Anti-social Behaviour, Crime and Policing Bill
(10 years, 5 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Greaves
“(5) The meaning of “local authority” in this section includes a parish council and a Welsh community council.”
Lord Greaves (LD)
My Lords, I shall speak also to Amendment 53C. This small group contains two completely unrelated amendments. The first simply asks why premises owned by parish and town councils are not treated in exactly the same way as premises owned by district or other principal councils in terms of exemptions from alcohol bans. District councils are treated in a slightly less strict way compared with other premises, but I do not understand why town councils are not treated in the same way, as they very often own what people think are council-owned facilities in small and medium-sized towns.
Amendment 53C is a more important amendment, and it reads fairly cryptically. It proposes inserting at the end of line 41 on page 35,
“notify such other persons as may be specified in regulations made by the Secretary of State”.
It relates to Clause 60, which concerns orders restricting a public right of way over a highway. Therefore, we are back to that subject.
The existing legislation in a number of different areas relating to access contains designated or specified organisations. There is a list of those organisations and they usually appear in secondary legislation rather than in an Act. I remember arguing a long time ago during the passage of the Countryside and Rights of Way Bill, as well as the Commons Bill in 2006 and some others, that they ought to be in an Act, but they ended up in regulations.
In the CROW Act, proposals relating to access concern restrictions on access land; in the case of the Wildlife and Countryside Act, they concern closures and diversions of rights of way; and in the Marine and Coastal Access Act, they are to do with the designation of access land and the coastal route. In all these cases there is a designated or, in the more recent legislation, specified list of organisations which are notified of proposals. The list includes access organisations such as the Ramblers, the British Mountaineering Council and the Open Spaces Society. It also includes representatives of landowners. For example, the Country Land and Business Association, formerly known as the Country Landowners Association, is on a specified list, as are other organisations. It is a balanced list and it is a matter of automatic notification.
The purpose of this slightly cryptic amendment is to ensure that such a list—really it is the same list as in the other legislation—applies in the case of proposals to restrict, and particularly to stop access to, rights of way so that those organisations have the opportunity to make representations just as they have in other cases. Particularly on the rights of way we are talking about here, if what was being proposed was a closure or diversion under the Highways Act, as amended by the Wildlife and Countryside Act, that right would exist.
I shall say what I said before we had our dinner break: nowadays such notifications are far easier than they used to be. Once a system has been set up, it is just a question of pressing two or three keys on a computer keyboard. If I can set up that sort of system easily enough, I am sure that local authorities would have no difficulty doing so. I beg to move.
Lord Ahmad of Wimbledon (Con)
My Lords, I am grateful to my noble friend for tabling his amendments. On Amendment 53A, I appreciate and understand the important role that parish and town councils and community councils in Wales play in delivering key services in their area and, importantly, in creating a feeling of community; for instance, through the organisation of social events and so on and so forth.
The Bill provides some level of protection for council-operated licensed premises so that they can organise the kind of social events I have referred to but, as my noble friend has suggested, the narrower definition of local authority in this part of the Bill may mean that protection is not afforded to the types of council covered in the amendment. As such, it could result in the parish council not being able to sell alcohol at its annual fête because of a wider controlled drinking zone implemented by the district council. I have listened very carefully to my noble friend’s comments and have reflected on the amendment. If he will agree to withdraw it, we will certainly consider any further and wider implications of the change suggested and return to this on Report.
Amendment 53C would give the Secretary of State the ability to add, by regulation, to the list of persons who should be consulted before access is restricted. We believe that, as currently drafted, the Bill covers all those who should be consulted in each case. I am happy to provide further examples in the guidance but we do not believe there is a need to provide the Secretary of State with the ability to prescribe additions to the list. As my noble friend knows, it would, of course, be open to a local authority to consult more widely, if it so chose. On the basis that I accept in spirit his first amendment and with the explanation I have given on his second amendment, I hope that he will be minded not to press his amendments.
Lord Greaves
My Lords, having just had a splendid dinner, I am tempted to put the first amendment in this group to a vote and see what the Government do, but I shall not. I shall be a good boy. I thank the Minister for his very constructive response.
On Amendment 53C, I do not understand why organisations which are consulted at the moment on all similar proposals should not be consulted on these proposals. There is a suggestion that these national organisations ought to keep out of these local decisions, but we are talking about rights of way networks which have national or regional importance as public footpaths for many people who do not live locally. There is an issue of principle here which I would like to discuss further with the Government. In the mean time, I beg leave to withdraw the amendment.
Lord Greaves
“(6A) A public spaces protection order may not restrict the rights of any person in relation to a private right of way.”
Lord Greaves
My Lords, I thought that I was going to get a rest; my noble friend did not tell me that she was not moving her amendment, or if she did, I have forgotten.
I will be interested to hear what the Government have to say about Amendment 53G. Amendment 53H is slightly more complicated. It applies yet again to the sort of area in which I live where there are county councils and district councils in a two-tier system. The district council will be responsible for making public spaces protection orders. The county council is the highways authority, which is responsible by law for maintaining public rights of way to an acceptable standard so as to ensure that people can walk on footpaths and ride horses along bridleways, for example. County councils do not always carry out those duties to a great extent, but nevertheless they are responsible in law for maintaining these rights of way. It seems wrong that the district council does not consult the county. The Minister has already said that the Government will look favourably at making sure that county councils, as highways authorities, are consulted. The question is this: what if the highways authority objects to closing one of its highways? Does it have a veto or not? I am suggesting that it should, but I shall be interested to hear the Minister’s response. I beg to move.
Baroness Smith of Basildon
My Lords, I have a couple of quick questions on this issue. We tabled a clause stand part debate and I was slightly taken aback when the noble Baroness, Lady Hamwee, withdrew her two amendments because they touch on the issue that I wish to raise.
First, it seems to me that there has to be a very good reason to restrict a public right of way over a highway. Will it be in guidance, as there is nothing here to say that it should be a matter of last resort and that all other options should be considered before taking that step? It would be useful to have the Minister’s comments on that. Secondly, I have clearly been dreaming about this Bill—I am affected so greatly by it. I have just checked with the noble Lord’s officials as I was absolutely convinced that I had read in a letter from the Minister that he would make the amendment anyway, but I am told he has not. Clearly it is a very good amendment and he should make it. Will he enlighten me on Clause 60(3) which states:
“Before a local authority makes a public spaces protection order restricting the public right of way over a highway that is also within the area of another local authority, it must consult that other authority if it thinks it appropriate to do so”?
