House of Lords
(10 years, 4 months ago)
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Peatlands
(10 years, 4 months ago)
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Lord Greaves
To ask Her Majesty’s Government what action they are taking to deliver their commitments made in the statement on peatlands by the Ministers from the Department for Environment, Food and Rural Affairs, the Welsh Government, the Northern Ireland Executive and the Scottish Government on 5 February 2013, in particular those on peatland restoration, land management policies to protect peatlands, and the inclusion of peatland restoration in national greenhouse gas emissions reporting.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con)
My Lords, we are undertaking a number of actions supporting the restoration of peatlands, including working with the International Union for Conservation of Nature on the pilot peatland code, research to determine best practice in peatland restoration, and establishing three government-funded nature improvement areas. We are also investing more than £3 billion in a more targeted successor scheme to environmental stewardship, with the potential to include peatland restoration, and we are funding research on greenhouse gas emissions from lowland peat.
Lord Greaves (LD)
My Lords, that was quite a positive response. Is the Minister aware of the recent report by the Institute of Biological and Environmental Sciences at Aberdeen University, which found that building wind farms on undegraded peatland will not reduce net carbon emissions, and that they should not be built there? Many peatlands are in wild, remote, often upland areas, with large stocks of soil carbon. Developing them usually involves substantial excavation and draining of peat, which offsets the gains from wind power. Will the Government take these matters into account when considering their future energy strategy for the UK in conjunction with the devolved Administrations?
Lord De Mauley
Yes, my Lords. Applicants for consent for major energy infrastructure projects must provide assessments of potential biodiversity and geological impacts, including the effects of locating infrastructure on peatland. The decision-making authority must take such impacts into account before making its decision. Much can be done, through project design, to minimise and mitigate impacts. However, if there is damage that cannot be avoided, it is for the planning authorities to judge whether the benefits of the wind farm development outweigh those impacts.
Lord Krebs (CB)
My Lords, I would like to ask the Minister about the impacts of climate change on upland peat. As he will know, the report of the Adaptation Sub-Committee of the Committee on Climate Change, which I happen to chair, reported this year that only 4% of upland deep peat in England is in active, peat-forming good condition. Furthermore, only one-third of upland deep peat has a management plan in place. Will he inform the House what he intends to do about the other two-thirds of upland peat that has no management plan in place to improve its quality?
Lord De Mauley
Yes, my Lords—and I should take this opportunity to thank the noble Lord for the work he does with the Adaptation Sub-Committee; it is extremely important to us. The peatland code, which was launched in September, provides a basis for business sponsorship of peatland restoration; that is a key plank in what we are doing. We are also undertaking a considerable amount of important and relevant research. Environmental stewardship, which I referred to in my initial Answer, has for many years benefited peatlands, but the new ELMS will be more focused on environmental outcomes and therefore will be more directly beneficial to peatland restoration. The three nature improvement areas that have peatlands are working hard on improving their habitats.
Lord Cormack (Con)
My Lords, is not the best way in which to answer the plea of the noble Lord, Lord Greaves, to ensure that these unreliable, uneconomic and unsightly wind farms are not built on land anywhere?
Lord De Mauley
My Lords, of course, we have to take all factors into account in these decisions, but I shall pass on my noble friend’s comments to my colleagues at the Department of Energy and Climate Change.
Lord Knight of Weymouth (Lab)
My Lords, as the noble Lord, Lord Krebs, reminded us, only around 4% of our deep peat is in sufficiently good condition still to be actively forming peat. That is a decline from 6% in 2003. We also know that Birmingham, Exeter, Leeds, Liverpool, Manchester and Sheffield, as well as all of Cornwall, rely on peat catchments for their water. The Peak District peatlands alone supply 4 million people. Will the Minister therefore tell us what estimate the Government have made of the costs that could be avoided if the water storage and purification services provided by upland peat were restored?
Lord De Mauley
My Lords, the noble Lord will not be surprised to hear that I do not have a figure for that, but the gist of his question is entirely right. Peatlands perform an absolutely essential function in ensuring that we have clean and pure water supplies.
Baroness Parminter (LD)
My Lords, the poor condition of upland blanket peat bogs causes nearly 300,000 tonnes of CO2 to be released into the atmosphere every year. Can the Minister say at what date the Government intend to increase peatland restoration in the national greenhouse gas emissions reporting?
Lord De Mauley
I was not quite sure which noble friend was going to ask me a question then. The point on greenhouse gas emission reporting is that the metrics and technology are at a relatively early stage. We are still working on that, but noble Lords may rest assured that it is a key focus for us, and we will not rest until we have achieved that.
Lord Berkeley (Lab)
My Lords, the Minister said that they were looking for sponsorship for the management of these peatland areas. Does that mean that the only new areas that will get managed will be those sponsored by McDonald’s, et cetera?
Lord De Mauley
No, my Lords; that is why I mentioned the new environmental land management scheme.
Viscount Ridley
My Lords, is the Minister aware that it is not only in this country and not only with wind farms that some renewable energy projects are proving to be worse for carbon emissions, because of their effect on peat? For example, a study from Leicester University showed that biomass production from tropical peatland forests can worsen the effect of carbon dioxide emission.
Lord De Mauley
That is a very interesting point, but it strays a little wide of the Question.
The Earl of Courtown
I have got there in the end. I am looking at a slightly different part of this Question—at the end user of much of this peat, particularly the horticultural user. Would my noble friend agree that it would be wise for Her Majesty’s Government to look at the labelling of peat products for sale in garden centres, where peat material is sold as being low in peat when at least 50% of it is made up of peat?
Lord De Mauley
My Lords, that is an important point, too, because that is essentially—or at least a major reason—why our peatlands have been so badly destroyed in the past. A road map or plan has been produced from the work of the Sustainable Growing Media Task Force, which sets out recommendations on how a transition to sustainable growing media can be achieved. The Government responded in January 2013. As part of that, a growing media panel was established to oversee and co-ordinate delivery of the plan and to report on progress. The policy review will take place in 2015 to assess progress.
Ofsted: Annual Report 2012-13
(10 years, 4 months ago)
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Baroness Perry of Southwark
To ask Her Majesty’s Government what assessment they have made of the remarks about “lucky children” made by the Chief Executive of Ofsted during the launch of that organisation’s Annual Report 2012–13.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I am delighted that the chief inspector has focused attention on “lucky children”. Although 78% of schools are now good or outstanding—compared to 68% when we came into office—there are still too many unlucky children. Many of them attend schools up and down the country that have been failing for years and which we are now turning into sponsored academies. The performance of sponsored academies far outstrips that of other state schools. For instance, sponsored academies open for three years improved their GCSE results by 12% versus 5% for local authority schools. The Government’s extensive programme of reform is aimed at ensuring that all children are lucky enough to go to a good school.
Baroness Perry of Southwark (Con)
My Lords, I thank my noble friend for that heartening reply. Would he also join me in welcoming the chief inspector’s finding that children’s success in education is determined not by their background but by the quality of the school they attend and that lucky children are simply those who attend good schools? Does this not offer an end to the climate of low expectations for children from disadvantaged backgrounds, which for too long has bedevilled their opportunities?
Lord Nash
My noble friend is quite right. When the new chief inspector came into office, one thing that I thought he did very well was to abolish the appalling low-expectation term “satisfactory” and set much higher expectations for schools. It has clearly been proved through the academies programme and other schools that setting higher expectations for our children does work.
Baroness Massey of Darwen (Lab)
My Lords, the report implies that increased testing of children may improve attainment. Many teachers and educationalists believe and state that excessive testing takes time away from teaching. Do the Government agree?
Lord Nash
Assessment, as opposed to testing, is obviously crucial to ensure effective accountability and to work out whether pupils are making progress, which is an issue that I know Ofsted is very focused on. We have held a public consultation on proposals for key stage 1 assessment, whose results have not been published. As far as key stage 3 tests are concerned, we have no plans to reintroduce key stage 3 tests but we expect all schools to be able to demonstrate to Ofsted, through whatever assessment mechanism they use, that their pupils are making progress.
Lord Sutherland of Houndwood (CB)
My Lords, would the Minister agree that, while the use of the word “lucky” is good shock tactics—and, possibly, good politics—the primary responsibility of Government, and all of us who are involved in education, is to improve the quality of schools and teaching and to take luck completely out of the picture?
The Lord Bishop of Ripon and Leeds
My Lords, in view of the difficulties often experienced in recruiting governors for schools, especially but not only in disadvantaged areas, what more can the Government do to encourage people to take on that role and to reduce the bureaucratic pressures that governors so often face?
Lord Nash
The right reverend Prelate is quite right to focus on governance. I put that right at the top of my agenda when I came into office because it seems to me that, whether a school is maintained by a local authority or is an academy, the key decisions are often made by the governing body, so we need to raise the quality of governance. Last year, we focused governors’ responsibility on three key functions: on setting the school’s strategy and vision; on holding the head teacher to account for pupils’ progression and for the performance management of the staff; and on money. It is important to focus governors on a limited number of tasks, but we are also dramatically beefing up recruitment, including by working with business to recruit more business governors.
Baroness Garden of Frognal (LD)
My Lords, the chief inspector highlights as a key challenge that pupils do not see English and other school subjects as relevant to their daily lives. Would the Minister agree that lucky children are those who have early exposure to the world of work and make the link between lessons and future aspirations? If so, what steps are the Government taking to support and enhance careers advice throughout primary and secondary schooling?
Lord Nash
I agree with my noble friend that this is very important. It is essential that schools work closely and engage with their local businesses. Many excellent models are emerging up and down the country—I am continually coming across new ones—including: the Business in the Community business class, which aims to work with 500 schools; the Ahead Partnership in Leeds, which runs a very good organisation called “Make the Grade” that builds partnerships between businesses and schools; and Inspiring the Future as well as a number of other models that are emerging. All schools should allow their pupils a window on work through engagement with their local business communities.
Baroness Morgan of Huyton (Lab)
My Lords, the progress of schools in London, particularly sponsored academies, was particularly marked in the report. What lessons will the Government take from the London experience of introducing sponsored academies with very strong leadership, good teaching and strong governance, also backed up by the framework of the London Challenge? I draw attention to my entries in the register.
Lord Nash
The noble Baroness makes a good point, and I am grateful to her for her work as chair of Ofsted. There are two lessons from the point she made. One is that school-to-school support is the key model. We are focusing the academy programme on a regional, school-to-school cluster basis—whether that involves national chains operating regionally or local schools supporting local schools. Those are the absolute key things that we learn from the London Challenge and the academy focus. It has to be done on a local basis.
Baroness Hughes of Stretford (Lab)
My Lords, at the same time as publishing his report the inspector also said that grammar schools are acting as a brake on social mobility and there should be no more of them. Do the Government agree with that as well?
Exports
(10 years, 4 months ago)
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Lord Sherbourne of Didsbury
To ask Her Majesty’s Government what steps they are taking to encourage more United Kingdom businesses to export goods and services.
The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Livingston of Parkhead) (Con)
My Lords, the Government have significantly increased their support for exporters. UKTI expects to assist 40,000 businesses in this fiscal year, an increase of 50% over the past two years. The Government have also provided additional funding to increase support for exporters in key fast-growing markets such as India and China. In addition, the Chancellor recently announced a significant increase in UK Export Finance’s capacity to support our exporters.
Lord Sherbourne of Didsbury (Con)
My Lords, I welcome that. In particular, I welcome what my noble friend said just before Christmas about consulting medium-sized companies on what further help they might need. When he does that, will he have in mind the additional support that can and should be provided by chambers of commerce and other business organisations? Will he also look carefully at what lessons we can learn in that regard from other successful exporting countries such as Germany?
Lord Livingston of Parkhead
My noble friend makes a very good point. We have indeed looked at successful exporting countries such as Germany, Japan and the US. One feature in a number of them is, and has been over the past 20 or 30 years, the use of chambers to assist companies in overseas markets; we are indeed adopting this model. We have targeted 41 more-difficult-to-reach markets where chambers will assist us in providing support for particularly our smaller exporters, as well as the large companies that are often represented. In addition, we are looking at the success of middle-sized companies in Germany, where the UK does not do as well, and there will be a number of initiatives with them. In addition to the chambers, we are working closely with the Institute of Directors, the CBI and the Federation of Small Businesses—to name three organisations.
Lord Giddens (Lab)
My Lords, we are in the early stages of some of the greatest transformations possibly ever to affect manufacturing and even service industries, with the advent of digital production. By that I mean 3D printing, what has come to be called by some 4D printing and beyond. As a result, it may be possible for us not only to make many things here that are at the moment made abroad but to export them to other countries. What are the Government doing to ensure that the UK is in the forefront of these extraordinary possible transformations?
Lord Livingston of Parkhead
The noble Lord is indeed correct that we are seeing much change in manufacturing capability. The Government are investing significantly and have ring-fenced a science budget to assist in many UK projects. We have the “eight great technologies” that we will be investing in, and we are increasing the links between companies and universities; I commend the universities on that. We are certainly supporting the advanced manufacturing capabilities as well as a number of other technologies that we believe will really help the UK to go forward, investing in the right industries that will grow in the future.
Lord Naseby (Con)
Is the Minister aware that the extra resources being put into exports are enormously welcome, but that the weakness is still the marketing of those resources and the facilities that they provide, particularly on export finance to the SME market in general? Secondly, the Queen’s award for exports is looking exceedingly tired and is long overdue a revamp. Finally, if we are sending and attending conferences overseas on exports, can we please appoint a Minister early in the process and not turn up at the last moment, as my poor noble friend Lord Marland had to do in Colombo? He still did a very good job, but it was late in the day.
Lord Livingston of Parkhead
There are a number of questions there. At this point, I am probably not looking to rebrand the Queen’s award for exports, as the Queen does seem to be the right person to award it. In terms of UK Export Finance, my noble friend does make a good point; UK Export Finance has predominately supported larger companies. We have, however, doubled the number of regional advisers for UK Export Finance, and we have launched a new product aimed at assisting smaller companies. In fact, I was at the meeting of the all-party parliamentary group on this issue, and I heard a number of small and medium-sized businesses commending the work of UK Export Finance, but there is more work to be done.
Lord Stevenson of Balmacara (Lab)
My Lords, I welcome the noble Lord to his Front-Bench appearance and look forward to working with him in future. He will be aware of the publication of Good Business in September 2013, which is welcome because it puts into effect the Government’s commitment to implement the UN guiding principles on human rights. It is somewhat long on rhetoric, and a bit short on action, but one of the commitments it makes is to adjust government rules to allow human rights-related matters to be reflected in the procurement of public goods, works and services. Will he explain what is happening on this matter?
Lord Livingston of Parkhead
In terms of procurement rules—and I will talk in relation to exports, as procurement within the UK will be a different matter—we absolutely look at human rights, and discuss the subject regularly with many of the NGOs involved. We look at the relevant UN guidelines, and we will of course look to and abide by the appropriate and relevant guidelines from the UN. Government procurement is another matter and perhaps should be left for a different question.
