmly of the view that the safeguards in the legislation will ensure that the dispersal power is used appropriately, based on local knowledge of the area and on intelligence that there are likely to be problems at a specific time.
I return to the question of locality. My noble friend has put forward Amendment 22N to ensure that an authorisation clearly identifies the locality where the dispersal power can be used. The authorisation for the use of the power must be given in writing, must be signed by the officer giving it, and must specify the grounds on which it is given. These grounds must include the specified locality and time period for which the authorisation applies. My noble friend’s amendment is therefore provided for in Clause 32(1), which states that the time and location for which the dispersal may be used are as specified in the authorisation. Perhaps I can elaborate on that.
Clause 32(1) and (2) are concerned with this authorisation process, so the intention is that the reference to locality in both subsections has the same meaning; i.e. they cover the same geographical area to be specified in the authorisation. As drafted, the Bill makes this clear. The new dispersal power will allow the police to respond swiftly and flexibly. For example, on a particular housing estate where there is likely to be anti-social behaviour at the weekend, an inspector could pre-approve use of the new power by his or her officers. Alternatively, if an incident occurred at a different time of the week when it had not been anticipated, a police officer could contact an inspector for authorisation to use the dispersal in that specific instance.
Amendment 22M, tabled by the noble Baroness, Lady Smith, and supported by the noble Lord, Lord Harris of Haringey, raises an important issue for the Local Government Association regarding consultation with local authorities. As noble Lords know, I have had meetings with the Local Government Association Safer Communities Board. The association has expressed some concern about the impact of these dispersal powers on community relations and has therefore argued for them to be subject to democratic oversight. I understand this point, but to require consultation would seriously undermine the flexibility and utility of the power and would reinstate precisely the difficulties we seek to remove from the current system.
However, the draft guidance states that the authorising officer may wish, where practical, to consult with the local council or community representatives before making the authorisation, in particular where there are concerns about community relations and the use of the dispersal in a particular area. Therefore, for example, when planning the policing of a football match, the police might decide to authorise use of the dispersal in the area surrounding the stadium. It is likely that the police already work with the local authority in planning this kind of event, and this would include a discussion on the use of powers in such a dispersal.
This issue was raised when I met with the Local Government Association recently. I agreed to include in the guidance that it is good practice for the police to inform the local authority after the dispersal authorisation is used. This will help the local authority work with the police to plan longer-term solutions in areas where there are persistent problems. I remind your Lordships that the Government have published this guidance in draft to assist with scrutiny of the provisions.
I agree that accountability is important, and Police and Crime Commissioners now have a vital role in holding forces to account on behalf of the public. Police forces will be required to keep records of the use of the dispersal power and, while there is no duty to do so, they may wish to publish data in the interests of transparency. Police forces can share data about the use of the dispersal power with councils to assist in their crime prevention planning, and plan longer-term solutions to hot-spot areas. The draft guidance that accompanies the legislation emphasises the importance of involving the community in taking a problem-solving approach in areas with persistent problems. Clearly, this would be a case in which we would expect police forces and local authorities to work closely together.
The current Section 30 dispersal power has worked well in some areas to deal with longer-term issues. Those powers are led by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the new public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems.
I will deal with some particular questions asked by the noble Baroness. On the question of dispersal orders, she thought that people might be confused about what is actually involved in being dispersed. Much of the new power is available to the police now, but guidance will share good practice on how the dispersal orders should be used. In most cases, the officer will provide this information in writing and, in many forces, officers actually provide a map for the person given the dispersal order to show them the area from which they are excluded.
Baroness Smith of Basildon
I do not want to disrupt the Minister as he answers other noble Lords’ questions, and I am grateful to him for answering one of the questions that I raised. I just wondered whether he is going to come to the other questions I asked, about the representations he received that the current process was inflexible, and what examples he had of those. I also asked why the Government have not abided by their response to the Home Affairs Select Committee, as they committed themselves to do.
Lord Taylor of Holbeach
That is not my practice; I try to be open with the Committee about what these proposals entail and what they mean. Perhaps I have not emphasised that the whole Bill is built on good working relations between the police and local authorities. That is the whole purpose behind so much of this legislation. The reason why prior consultation has been eliminated is not because of the situation where the fairground had trouble the night before and it has been decided to put in place a dispersal order to deal with the problem the following evening, because clearly that would be a case where the authorities would talk together about how to deal with the problem. The situation we are dealing with is where there is disorder in an area at that time and where consultation with a local authority would impede a prompt response to that situation, and prompt dispersal.
Lord Harris of Haringey
That is even more disturbing because it implies that if, at 11 am, there is a concern that there is about to be disorder, that is the point at which an inspector could authorise police officers. It is always difficult to see how they are going to have the maps in their pockets to serve to people if they are dealing with a situation of that degree of urgency. I just think that what we are being told describes a series of situations where you really wonder how this is going to work in practice. The danger is that a misjudgment —and I am sure it would not be common—made by an officer of the rank of inspector could cause really serious community disruption. I can envisage circumstances where this would happen and this would provoke riotous behaviour in a wide area far worse than the disorder that was originally expected.