Why would it not think it appropriate to do so? Why would it not consult the other authority in whose area the highway on which it wishes to restrict public access or the right of way belongs? In my dreams I thought that this had already been done, but I am told by the Minister’s officials that it has not. Can he comment on that and explain why the authority must consult the other authority in whose area the highway is only if it thinks it appropriate to do so, rather than seeking the permission of the other authority as a matter of course? I hope that the Minister will clarify this as I am puzzled by the subsection.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
I hope I can appear in the noble Baroness’s dreams in a good light. Do not have nightmares; that is all I say.
The decision to restrict activity on or access to public rights of way should not be taken lightly. Where anti-social behaviour, crime or disorder is present, local authorities will need to weigh up the impact of restricting access against the needs of the community. There are, as we have already discussed, additional consultation requirements associated with public rights of way above and beyond those expected more generally for a public spaces protection order. Those affected by the order must be notified of the proposal and be given details of how to see a copy of the restrictions. The local authority must also notify those persons of how they can make representations, and these representations must be considered before the order can be made.
Amendment 53G, proposed by my noble friend Lord Greaves, aims to protect private rights of way. I assure my noble friend that I agree with his sentiment. I am happy to confirm that the definition of public spaces included in Clause 60 will not allow for the order to be used for private rights of way. The principal access route to homes cannot be closed with a public spaces protection order. As such, I do not believe the amendment needs to be made.
On Amendment 53H, I understand the issue here relates to areas where there is a district council and a county council. Indeed, just as the noble Lord lives in such an area, so do I. In the situation described in the amendment, while the district council has the ability to make an order, the county council is likely to act as the highway authority. Therefore, in line with the consultation requirements I have just described, before restricting access the district council should consult the county council about the terms. However, I do not believe that this should come with a right of veto. In the majority of cases the evidence presented will be sufficient for both bodies, acting in the interests of the communities they serve, to agree. However, where this is not the case it should not prolong the misery for victims and communities, and so the district council should be free to make the order. On the basis of what I have said, I hope my noble friend will withdraw the amendment and I beg to move that the clause should stand part of the Bill.
On the specific question asked by the noble Baroness about the phrase in the clause,
“it must consult that other authority if it thinks it appropriate to do so”,
I can hardly see how, in the case of a public highway, it would be possible for a local authority to do other than consult those people. I have a note here which has come to my rescue. As to why it states in Clause 60(3),
“only if it is appropriate to do so”,
it is hard to imagine a situation where a council would not do so. However, it adds flexibility. Clause 60(3) was added to the Bill on Report in the Commons in response to a point raised by Gloria de Piero, the honourable Member leading on the Bill for the Opposition. It may be that the letter the noble Baroness is thinking of is the one from Damian Green to David Hanson of 7 October dealing with the Government’s amendments on Report in the Commons. I cannot remember ever discussing this issue before. However, it was added to the Bill on Report in the Commons, presumably with agreement.
I should say that it is only as a last resort. We have made it clear that the added flexibility means it is less likely that a right of way will be closed. This is covered in the guidance and we do not believe it needs to be in the Bill. It is also worth making clear that highways of strategic value cannot be restricted.
Baroness Smith of Basildon
My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.
Baroness Hamwee (LD)
I wonder whether I should come in on the same issue to allow time for reflection. As I said to the Minister through his officials, I did not move my amendment because I assumed that there must be legislation which would require both authorities to agree. I read “consult” in this clause as meaning consult not around the outcome of actual closure but about the things surrounding it. I thought that, rather than taking the Committee’s time, I would simply not move it. Perhaps it would have been better if I had.
Lord Harris of Haringey (Lab)
Perhaps the Minister can assist the Committee by giving us some examples of when this power might be required and what the circumstances would be. It is about restricting the public right of way to a highway, but under what circumstances is that likely to happen and what sort of roads would these be? The requirement is to notify “potentially affected persons”, which,
“means occupiers of premises adjacent to or adjoining the highway, and any other persons in the locality who are likely to be affected by the proposed order”.
Depending on the nature of the highway concerned, that could be a very large number. One also wonders why it is confined to the locality when it might have a much wider impact. I suspect that the answers might be clearer if I had a better understanding of the circumstances in which the Government envisage this power being used. If they are rather narrower than the potential of this clause seems to suggest, I would like some clarity on why that is not made clearer in the clause.
Lord Taylor of Holbeach
My Lords, it may be that I have been misreading this particular clause. I assumed that it was evidence of the phenomenon where you have both a district council and a county council, which my noble friend Lord Greaves referred to. It may be, of course, that the highway lies in two local authority areas, and that by restricting it to one local authority, an adjacent local authority that shares the highway might be affected. In that case it clearly would be appropriate for there to be consultation between the authorities. In effect, there would be a joint highway, shared with other authorities.
However, I am hazarding a guess and seeking to inform the House on the basis of guess-work. My best position is to say to noble Lords that there is clearly some uncertainty about the meaning of this and that I am quite prepared to write to noble Lords with all the detail. This is based on current gating order legislation, which has been used for many years by councils to deal with anti-social behaviour, so we might see a similar clause there. Clause 60 needs to be read with Clause 61, in particular subsection (1), which describes which public highways cannot be restricted. It excludes strategic highways, so it is non-strategic highways that are being considered here. I will write to noble Lords explaining how these two clauses operate together, as clearly they are both of a part.
Baroness Smith of Basildon
I am grateful to the noble Lord for his very helpful suggestion for trying to get to the bottom of what it means. When he writes, perhaps he could focus on giving us an answer about when he thinks it would not be appropriate to consult the other authority. The other points he made are relevant and helpful.
Lord Harris of Haringey
Perhaps in that letter the noble Lord could also give some examples of circumstances in which he thinks the power would be used. It seems that it may be a wider power than simply gating regulations in the past and might be used over and beyond them. We are back to the whole issue of why we should change something just for the sake of it, which might add increased ambiguity as a consequence.
Lord Greaves
My Lords, that is very interesting. The discussion went beyond where I thought it might go. I was talking really about footpaths and bridleways but we now find that this power may apply to a majority of the road network in this country—no?