Lord Wright of Richmond (CB)
My Lords, does the Minister accept that it is wrong to talk about encouraging businesses to export without drawing attention to the worldwide resource provided by the Diplomatic Service? It is very anxious to do everything it can to help both businesses and chambers of commerce wherever they want that help.
Lord Livingston of Parkhead
That is an excellent point. I commend the ambassadorial network; I have seen its work both as a Minister and as an exporter. Its enthusiasm and positivity to assist the UK in increasing exports is to be commended. In fact, the work of the FCO and its focus on our export efforts has been excellent. We will continue to work very closely; of course, as a Minister I am part of FCO as well as being part of BIS, and that reflects the important role that the Foreign Office has in exports.
Lord Stoneham of Droxford (LD)
The Government have set out a system of trade ambassadors to promote exports in particular countries, involving a number of Members of this House. Has an assessment been made of the effectiveness of this system and initiative, and what plans are there for its future expansion?
Lord Livingston of Parkhead
Trade envoys have been established to assist in countries to which government Ministers do not make regular visits. I commend the various Members of the House who act as trade envoys and thank them for their hard work. We are reviewing the success of the trade envoy programme, and how we could perhaps expand it slightly into new areas. When it works well, it is certainly helpful. We combine enthusiasm, expertise and knowledge in particular countries to assist us in increasing our overall exports and relationships with those countries.
Legal Aid
(10 years, 4 months ago)
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Lord Clinton-Davis
To ask Her Majesty’s Government what is their response to the protests by lawyers on 6 January concerning further cuts to legal aid.
Lord Ahmad of Wimbledon (Con)
My Lords, we have engaged constructively with lawyers over a period of many months and we continue to do so. However, the fact remains that we have one of the most expensive legal aid systems in the world and in the current economic climate this is not sustainable for taxpayers, who fund it. We have to find efficiencies to ensure that legal aid is sustained and available for those most in need of a lawyer.
Lord Clinton-Davis (Lab)
I thank the Minister for that uninformative Answer. Does he recognise that the Justice Alliance, representing a large number of people and organisations and many senior judges, has expressed its concern about these proposals? Is it not the case that these cuts will lead to more, not less, expenditure, that cases will be bound to last much longer when people are unrepresented, that there will be a reduction in standards and that there will be more miscarriages of justice and an inevitable increase in guilty pleas? Is not the Minister concerned about all those things, as expressed by reputable organisations?
Lord Ahmad of Wimbledon
My Lords, the Government have undertaken to listen, consult and work with the profession, and we continue to do so. However, in the current economic climate and indeed with the crisis that we inherited, we needed to look across the board to ensure that efficiencies could be had. Even with the efficiencies that we will be making from this series of cuts, £1.5 billion will continue to be spent on legal aid—a figure that is among the highest in the world.
Baroness Butler-Sloss (CB)
My Lords, does the Minister appreciate that the figures that the Government have been giving for the incomes of members of the criminal Bar refer to turnover before VAT, tax and chambers expenses are taken off, and that therefore these figures are utterly misleading?
Lord Ahmad of Wimbledon
My Lords, the Government and indeed my honourable friend Shailesh Vara, who is the legal aid Minister, have made it quite clear that when we have referred to these figures—for example, the average figure of £84,000—they have related to fee income. The Government recognise that costs are to be taken from that fee income, and we have talked about that.
Lord Anderson of Swansea (Lab)
My Lords, one feature of the stand-off is that the representatives of the criminal Bar and the Government are quoting very different figures for earnings—not just the net and gross earnings. Would it not be helpful as a basis for negotiation to try to agree with the representatives of the criminal Bar a common basis for the actual earnings?
Lord Ahmad of Wimbledon
I repeat my assurance to noble Lords that the Government continue to consult. Indeed, we have just had close to 2,000 responses to the latest consultation on legal aid. As part of those discussions, I am sure that we will take on board the noble Lord’s comment, which seems a very sensible suggestion.
Lord Elystan-Morgan (CB)
My Lords, does the Minister accept that over the past few years when there have been discussions concerning cuts in legal aid on a broad basis, the Government have accepted that there are massive downstream costs which greatly erode what otherwise might seem to be an attractive saving? Can the Minister tell the House what surveys have been made of such downstream costs and what the results of those surveys are, and, in the event that such surveys were not made, how any Government could have been so monumentally imprudent as to jump into the dark in such a situation?
Lord Ahmad of Wimbledon
My Lords, I am afraid that I do not agree with the noble Lord. This is not a jump into the dark; it is a recognition of the current situation that the Government face across the board and across every department. We are seeking to focus legal aid spending on those who most need it. Spending on legal aid in the UK amounts to about £39 per head. I reiterate that one should look at some of the figures, even making international comparisons. Compared with like-for-like systems—for example, New Zealand at £18, Canada at £10 and Ireland, next door to us, at £20 per head—our legal system will, after the efficiencies are made, still remain one of the best in the world.
Lord Howarth of Newport (Lab)
My Lords, the Minister has just spoken of efficiencies. How is it efficient to impair the quality of justice?
Lord Ahmad of Wimbledon
Again, I disagree with the noble Lord. Looking around the world, and speaking for the Benches behind me, I believe that our justice system is one of the best in the world and will continue to be so, despite the efficiencies being made. I do not agree with the picture that the noble Lord paints.
Lord Phillips of Sudbury (LD)
My Lords, does my noble friend recognise that solicitors are also essential to criminal advocacy and that there are growing deserts in this country, which will be much accelerated by the cuts, where people will not be able to find solicitors for miles? What is he going to do about that?
Lord Ahmad of Wimbledon
Having just returned from Dubai, I can perhaps relate physically to the picture of a desert, but not in the sense of the legal aid environment. Of course my noble friend is correct to say that solicitors play and will continue to play a crucial and important part, and the Legal Aid Agency will ensure that representation for those who need it will be available.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con)
My Lords, it is this side.
Lord Beecham
I am most obliged to the noble Lord.
My Lords, does the Minister agree that VAT and expenses, to which reference has been made, actually account for 40% of the fees that are currently being quoted? What is his response to those members of the judiciary who are concerned about future recruitment of judges to deal with criminal cases in the likely event of a decline in the quantity and quality of the criminal Bar?
Lord Ahmad of Wimbledon
I believe that I have already answered the noble Lord’s question. The Government recognise that there are costs that are taken across, which is why we quote fee income. As for recruitment into the profession, and as I said, we believe that after these efficiencies are made, the criminal Bar and indeed the legal profession as a whole will continue to be an attractive proposition. We will continue to work with the profession to ensure that the standards and quality of legal representation in our country remain among the best in the world.
Severe Weather
(10 years, 4 months ago)
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Lord Wigley
To ask Her Majesty’s Government what additional financial resources they will make available to enable the various relevant public authorities in each part of the United Kingdom to respond to the impact of the recent severe storms.
Lord Wigley (PC)
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con)
My Lords, I hope that your Lordships will allow me to provide an Answer to the noble Lord that is slightly longer than is customary. Noble Lords might welcome an update on the current situation in line with that given by my right honourable friend the Prime Minister in the other place earlier today.
In doing that, I must first pay tribute to the emergency services, Environment Agency staff, local authorities, voluntary organisations and many members of the public who contributed to the response to the flooding over Christmas and the new year. Tragically, seven fatalities in England between 23 December and 5 January are associated with the severe weather conditions. I am sure that the House will want to join me in expressing our deepest sympathy to their families and friends.
There are currently 104 flood warnings and 186 flood alerts in place across England and Wales. Although the weather has improved, river and ground water levels remain so high that further flooding could come at short notice. There are a number of particular concerns, including in Dorset, Wiltshire, Hampshire, Somerset and on the Thames in Oxfordshire. Given these ongoing threats, COBRA continues to meet and is doing so this afternoon.
Recognising the seriousness of the situation, my right honourable friend the Secretary of State for Communities and Local Government announced a Bellwin scheme to support local authorities with the costs associated with the immediate response to protect lives and properties. As of 7 January, my department has received 22 notifications from local authorities that they intend to make a claim under Bellwin for the severe weather events dating from the 6 December east coast tidal surge until now. Equivalent funding for Welsh and Scottish local authorities is a matter for the devolved Administrations.
Lord Wigley
My Lords, I am grateful to the Lord Speaker for permitting this Question, particularly as there was a Statement in the other place on Monday which we were not able to have repeated in this Chamber. I am grateful to the Minister for the Answer that she has given. Perhaps I may associate myself with the sympathy she has expressed to those families that have suffered bereavements in these tragic circumstances.
Does the Minister accept that in some areas, such as Aberystwyth and other parts of the Ceredigion coast, and, indeed, the Pembrokeshire coast, the damage was so acute that it may run into many millions of pounds to put right, well beyond the resources of small local authorities, and that the National Assembly for Wales has a very limited contingency reserve capacity? Can she give an assurance that the Treasury will help out on a basis of the needs of such areas and that that principle will be applied not only in Wales but throughout the United Kingdom?
Baroness Stowell of Beeston
The noble Lord raises a question on support and funding which goes beyond the immediate process that is available to local authorities. As he knows, and as he indicated in the question that he has just put to me, the funding that local authorities in Wales may require is very much part of the Welsh Assembly’s arrangements. The funding that they may receive from a similar kind of Bellwin scheme in Wales would be a matter for the Welsh Assembly. I am not in a position to offer any further information at this time as to what the Government might do beyond the Bellwin scheme.
Lord Morris of Aberavon (Lab)
My Lords, in the event of the Treasury providing assistance for England, will it provide an increased amount to meet the Welsh Assembly’s need for expenditure in Wales?
Baroness Stowell of Beeston
As I said, the normal response to situations of the kind we are experiencing at this time is for the Bellwin scheme to come into force. As noble Lords will know, this is a tried and tested scheme that has been in place for a substantial period of time and has worked well. The noble Lord is suggesting something in addition to that and I am not in a position at this time even to suggest that it is necessary for us to go beyond the Bellwin scheme.
Lord Deben (Con)
Does my noble friend accept that the costs of cleaning up after floods are considerably greater than the costs of protection from floods? Therefore, now that the Prime Minister, the Leader of the Opposition and the official spokesman for the Liberal Democrat Party in the House of Commons have admitted the connection between climate change and flooding, can we expect that the Government will re-assess the on-going spending on flood prevention in the United Kingdom?
Baroness Stowell of Beeston
My noble friend raises an important point. On our investment in flood defences, it is important to make the point that this Government’s overall investment is higher than ever before. We announced in the Autumn Statement before Christmas—this has not happened before—a commitment to a protected, long-term, six-year capital settlement for flood defences. This will lead to £400 million a year by 2021 and will mean that a further 300,000 other properties are protected beyond those that already are.
Lord McKenzie of Luton (Lab)
My Lords, we join in paying tribute to all of those who are working in difficult circumstances to tackle these dreadful adverse consequences of our weather conditions and welcome the Bellwin scheme announcements. However, we have obtained figures in a Parliamentary Answer which make it clear that the Government have reduced investment in flood defences by as much as £100 million in real terms, lower than the level they inherited, from £646 million in 2010 to £527 million this year and £546 million in 2015. How does the Minister justify the claim that has just been made? How does she justify the proposed one-third cut in the budget of local flood authorities for 2015-16 that has just been announced in the local government finance settlement?
Baroness Stowell of Beeston
On the noble Lord’s first point, as I have said, this Government are investing more than £2.3 billion on flood defences in this spending review period and the overall investment, when that is combined with local authority and private sector expenditure, is higher than in the previous four years. As for any reductions in budgets, as the noble Lord will know, because he will have heard my honourable friends make the same point, in any reductions to budgets, necessary budget cuts that we have had to make because of economic situations, front-line flooding services are not affected.
Lord Elystan-Morgan (CB)
My Lords, as one who lives near Aberystwyth and is proud, indeed, to have been born in that town, I suggest to the Minister that the situation not just in Aberystwyth but in many other places on the Welsh coast that have been so badly hit is far more desperate than the Government seem to appreciate. The scale of storm destruction is such that it is impossible for local authorities or, indeed, the Welsh Assembly to render proper remedy. Although Westminster exercises sovereignty over the land and nation of Wales, with that sovereignty there is also a high and heavy moral responsibility to assist in situations of crisis such as these.
Baroness Stowell of Beeston
I understand the point that the noble Lord is raising. In responding to the situation and ensuring that those who are affected are properly supported, we would expect that to be the same whoever is affected and wherever in the United Kingdom they may be. As I have made clear, and as the noble Lord understands, this is a devolved matter. The Government are at the present time introducing the Bellwin scheme. We believe that that is the proper approach and we look to the Welsh Assembly to consider what action it should take.
Baroness Parminter (LD)
My Lords, my family was one of the 750,000 in this country without power for some time over the Christmas and new year period—in our case for four days, on and off, including Christmas Eve and Christmas Day. I pay tribute to the companies, local authorities and volunteers who kept our local community in Godalming going. I applaud the Government for their decision last year not to merge the Environment Agency and Natural England. That would have resulted in a critical loss of focus by the Environment Agency from its core function of responding to flood defences. That was a wise move. However, bearing in mind the need to ensure that we plan in the future for such inevitable further extreme weather events, will the Department for Environment, Food and Rural Affairs soon be in a position to say which policies and programmes it will have to cut in order to make the savings of £300 million in the next two years so that we can plan properly for any future emergency events?
Baroness Stowell of Beeston
First, I echo my noble friend’s points about the real, serious effects that some people have had to contend with, particularly those in some parts of the country who were without power for substantial periods. It is worth my saying, as the Prime Minister made clear earlier today, that while the overall response to these situations has been good, a small number of organisations have not been good enough in their response. There are lessons to be learnt and we will ensure that they are. I can inform the House that the Secretary of State for Energy and Climate Change is meeting distribution network operators and Ofgem today to discuss power.
In response to my noble friend’s specific point, I make the same point that I made earlier, which is that in the savings that are being made in the Environment Agency, the chief executive of that agency has assured my right honourable friend that he has every intention of protecting front-line services concerned with flooding.
Anti-social Behaviour, Crime and Policing Bill
(10 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
18:00 - Division on Amendment 1 - Ayes: 306 / Noes: 178 - Amendment 1 agreed.
( ) Anti-social behaviour is—
(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, or (b) in the case of an application for an injunction under this section by a housing provider or by a local authority when exercising similar housing management functions, conduct capable of causing nuisance or annoyance to any person.”
Lord Dear (CB)
My Lords, in moving Amendment 1, I want to be absolutely clear on one thing: anti-social behaviour can be, and often is, a blight on society and on those who suffer as victims of individuals who care only for themselves—people who are thoughtless, selfish or deliberately provocative. I believe, as many in your Lordships’ House will, too, that the law should continue to try to prevent that happening and to offer relief to those who suffer from that sort of behaviour. Their well-being is precious. On the other hand, civil liberty is precious, too, and a balance has to be struck between those two requirements.