Lord Taylor of Holbeach
The noble Lord is concerned about the rank of inspector, but of course operationally, inspectors are the rank that has local knowledge and information. That is one of the key elements of this legislation; we are talking about locality here, and that is one of the main reasons why the rank of inspector was included in the Bill, in response to the Home Affairs Committee’s legislative scrutiny. I should emphasise that these powers already exist, and the way in which they are being used in this Bill comes as no surprise to the police nor to local authorities. The powers are used on a regular basis; they are familiar with the issues raised by the noble Lord, and the PCCs are in a position where they provide democratic accountability on the use of these powers.
Lord Harris of Haringey
I appreciate that lots of noble Lords are present for the next debate and I am sorry that this is holding them up. The way in which the legislation is framed—and I cannot immediately see how it could be done in a different way—does not necessarily mean that the inspector who authorises it is the one with knowledge of that particular community or locality. I use the word “locality” to make sure that I get it exactly right for the noble Lord, Lord Greaves. The provisions simply say, “an inspector”. I can conceive of circumstances in which a police force might decide to have an expert at the rank of inspector who will deal with dispersal orders for the whole force, who would then not have the local knowledge or input, which local councillors or neighbourhood officers might have, about the likely community reaction under those circumstances. There are some serious issues here which I hope the Minister will take away and consider.
Lord Taylor of Holbeach
Of course, I will consider all matters raised in this debate—I am happy to do so. We want to try to make sure that this works. But I have emphasised to the noble Lord the role of local authorities, the inspector and the police on the ground; it is all a matter of responding to a situation and having a vehicle available that harnesses powers to disperse that already exist to effectively handle that situation.
Lord Taylor of Holbeach
I think that I must respond to points made by other noble Lords—
Lord Harris of Haringey
If the Minister will forgive me, what he is saying is that all those different bodies will of course be working together. But that will be in the absence of an overarching plan in which the local authorities must necessarily engage—we debated that on Monday night. And it is in the absence of the specific power that used to exist whereby a local authority had to be consulted before the powers were used. That is not a recipe for saying that there will automatically be that degree of co-ordination and working together. That is the ideal, and I am sure that it is what everyone will strive to achieve, but we are talking now about things that will almost be happening in the heat of the moment, and I question how, in the heat of the moment, it will be possible to have a map that will clearly define the locality from which individuals are being excluded.
Lord Taylor of Holbeach
My Lords, the noble Lord is forgetting that anti-social behaviour is a concern for all public authorities, whether they are police and crime commissioners, who place it pretty high up their list of priorities, or local government and elected councillors or serving police officers. All those authorities place anti-social behaviour high up their list; they are not going to be negligent about dealing with the practical application of those powers. There will be pre-discussions between those authorities on the way in which all those powers are used.
We do not need in this Bill to tell people what to do or where their duty lies; they are quite capable of fathoming it out for themselves. We need to explain to them what power they have and the methodology whereby that power can be legitimately exercised. We are doing that in this Bill. I hope that the noble Lord will understand exactly the point the Government are coming from in this legislation. If I may say so, he has a mischievous side to his nature, and I think that he is seeking to make difficulties for the legitimate aspirations of people in authority, in local government and the police, who will clearly make sure that these powers are used effectively in the interests of preventing anti-social behaviour. That is why I am so resilient in resisting his temptations on these things.
Lord Taylor of Holbeach
I will reflect on what the noble Lord says, but I was about to address the points raised by the noble Baroness, Lady Hamwee, some time ago.
Lord Harris of Haringey
I am not being mischievous. Like the Minister, I want to make sure that these powers are effective. I also do not want to see unnecessary disorder caused because of their misapplication. That is why I am raising these issues. I actually made a self-denying ordinance that I was not going to intervene on the Minister again. However, his suggestion that I am doing this mischievously rather than because I am concerned about it led me to do so.
Lord Taylor of Holbeach
I accept the noble Lord’s explanation, but perhaps I can turn to the points raised by the noble Baroness, Lady Hamwee.
The noble Baroness asked about how we undertook in the draft Bill to provide the consultation with local authorities; we did not do that in the draft Bill. I have made it clear that I would expect police and local authorities to work closely together in the exercise of all anti-social behaviour powers under the provisions in the Bill. We believe that this clause and the dispersal power that arises from it are useful. The current Section 30 dispersal power has worked well in dealing with longer-term issues. Those powers are held by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems. The arrangements set out in Clause 32 balance the need for safeguards with the flexibility vital to dealing with a wide range of anti-social behaviour. I commend the clause to the Committee.
Baroness Hamwee
My Lords, I do not think that I should prolong this debate, and I shall keep until after today the questions that have occurred to me during the course of this debate.
My noble friend Lord Greaves has a much better memory than I have and has reminded us of the distinction between locality and location, as identified in previous legislation. I could not help but notice that my noble friend the Minister, in talking about Clause 32(1), used the term “location”, so I think we may need to be absolutely clear about that. But that can wait until after today.
I will say to both Front-Bench speakers who were sorry to have missed the Countryside and Rights of Way Bill proceedings that we dealt with an awful lot of it at unearthly hours of the morning and right through the night. On one occasion, breakfast was provided for the House, except for those who were stuck in the Chamber dealing with the Bill. So the noble Baroness may be a bit less sorry that she missed it. I beg leave to withdraw the amendment.