Lord Taylor of Holbeach
I point my noble friend to Clause 61(1), in which he will find a list of the highways to which it cannot apply.
Lord Greaves
My Lords, I think the Minister is relying on Clause 61(1)(e), which refers to,
“a highway in England of a description prescribed by regulations made by the Secretary of State”,
because the rest of them are,
“a special road … a trunk road … a classified or principal road … a strategic road”.
I am not sure that in terms of sheer mileage, they cover more than half the roads in the country. Unclassified roads are legion. No doubt they will appear in the prescribed description of roads made by the Secretary of State. To add to the questions asked by the noble Baroness, Lady Smith, we really want to know what roads will be prescribed under that subsection so that we can work out what is left and what might become public space.
As I say, that is all very interesting. On the first amendment, on private rights of way, I hesitate to get into the intricacies of private rights of way because there has been quite a lot of case law and it is all very complicated. I ask the Minister to have another look at it because it is quite possible for private rights of way to cross public land that will be designated as public space. This needs a bit more attention. Having said that, I withdraw the amendment.
Lord Greaves
Lord Greaves
My Lords, this amendment is about who can appeal to the High Court if they are dissatisfied with the council’s decision to declare a public spaces protection order. At the moment Clause 62 says that it has to be an “interested person”, and that they can question the validity of either the order or a variation of the order. It then says:
“‘Interested person’ means an individual who lives in the restricted area or who regularly works in or visits that area”.
I am suggesting that it should be just “a person”—anybody can do it.
There are two reasons for this. One is that the current definition is wide open to vague interpretation. It is fairly clear if you live or work in the area, but whether a person who regularly visits the area is an interested person is open to interpretation. In any case, why should a person who wishes to visit the area, or who intends to visit it, or who occasionally or intermittently visits it, not have the right? If they go only once a year and walk on a particular path, why should they not be able to challenge a decision to close that path?
The second reason is that the definition as set out in the Bill appears to exclude national and regional organisations that regularly represent people who use rights of way, people who walk on access land, or people who may visit town and village greens. We are talking about the same group of organisations: perhaps the Ramblers, the British Mountaineering Council and the Open Spaces Society and others. Why should they not be able to bring a case to the High Court on behalf of their members or of people who have appealed to them? Let us remember that the Ramblers have rather more members than all the political parties put together and is a representative organisation which is used to taking such cases from time to time. Why is it excluded in this case? Why is the right suddenly being closed down so that it can be exercised only by people with a much more local connection? This seems mean-hearted. There seems to be no obvious, sensible reason for it. I would be interested to hear the Minister’s excuses for it—because I think they will be excuses—and I will listen carefully to what he has to say.
It is possible for the Ramblers nationally to take an issue to judicial review under the Highways Act, the CROW Act or the Marine and Coastal Access Act, or any other Act that involves village greens, town greens or access to land, on behalf of people who may not have either the resources to go to the High Court—perhaps they would have the resources—or the know-how. Efficient review through the courts of things like this depends on the people taking those reviews being experts, so that they know what they are talking about on both sides. This is an unnecessary and mean-minded provision. I beg to move.
Lord Faulks (Con)
My Lords, this clause comes under the heading “validity of orders”. From the way in which it is framed it seems very much as though it is in the form of a judicial review of an administrative order. What is interesting about the way in which the whole scheme of the legislation is formed is that there is the power to make, vary or discharge orders under Clause 57, so that local people who are affected by the orders and are discontent with them can vary or discharge them relatively simply. Yet here we have this clause, which provides for a high-level challenge by way of judicial review.
The provision is described in the Explanatory Notes as an appeal route for either an order or variation of an order, but it contains the sort of restrictions that you would expect in judicial review, in particular subsection (1), which is to do with what used to be referred to as locus standi—in other words, have you got the standing to challenge this? I respectfully disagree with my noble friend that there should be no restriction at all on who should be able to challenge the orders. There is always a restriction; there has to be a proper connection with the subject matter. Where we are concerned with a local order covering a specific area, it seems only appropriate that those given the opportunity to review it should be those with a close connection with it, rather than somebody who simply has a general view about the orders.
However, I am slightly concerned about Clause 62(7), which appears to say that this is the only way in which such an order can be challenged, thereby ousting the jurisdiction of the court to carry out judicial review. That is quite a radical step for a Government to take. If there was no Clause 62, it seems to me that it would be perfectly open to somebody affected and who had the appropriate standing to challenge this order by way of judicial review on the grounds that it was unlawful, just in the way that is set out within the body of Clause 62. I wonder how necessary Clause 62 is at all. There is judicial review, which I would suggest is very much a last resort, and then there are the powers to vary or discharge it. Do we really need this rather curiously described appeal that is really a judicial review?
Lord Harris of Haringey
My Lords, I echo the remarks made by the noble Lord, Lord Faulks, because I do not understand what this clause is about. Maybe it is my failure to read it properly, but this seems to be about a mechanism for challenging process. It is not an appeals process so it does not do what is says on the tin or in the Explanatory Notes. This is solely about the validity of orders. The noble Lord, Lord Greaves, is concerned about the Ramblers’ Association acting on behalf of ramblers who use a path. The association would only be able to challenge an order on the basis that the local authority did not have the power to make that order, or the particular variations, or that it had not complied with the process described elsewhere in this clause. I rather assumed that an appeal would be for somebody to look again at the principles going into that decision, not whether the process was followed correctly. This is not the clause described in the Explanatory Notes. It is something very different.
If it is the Government’s intention to create an appeal mechanism of some sort, this is not it. However, if the Government’s intention, irrespective of what is said in the Explanatory Notes, is to provide a mechanism for challenging the validity of the process, I do not understand why we have this one, given that all those cases would be amenable—as I understand it—to judicial review. It would be helpful if the Minister told us if this clause is meant to reflect what is said in the Explanatory Notes or what it says in the clause heading “Challenging the validity of orders”. If it is the latter, what is the point of having nicely bound Explanatory Notes that do not tell us the Government’s intentions?