My amendment is largely concerned with that balance and with a search for certainty, precision and clarity. It is concerned with the legal requirement that the law should be precise and not undermine fundamental human freedoms. The amendment is of course also about anti-social behaviour but the primary issue is an important and very long-established jurisprudential principle. From at least the days of Halsbury, it has been recognised that the law should be clear, reasonable, precise and unambiguous. People must know what the law demands of and grants to them. That principle is followed in all developed democracies. For example, in the USA the void for vagueness doctrine allows a statute to be struck down if it lacks sufficient definiteness or specificity so that:
“Men of common intelligence cannot be required to guess at the meaning of the enactment”.
That is from the case of Winters v New York in 1948.
Existing ASBO and public order legislation addresses anti-social behaviour by defining it in those circumstances as conduct that causes harassment, alarm or distress—a threshold test accepted by lawyers and lay people alike that has been well understood after years of judicial interpretation and never seriously challenged or openly criticised as too restrictive in scope. The Bill before us seeks to replace that three-word threshold test of harassment, alarm or distress with two new words: “nuisance or annoyance”. In so doing, it will open the door to uncertainty, confusion and legal injustice. Most of Clause 1 is concerned with the mechanics of the new injunctive procedure but the threshold test is the pivotal point around which everything else revolves. To put it another way, it is the foundation upon which all that is new will be based. The present threshold test of harassment, alarm or distress is about to be replaced with the altogether more imprecise words “nuisance or annoyance”. In other words, the net is being cast much wider—far too wide, in my opinion.
I am grateful to those who have supported me in tabling this amendment. The noble and learned Lord, Lord Mackay of Clashfern, was one of the most respected Lord Chancellors in the past half-century. The noble and learned Lord, Lord Morris of Aberavon, was an eminent Attorney-General. Both are signatories. So, too, is the noble Baroness, Lady Mallalieu, who brings a wealth of experience at the Bar as a practising QC and who spoke on 18 November in Committee on my behalf when I was unavoidably prevented from being in my place. That day, she tabled in my name a very similar amendment to the one we consider now. I am grateful to her for setting out the proposition with great skill—cogently, powerfully and persuasively.
She reflected that the law should be precise and not undermine fundamental human freedoms. She recognised that anti-social behaviour was a serious problem but that action to deal with it should be balanced against the need to preserve civil liberties. She reminded the House that the Commons Home Affairs Committee had said that Clause 1 of the Bill is “far too broad”. She paid tribute, as I do now, to the opinion—widely circulated in your Lordships’ House—of the noble Lord, Lord Macdonald of River Glaven, a former Director of Public Prosecutions, who roundly attacked the Bill saying that, “Nuisance or annoyance”, is a phrase,
“apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law”.
He went on to say:
“In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights”.
It is not only Members of this House and of the other place who are concerned. A wide, and even disparate, range of organisations and civil liberty groups have expressed the same opposition. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch, the National Secular Society on the one hand, the Christian Institute on the other, the Association of Chief Police Officers and many more have all said the same thing. A letter was published in the Times on 10 June last year in which around two dozen organisations expressed opposition to the phrase “nuisance or annoyance”. It reminded us that an injunction in those terms could be applied to anyone over the age of 10. It reminded us that it was subject to a new burden of proof, lowered to the civil burden on the balance of probabilities. It reminded us that it is open to indefinite duration and does not require any form of intent, and that a breach of the injunction can result in serious sanctions, including imprisonment.
I have a distinct feeling of déjà vu in speaking to this amendment, for it was only just over 12 months ago, on 12 December 2012, that I proposed an amendment to remove the word “insulting” from Section 5 of the Public Order Act 1986. The ingredients of that debate were strikingly similar to the issues today. Again, an important legal freedom was then at stake. The word “insulting” had been employed more and more to curb the exercise of free speech in public. That fundamental right was being abused. More and more, police and prosecutors were unwilling to exercise discretion—some might say that they were unwilling to exercise common sense—and they increasingly deferred to the courts for a decision. That increased the growth of the chilling effect, the definition of the word “insulting” became blurred, injustice increased and confusion reigned. Your Lordships agreed that amendment, voting 3:1 with a majority of almost 100 to strike “insulting” from the statute on the ground that it was no longer precise enough. The only real difference in that exercise a year ago and today is that then I was able to cite a very long catalogue of examples of the results of poor legislation, and today we can only anticipate that such a list will develop—albeit an anticipation with some confidence.
No doubt it is to avoid an identical problem that the Association of Chief Police Officers has advised that, although it broadly supports the new IPNA, it believes that the suggested threshold is unreasonably low and it, too, advocates a return to the “harassment, alarm or distress” test.
With all those examples of the results of imprecise and vague legislation, I am frankly at a loss to understand why the Home Office is so eager to repeat the exercise, yet again facing a solid wall of resistance from experienced groups and learned individuals. I can but recall the words of the 1960s protest song—“When will they ever learn?”.
The phrase “nuisance or annoyance” has been borrowed, or perhaps lifted, from the context of existing housing legislation, which involves of course neighbours living in close proximity. In those special housing circumstances it is clearly almost impossible simply to move out or to look the other way or pay no attention. The present test in the housing sphere is restricted to conduct affecting the management functions of the landlord. What is appropriate in an environment with two-inch-thick party walls, or with 10 or more front doors opening onto a balcony on the fifth floor of a tower block, or with cramped lifts and common parts, all of that is clearly inappropriate, surely, in a public square.
Nuisance or annoyance, I would maintain, cannot and should not be applied to the countryside, the public park, shopping malls, sports grounds, the high street, Parliament Square, Speakers’ Corner and so on, because that risks it being used against any of us and against anyone in society. That risks it being used against those who seek to protest peacefully, noisy children in the street, street preachers, canvassers, carol singers, trick-or-treaters, church bell ringers, clay pigeon shooters and nudists—yes, they, too, have raised objections with me and, I know, other Members of your Lordships’ House.
The Lord Speaker (Baroness D'Souza)
I should perhaps remind your Lordships that if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.
Baroness Mallalieu (Lab)
My Lords, my name has been added to this amendment. The noble Lord, Lord Dear, moved it with his customary reason and calm; I fear that I shall not be following in quite the same vein.
Whoever thought up Clause 1 and managed to slip it under the radar of the other place is a strong contender for some kind of award. Perhaps it should be a citation for attempting to increase the power of the state to interfere in people’s lives; perhaps a golden globe for providing the authorities with a new and easy-to-discharge weapon in the war against inconvenient and annoying expressions of dissent; or perhaps even an Oscar for thinking up a way to take out those who are a nuisance or annoyance in any one of a thousand unspecified ways—and doing it in a manner that admits virtually no defence or safeguard and that requires the minimum of evidence.
Those on whom the Government propose to confer this extraordinary power are fully set out in Clause 4. Apart from the housing providers, to whom I will come shortly, they include the Environment Agency, all local authorities, British Transport Police, Transport for London, the Secretary of State for Health—and, of course, the police themselves. In other words, they are in every single case an arm of the state. The proposed definition in Clause 1(2), that the respondent must be someone who,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”,
has been adopted, as we have just been told, from a very limited provision, carefully restricted to conduct affecting the housing management functions of the relevant landlord. Both the applicant and the respondent are carefully defined. It is intended to assist a housing provider to control the behaviour of neighbours—tenants—living in close proximity who, as has been said, cannot simply look the other way, pay no attention or move easily—and in a situation where, because of fear, evidence may be hard to obtain.
The Government propose to take this particular power, designed for the particular problem of anti-social neighbours, and give it to a wide range of state bodies for use without restriction against absolutely anyone. The amendment of the noble Lord, Lord Dear, recognises the force with which many housing providers have lobbied us between Committee and today. They wish to retain that power in their own very limited and special context. Under this amendment, they would do so.
In Committee—and I anticipate more of the same later when the Minister replies—the response of the noble Lord, Lord Taylor, to my similar amendment on the ASBO definition that this amendment seeks to retain, was, “You are not thinking about the victims”. By that he clearly means those who are on the receiving end of anti-social behaviour. I have to say that he is wholly wrong in that. It is precisely because we are concerned about those who are harassed in our hospitals, caused alarm on public transport, or distressed by the conduct of others in the street that we want to see this legislation targeted at that behaviour.
In reality, most anti-social behaviour that the public worry about is already covered by existing criminal law offences under criminal damage, public order and harassment laws. There are unquestionably problems of court delays at present—and not just with ASBO applications. Inadequate resources for police, prosecuting authorities and courts are all factors. Ironically, by making IPNAs so much easier to obtain than ASBOs, for a far wider range of behaviour, and with a lower evidential burden, there is a real prospect that Clause 1 will slow down the courts by clogging them with myriad IPNA applications and will be of little help to real victims in need of urgent help.
I also remind the Minister that there are other victims of whom he appeared to take no account. They include those against whom an allegation is made that is unfair, unwarranted or untrue, or without any proper evidential basis. There is no defence of necessity or lack of intent in the Bill. I see no compensation provisions for a wrongful injunction, or any of the safeguards that normally attach to a civil injunction, especially when the defendant is not present at the initial hearing. This is all worrying, but particularly worrying for me is the lower burden of proof that is now proposed. However, my main concern is the extent to which lowering the threshold to behaviour,
“capable of causing nuisance or annoyance to any person”,
has the potential to undermine our fundamental freedoms, and in particular the way in which the proposed law might be used to curb protest and freedom of expression.
In exercising my personal right to protest in the past, I readily accept that I have on a number of occasions been guilty of conduct capable of annoying someone. Every march that delays traffic, every rally that overcrowds public transport or pavements, and every demonstration with loudspeakers, whistles and horns is no doubt capable of causing nuisance or annoyance to someone, and is usually a headache for the authorities, too. I suppose that there are Members of your Lordships’ House who have never attended a rally, demonstration or protest march, but I would place a small wager that they are in the minority. In a lifetime of attending protests, from Aldermaston as a child to the countryside march and many in between, if I have caused annoyance or nuisance, I hope that I have never caused harassment, alarm or distress to anyone.
Quite simply, the Bill currently sets the barrier too low. It threatens fundamental freedoms and, importantly, it undermines tolerance, which is surely an essential quality for living happily in an overcrowded island such as ours. Speaking in a rather different context but saying what I think is appropriate, Lord Justice Sedley some years ago put it rather well. He said:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.
To try to prohibit behaviour that is capable of annoying someone is a step far too far, and I hope that this House will do what the other place overlooked and stop it.
Lord Mackay of Clashfern (Con)
My Lords, I support this amendment; I have signed it and I believe that it is amply justified. As the noble Baroness has just said, one of our fundamental freedoms is the freedom of speech. Surely it is clear that in exercising that freedom, one may annoy one or more other people. From time to time in this House I have witnessed a Minister explaining his present difficulty by reference to the behaviour of the previous Government, and one immediately senses annoyance on the opposite Benches. If I have an opinion which I know some or many people will disagree with, surely I am entitled to come out with it. Do I have to reasonably consider whether it will cause annoyance to somebody else, and if it would, what should be the consequence? Am I to muzzle my point of view to placate people who might be annoyed? It is absolutely plain that “annoyance” in this context, with a wide application, is inappropriate for this purpose.
The position taken up by the Government hitherto, so far as I understand it, is that this definition has been tried and tested in the courts for some 15 years. But definitions in their application are subject to the context in which they are used, and this use has been in the context of social housing and its enforcement has been in the hands of the responsible authorities for social housing. You cannot imagine an authority in that field trying to stop a street preacher, for example, on the basis that he was annoying the passers-by by the denunciations that he was pronouncing against their acknowledged conduct. It is not the same context at all, and the context influences the proper interpretation.
Lord Morris of Aberavon (Lab)
My Lords, I have added my name to the amendment tabled by the noble Lord, Lord Dear. Like him, for as long as I can remember the Home Office has been bringing forward ill thought-out proposals with little regard for the consequences. Parliament scrutinises them, and they are from time to time defeated. I, like the noble Lord, thought that some lessons would have been learnt from our debate on “insulting”. I fear that from time to time the Home Office does not fulfil its purpose as the guardian of our liberties and a watchtower against the infringement of those liberties. I can go back a long time. Over the decades, Parliament has been concerned with loads of proposals of this kind which have not been thought out because they emerge from the fortress mentality of the Home Office, which imprisons so many Home Secretaries of all parties.
We have heard many objections, which I shall not repeat, to these proposals to lower the threshold and inevitably catch a much larger number of people than Parliament would want. As a lifelong criminal law practitioner, I, like the noble Lord, Lord Dear, give the highest of values to the importance of certainty, and the European Convention on Human Rights affirms the common law. When she agreed to the removal of the word “insulting” from Section 5 of the Public Order Act, the Home Secretary, informed Parliament that:
“There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions”.—[Official Report, Commons, 14/1/13; col. 642.]
I agree wholeheartedly with the need for a careful balance. This proposal, including the Government’s amendment, is the wrong side of that balance. “Harassment, alarm or distress” is well tested by the courts and in its application. “Nuisance or annoyance” is such an elastic term that it could, if it were applied widely, be used as open-ended machinery to catch all sorts of people who really should not be before the courts. Somebody with a placard saying that the end of the world is nigh, a preacher or maybe a politician on the street during an election may well be caught because they will certainly cause annoyance to someone. Are those the kinds of people that we want to haul before the courts?
The Government say that their formula is hallowed and supported by 15 years of case law and is readily understood. The reality is that it has been tested only within the narrow confines of housing-related cases, and there are limitations on who can bring such actions. Like all former constituency Members, I have experience of dealing with housing problems. I can affirm that there is sometimes a need for strong action to be taken in cases where people are stable and cannot move. You have to do something to try to remedy that situation. There may be strong arguments for a lower threshold there, but to extend that lower threshold in a situation which has been tested only in the housing section is a bridge too far.
I fear that the Government’s amendment does not help us; it merely underlines the situation and may indeed make it worse. The test to be satisfied is the balance of probabilities. I heartily disapprove of such a test, which can ultimately lead to a loss of liberty for the individual for disobedience. The court must consider and decide whether it is,
“just and convenient to grant an injunction”.
What on earth does that mean? Convenient for whom? Just is perhaps a slightly easier concept, but I wonder how far it has been tested. We are familiar with the concept of the interests of justice, but “just and convenient”? One is horrified that this kind of clause, these kinds of words, are put in a statute at all.
For the existing ASBOs, the test is, of course, the criminal one of proof beyond reasonable doubt. The alleged burden is well known and well established, and when it is suggested here that the order must be shown to be necessary, why do we have to depart from the long-hallowed practice, which has been tested?
I support, and pray in aid, what the noble Baroness, Lady Mallalieu, said when she quoted Lord Justice Sedley. I shall not repeat the words, which are still ringing in our ears; I shall merely say that, as the noble Baroness told us, he finished by saying:
“Freedom to speak … inoffensively is not worth having”.
We do not want to catch people who merely annoy, or merely cause a nuisance. There must be a higher threshold.
It was my duty, as Attorney-General, to consider prosecutions when anti-Semitic material was published. Even that legislation could be said to be an infringement of free speech, but over the decades there was material so unacceptable that it had to be dealt with firmly. Where my discretion had to be exercised, I tried to approach the decision with the greatest care. Deciding not to prosecute was probably more difficult than deciding to prosecute. There have been other limitations on free speech over the years, and when Parliament attempts to limit free speech, each and every one of those limitations must be considered with the utmost care. We must be ever vigilant not to breach the fundamental concept of free speech.
Lord Faulks (Con)
My Lords, I fear that I am about to break the consensus. I hope that in doing so I do not cause too much nuisance or annoyance. The amendment in the name of the noble Lord, Lord Dear, and others is rather different from the one that was before your Lordships in Committee. The amendment there sought to include a requirement that anti-social behaviour had to be established beyond reasonable doubt before an injunction was obtained. Given the evidential problems that this would have created, the amendment has sensibly been altered so that it no longer requires a criminal standard of proof before a judge can order an injunction.
I tabled an amendment that reflected the views of the Joint Committee on Human Rights, of which I was a member. We had proposed that a reasonableness requirement should be imported into the definition of anti-social behaviour. In other words, there should be an objective element, to deal with the argument that the whole concept of anti-social behaviour was too subjective. The Government’s Amendments 2 and 3, particularly Amendment 2, seemed to me entirely to meet our concerns, and in this regard I am specifically authorised by my noble friend Lord Lester, who is unable to be here today, to say that he supports the Government’s position and would oppose Amendment 1.
It is clear from the speeches that we have already heard that there is concern that the obtaining of an injunction would be too easy, and that there would be a risk of freedom of speech, freedom of association, and the freedom to indulge in activities that some people might regard as annoying, being inhibited. Is this a realistic fear? First, it must be remembered that under Clause 4 the applications can be made only by an agency—for example a local authority, a housing provider or some other such body. That is a defence against inappropriate use. It means that a victim of anti-social behaviour has to go through the filter of a hard-working agency in order to establish the fact that there is sufficient basis to seek an anti-social behaviour order—or, in this case, an IPNA. If it were to be done on the say-so of one individual deciding, perhaps unreasonably or capriciously, that someone else had been guilty of anti-social behaviour, that indeed might be objectionable. But the use of an agency provides an important filter.
At Committee stage, and even at Second Reading, the Minister referred to the guidance. The guidance is given to the front-line professionals—not, with great respect to my noble and learned friend, the courts—to make sure that they do their job correctly. That guidance, which was then in draft, is now, according to an amendment, to be made a specific statutory provision. Page 24 of the advice says that,
“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.
Lord Forsyth of Drumlean (Con)
I am following my noble friend’s argument closely, but could he give an example of the kind of thing for which he thinks this provision might provide a remedy?
Lord Faulks
It would provide a remedy for myriad different circumstances—perhaps the sort of behaviour where youths gather specifically under a particular person’s window and regularly play noisy music, are aggressive and perhaps smoke cannabis, providing day by day harassment of individuals.
Lord Faulks
It might be, but the problem is that the test for harassment is fraught with imprecision, as is any test that any Government might provide. Whether something gets over the hurdle of harassment will be somewhat uncertain. No doubt it will be argued in a particular case that it does not go far enough to constitute harassment, but it will nevertheless be anti-social behaviour by anybody’s definition.
Lord Cormack (Con)
So what is the objection to having harassment in the Bill?
Lord Faulks
The objection is that there is a risk that the hurdle will be too high and that the judge will say, “This is extremely anti-social behaviour and I profoundly sympathise with the individual but, looked at under the definition of harassment, it does not go quite that far”. That behaviour could be completely ruinous of an individual’s life, but perhaps not have that quasi-criminal description that the substitute definition has.
Lord Faulks
The greater test will always include the lesser, but areas that may or may not be considered by a court to get over that hurdle may be profoundly distressing in the non-technical sense to the individual but may not be regarded as sufficiently distressing to come within the definition. There is inevitably a degree of vagueness about any definition, whether you choose the one that the Government choose or the one proposed in the amendment. But I fear that the test is too low.
Lord Thomas of Gresford (LD)
Could my noble friend deal with a major objection? An order can be obtained on hearsay evidence, so the judge does not have to hear from somebody who says, “I’ve been distressed or annoyed”; it would be sufficient for someone to say, “I’ve heard someone else describe himself as annoyed because of the behaviour in question”.
Lord Faulks
The question of hearsay evidence is important, and I am glad that my noble friend raised it. One difficulty about the orders is that individuals are often terrified of those who are responsible for the anti-social behaviour. They are terrified of being identified as the source of the complaint. If they have to give evidence, they will not want to do so. They therefore provide their perfectly bona fide complaint to an agency. Hard-pressed agencies will have to assess whether this is de minimis or of sufficient gravity before deciding whether to proceed.
Lord Thomas of Gresford
Is my noble friend saying that the procedure can be based on an anonymous complaint?
Lord Faulks
It can be on the basis of an anonymous complaint, though a judge will need to be satisfied of its substantiality. There are individuals who simply would not seek an injunction if they thought that they could be clearly identified as the source of the procedure. Of course, judges are used to weighing up hearsay evidence, which has less weight than direct evidence. A judge is unlikely to make an order if they think that it is double-hearsay or comes from an unreliable source.
Before making an order, a judge also has to decide that it is proportionate and necessary, in accordance with the Human Rights Act. As I submitted, it is no light thing for the agencies to assemble the evidence necessary to satisfy a judge. The Law Society has carefully considered the arguments against Clause 1. Although more than happy to criticise government legislation—and even this Bill, in some respects—it remains absolutely firm in its support of the existence of the power described in Clause 1, fearing otherwise that the hurdle would be too high and that the power to prevent anti-social behaviour would be damaged.
Lord Greaves (LD)
My Lords, I am anxious to support the Government on Clause 1, because there is a great deal to be said for the replacement of ASBOs by IPNAs. However, the noble Lord seems to be arguing that the existing test for ASBOs—harassment et cetera—is too high. Is he arguing that, at the moment, people cannot get ASBOs because the test is too high and therefore that it must therefore be reduced for the new IPNAs? In my experience, the problem with ASBOs is that they are very often given for inappropriate things.
Lord Faulks
It is a marginally lower hurdle, but as I understand it—and the Minister will confirm—the choice of words was not an arbitrary matter but the result of a very wide consultation among the professionals concerned in order to reach a test that was sufficient to establish gravity but not so high that the scourge of anti-social behaviour could not be prevented.
In its briefing on this part of the Bill, the Law Society made the point that if injunctions are used in the case of noise nuisance, as an alternative to possession proceedings, they can result in the person or family staying in their home but with restrictions on their conduct, rather than the much more drastic step of eviction. Although an IPNA can be obtained on the balance of probabilities, with or without the amendment, the criminal standard must be satisfied before any breach can be established: that is, beyond reasonable doubt. I respectfully suggest that this provides an extra safeguard, so that this will not result in people being deprived of their liberty inappropriately.
I am also concerned about how coherent Amendment 1 is. It requires “harassment, alarm or distress”—a quasi-criminal test—with the exception, which was not in the original amendment in Committee, of a housing provider or local authority in a similar housing management position. In the case of social housing, the hurdle to be surmounted appears to be lower, so there is a two-tier test for anti-social behaviour, depending on whether you are a private tenant or are in social housing, where an injunction is much more easily obtained. That is hardly a satisfactory distinction, and I wonder how enthusiastic the party is about such a classification.
I do not know, of course, how the party opposite—or at least its Front Bench—regards this amendment. It will be borne in mind that MPs on all sides in the House of Commons were at pains to stress what a scourge anti-social behaviour is to their constituents, and that there ought to be substantial and sensible powers to prevent it. Indeed, the shadow Home Secretary said generally of the powers in the Bill that she thought they were too weak.
We are all passionately in favour of freedom of speech, freedom of association—
Lord Elton (Con)
Will my noble friend forgive me? He has just said that he cannot understand why there should be a lower test in social housing. Surely the answer is that if you are in social housing you cannot move out of the way, people are free to do what they like to you and you are trapped. Therefore, a lower standard of unsociability has a much greater effect on the person affected. It is exactly the right proportion.
Lord Faulks
Of course I entirely accept the noble Lord’s point that those in social housing may not have options and therefore certainly need the protection at a lower level. My point was that it is rather inelegant to have a different test where there might theoretically be greater room for manoeuvre if there is a private tenant. The test ought to be the same.
I was repeating the fact that I sympathise with all those who have spoken in favour of the various freedoms that we value so much in this country. If we vote in favour of the amendment—if it is put to a vote—we will of course be able to congratulate ourselves and say that we have acted in the finest traditions of freedom. I will have the good fortune of going back to my house where, at least at the moment, there is no great history of anti-social behaviour in the area. Other noble Lords will perhaps be in a similar position. But let us not forget those who are in less fortunate circumstances, who do not have room for manoeuvre and whose lives are made totally miserable by this anti-social behaviour. I fear that if we accede to this argument, we will fail to take them sufficiently into consideration and will make bad law.
Lord Cormack
My Lords, we have just heard an interesting speech from my noble friend Lord Faulks. I am sure that I speak for every Member of your Lordships’ House in congratulating him on his forthcoming move to the Front Bench—because, as we all know, he is to be Minister very soon. It is therefore hardly surprising that he should have spoken with such passion in support of the Bill.
Lord Faulks
I am grateful to my noble friend for his kind congratulations, but I should say that I spoke on this issue in Committee before I was appointed, to very much the same effect.
Lord Cormack
One is tempted to call that “cause and effect”, but I will not.
This noble House concluded its contentious business somewhat earlier than we had expected last night. I went home and turned on BBC Four, on which there was a most remarkable programme on the Salvation Army in which various officers made some extremely sincere but perhaps contentious statements. One gentleman in particular made the point that anyone who did not believe in Jesus Christ, as many of us do, was in fact condemned to eternal damnation. Imagine that being said on a street corner or anywhere else. Do we really want to deny people with sincere and genuine beliefs the opportunity of expressing them? I have always felt—although I did not agree with many of the things ascribed to him—that Voltaire had it right when he said, “I detest what you say, but I will defend to the death your right to say it”. That really should be implicit in all our legislation.
I find it somewhat difficult to accept that a Conservative Government or—let me correct myself—a Conservative-led Government are prepared to introduce this lower threshold in the Bill. Although my noble friend Lord Faulks said that it was different from the debate that we had on insulting a little over a year ago, and of course in some senses it is, nevertheless it is similar. It is also very different from what was implicit in the Defamation Act that came into force just a week ago today, whereby we introduced legislation—quite rightly, in my view—that makes it more difficult to engage in frivolous and vexatious complaining.
In this particular provision, in this clause of the Bill —much of which I approve of—we are seeking to lower a threshold and in the process place many people in possible danger of having their civil liberties, including their right to speak as they would, taken away from them. Of course I accept, as my noble and learned friend Lord Mackay of Clashfern accepts, that it is right that social housing should be treated differently—of course it is. In his intervention a few moments ago, my noble friend Lord Elton put that point succinctly and correctly.
Lord Blair of Boughton (CB)
My Lords, I should like to take further what the noble Baroness, Lady Mallalieu, said about who is going to be involved at the beginning of this process. Whatever the noble Lord, Lord Faulks, said, it is not going to be a judge; it is probably going to be a police officer. I want to think about the use of language and I am going to give two examples of the use of language which distinguishes the word “annoying” from the language in previous Bills about distress and harassment.
I want to take your Lordships back to 1970s Soho where, as a young constable, I was patrolling with a much more streetwise officer. We were approached by a rather large Westminster councillor who was objecting to people handing out leaflets about rent rises. He said that he was really annoyed by this. The officer I was with said, “Well sir, my Aunt Mabel is annoying but I’m not going to let anybody arrest her for just being annoying”. That was in the 1970s. I now want to take your Lordships to the very top of government in 2007. The right honourable Tony Blair has announced that he is about to leave and the right honourable Gordon Brown thinks he is about to be the Prime Minister but he is still the Chancellor. I am sorry that the noble Lord, Lord Reid, is not in his place to confirm this story as he and I were involved in it when he was the Home Secretary. The Chancellor was about to move out of No. 11 with his red briefcase to announce a Budget to a particularly unstartled world when we discovered that a man was standing amid the cameras dressed in a full union jack outfit with a notice saying “John Reid for Prime Minister”. It was reported to me, as commissioner, that the Chancellor was likely to be annoyed; it was pointed out to me in very firm terms that the putative Lord Reid was going to be extremely annoyed; and, as the commissioner, I was annoyed because the Home Secretary was annoyed, but nobody used the terms “harassment”, “distress” or “alarm”.
The difference between simple words relating to annoyance and how they will be interpreted on the street by housing officers, police officers and so on is very important. This is not a matter for judges. People will be told to move on and get out of the road by people who are in authority because that is the easiest thing to do when dealing with somebody who is complaining. This is an absolutely awful piece of legislation and we should avoid it.
Lord Phillips of Sudbury (LD)
My Lords, a point that has not been made sufficiently—I think that the noble Lord, Lord Dear, referred to it in his very admirable opening speech—is the extra burden that passing Clause 1 unamended would impose on the police and local authorities. No one should underestimate that. If the only gateway for getting redress for annoying conduct, which I think we all agree is so low a test as to be almost meaningless, is via a local authority or the police, does anyone really believe that they will not be subject to a mass of citizen inquiries and applications? Of course they will. Indeed, many people who might be thought a little obsessive will no doubt badger the poor local police endlessly until they get what they call redress—that is, an application by the police for an injunction under Clause 4. Apart from all the more important civil libertarian aspects of this issue, we should not forget the potential extra burden—and, I suggest, vexatious burden a lot of the time—that will inevitably result from Clause 1 going through unamended.
Lord Walton of Detchant (CB)
My Lords, I rise briefly to give warm support to this amendment tabled and so ably presented by my noble friend Lord Dear and others. I firmly believe that the threshold in the Bill is set far too low.
I have been a lifelong supporter of Newcastle United Football Club. My friend, the noble Lord, Lord Shipley, who unfortunately is no longer in his place—and I call him “friend” in the social sense, not in the parliamentary sense—is for reasons best known to him, despite having been leader of Newcastle City Council, a Sunderland supporter. If I were to chide him and say that he is foolish to continue to support that team, which has been absolutely hopeless all season, despite beating Manchester United last night, and if I were to say that the team is in fact languishing at the foot of the Premier League and in imminent danger of relegation, I think that he would be extremely annoyed because he is a loyal supporter of Sunderland. If I persisted with that theme, he would reasonably regard me as a confounded nuisance.
If one looks at this clause and interprets it in a strictly literal sense, I would potentially be in breach of this statute if I said those things. In fact, I do not for one moment believe that he would seek an injunction; at least I hope not. Having said that, I believe that the clause is absolutely unacceptable and needs to be amended. There is even a possibility that the clause as drafted could act as a sort of charter for individuals of paranoid personality or malicious intent in leading them to seek this kind of injunction much more frequently than would ever have happened in the past. This clause is unacceptable and I strongly support the amendment.
Baroness Hamwee (LD)
My Lords, in response to that I can say that frequently and over decades I have been annoyed and alarmed and distressed by Manchester City.