Lord Greaves
Perhaps I could speak before the noble Lord, and then he could speak last before the Minister. I am grateful to my noble friend Lord Faulks and the noble Lord, Lord Harris of Haringey, for clarifying my thoughts on this. I must admit that my thoughts were muddled after reading this. I think that they are clarified now but perhaps the Minister will muddle them again—I do not know. I ask him one question. If this process is indeed one of judicial review of the process as opposed to a normal appeal on the merits of the case, will the judicial-reviewable process include the guidance as well as what is set out in the Bill?
Lord Rosser
My comments will be much in line with those already expressed. It is worth recalling the very considerable powers given to a local authority with a public spaces protection order. It has the power to impose such an order for a period of up to three years without, apparently, any requirement to secure the approval or agreement of any other individual groups, bodies or organisations, including the courts.
There are just two conditions that a local authority must satisfy. First is that,
“activities carried on in a public place … have had a detrimental effect on the quality of life of those in the locality”,
or that,
“it is likely that activities will be carried on in a public place … that … will have such an effect … The second condition is that the effect, or likely effect, of the activities … is, or is likely to be, of a persistent or continuing nature … is, or is likely to be, such as to make the activities unreasonable, and … justifies the restrictions imposed by the”,
public spaces protection order.
The only check on that local authority power is that:
“An interested person may apply to the High Court to question the validity of … a public spaces protection order”,
on the grounds,
“that the local authority did not have the power to make the order … or to include in particular provisions or requirements imposed by the order”,
or,
“that a requirement under this chapter was not complied with in relation to the order or variation”.
Bearing in mind the potentially significant but apparently unchallenged powers that a local authority will have to make a public spaces protection order, it is important that the Minister places clearly on record how weak or strong are the proposed provisions to challenge the validity of such orders and how, in practice, they are expected to operate.
What do the Government believe that Clause 62(2) means in practice? That is the clause referring to the grounds on which an application can be made to the High Court, to which I referred a few moments ago. In an early debate this evening, the Minister said that the fact that activities carried on in a public place had to be,
“of a persistent or continuing nature”,
and “unreasonable” was adequate protection, but each local authority will interpret those words as it sees fit. How regularly does an activity have to be carried out to be persistent or continuing? Can that issue be taken to the High Court in challenging the validity of an order? On what basis might it be deemed that a local authority did not have the power to make a public spaces protection order or to include particular prohibitions or requirements imposed by the order? Would that include a challenge that the two conditions referred to in Clause 55(1) and (2) had not been met? If so, why does the Bill not set that out clearly in Clause 62(2), or does a local authority not having the power simply mean that the challenge can be only on the basis that the area to which the order relates is not a public place?
Perhaps the Minister could give some examples of what might be deemed a prohibition or requirement that the local authority had imposed on the order which it would not have the power to impose under the Bill. Clause 62(2) also refers to a challenge on the basis that a requirement under this chapter was not complied with in relation to the order. Does that ground relate purely to process, or would it include other issues? If so, can the Minister give some examples?
How quickly do the Government think that an application under subsection (2) would be heard in the High Court? If a local authority has made a public spaces protection order preventing use of, let us say, a public footpath in the light of objections from landowners and nearby residents—or, alternatively, a local authority has made a public spaces protection order preventing the use of a large public square in a major city which is regularly used for the purpose of rallies or public protest meetings, in the light of opposition from local residents or businesses—the question of how quickly access to the High Court can be made is not unimportant.
As an individual can apply to the High Court, how much is it likely to cost to make such an application and will the use of professional lawyers be mandatory or optional? Will legal aid be available? If so, to which categories of interested people will it be available? Does the reference to an interested person making an application to the High Court mean that a business or other organisation cannot make an application to question the validity of a public spaces protection order? If that is the case, what is the Government’s argument for taking that stance?
Clause 62(5) states that,
“the Court may quash the order … or any of the prohibitions or requirements imposed by the order”.
Does that include the length of time of up to three years for which the order has been imposed by the local authority?
The Government say that the Bill is about victims, but people on the wrong end of an unjustified local authority public spaces protection order will also be victims, so what provisions in the Bill will enable support to be provided to such individuals, including support in taking a challenge to the High Court? On the face of it, one might conclude that the proposals for public spaces protection orders are fair and reasonable. If they are applied by reasonable people acting in a reasonable manner, they almost certainly will be. However, the question is: what are the safeguards in the Bill to prevent abuse of this power? What or who is there to stop a local authority from acting unreasonably in making an order in the first place? Is there in reality nothing?
Lord Faulks
Is the answer to the noble Lord’s question not that if an authority acts unlawfully its acts are amenable to judicial review, just as any other administrative acts are?
Lord Rosser
I am waiting to see what answer the Minister gives me. The noble Lord himself raised a particular reference to Clause 62, so perhaps he is also waiting for an answer to his point.
I ask the question again. Is there in reality nothing, with the only redress being an application to the High Court by an interested party? If the answer is that you go to the court on some other issue of judicial review, it comes back to the point about what this clause is doing in the Bill. If that is the case on the question I have raised about the specific grounds on which the validity of the order can be challenged in the High Court and how restrictive or otherwise those grounds are, I suggest that that is very relevant—as is the speed with which an individual can get a hearing at the High Court, along with the cost of doing so and the support that will be given to them.
There is obviously some confusion about what Clause 62 means; that is clear from the contributions made by a number of noble Lords. I hope that the Minister will be able to provide detailed answers to these questions and thus resolve any confusion there may be about what this clause is meant to mean, and in what circumstances and on what basis it will be applied.
Lord Taylor of Holbeach
I thank noble Lords for raising this issue because it gives me a chance to provide some detail and, to the extent that I am not able to answer all the factors, I will certainly write to all noble Lords who have spoken on these amendments.
Perhaps it would help if I explain briefly how Clause 62 provides a process by which a public spaces protection order can be challenged. The heading is “Challenging the validity of orders” and that is what the clause seeks to achieve. Within six weeks of an order being made or varied, any interested person can appeal to the High Court to challenge its validity. It is only right that those with an interest in the area should be able to do this and, as such, this route is not open to those who do not live in, regularly work in or regularly visit the area.
A challenge can be made on two grounds. The first is that the local authority did not have the power to make the order. The noble Lord, Lord Rosser, is quite right to draw the attention of the Committee to Clause 55, which stipulates the power that the order is designed to provide for. For instance, this could be in cases where the person challenging the order believes that the test for making an order had not been met. The second ground is if the requirement in this part of the Bill was not met; for example, if local community representatives were not consulted as required by Clause 55(7)(b).