When I read this Bill I too was concerned about the threshold, but as someone who has something—I know—of a reputation as a fluffy liberal I understand the Bill’s architecture much better than I did when I first came to it. It meets the principles enunciated at the start of the debate. I have understood the context as well, and am reassured that the everyday annoyances that have been used as examples and of which we are all capable will not be caught. Crucially, I have understood that preventing behaviour from escalating and staying out of the criminal justice system are at the heart of this part of the Bill.
Noble Lords have talked about the body of case law that has been built up in the housing sector; there was certainly an effective, large lobby from it at the earlier stage. I agree with my noble friend Lord Faulks about the difficulties of discriminating between two housing sectors. It is not that one is caught in social housing but not caught in owner-occupied housing—from which it may be very difficult to move—in quite the distinctive way that has been described.
Even as a lawyer I see that “convenient” in the term “just and convenient” has an everyday connotation that seems a bit baffling in this context, but the term has a pedigree, as does the case law built up in the social housing sector. It is quite a hurdle to overcome. Lawyers in this House far more experienced than me may correct me, but I understand the term to incorporate “reasonableness”, “proportionality” and “appropriateness”. I do not see the examples that have been cited as being caught within this; I have seen neither the noble Baroness, Lady Mallalieu, nor even the noble Lord, Lord Cormack, at a rally or on a march, nor many of my friends who might want to be lobbying outside the MoJ against legal aid cuts. It just does not extend in that way, because there is that protection.
Unlike the current ASBO, the IPNA takes offenders directly into the criminal justice system.
Lord Forsyth of Drumlean
I apologise for interrupting my noble friend and am grateful to her. May I ask her the same question I asked my noble friend Lord Faulks? Can she give us a specific example of something that would be prevented by the Bill as it stands?
Baroness Hamwee
My noble friend is asking for examples of behaviour. It could be kids kicking a football around on a bit of open ground—which happens on a bit of open ground next to my house. I am lucky enough to live on the Thames but I find it extremely annoying to have discovered that rowing is the most noisy activity: one might not have expected it. It could be a bit of drinking—not drunken behaviour but people sitting around with a can of lager. I know from neighbours’ comments that they feel apprehensive about that and, although there has never been anything for them to be apprehensive about, they just do not like people sitting around drinking cans of lager in public. I also suggest dogs being exercised on the same ground where children play—there are a lot of annoyances in that kind of area. People see me and no doubt think that I am a poor old lady delivering pizza leaflets for tuppence a thousand when I am delivering political leaflets.
Lord Forsyth of Drumlean
Is my noble friend suggesting that all these examples should be capable of being stopped by the courts?
Baroness Hamwee
Of course, if people feel threatened and their lives are badly impinged upon. That is what the Government are trying to prevent by this Bill. I do not want to downplay the impact of some bad behaviour on many people who react in a way in which I would not necessarily react, but the impetus to prevent—
Baroness O'Loan (CB)
Can the noble Baroness explain precisely how judges are supposed to interpret a threat and a feeling of being threatened from the words “nuisance” and “annoyance”? Also the use of the word “threatened” would indicate a much higher threshold.
Baroness Hamwee
I would say because of the context of the Bill, the clear policy underlying it and the evidence that would have to be given. I have heard the exchange about hearsay evidence but a judge has still got to be convinced that it would be just and convenient, and therefore proportionate, as I understand it, to grant an injunction.
Lord Morris of Aberavon (Lab)
When the noble Baroness uses the word “frightened” is she not arguing the case for maintaining the present position of causing harassment, alarm or distress?
Baroness Hamwee
Of course, these things are all subjective to some extent and perhaps that was an inappropriate word for what I was trying to describe. However, with what is reasonably frightening one is attempting to put objectivity into it; what may be unreasonably frightening would fall into a different category.
Perhaps I may now refer to the preventive nature of the provisions and say that, in considering whether the clause impinges on the fundamental freedoms of individuals—and we are talking here about individuals and not peaceful assembly—the convention rights, including freedom of expression, are protected in any event, as I understand them. The Minister will no doubt explain that the Government have responded to the JCHR’s concerns.
I have been critical about the reliance in the Bill on guidance. I agree with the noble and learned Lord, Lord Mackay of Clashfern, about it not being appropriate to give guidance to the courts—I made that point at the previous stage—but they would not be guided in the way that the potential applicants listed in the Bill would be, and the guidance will now be statutory.
The noble Baroness the Lord Speaker has confirmed that the second amendment—the reasonabless amendment —would fall if this amendment were agreed to. I finish by saying that I will still feel free to annoy people by delivering leaflets and by expressing minority opinions. I fear that, as a child of the 1960s, the musical exhortation has not persuaded me.
Lord Howarth of Newport (Lab)
My Lords, the noble Lord, Lord Faulks, was right in this, at least in drawing attention to the scourge of anti-social behaviour. When I represented the constituency of Newport East I was all the time aware that there were households and, indeed, communities whose lives were very seriously blighted by anti-social behaviour. There is enormous political pressure on MPs representing constituents to find ways to crack down more aggressively and more effectively on such behaviour patterns. That pressure is, of course, amplified by the tabloids.
That is precisely why we should be moderate in this matter, why we need to be restrained and why we must try to get the right balance. Therefore, the provision in law that a threshold of “harassment, alarm or distress” must be exceeded seems to me to strike the right balance. I think that it is dangerous and improper to lower the threshold to “nuisance or annoyance”. It is surely unthinkable that we should risk introducing legislation that could impair the rights of people to go on demonstrations, as my noble friend Lady Mallalieu offered as an instance, or of kids playing football in the street, as the noble Baroness, Lady Hamwee, worried about. There are all manner of other innocent behaviours that are, indeed, annoying, but that in a free society we should not dream of legislating to prevent.
The noble Lord, Lord Faulks, did not annoy me—he never could annoy me—but he startled me with the arguments he scraped together in his gallant speech in support of the Government’s position. He asked: is it a realistic fear that people would be subject to IPNAs for trivial and inadequate reasons? He offered the thought that the requirement that applications would have to be made through an official public agency should be seen as a filter and a safeguard. The vast majority of public officials handle their responsibilities fairly, properly, scrupulously and reasonably. I hate to say this, but it is also, surely, an observation that all of us have made that if you put a man in uniform, or if you vest official authority in a person, some will find themselves tempted, and succumb to the temptation, to use power overweeningly. We have to be very careful indeed.
The noble Lord says, further, that guidance will be offered to these agencies so, again, we do not really have cause to worry. I am sure that the guidance will be a force in the right direction, but guidance is only guidance; it is flimsy and an insufficient protection. The much better protection would be not to write this risk into law. He offers a much more reassuring protection—that such injunctions could be made only at the discretion of a judge and that we can rely upon the judges to exercise common sense, decency and appropriate restraint and to be animated by a mature and wise sense of justice. In that case, why legislate? We do not need to do this. We can rely on the judges not to order injunctions against people who are merely guilty of causing trivial annoyance. It does not seem sensible, in the present circumstances in which the resources of the courts have been very attenuated, to add this burden to them.
I agree with the noble Lord, Lord Cormack. What are we here for if not to protect civil liberties? Justice and convenience are very often in tension. I suggest that what may be for the convenience of the Government politically, for the convenience of local citizens, whose annoyance threshold is perhaps rather low, or for the convenience of agencies may be very ill assorted with justice. I think that the Government’s position is unwise and I very much hope that the House will support the amendment in the name of the noble Lord, Lord Dear, and his colleagues.
Lord Mawhinney (Con)
My Lords, I support this amendment. The arguments for it have been set out so clearly and persuasively by the noble Lord, Lord Dear, the noble Baroness, Lady Mallalieu, my noble and learned friend Lord Mackay and the noble and learned Lord, Lord Morris, that I will not repeat them, particularly at this late stage of our consideration. I will make three quick points as my contribution.
First, I listened in particular to the point made by my noble friend Lord Faulks about MPs on all sides of the House complaining about and explaining the anti-social behaviour that some of their constituents face. As an MP of some 26 years’ standing, I can tell him that that is absolutely right: any MP worth his or her salt could give him numerous examples of anti-social behaviour and of the sense of inadequacy and frustration over the law seeming not to apply in those circumstances. However, one of the strengths of our bicameral arrangement is that this, your Lordships’ House, can consider such matters in a slightly different frame from the pressured one of representing constituents, some of whom are hard done by because of the law of the land. This House has the opportunity to reflect on the broader principles and bigger issues. This House sets the framework that, just occasionally, the House of Commons has not managed to get around to addressing because of the other pressures that Members of Parliament legitimately face. This is an opportunity for us to behave in a way that is in the national good and not just one that may be pleasing to some, or to some vested interest groups.
Secondly, my noble and learned friend Lord Mackay illustrated the ability to cause annoyance, and of Ministers causing annoyance to the other side of the Chamber when they blame the previous Government for problems they face today. Incidentally, I know my noble and learned friend would accept that this is a two-way street: it is not just Ministers in this Government who have blamed the previous one; Ministers in the previous Government blamed us as well. The distinction I want to leave in the minds of noble Lords is that we are a sophisticated body. I was interested in the reaction to my noble and learned friend’s point. We all smiled, nodded and were very civilised about it. Out there are people who are not as civilised, tolerant, understanding or forgiving. This legislation may be of interest to them in a way that it would not be to us. We have to bear that in mind when we cast our vote.
Thirdly, as a former chairman of the Conservative Party, I am saddened that the Government have brought forward this particular piece of legislation. It is a matter of record that I—along with the noble Lord, Lord Dear, and others—was a signatory to the legislation in December 2012 that amended by an overwhelming majority of your Lordships’ House the Public Order Act and took out the word “insulting”. Now we are offered in its place “annoyance”.
The sad fact is that it is not that surprising. I speak with some knowledge when I say that, internally, Governments occasionally believe that the combined wisdom of both Houses is not really up to scratch when compared to the wisdom of a department of state on a particular issue. I see nods on the other side of the Chamber that encourage me to understand that I am not making a party-political point at my party’s expense. It is one of the realities, and I will say something about departments of state: they have long memories. I have to say to my noble friend on the Front Bench—who is my friend in the personal sense, as we have known each other for many years—that I am saddened that I judge this to be an example of long memory.
Your Lordships threw out “insulting”—rightly so —and annoyed a lot of people in the process. They pleased a lot of people as well. Today I hope, not out of any sense of vindictiveness, as I have been a fully paid-up member of this party for a long time, that at the end of this vote the only people who will be annoyed are those who thought to bring forward this particular piece of legislation. I hope that, under the guidance of the noble Lord, Lord Dear, we will now amend it.
Lord Carswell (CB)
My Lords, noble Lords who have spoken in favour of this amendment have produced a gamut of compelling reasons why your Lordships should support it. I will briefly focus on one aspect of the amendment and the original draft as produced to your Lordships, that of the court that has to interpret and apply the provisions, a function of which I have had fairly long experience in my time. The words “nuisance” and “annoyance” are what a distinguished jurisprudent called “weasel words”. They are highly subjective and are liable to be interpreted by different people in different ways, which is a recipe for judicial inconsistency and an invitation to those who wish to oppose people expressing opinions that they dislike. In my experience, that would be certain to lead to litigation and to further harassment through the courts.
I am reminded of a remark made by a former First Minister of Northern Ireland, subsequently a Member of this House, who said in his Parliament that people were offended by something that he had said that was rather controversial at the time. He added sweetly: “A lot of people came from a long distance to be offended”.
How are the courts to carry out their function of interpreting and applying the words “nuisance or annoyance”? To put oneself in the shoes of a judge, it is worth remembering that a lot of these cases, perhaps a large majority, will come before junior courts, which have neither the time nor the resources to enter into long jurisprudential arguments. I have long maintained that judges should be given discretion and that, whatever the legislation is, it should not circumscribe the discretion of a judge too closely but should leave a modicum of room for the judge to come to a proper conclusion on the facts of the instant case. However, this should operate within the parameters of reasonable certainty of the law. The principles that a court is asked to apply should be sufficiently clear for both the court and, equally important, those citizens who seek to know the obligations that the law places on them.
The provision of “just and convenient” would go no further. It would not satisfy the principle of reasonable certainty of the law. Indeed, a court should seek to achieve that in any decision, on an injunction or any other part of the law. It does not reduce the deficiencies in the substantive provision.
For those reasons, and for others that your Lordships have expressed, I strongly support the amendment. The provision in the Bill without the amendment is too uncertain and too wide. The amendment gives a proper degree of certainty and security of the law.
Lord Ahmad of Wimbledon (Con)
My Lords, I am not seeking to annoy or cause a nuisance, but I believe that it may well be the will of the House now to hear from the noble Baroness, Lady Smith, on behalf of Her Majesty’s Opposition, and then the Minister.
Baroness Howells of St Davids
My Lords, it is my right to speak. People have mentioned cats and dogs; nobody has mentioned race. If this is the wish of the House, I will not.
I rise to support the amendment in the name of the noble Lord, Lord Dear. I believe that the Bill will allow the law enforcers to use subjective prejudices to harass and even charge persons as young as 10. This law does not take on board the fact that this nation is now multicultural but still has not unlearnt its racial prejudices. The clause could have as damaging an effect as the sus laws which black people have fought and struggled to have repealed. We are not unaware that the sus laws are still enforced by a change of language, as was done at the Notting Hill Carnival in 2013.
Britain is now a land of many cultures, and what one culture will subscribe to is not always acceptable to others and may easily be interpreted as annoyance and nuisance. Anyone with a racial bias could misinterpret the actions of anyone, especially someone of colour, as being offensive and feel it within their right to accuse them of breaking the law. Such actions as the Bill proposes could criminalise many innocent persons and further damage the fragile gains that we have made in this country.
A child as young as 10 may not even know that he or she is breaking a rule. This happened under sus many times—because I have worked in the community, I speak from within. This is what happens when people are given the wrong law. A group of young people speaking loudly or displaying high spirits of any kind could be accused of causing a nuisance or annoyance to others who are not aware of the culture. They could be young people gathering together to chat, especially on housing estates where there is not an awful lot of room. Young people are more prone to be victims of this law because they feel deeply and express it. Others in society, I agree, also feel deeply, but they have the means of concealing their real feelings.
I should like to quote Assistant Chief Constable Richard Bennett of Thames Valley Police, who said he would not expose anyone to the obscenities he had hurled at him at times when he was delivering the law. I worked in the community as a human being. I am not representing the black community. I know what I had hurled at me and the discomfort it caused people that I was engaged in trying to help right the wrongs that were going on.
My motive for speaking here so openly and frankly has been curtailed, and I will not delay your Lordships longer. This clause, if unchanged, will have serious effects on the black community and divisions will be even further stretched, as under the sus law.
Lord Scott of Foscote (CB)
My Lords, I wish to take very little time to make a point which is worth making and has not yet been made. I express my complete support for the main thrust of paragraph (a) of the amendment of the noble Lord, Lord Dear, but I wish to express my reservations about paragraph (b) of that formulation. Paragraph (b) refers to anti-social behaviour being,
“in the case of an application for an injunction under this section by a housing provider”—
“housing provider” is defined in Clause 19 of the Bill—
“conduct capable of causing nuisance or annoyance to any person”.
I think that paragraph (b) is ill advised and would be better left out.
The Housing Act 1996, amended by the Anti-social Behaviour Act 2003, provided for “relevant landlords”. That expression is much the same as, but not identical to, the definition of “housing provider” in the Bill. It provided that the courts, on the application of a “relevant landlord”, could grant an anti-social behaviour injunction if the person in question, the respondent, had engaged, or threatened to engage, in housing-related conduct capable of causing a nuisance or annoyance. There we have the expression “nuisance or annoyance” in the amended 1996 Act. Housing-related conduct is defined as meaning conduct directly or indirectly relating to or affecting the housing management functions of the relevant landlord.
There is no repeal provision in the Bill, so these provisions relating to the actions that relevant landlords, as defined, can bring will remain as part of our law, notwithstanding the Bill becoming an Act. Moreover, it is common in tenancy agreements for there to be a covenant by the tenant not to engage in any conduct that might constitute nuisance or annoyance to the surrounding dwellers in flats or houses. That too will remain. There is no repeal provision so far as that is concerned either. The new right being given by this Bill to persons who suffer from the behaviour, whether it is nuisance or annoyance or, as the amendment of the noble Lord, Lord Dear, would have it,
“conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”,
is new. For my part, I do not see why the actions in that regard should not apply as much to housing providers as to anybody else. If housing providers are relevant landlords they can bring the actions referred to in the 1996 Act as amended. If they are not, why should they not be in the same position as anybody else? That is the point I make. This amendment would be improved and would be more consistent with the current law if paragraph (b) was removed.
Baroness Smith of Basildon (Lab)
My Lords, this is one of those debates that are quite special to your Lordships’ House. I spent 13 years in the other place and I have been in your Lordships’ House for three and a half years. I think other noble Lords who served there would agree this is not the kind of debate that we often heard in the other place. This House is made all the more relevant and important because of that. It is also one of those debates that Ministers from any party in Government would perhaps refer to as “interesting” and “helpful”. It certainly has been a very interesting debate. The noble Lord, Lord Dear, the noble Baroness, Lady Mallalieu, and the noble and learned Lords, Lord Mackay and Lord Morris, have done this House a great service by bringing forward this amendment.
I want to be clear at the outset that I think everybody who has spoken wants to see effective and swift action to tackle serious anti-social behaviour and to treat the issue with the seriousness it deserves. It is not overdramatic to recognise that, if left unchecked, anti-social behaviour can destroy lives. Ongoing anti-social behaviour can cause alarm and distress and, in some cases, leaves people feeling utterly devastated and unable to cope. It creates total misery.
In previous debates, I have spoken of my experience in supporting victims, both as a Member of Parliament and a county councillor. There is no doubt that when anti-social behaviour orders were brought in they created a significant change in the way such cases were dealt with. There were teething problems but experience has shown that they are an important tool in tackling such serious problems. That is why I just do not understand why the Government are embarking on such a dramatic change in this legislation. Obviously, improvements can always be made to any system and we would support improvements to anti-social behaviour orders. However, this really is a case of throwing the baby out with the bathwater and does not improve the position for those suffering from anti-social behaviour.
I am not a lawyer—I am perhaps in a minority among those who have spoken today—but all my experience and instincts from dealing with this issue tell me that these proposals from the Government are ill thought-out and unworkable. Noble and learned Lords with far greater experience and knowledge than I who have spoken have come to the same conclusion. As we have heard, the concern is that the Government’s new proposed threshold for granting an injunction for engaging or threatening to engage in causing nuisance or annoyance to any person on the balance of probabilities if the court considers it to be just and convenient is too vague and too broad. The noble and learned Lord, Lord Morris, described it as open-ended machinery that would catch people who should not be before the courts. The danger is that in the rush of those being brought before the courts for nuisance and annoyance we could lose focus on the serious cases of harassment, distress and alarm.
The very real concerns about how this power could be used and abused were raised at Second Reading and in Committee. In preparing for this debate, I started to draw up a list of activities that could be brought into the remit of Clause 1. I had to give up after several pages and hours. The noble Baroness, Lady Mallalieu, described it as an extraordinary power, and indeed it is. I appreciate and welcome the experienced and knowledgeable legal views but this is not just a legal issue. It is a moral issue of dealing with those people who are suffering the most. The Government are not targeting the behaviour causing the most serious problems but creating a catch-all clause that could affect almost everybody at some point. There is no doubt that some people and some activities inevitably cause some degree of nuisance and annoyance. However, is an injunction, which in most cases will be pretty weak and ineffective—although at the extreme end it could involve custody—the most appropriate way of dealing with these cases, or should we accept that in our everyday lives some level of nuisance or annoyance is a consequence of ensuring the liberty and freedom of the individual? Liberty and freedom are not open ended. There have to be constraints and the test of harassment, alarm and distress spoken about today is the appropriate point to place those constraints.
The ACPO lead for children and young people, Jacqui Cheer, emphasised this point in November when speaking to the APPG on children. She said:
“I think we are too ready as a society, as the police and particularly with some legislation coming up on the books, to label what looks like growing up to me as anti-social behaviour”.
There have also been concerns that one person’s annoyance may be another person’s boisterous behaviour. Indeed, as the noble and learned Lords, Lord Morris and Lord Mackay, and the noble Baroness, Lady Mallalieu, said, it need not be boisterous behaviour. Exercising fundamental democratic rights of protest or even just expressing views in a forceful manner can cause nuisance or annoyance.
The Minister’s amendment suggests that behaviour has to be reasonably expected to cause nuisance and annoyance. That is an admission that the Government now recognise the unreasonableness of the clause that they have previously defended to the hilt. As the noble and learned Lord, Lord Mackay, made clear, while that change on its own may be welcome, it does not address many of the points being raised here today. It still leaves the test as nuisance and annoyance to any person on the balance of probabilities. That is not good enough. I was interested in the points made by the noble and learned Lord on “just and convenient”. I accept his assessment of the value and usefulness of that. If the boisterous behaviour to which I referred is ongoing and causes harassment, alarm or distress, then action obviously has to be taken. But as it stands, even with the government amendment, a one-off event that causes nuisance or annoyance to any person on the balance of probabilities would still lead to injunction.
In Committee the noble Lord, Lord Taylor, relied largely on the definition in the Housing Act 1996. Noble Lords have concerns about paragraph (b) of the amendment. I do not share their concerns because it is appropriate in limited circumstances for the existing law aimed at people in social housing to remain to give housing providers the tools to deal with tenants in such circumstances. No change is being sought to that position and that is what part (b) of the amendment makes clear.
I will now address some of the points made by the noble Lord, Lord Faulks, in his defence of the Government, which I am sure we will hear in due course from the Front Bench as well. One great benefit of ASBOs is how seriously anti-social behaviour is taken. The issue of alarm, harassment and distress is crucial and there are appropriate sanctions for dealing with it. We could end up with more of these orders being imposed but in most cases they will be a weaker response to dealing with anti-social behaviour. The noble Lord referred to the guidance and he read it out very quickly. I have a copy of that guidance. It is somewhat confusing because it says, as he rightly quoted:
“It should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities”.
Where in the Bill is harm referred to? Guidance is not legislation. The legislation, as it stood, referred to alarm, distress and harassment. The Bill refers to nuisance or annoyance. Guidance suggesting there has to be harm as well does not override what is in the Bill. Noble Lords who were defending the Government’s position, when asked whether they could give examples of activities that would come under the Bill’s definition of nuisance and annoyance but not cause alarm, harassment and distress, were unable to do so. Every example they gave of where action should be taken caused harassment, alarm and distress. It is quite clear that the existing legislation is the best way to define the kind of behaviour that is disrupting lives.
The noble Lord, Lord Faulks, also raised the issue of hearsay evidence. It is currently the case with anti-social behaviour orders that professionals can give advice on behalf of those suffering so that they themselves do not have to go to court to present their case. The noble Lord, Lord Phillips, made a very important point about the courts being clogged up and about the pressures on police officers having to respond to every case of nuisance and annoyance. Has the Minister given any consideration to how the police should respond with their increasingly limited resources to cries for help from people suffering what they consider to be nuisance and annoyance and whether they will then be able to deal with very serious cases of anti-social behaviour?
The existing test of harassment, alarm and distress recognises the seriousness of anti-social behaviour and the need to take action against those who breach an order. The definition proposed by the Government is too broad and the remedies are too weak. Setting the threshold so low undermines fundamental freedoms and tolerance. It is a great shame that, having had warning at Second Reading and in Committee of the great concern in your Lordships’ House, the Government did not come back today with something a bit better than the amendment being put forward. There are serious concerns about this, not just because it would catch too many people but because those who are really causing distress in our communities will not be the focus in tackling problems. I urge the Minister to accept the amendment moved by the noble Lord, Lord Dear. The only compromise that would be acceptable today would be if the Minister were to say that he accepts that there has to be a change of definition and that he can assure us that that would be “harassment, alarm and distress” and not “nuisance and annoyance”.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
Well, my Lords, this has been an interesting debate. I am not particularly thick-skinned, so I am clearly sensitive to the views that have been expressed by this House. I am grateful to the noble Lord, Lord Dear, and other noble Lords who have spoken, because they have done justice to this debate by the contributions they have made. I owe it to the House to explain the Government’s position, and perhaps I can then take this issue on.
Clause 1 is clearly an important part of the Government’s reforms, and I begin by acknowledging that there has been some common ground on the need to include it in the Bill. We have indeed reached some common ground on the elements that we need to include in Clause 1 to make it effective. First, I am glad that the civil standard of proof for the new injunction has been accepted by so many noble Lords. Secondly, I welcome the tacit acceptance of the “just and convenient” limb of the test for an injunction. The noble and learned Lord, Lord Carswell, said that this is a proper consideration for courts in any case, but it is right that we should make it explicit as one of the limbs of the test.
The terms of Amendment 1, as compared with the amendments put forward in Committee, are a welcome demonstration that this House listens carefully to the evidence put before it both by noble Lords and by front-line professionals, and that it adapts its approach accordingly. The Government have also listened to the concerns expressed by noble Lords in Committee and by the Constitution Committee and the Joint Committee on Human Rights, and that is why I have tabled Amendment 2, which we believe addresses the concerns about the breadth of the “nuisance or annoyance” test. Although Amendment 2 is not part of this group, it addresses exactly the same issue—the appropriate form of the test for the grant of an injunction—and, accordingly, it is important that your Lordships consider Amendments 1 and 2 together.
As I said in the debate in Committee when my noble friend Lord Faulks tabled his amendment, I believe it is inherent in the way that the court will look at any application for an injunction to consider whether it was reasonable to grant an injunction in the circumstances of the case. I am grateful for my noble friend’s contribution, and I look forward to him joining me on this Bill before we conclude our consideration of it.
I thank my noble friend Lady Hamwee for her contribution to this debate. I also thank other noble Lords who wanted to speak but were not able to or who have forgone their right to speak in order to expedite this debate. In that I include my noble friends Lady Newlove and Lady Berridge.
Lord Elton (Con)
Will the Minister take on board the fact that our concern is not with the Government’s purpose but with the effects of the legislation?
Lord Taylor of Holbeach
I shall be coming on to that, but I felt I had to place what I was going to say in some context—and I am grateful for the discipline of the House in allowing me to do just that. Our aim is to allow decent law-abiding people to go about their daily lives, engage in normal behaviour and enjoy public and private spaces without having their own freedoms constrained by anti-social individuals.
The test for an injunction, when taken as a whole, coupled with the wider legal duty on public authorities, including the courts, to act compatibly with convention rights, would ensure that the injunction cannot be used inappropriately or disproportionately. As I have explained, government Amendment 2 is designed to strengthen the first limb of the test so that the conduct must be such that it could reasonably be expected to cause nuisance or annoyance. This limb on its own is likely to preclude an injunction being sought or granted under this Bill to deal with bell ringers, carol singers or children playing in the street. However, there is a second part to the test.
Lord Forsyth of Drumlean
I ask my noble friend the same question that the noble Lord, Lord Faulks, was unable to answer. Can he give one example of a problem that would not be resolved by the amendment proposed by the noble Lord, Lord Dear? What is the problem that the Government are seeking to deal with? Can he give one example?
Lord Taylor of Holbeach
If I might say, it solves the problem of over-complex legislation. Having two tests for the single problem of anti-social behaviour was not the Government’s intention in drawing up this legislation.
Lord Forsyth of Drumlean
I do not want to detain my noble friend, but I am asking for an example of the kind of behaviour that would not be caught by the amendment proposed by the noble Lord, Lord Dear. We understand the Government’s intentions, but it is not clear what the problem is that they seek to remedy. Can he give one example that would not be caught under the amendment?
Lord Taylor of Holbeach
I do not intend to give any examples to my noble friend. I have given the reason why we have a single test for anti-social behaviour leading to an IPNA. I have given my reasoning, and I hope that my noble friend will accept it; I am not going to go into listing individual activities that the IPNA is intended to address. That is why we have a single test and why noble Lords will understand that I am speaking in justification of that single test.
The second part of the test is not a throwaway test, as some have suggested. It is under this limb of the test that the court will consider whether it is reasonable and proportionate in all the circumstances to grant an injunction. In making such an assessment, the court will consider the impact on the respondent’s convention rights, including the rights to freedom of speech and assembly.
I agree with the noble Lord that we should not leave it to the courts to apply these important safeguards. All these factors will weigh on the minds of front-line professionals in judging whether to apply for an injunction. Our draft guidance makes this clear. This will be backed up by a framework of professional standards and practice operated by the police, local authorities and housing providers.
Having said all that—and I apologise to my noble friend for not giving him an example—I have listened to the strength of feeling around the house on this issue. The Government’s purpose is plain: we wish to protect victims. ASB, or anti-social behaviour, ruins lives and wrecks communities. In our legislation, we need to ensure that authorities seeking to do so have coherent and effective powers to deal with anti-social behaviour. Recognising noble Lords’ concerns, I commit to take the issue away to give myself the opportunity in discussion with the noble Lord and others to provide a solution that clarifies the use of the legislation and safeguards the objective, which I think is shared around this House, of making anti-social behaviour more difficult and protecting those who are victims of it.
On those grounds, and on the understanding that the Government will return to the issue at Third Reading, I will not move for now government Amendment 2, and I hope that on the commitment to discuss the issue the noble Lord, Lord Dear, will not press his amendment.
Lord Dear
My Lords, we have been detained for something over two hours and I shall take no more than a couple of minutes of your Lordships’ time to say what I have to say. First, I sincerely thank all those who have spoken in this debate, particularly the three signatories to my amendment and the Minister, who has had to sit through a varied and interesting debate.