The court has the power to quash the order, uphold it or quash any of the individual elements, including its time and duration. The court can decide to suspend the public spaces protection order in full or in part until the proceedings are complete. However, it does not have to do so; an appeal does not necessarily mean that restrictions are lifted. But this appeal mechanism acts as a valuable safeguard to ensure that local authorities do not use the order disproportionately.
My noble friend Lord Greaves has tabled Amendments 55 and 56, which raise the question of who should be able to challenge the issue or variation of a public spaces protection order.
I stress that it is important that we strike the right balance between councils being able to protect communities from harm and providing the right opportunities for people affected by it to challenge such action. That is why, as I have explained, we have sought to restrict the ability to challenge an order to those who have a direct interest—namely, those who live in, regularly visit or work in the area. I believe that in doing so we have given the right people an appropriate safeguard. There is, of course, nothing to stop national bodies raising a challenge through a local group or even an individual, but someone directly affected by an order should at least object to it for it to be challenged. Our reforms are all about putting the victim first, and it is only right that they have the ability to shape the local solution.
I hope I have been able to satisfy my noble friend, although I suspect not, because he strongly believes that national organisations should be involved in this process. That is not the Government’s view.
I shall seek to answer some of the particular questions that have been raised. The High Court is the appeal route for the three orders being replaced; the designated public places order, the gating order and the dog control order all have an appeal to the High Court. The noble Lord, Lord Rosser, asked when the restriction could be challenged when conduct does not justify the proposed restriction—so, in other words, there is improper balance. That is in Clause 55(3)(c). The noble Lord also asked why no one need agree to an order for it to be made. The council will have to consult the police and any community representatives they think appropriate. They may not reach agreement on the order but, none the less, if they were unreasonable in not reaching agreement in that consultation, that, too, would provide grounds for review. The intention is not to close the door on judicial reviews.
I will reflect on the noble Lord’s point on the whole business of the balance between the High Court application and judicial review—and, if I may, I shall write to him about it, because he raises a lot of detailed questions, particularly on the question of legal aid, and suchlike.
Lord Rosser
I thank the Minister for that. Until he made the comment about writing to me, I was going to ask him whether, if somebody considered a public spaces protection order to be unreasonable in any way at all, the Minister would say that they should pursue it under Clause 62 or do it through other legal channels. I gather that that is one issue that the Minister is going to consider and write on.
Lord Taylor of Holbeach
I certainly give that commitment. The noble Lord, Lord Rosser, also asked how long it would take to get an appeal heard. As he will know, that is a matter for the courts having regard to a number of factors, including the urgency of the case. He also asked how quickly a PSPO could be made; each one must be made following the requirements of the Bill, especially the consultation requirement. This will take different times in different circumstances; what is appropriate will include an assessment of the need for immediate and urgent action if this is the case. I have said already that the High Court can suspend a PSPO pending the outcome of the challenge under Clause 62, so I hope that the noble Lord will accept that. There was a lot of detail in his questions, which I think that only correspondence will be able to settle.
Lord Rosser
Does the Minister accept my interpretation of what the Bill says or not? It is an individual who has to take the case there—presumably, they must use professional lawyers and, presumably, there is a cost involved. Presumably, they have to feel sufficiently confident to take a case to the High Court, if it is the case that an individual has to take it and an organisation cannot take it on their behalf.
Lord Taylor of Holbeach
I have made it clear that this does not pre-empt the judicial review route, if that is considered preferable by the individual.
Lord Rosser
Then I come back to the point to which I know the Minister will respond. Is this the key clause for dealing with the belief that a public spaces protection order is unreasonable or unfair, or is judicial review the appropriate channel? The question that has just been raised goes to the heart of whether it is Clause 62 or judicial review, which is obviously not covered in the Bill. I hope that the Minister will clear up what the Government’s intentions are when he writes.
Lord Harris of Haringey
Perhaps the Minister could also clarify what he just said about also having a judicial review. My reading of Clause 62(7) is that judicial reviews are precluded. Perhaps, while the Minister is pondering that point, he could also answer the question of how this procedure is in practice different from the judicial review. Does this have more teeth or fewer teeth?
Lord Taylor of Holbeach
This clause is of course specific to the Bill, and so lays down the procedure of the considerations which apply in the Bill. Judicial review is a much broader process through which individuals can challenge legal conduct of the implementation of a PSPO. I have made it quite clear that the intention is not to close the door on judicial reviews, but I will reflect on the points that have been made by the noble Lords, Lord Rosser and Lord Harris of Haringey. I will be writing to all those who have participated in the debate.
Lord Faulks
Further to a point that I made a little earlier, which the noble Lord, Lord Harris, also made, of course the Minister is absolutely right: judicial review cannot be ousted by any provision. That is why I am a little perplexed about subsection (7), where it is provided:
“The validity of a public spaces protection order, or of a variation of a public spaces protection order, may not be challenged in any legal proceedings, either before or after it is made, except under this section”.
It looks, on the face of it, as though it is precluding challenge. I am sure that there is an explanation, but I look forward to it being included.
Lord Greaves
My Lords, I thought that I would be getting my views on this clause clarified. I am even more muddled, having heard this debate, than I was before. That is no fault of those taking part; lots of valid questions have been asked, which will need answering. I assume that my noble friend the Minister will copy any letters he sends to people around the Committee so that we can all see his answers. Is that the case?
Lord Taylor of Holbeach
I am certainly quite prepared to make my correspondence as broad as anybody would wish. I have certainly noted the people who have taken an interest in this matter and will try to make sure that everybody is included in the correspondence.
Lord Greaves
I am most grateful, as I am sure other noble Lords are. I have two quick points. For all this talk of whether it is the High Court or judicial review, they are both way above the abilities of ordinary people. If I go on a local footpath anywhere in this country and I find that it is blocked and complain to the highways authority, and the highways authority does nothing about it, I can go to the court to make the highways authority do something about it. That court is the magistrates’ court. However, if I then find signs up saying that the local authority has just issued a public spaces protection order to stop me walking on it, there is no way on God’s earth that I will go to the High Court, because ordinary folk do not do that kind of thing. There may well be Members of this Committee and your Lordships’ House who spend half their time in the High Court, but most of us do not; and after the one or two occasions on which we have ever been there, we may never want to go back again.