Secondly, I want to pick up on the chilling effect. The experience with the word “insulting” in the Public Order Act is sufficient in itself to indicate what front-line practitioners will do. Governed as they are by very well-oiled complaints machinery, they will undoubtedly be faced with many examples when a set of circumstances are produced for them, and they will be virtually pressurised into taking some sort of action, to pursue the case and push it through to the courts to decide. That is the easy option, and it is what happened all too often with “insulting”. To take an exercise in discretion and turn around to the complainant and say, “Frankly, I think we should let this one go by”, is not an option that they will take willingly. That is undoubtedly why the Association of Chief Police Officers as one group has said that it thinks that “nuisance and annoyance” is wrong and that we should stay with the well tried formula of “harassment, alarm or distress”.
The choice between those two wordings is the pivotal point of the legislation—the absolute foundation on which everything else hangs. We can talk for as long as we like about reasonable, just, convenient, necessary and all those adjectives, and try to make it work but, if the pivot does not work, all the rest falls away. The pivot suggested by the Government is “nuisance and annoyance”. We have no knowledge of what will happen if that comes into play, but we know what will happen with “harassment, alarm or distress”; it is well proven, well tried and respected, and has never been faulted. To move way from that is a step into the dark.
We have had no examples whatever of the sort of conduct that “nuisance and annoyance” seeks, rightly, to address. I pay great tribute to the Minister, for whom I have a huge liking and respect, but unless he can satisfy me—and I suspect that this is the case with others in the Chamber, from what I pick up from the atmosphere—that he is willing to move immediately to “harassment, alarm or distress”, I must seek to divide the House. I invite him to respond to that.
Lord Taylor of Holbeach
As far as I am concerned, if I go into discussions between now and Third Reading, all the aspects that the noble Lord has related in his speech, and those expressed by other noble Lords around the House, will be on the table. I do not want to prejudge the outcome of those discussions. All that I can say is that I wish to make sure that when we come back to Third Reading we have a House that can unite behind legislation on this issue. I do not think that that is an unreasonable expectation, and I believe that it represents the sentiment in which this debate has taken place this afternoon.
Baroness Butler-Sloss
I have listened with great care to this debate, and I was undecided when I came into this Chamber as to what I would do. What I have not yet heard from the Minister, to my understanding, is what is wrong with the amendment and why it will not actually meet what needs to be done.
Lord Taylor of Holbeach
I was asked a parallel question by my noble friend Lord Forsyth. We are trying to simplify the legislation so that we make it easier for practitioners, no matter in what circumstances they are dealing with the application for an IPNA, to have a test that is capable of being applied in all areas.
I have listened to this debate. There may be ways in which the noble Lord’s amendment can be modified to advantage. It is important to recognise that he has made a very valid contribution to this debate, and I would like to have the opportunity to consider further what he is proposing in his amendment.
Lord Mackay of Clashfern
My Lords, if I understand the position that the Minister has taken up, he will have an open discussion, the precise outcome of which cannot, of course, be forecast. He will take account of all aspects of what has been put forward in the hope that we can, between us, reach an agreed solution to the problem which has the support of the whole House.
Division 1
Ayes: 306
Labour: 155
Crossbench: 87
Conservative: 25
Liberal Democrat: 16
Independent: 7
Bishops: 3
Democratic Unionist Party: 1
Green Party: 1
UK Independence Party: 1
Ulster Unionist Party: 1
Plaid Cymru: 1
Noes: 178
Conservative: 116
Liberal Democrat: 54
Labour: 2
Crossbench: 2
Independent: 2
Ulster Unionist Party: 1
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
My Lords, in Committee, Clause 1(5)(a) was the subject of some debate. It and the related provision in Clause 21 have also been a subject between the Home Office and the Joint Committee on Human Rights. Essentially, this provision places a duty on the court to avoid, as far as practicable, imposing prohibitions or requirements in an injunction or a criminal behaviour order which would conflict with the respondent’s religious beliefs.
The Government have consistently maintained that this provision related to the manifestation of the respondent’s religious beliefs, rather than to the religious belief per se. However, for the avoidance of doubt, we have decided not to remove the provision from the Bill, on the basis that the courts would in any event, by virtue of the operation of the Human Rights Act, be bound to consider whether the proposed prohibitions or requirements were compatible with the respondent’s convention rights, including but not limited to the right to the freedom of religion. I beg to move.
The Earl of Lytton (CB)
My Lords, I can quite understand the reason why this particular safeguard or defence in injunctive procedures is to be removed. The noble Lord may rest assured that I am with him as far as the argument goes. I have written to his noble friend and had an answer this morning pointing out that, in normal civil injunctive proceedings, there are a significant number of available defences—depending on how one counts them, 15 or 20 or more. The Bill as it stands would have allowed for three; this will reduce it to two.
I still do not understand, because in his letter to me—which I thank him very much for, and for keeping me in the loop on correspondence generally to do with this Bill—the noble Lord, Lord Taylor, merely said that he did not agree with me. He did not explain why in one set of civil injunctive proceedings under this Bill there will remain two defences, but in any other injunctive proceedings there will be 15 or more. That seems a two-tier approach, so what is the direction of travel in that respect?
Lord Ahmad of Wimbledon
My Lords, perhaps I may come back to the noble Earl in advance of Third Reading on that to specifically clarify the issues that he has raised. In terms of what the Government have done thus far, our understanding and direction of travel is clear, responding directly to the concerns raised on this issue.
Baroness Hamwee
“( ) For the purpose of determining whether the condition mentioned in subsection (2) is fulfilled, the court shall disregard any act of the respondent which he or she shows was reasonable in the circumstances.”
Baroness Hamwee
My Lords, Amendments, 4, 5, 24 and 25 are all directed at a defence for an application for an IPNA or for a criminal behaviour order. My amendments are different from definitions of the first condition which is the requirement for an injunction or an order.
There must be cases where the conduct can be expected—or maybe we will end up with “reasonably be expected”—to cause the impacts that we have been debating. Nevertheless, there is good reason for that conduct. It is not clear to me if, as drafted, there is any defence other than “I didn’t do it” or that the conduct does not meet the test.
In the Crime and Disorder Act 1998, Section 1(5) includes a provision similar to the one which I have set out in two of these amendments—that:
“For the purpose of determining whether the condition”,
of the test,
“is fulfilled, the court shall disregard any act … which … was reasonable in the circumstances”.
In case that point is not clear enough, I have specifically used the term “defence” in my more homemade Amendments 5 and 25.
There must be an opportunity for the respondent or defendant to explain himself, and I would not be happy to leave whether or not to proceed to the discretion of the applicant or prosecuting authority, whichever we are talking about. At the previous stage, the Minister said that he would take away the first of each pair of these amendments to explore whether it was appropriate to introduce an explicit reference to reasonableness. I appreciate that he went three-quarters of the way to doing so this afternoon. I know that he gave no commitment at that stage, but in any event I do not believe that his amendment, had he pursued it, would have met the point of a defence. Conduct which could reasonably be expected to cause nuisance or annoyance might still be conduct for which, in particular circumstances, there is good reason. The court should actively have to consider this.
The point is made more important by the fact that it is likely in this area that there will be a lot of litigants in person, so the legislation itself needs to be extremely clear.
Lord Taylor of Holbeach
My Lords, I am grateful to my noble friend Lady Hamwee for her explanation of these amendments. She explained that they seek to provide the respondent or offender with a defence as to why an injunction or criminal behaviour order, which are also included in these amendments, should not be granted—namely, that the behaviour was reasonable in the circumstances. My noble friend has pointed out that this issue is distinct from the amendment that we have already debated, which is related to the first condition for the grant of an injunction.
If I may respond at this point to the noble Earl, Lord Lytton, about his queries in the previous debate, I can say that the provisions in Clause 1(5) are not defences; they are factors for the court to take into account when imposing restrictions or requirements. The two issues mentioned should not be confused with defence issues.
The Earl of Lytton
Do I understand from the Minister then that the normal range of civil defences would continue to apply in the normal way, in connection with matters under this Bill as everywhere else?
Lord Taylor of Holbeach
As I understand it, that is the case. I was going on to argue the question of defences because that was the issue that my noble friend wanted to sort out. However, I hope that we have saved the price of a stamp by clearing that up in the Chamber.
In effect, my noble friend is seeking to argue that it is not enough to be able to establish, in the case of the injunction, that the conduct in question could reasonably be expected to cause nuisance or annoyance but that it should also be necessary to show that the conduct was unreasonable in the circumstances. My noble friend has pointed to the reasonableness defence in Section 1 of the Crime and Disorder Act 1998, which applies to the ASBO on application, although it is worth noting that no such defence is contained in Section 1C of that Act, which relates to the ASBO on conviction. I am sympathetic to the point that she raised and I hope to persuade her that it is already effectively covered.
I will deal first with the injunction. As my noble friend will be aware, the second condition that must be satisfied is that the court considers that it is “just and convenient” to grant an injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. As I have already indicated, in applying this limb of the test, the court will look at whether it is reasonable and proportionate in the circumstances of the case to grant an injunction. It will be open to the respondent to argue that he or she had a good reason for his or her conduct. The court will weigh that up against the evidence submitted by the applicant and come to a view. If the court is satisfied that the reason put forward by the respondent is a sound one, I fully expect it to conclude that it will not be just and convenient to grant an injunction. Therefore, the defence is, in practice, inherent in the drafting of Clause 1 as it stands.
In the case of the criminal behaviour order, it is again important to look at the wider context in which the court will apply the test in Clause 21. The same public law principles of reasonableness and proportionality will apply. It would therefore be open to the offender to argue that there were reasonable grounds for the conduct in question, which the court would then consider alongside the evidence presented by the Crown Prosecution Service.
I might add that there is no reasonableness defence in Section 1C of the Crime and Disorder Act 1998, which provides for ASBOs on conviction—the forerunner to the criminal behaviour order. That section does, however, stipulate that the court may consider evidence presented by the prosecution or the defence, which will be the position in relation to the criminal behaviour order, albeit that is not expressly stated in the Bill.
In addition, it is worth pointing out that, in deciding whether to apply for a criminal behaviour order, the Crown Prosecution Service would need to be satisfied that there was sufficient evidence to provide a realistic prospect of obtaining an order and that it was in the public interest to apply for an order. The prosecution would therefore consider any evidence which showed that the conduct of the respondent was reasonable in the circumstances.
In short, the point made by my noble friend is well made. I assure her that a respondent or offender will be able to raise such a defence, which will then be properly considered by the court alongside evidence submitted by the applicant for the injunction or order. In the light of this reassurance, I do not believe that these amendments are necessary and, as a result, I hope that my noble friend will be prepared to withdraw Amendment 4.
Baroness Hamwee
My Lords, my noble friend is having a difficult enough day, so I reassure him immediately that I will seek to withdraw the amendment.
I notice the reference to the public interest test in the case of the criminal behaviour order. As regards the injunction—this is not a matter for this afternoon—I wonder whether my noble friend might consider a reference to the point in the statutory guidance. I reassure my noble and learned friend that I am seeking not guidance to the court—I would not dare—but guidance to potential applicants in order to prevent them going forward if it is not appropriate that they should go forward in the circumstances that I sought to outline. As I said, it is not a matter for this afternoon and I know that the Government are consulting on the guidance but I hope that my comment at this point can be taken as a contribution to that consultation. On that basis, I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
My Lords, in developing our anti-social behaviour reforms, the Government have, both formally and informally, sought the views of the front-line professionals who will use the new powers. We have listened to them and, where appropriate, have accepted constructive proposals to improve the measures in the Bill. The amendments in this group exemplify this approach.
Under Clause 1(8), applications for injunctions against over-18s to prevent nuisance and annoyance will be heard in the county court and applications against under-18s will be heard in the youth court. However, some cases of anti-social behaviour involve mixed groups of under and over-18s. To allow for such cases, Amendment 19 would enable rules of court to be made which would, in turn, enable the organisation applying for an injunction to seek permission from the youth court for the application against the adult—or, indeed, applications if there is more than one adult—to be heard in the youth court alongside the applications in respect of one or more under-18s. The youth court may grant the application if it is “in the interests of justice”. If not, the application will be denied and the application in respect of the adults will be heard in the county court in the normal way.
If the case is heard in the youth court and an IPNA is granted, Amendments 8, 9, 10 and 11 provide that any subsequent proceedings in relation to the adults will be heard in the county court—for example, if there are proceedings for a breach. Only the initial application for the grant of an injunction will be heard in the youth court.
Amendments 6, 7 and 21 are consequential on Amendment 19. These amendments help put victims first. In most cases, it will prevent them having to attend court and give evidence twice. The amendments will also reduce costs and save court time. By linking these hearings in the youth court, we will retain the experience and expertise of its judges in protecting the best interests of respondents under 18. I beg to move.
Lord Rosser (Lab)
We understand the reasons for these amendments and for wanting to try to ensure that cases involving those under 18 and those who are adult, where they relate to the same issue, can be tried or dealt with in the same court. Therefore, I certainly have no wish to argue against the principle of what the Government are seeking to achieve. However, in the letter that the Minister sent to us on 18 December, in which he outlined these amendments that were being tabled, he said in respect of this issue:
“We believe that it is in the best interests of respondents aged under 18 for linked cases involving adults to be transferred to the youth court rather than vice versa”.
Can he confirm that that means that a case could not be held in the adult court if somebody aged 18 was involved? Perhaps for the sake of argument I may take as an example—perhaps it is very exceptional—a case where there are, say, four or five adults and one person under 18 who happens to be 17 and a half. Under these amendments, is it the Government’s position that it would not be possible, if the parties wanted it, for the matter to be dealt with in the adult court? Are they saying that if the cases are going to be dealt with together, that can happen only in the youth court? I should be grateful if the Minister could clarify that point.
I stress that we are not opposed to what the Government are seeking to achieve, but I pose the question in the light of the sentence in the letter that was sent to us where reference was made to believing it to be,
“in the best interests of respondents aged under 18 for linked cases involving adults to be transferred to the youth court rather than vice versa”.
Does that mean that they could never be held in the adult court, even if for example there were four or five adults and one under 18? I think that I know the answer to this, but could the Minister say why the Government believe that it is in the best interests of respondents aged under 18 for linked cases to be in the youth court rather than vice versa?
Lord Ahmad of Wimbledon
My Lords, I will clarify that. As was put down in the letter of my noble friend on the final point, there is an understanding and appreciation that with youths under 18, youth courts have certain specialist knowledge in dealing with these cases. The point, which has been raised over and again, is that one of the key things, especially when it comes to such matters, is reforming and addressing particular issues, and ensuring that we prevent reoffending. We feel that the youth courts, particularly in the cases of under-18s, are best placed to deal with these issues. I can confirm that a case involving a person under 18 cannot be transferred to the country court in any circumstances.
Lord Ahmad of Wimbledon
“Paragraph (b) is subject to any rules of court made under section 18(1A).”
Lord Ahmad of Wimbledon
“( ) In subsection (1) “the court” means—
(a) the court that granted the injunction, except where paragraph (b) applies;(b) the county court, where the injunction was granted by a youth court but the respondent is aged 18 or over.”
Lord Ahmad of Wimbledon
“(b) a judge of the county court, if—(i) the injunction was granted by the county court, or(ii) the injunction was granted by a youth court but the respondent is aged 18 or over;(c) a justice of the peace, if neither paragraph (a) nor paragraph (b) applies.”