If there are to be decisions like this, which affect basic, historic rights to walk on paths and land, there needs to be a proper appeals mechanism just as there is under the Highways Act. If a local authority closes a footpath under the Highways Act and you do not like it, you can appeal to the magistrates’ court. That is the sort of level at which ordinary people can function. Are the Government saying that ordinary people are not able to get help and support from organisations that can operate at a higher level, such as the Ramblers or perhaps the CLA, but are on their own? Sorry, but they are individuals, and it clearly states here that it is about an individual, not even a local business, as the noble Lord, Lord Harris, said.
I think that there is something wrong and we need to have further discussions about it, but not now. I beg leave to withdraw the amendment.
Lord Greaves
“(1A) Subsection (1) does not apply if the prohibition or restriction relates to—
(a) travel along a footpath, bridleway, restricted byway or byway open to all traffic in an appropriate manner in each case;(b) presence on a common, village green or town green or on land that is access land under the Countryside and Rights of Way Act 2000.”
Lord Greaves
My Lords, Clause 63(1) states that:
“It is an offence for a person without reasonable excuse”.
The words “without reasonable excuse” are part of the reason for putting these probing amendments down in order to find out what they mean. Subsection (1) continues,
“(a) to do anything that the person is prohibited from doing by a public spaces protection order, or,
(b) to fail to comply with a requirement to which the person is subject under a public spaces protection order”.
Again, my amendments refer to the kinds of access that are specifically enabled by legislation, historic practice and common law; that is, rights of way, commons, village greens and town greens. Amendment 56ZA is about those. It states:
“Subsection (1) does not apply if the prohibition or restriction relates to—
(a) travel along a footpath, bridleway, restricted byway or byway open to all traffic”,
or presence on access land. If I am walking along with an Ordnance Survey map in my hand, or if I am a bit more modern and I have a fancy phone or tablet, and I walk on to this land or on to footpaths where access has been prohibited from access by a public spaces protection order, why should I become a criminal for doing things which, on the face of it, I believe to be reasonable? This amendment probes to what extent that would be a criminal offence. The question is, would I be behaving in a reasonable way if I did that? If I met an owner, a resident or somebody else who told me to get off because some sort of spaces order had been made on the land, would I still be breaking the law if I said, “No. I’ve got this Ordnance Survey map which maps the access land and shows the rights of way, and I’m okay”?
Amendment 56ZB states:
“A person does not commit an offence unless the local authority has displayed information about the relevant restrictions and requirements on or adjacent to the land that is subject to the public spaces protection notice in such a way that it is reasonable for the person to have seen the notice”.
The possibility under public spaces protection orders for people to break the law but not know that they are breaking the law—in other words, breaking the order, which is an offence—simply because the local authority or other authorities have not provided adequate information on the site, is very great indeed. These are probing amendments to test what would happen under those circumstances. I beg to move.
Lord Taylor of Holbeach
My Lords, I understand that these are probing amendments relating to the circumstances in which someone may commit an offence when a public spaces protection order is breached. I can see the reasoning behind Amendment 56ZA. Clearly, it is hard to see how using a public right of way in an appropriate and responsible manner, or mere presence on common land, a town or village green, or on access land, could constitute an offence. However, in the extreme circumstances where the council, in consultation with the relevant bodies, has decided to place restrictions on access to the land that apply to everyone, there must be a penalty for breach.
Similarly, Amendment 56ZB seeks to provide that it is not an offence to breach the conditions of a public spaces protection order if the local authority has not publicised it in a certain way. As I have said before, I do not believe it is for primary legislation to state how restrictions will be publicised; not least there may be situations where it is not necessary or appropriate to do so in the entirely sensible way my noble friend suggests. The place for this is in regulations or guidance.
However, on the more important point of a defence of reasonable excuse, I would like to assure my noble friend that a person commits an offence only if they breach a condition without reasonable excuse. The courts carefully consider whether there is a “reasonable excuse” to breach an order if the local authority has not publicised it appropriately. As such, regardless of what is in the legislation, or indeed the guidance, it is in the best interests of the local authority to make sure that people using the public space know what is expected of them; otherwise, it becomes unenforceable. Earlier this evening we discussed unenforceable legislation in connection with a matter affecting this House.
I hope that, with this reassurance, my noble friend will feel able to withdraw his amendment.
Lord Greaves
My Lords, the real problem with this measure is that it criminalises trespass in certain circumstances where people not only think they are not trespassing but have evidence in their hand which shows that they are allowed to be there. This is the potential problem that could arise. I am not sure that the Minister’s answer has tackled that thoroughly and completely. This issue needs further discussion but, for the moment, I beg leave to withdraw the amendment.
“Orders made by statutory custodians
(1) The Secretary of State may by order designate a person as a statutory custodian for the purposes of this section in respect of any land which that person is empowered to regulate under any enactment.
(2) Where an order is in force under subsection (1), the provisions of this Chapter (other than this section) apply as if the statutory custodian were the local authority for the area comprising the land in respect of which it is designated.
(3) Subsection (2)—
(a) does not affect the ability of a local authority to exercise within its area any of the functions conferred by this Chapter, and(b) is subject to the following provisions of this section.(4) A statutory custodian may not make a public spaces protection order imposing any prohibition or requirement which it would not have been able to impose (in whatever form) by means of a byelaw made under any enactment.
(5) Before making, varying or discharging a public spaces protection order, or extending the period for which such an order has effect, a statutory custodian must consult (in addition to any other person who must be consulted by virtue of any provision of this Chapter) the local authority for the area that includes the restricted area.
(6) Where a local authority makes a public spaces protection order—
(a) any public spaces protection order made by a statutory custodian shall cease to have effect, and(b) a statutory custodian may not make a public spaces protection order,to the extent that such an order regulates an activity which is regulated by the public spaces protection order made by the local authority. (7) In subsection (6) “regulate” means—
(a) prohibit by virtue of section 55(4)(a), or (b) subject to requirements by virtue of section 55(4)(b),whether or not for all persons at all times.(8) A notice given by a person under section 67(2) does not have effect in relation to the making of any public spaces protection order by that person as a statutory custodian.”
Lord Brooke of Sutton Mandeville (Con)
My Lords, the aim of this new clause is to apply the power to make public spaces protection orders to bodies which are responsible for the custody of public open spaces under private Acts. The amendment is prompted by the position of the City of London Corporation. I probably do not need to record for your Lordships the provenance of my association with the City in the other place. In addition to its responsibilities within the City, the corporation acts under a variety of private Acts and related instruments as custodian for a range of well known public open spaces: Hampstead Heath, Burnham Beeches and Epping Forest are prominent examples.
I was born in Hampstead, where my home address persisted until I was 29, before shifting to Highgate for a further 14 years. I therefore know Hampstead Heath backwards under both the LCC and the GLC, prior to the City of London Corporation inheriting the responsibility for Hampstead Heath. I also confess to your Lordships to have form as the sponsor of City of London Bills involving its open spaces, particularly Epping Forest.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for his amendment, and not least for his closing remarks. He raises an important and interesting issue. The City of London Corporation, as all noble Lords would agree, does a fantastic job managing a number of important spaces through both primary legislation and the effective use of by-laws. I also know that in discussions officials have held meaningful and constructive conversations with representatives from the City of London Corporation over the past few months to discuss the issue, and I note and appreciate the safeguards that have been built into the suggested amendment. I would like to consider the matter further ahead of Report, read through my noble friend’s contributions and the representations which have been made by the City of London, and consider any wider implications of this proposed change. In the mean time, given the strong case made by my noble friend and what I hope he feels is my positive response, I hope he will be minded to withdraw his amendment.
Lord Brooke of Sutton Mandeville
My Lords, I am happy to do as my noble friend suggests. Should he wish to have further contact either with me or with the City of London Corporation, I hope that he will not hesitate to do so. I am very grateful to him for the spirit of his response, and I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, I have two brief questions for the Minister on interpretation. One is an issue that I raised with him previously. He will know that the naturists have written to a number of noble Lords about their concern that the definition of “public place” in the Bill is drawn very widely and that it will unnecessarily restrain—perhaps “contain” would be a better word—their activities. It would be helpful to have an explanation of that. I raised it previously but did not get an answer. However, if there is an answer for them on that, that would be helpful.
Unitary authorities are not referred to under the interpretation of “local authority”. Do I take it that a county council, when there is no district council, includes a unitary authority, even though the unitary may not be the county council? I can see no other way in which a unitary authority would be referred to in the legislation.
Lord Brooke of Sutton Mandeville
Perhaps I may make a very brief intervention. Clause 67(2) seems to contain a drafting mistake because the subsection opens with the words “This section”, but it is in fact a reference to paragraph (b) immediately before it in subsection (1), referring to “public place”. I am not seeking to press this in any way but some attention might be drawn to it between now and Report to make sure that, if I am right, it is corrected.
Lord Ahmad of Wimbledon
My Lords, Clause 67 provides interpretations of the terms used in this chapter, and I shall briefly explain the definitions and the reasoning behind the key terms.
First, perhaps I may pick up on the question of “public place”, which the noble Baroness, Lady Smith, has just raised. This is defined as,
“any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission”.
It is the same definition as is used for the current designated public place order. It does not apply where a private Act gives a person or body a power in relation to a certain area of land. However, if that person or body gives written notice to the local authority, the local authority can make a public spaces protection order in relation to that area of land.
Unitary authorities fall within the definition of “local authority” as currently drafted in the Bill. I am mindful that we have looked at the various definitions of local authorities, including parish councils and county councils, and we are looking at all these issues in more general terms. I hear what the noble Baroness says about the specific issue of unitary authorities but they fall within the definition of “local authority”.
There are a few other definitions which have not been raised in this debate, but I hope that I have reassured the noble Baroness on the two specific issues that she mentioned and that she will be minded not to press her opposition to the clause standing part. I thank my noble friend Lord Brooke for pointing out the drafting issue and we will certainly review it in advance of Report.
Baroness Hamwee
Baroness Hamwee
This amendment takes us to the clauses on closure notices. My amendments are about closure notices, temporary notices and extensions to closure notices. They insert a reference to proportionality at every point. I anticipate that the Government will say that we need not worry because the mechanism that has been designed involves a local authority or a senior police officer, and they would not apply for a closure notice and the court would not grant a notice unless it was proportionate.
Closing premises is a significant step. Closure has to be necessary but, as I read the provisions, the behaviour itself need not be serious enough to justify an order. For instance, one might want to close premises to preclude offensive behaviour—that is one of the types of behaviour in question—but what if the offensiveness is not of such an extreme to justify closure? There are other types of behaviour that could lead to closure notices being applied for and granted—for instance, criminal behaviour, which surely could be dealt with through other mechanisms.
I anticipate that we may be told that this is a matter for guidance, but closing premises is a serious matter and the legislation must be very clear so that we do not have to rely on guidance. Indeed, because it is a serious matter, one ought to have in mind that in any notice applied for or decision made the process should allow for challenge and possibly even a subsequent claim. Therefore proportionality ought to be integral to the power. I beg to move.
Baroness Smith of Basildon
My Lords, again, the reason for moving a clause stand part debate is that it is a more satisfactory way of addressing a number of different questions than tabling lots of individual amendments. Noble Lords will recall that I raised this matter briefly under the issue of corporate ASBOs, which is one of the things that strikes me about closure notices. We support the need to close premises, particularly if they are likely to be a nuisance to members of the public or there could be disorder, but this goes straight to closure. The point of the corporate ASBO proposal that I put forward in our previous sitting was that prevention would be better than cure, and it would be good to have a stage prior to closure to try to get organisations, companies or premises facing disorder to get their act together and prevent a nuisance taking place.
I have a few questions to raise with the Minister. Is it possible to have some further clarification on what the “reasonable grounds” would be? We do not want any confusion over the slightly vague wording. I know that there are examples in other legislation of reasonable grounds, but it would be helpful to have more explanation of what the Government consider to be reasonable grounds here. Another issue concerns the consultation in subsection (7). As the Bill stands, a police officer or a local authority can issue closure proceedings but they do not have to consult each other on this. There is no requirement for the police to talk to the local authority or for the local authority to talk to the police. In Committee in the other place, Damian Green said that he thought the police and local authorities would probably consult each other before issuing orders. It does not seem a very satisfactory way to legislate to say that they probably will. If it is appropriate that they do so, it should be formalised in the legislation. The other question is: who should they consult? The way in which the clause is drafted at present, a police officer or local authority can consult who they think appropriate, but that might not be each other. I cannot think of anyone more appropriate to consult than the police and the local authority.
It would also be helpful to have the Government’s view on whether they think it would be appropriate to publish the names of those who have been consulted. Those who have been aggrieved by a closure perhaps would understand the reasons more easily and be less likely to appeal or try to stop the proposal if they understood who had been consulted and the process was more transparent. If there had been widespread consultation in an area, it would be understood that there was a serious problem, but they might be more aggrieved if they found that only one or perhaps two organisations had been consulted. That might in turn give grounds for challenges to the closure. Subsection (7) states:
“Before issuing a closure notice the police officer or local authority must ensure that any body or individual the officer or authority thinks appropriate has been consulted”.
Could they consider it appropriate not to consult anybody at all, and would that be grounds for a challenge?
There are two issues: one, whether it is appropriate and whether there is enough information about who should be consulted; and two, if it is not necessary to consult anybody, or to consult very few people—or the most appropriate or useful people to consult—would that give reasons for the decision to be overturned or challenged? I hope that the Minister can address these points, which would be helpful.
Lord Taylor of Holbeach
My Lords, we know that in another place the Opposition stated their support for closure notices. I accept what the noble Baroness, Lady Smith, means when she says that she wants to clarify some of the detail in this, and I agree that a clause stand part debate is a good method to use. Clause 69 gives the police and local authorities a simple and easy-to-use power to close temporary premises that are the focus of public nuisance or disorder. There are a number of existing powers that could be used to close such premises, but they are similar.
Baroness Smith of Basildon
Did the noble Lord say, “to close temporary premises”? I am slightly confused by what he means by temporary premises.
Lord Taylor of Holbeach
“Temporarily”, I said. I am sorry. I might have said “temporary” but I meant to say “temporarily”. It may be me misspeaking or the noble Baroness mishearing but: “temporarily premises that are the focus of public nuisance or disorder”.
A number of existing powers could be used to close such premises but they are similar and overlap in a number of ways. We are consolidating these existing powers into a single scheme applicable to all premises associated with anti-social behaviour. These powers are flexible and can apply to private and residential premises, and to business premises whether licensed or unlicensed. The notice allows for immediate action while the longer-term order is put in place if it is required. This will give professionals a simple and flexible means to protect the public, making it easier to act preventively.
However, noble Lords will agree that such a power requires safeguards. Of course, local agencies already work informally with individuals and businesses to mitigate the risks of crime and anti-social behaviour before resorting to formal powers. This will continue to be the case. Most businesses want to protect their customers and premises. Where there is information that premises may be the location for or contribute to crime and anti-social behaviour, they can be invited to take action to tackle it, and many do.
Clauses 69 and 70 specify a minimum rank for police officers authorising the issue of a closure notice for up to 24 hours, with a higher authority needed for both the police and local authority for the extension of the notice up to a maximum of 48 hours. The provisions also include requirements about notification and consultation, and of course only the courts can require closures of premises for longer than 48 hours.
The noble Baroness has not tabled amendments but I can use some of the information that she was seeking. The court has to be satisfied that there is likely to be serious nuisance or disorderly, offensive or criminal behaviour. The second element is that it is necessary to prevent the nuisance or disorder from continuing, recurring or occurring. In practice, we expect that in most cases informal measures would be the right starting point. The draft guidance directs professionals towards informal measures in the first instance, where appropriate. Indeed, if alternatives to closure are available but have not been considered, it is difficult to see, save in exceptional cases, how it could be argued that the closure notice is necessary. Professionals, as public authorities, would have to exercise their powers proportionately or risk an adverse judicial review.
Additionally, in applying the test, a court, the police or a local authority must have regard to an individual’s human rights—for example, Article 8 rights. As I said when similar issues were raised in respect of earlier parts of the Bill, such qualified rights can be infringed only where to do so is necessary and proportionate in the pursuit of a legitimate aim.
The noble Baroness, Lady Smith, asked me what the reasonable grounds are. It is a matter of evidence, usually comprising of witness statements and statements of victims and police officers, in particular. CCTV evidence, for example, can also be brought into play when deciding whether there is a justification for the grounds. The term is commonly used in legislation and I hope that noble Lords will accept that.
The noble Baroness also asked who has been consulted. Given that the notice is affixed to the premises it would not be appropriate to name all the individuals who had been consulted. Guidance highlights the importance of partnership working and it is advised that the police and local authority keep a record of who has been consulted.
The noble Baroness also asked why we do not require the police and local authority to make information about the closure of the premises more publicly available, such as in a paper or some other way. The closure powers are flexible in that they can be used for residential, business, licensed and non-licensed premises. There may be circumstances where a short-term closure of the premises is needed to resolve a problem, such as closing a residential premises for 24 hours to prevent a Facebook party. That would not be of interest to the wider public in that area, and requiring the police or local authority to make a public announcement of all closures would add an unnecessary layer of bureaucracy. That is why we require the police and local authority to consult anyone they think appropriate as well as the owner and occupier of the premises. Clause 72 requires them, where possible, to fix a copy of the notice to the premises.
I hope that I have been able to answer the questions that the noble Baronesses have posed. I hope my noble friend will accept my explanations and agree to withdraw her amendment and that noble Lords will support the provisions in this part of the Bill.
Baroness Hamwee
My Lords, I did not catch what sort of party was mentioned.
Baroness Hamwee
I was going to say I will catch up with that when I read Hansard. I wonder whether, rather than starting with my amendment, I should have moved one in the group in the name of my noble friend Lord Greaves. I am grateful to the Minister for responding to my noble friend’s amendments that were not moved and not mine. Clearly, the answers will deserve, and require, some reading.
One comment I will make is that of course the right of judicial review must remain and human rights must apply. However, I do not think that having either of those available means that we should allow legislation which is insufficiently clear or detailed to go ahead without questioning it. At the same time, the Government are trying to reduce the use of judicial review, so the argument that that remedy is still available is not one which particularly appeals to me. However, I imagine that my talking any longer will not appeal to other Members of the Committee, so I beg leave to withdraw my amendment.