Lord Ahmad of Wimbledon
“(b) a judge of the county court, if—(i) the injunction was granted by the county court, or(ii) the injunction was granted by a youth court but the respondent is aged 18 or over;(c) a justice of the peace, if neither paragraph (a) nor paragraph (b) applies.”
The Earl of Listowel
The Earl of Listowel (CB)
My Lords, I will speak also to the other amendments in my name in this group. Amendments 12 and 13 to Schedule 2, and Amendments 34 and 35 to Clause 37, seek to remove imprisonment as a sanction for children breaching their IPNAs or failing to comply with police dispersal orders respectively. Schedule 2 provides for supervision orders to be made against children breaching their IPNAs. This is adequate for dealing with children of all ages. There is no need to introduce detention as an additional sanction for over-14s. The case for why this is necessary has not been made. Will the Minister explain why this is seen by the Government as necessary?
Amendment 34 removes imprisonment as a sanction for children failing to comply with a police dispersal order. Amendment 35 sets out a range of alternative sanctions for such children. These measures aim to ensure that the discretion of the court is not fettered. I am grateful to the Minister for allowing us an opportunity to meet yesterday to discuss my concerns in this area. I will come to my final Amendment 86 in this group, which is on youth services, when I have discussed the other amendments.
There are two key reasons why imprisonment should not be available for children breaching their IPNA or failing to comply with a police dispersal order or power. First, imprisonment is expensive, ineffective and counterproductive. In 2010-11 the reoffending rate for children leaving custody was 72.6%. Youth custody is expensive. The average cost of a place at a secure training centre is £178,000 per annum. There is clear evidence to suggest that for many children, incarceration increases the risk of recidivism. Imprisoning children, even for a short period, can introduce them to criminal networks that become impossible to escape later.
I fear that we may be introducing more children to schools of crime and preparing them for later universities of crime. I have visited many young offender institutions and secure training centres. I visited Feltham young offender institution 13 or 15 years ago, and then visited it recently with a number of chief executives from London local authorities and the chair of the Youth Justice Board, Frances Done. It was striking how much things had changed in that time. Thanks to this Government, there are far fewer young people in custody, which is very much to be welcomed. Those young people who are left are very challenging, tough and difficult to work with. In the Bill, we are considering bringing in some young people—children—who have not even committed a crime to spend three months or so in detention with these very hard nuts. Do we really want to mix such children with such children?
From that visit to Feltham young offender institution, the concern of the chief executives of the local authorities in London about gang violence also became clear. We heard a transformation from my first visit to Feltham. No longer were two young people getting into a fight with one young person, but 13, 14 or 15 young men would be attacking one or two boys because they were not in the right gang. It was important for the secure estate to know from the local authorities which gangs their particular boys came from, so that they could manage the risks around that.
Baroness Hamwee
My Lords, the noble Earl knows how sympathetic I am to his amendments, particularly in regard to detention. I made a cack-handed attempt at about 11.43 pm on day 4 out of five of Committee to raise issues about Schedule 2, and I have some questions for the Minister.
I am aware that Part 1 of Schedule 2 contains some significant safeguards—I hope the Minister will not feel upset at my using that term—and that paragraph 1(3)(a) provides that the applicant for a supervision order or a detention order must consult the youth offending team. There is no explicit provision for the court to consult the youth offending team although it may be good practice. Can he give me any reassurance on that score?
Secondly, is the Minister able to give me an example—I am sorry if it seems as though I am harking back to an approach adopted in an earlier debate, but I have asked this question before and it will not come as a surprise to him—of such a severe or extensive breach that only detention would be appropriate, without that activity also being a criminal matter? Perhaps he will also say whether there is a role for guidance from the Home Office, and what that role might be, for rules of court and for sentencing guidelines in this connection.
Lord Harris of Haringey (Lab)
My Lords, I have not always felt that the noble Baroness, Lady Hamwee, has addressed herself to issues that are hugely important or pertinent in this Bill, although she has gone into a great deal of detail. However, the point that she has just raised about the circumstances in which the Government envisage these powers in respect of juveniles being appropriate is extremely important.
There is a risk that the Government will, no doubt inadvertently, create a perfect storm around some of these matters. The powers under the dispersal order—we will come to this later—can be exercised without proper prior consultation. This can then lead to young people in breach of a dispersal order being potentially subject to detention, with all the consequences that the noble Earl described.
I can envisage circumstances in which the perhaps over-hasty, ill thought through use of dispersal order powers will lead to young people being rounded up and to some of them, because they are in breach of a dispersal order, being potentially subject to detention. That seems to be a toxic cocktail for community relations in many of our towns and cities.
Therefore the question that the noble Baroness has just asked the Minister is extremely important. What are the circumstances in which it is envisaged that detention is the appropriate outcome of a breach of, in particular, a dispersal order? What are the circumstances? What is the context in which this will be done? Are the Government going to provide sufficient guidance to make that clear? Otherwise, I can envisage circumstances in which young people will be detained as a consequence of something that was perhaps ill thought through at the time, with enormous social consequences.
Lord Lucas (Con)
My Lords, I share the noble Earl’s appreciation of the late Paul Goggins, in my case from when he was a very good Prisons Minister. I am equally sad to learn of his death.
In the context of these amendments I share his concerns that we should be looking at detention for, as it were, a first offence; for something which, as my noble friend Lady Hamwee pointed out, might not even be a criminal offence. If it is a criminal offence, of course, we do not need the detention powers in the first place. I look forward with interest to what my noble friend has to say. I hope that he has been allowed to be more helpful to my noble friend Lady Hamwee than he was on a previous amendment.
Baroness Smith of Basildon
My Lords, I thank the noble Earl, Lord Listowel, for his generous and kind comments, which we appreciate, for our former colleague Paul Goggins. He was an exceptional MP and, for those who knew him and were very fond him, he was an exceptional person as well. We are very sad to lose him.
On the amendments, rather along the lines of the issues raised by my noble friend Lord Harris of Haringey, perhaps I may ask some questions about dispersal orders. The extension of dispersal orders that the Government are proposing seems quite strange. Previously, dispersal orders were for 24 hours, with democratic oversight in consultation with the local authority, and covered a restrained geographical area. That has changed because under the Government’s proposals they are for 48 hours with a much wider geographical area. There is no involvement of the local authority but there is the involvement of a member of the police force of the rank of inspector or above.
The Minister will recall that we discussed in Committee the lack of clarity around the operation of dispersal orders. A number of questions were put to the Minister but we did not get answers then. Given this extension and the change in how the Government want dispersal orders to operate, it is a concern that the detention, particularly for young children, would remain for a much broader and wider offence about which we have had very little information, and I read the debate again today. It raises some questions for the Minister to answer. Why does he think that these dispersal orders are appropriate? Does he think it likely that, because of the wider area, the increased length of time and the fact that there is no democratic oversight, we shall see more dispersal orders? Is it appropriate in those cases that we may see more breaches of them?
It raises a concern that something as minor as a dispersal order, which can be issued by a police offer on the spur of the moment, when there is not really a process in the way we would expect, could lead to detention. The extension of how the Government are planning to use dispersal orders in the future, retaining detention for young people if there is a breach, gives rise to concern. Will the Minister explain why he thinks it appropriate, how he thinks it will be used and on how many occasions? I am concerned that we may see an increase in dispersal orders. I am very unhappy about the Government’s proposals in any case, but if we see an increase there could be an increased number of breaches and we could then see detention of young people. Will the Minister explain how this will operate and why he thinks it is appropriate?
Lord Taylor of Holbeach
My Lords, I start by joining in the tributes being paid to Paul Goggins. I know that my colleagues in the Home Office share this view. We were together yesterday evening when his illness was mentioned. His loss this morning is a loss to British public life and I am happy to pay tribute.
I am very grateful to the noble Earl, Lord Listowel, for tabling these amendments. It is right and proper that we consider these matters. His amendments raise important issues about whether detention is appropriate for someone aged under 18, and we debated this at some length in Committee. I was pleased that we had the opportunity for a productive meeting yesterday and I hope that I will be able to answer some of the points made by the noble Earl and other noble Lords.
The Government strongly support the use of informal interventions and rehabilitative approaches, particularly when dealing with young people. That is at the heart of our overall approach to anti-social behaviour. However, detention must be available to the court if the new injunction is to act as an effective deterrent and to protect victims and communities in the most serious cases. When we consulted on the new anti-social behaviour powers, 57% of those who responded were in favour of the breach sanctions for the injunction for under-18s. Only 22% disagreed, with only a further 4% against any custody for under-18s.
The injunction is a court order and must be supported by tough sanctions to ensure compliance. However, in contrast to anti-social behaviour orders, under-18s will not be unnecessarily criminalised and saddled with a criminal record for breach. However, it is only in the most serious or persistent cases of breach that a court may detain someone aged under 18. Schedule 2 to the Bill makes clear that a court may not detain a young person for breach of an IPNA,
“unless it is satisfied that, in view of the severity or extent of the breach, no other power available to the court is appropriate”.
Where this is not the case, the court may impose a supervision order on a young person and Part 2 of Schedule 2 to the Bill sets out a number of non-custodial requirements that can be attached to such an order. The relevant requirements are a supervision requirement, an activity requirement or a curfew requirement. These are three of the requirements which may be attached to a youth rehabilitation order, the youth equivalent of a community sentence.
We would expect the youth courts to do all they can to ensure that a young person’s rehabilitation is effective. In making any decision to make a detention order, the court must consult with the youth offending team and inform any other body or individual the applicant thinks appropriate. If the court does decide to make a detention order, it must give its reasons in open court. The availability of custody as a sanction in exceptional cases reflects the current position as regards the anti-social behaviour order on application. Indeed, breach of an ASBO on application attracts a maximum penalty of five years’ imprisonment as well as a criminal record.
The previous Administration took the view that there needed to be effective sanctions for breach up to and including imprisonment, including in cases involving young people. While it was generous of the noble Earl to congratulate the previous Government on this aspect of their policy, we do not believe that they got the balance quite right between punishment and rehabilitation. That is why we are treating breach of the IPNA as a contempt of court rather than as a criminal offence: we believe that they were right to include the option of custody for both adults and juveniles. To remove that option for juveniles would significantly weaken the effectiveness of the injunction and thereby weaken the protection we are seeking to afford to the victims of anti-social behaviour.
I shall address some of the concerns expressed by the noble Earl and other noble Lords. Of course, a vital part of preparing for the introduction of these new powers will be appropriate training and support for the judiciary, police and other front-line professionals in how these powers are applied to young people, and the Home Office is already discussing these requirements with the Ministry of Justice, the Judicial College and the College of Policing.
I can inform the noble Earl that young offenders under 18 years of age may be placed in a young offender institution run by the National Offender Management Service, NOMS, a privately operated secure training centre or a local authority secure children’s home. Placement is made by the placements team of the youth justice board, which is notified by the court when custody is given. They will use their expertise and will be informed by the relevant youth offending team to place them in an appropriate establishment suitable for their needs. The youngest and most vulnerable young people will be placed in secure children’s homes. There are no longer any places for girls in young offender institutions, so they will be placed in a secure training centre or secure children’s home.
Under the Bill, the court must consider any representations made by the relevant youth offending team in considering whether to make a detention order against an under-18. Moreover, the applicant for a detention order or a supervision order must consult any youth offending team and inform any other body or individual the applicant thinks appropriate. I hope that helps to reassure the noble Earl.
I shall go on to the dispersal order.
Baroness Smith of Basildon
The noble Lord made the point about it being a contempt of court. Can he tell me in how many other cases young people can face detention for a contempt of court?
Lord Taylor of Holbeach
Off the top of my head, I cannot, but I hope that the noble Baroness will allow me to write to her on that. I will copy in all noble Lords who have spoken in this debate and put a copy in the Library.
As for breach of a dispersal direction, I can offer the noble Earl some comfort and, in doing so, I should like to correct the impression I gave in Committee on 20 November that custody was an option for breach of a dispersal direction by a person aged under 18. I can, in fact, reassure the noble Earl, the noble Lord and the noble Baroness that this is not the case. Detention and training orders—the juvenile equivalent of imprisonment —must be made for a minimum of four months. That means that where the maximum term of imprisonment that could be imposed is less than four months, as is the case here, a detention and training order is not an option in relation to a juvenile offender. The court will be left with the options of a youth rehabilitation order, a fine, a conditional discharge or an absolute discharge. I hope that is of some reassurance and apologise if my previous comments misled noble Lords. I hope I have been able to reassure the noble Earl as regards the dispersal powers.
In the case of the IPNA, I fear that we have to agree to differ on the appropriateness of having custody as a long-stop option for breach of an injunction by a person under 18. For the sake of victims of anti-social behaviour, we remain strongly of the view that, in exceptional cases, a detention order should be available to the courts. We should not weaken these provisions by removing that option.
Amendment 86, the final amendment in this group, seeks to place a new responsibility on local authorities to provide youth services to prevent young people becoming involved in anti-social behaviour. This obligation is already effectively provided for by the Crime and Disorder Act 1998, which places a responsibility on local authorities to formulate and implement a strategy for the reduction of crime and disorder in their area, where crime and disorder includes anti-social behaviour and youth anti-social behaviour. That Act includes a responsibility for local authorities to keep the strategy under review, monitor its effectiveness and alter it accordingly. Local authorities must ensure that their strategy focuses on the types of problem in their area, based on an analysis of local levels and patterns of crime and disorder, and the misuse of drugs and alcohol. Therefore, if an area has a particular problem with youth anti-social behaviour, the local authority has a responsibility to put measures in place to reduce the problem. I would expect this to include preventive measures. In addition, the Children Act 1989 places an obligation on local authorities to safeguard and promote the welfare of children in their area who are in need and to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs. This includes services to prevent young people becoming involved in anti-social behaviour, crime and disorder, as well as services to support those young people and their families who become involved in anti-social behaviour or crime.
I hope I have reassured my noble friend Lady Hamwee, the noble Lord, Lord Harris of Haringey, the noble Baroness, Lady Smith of Basildon, and the noble Earl that the duty he seeks to create through this amendment already exists and that local authorities have these crime and disorder reduction strategies in place. In these circumstances, I hope the noble Earl will be prepared to withdraw his amendment.
The Earl of Listowel
My Lords, I am most grateful to all those who have spoken: the noble Baronesses, Lady Hamwee and Lady Smith of Basildon, and the noble Lord, Lord Harris Haringey. I am grateful to the Minister for his careful reply, particularly for giving some detail about the training of the judiciary and other people in contact with young people in this regard. That is terribly important and a place where we fall down to some extent. Again, I encourage the Government to think about the use of mentors in this kind of training of professionals working around young people. It is so important to develop an understanding of young people in front-line police officers who work on a beat and regularly come into contact with such young people, and other workers. Allowing and supporting them to become mentors to a young person for a period of three to six months, and helping them to reflect on that and how it works, benefits them but also benefits the young person who often needs that kind of relationship.
The Minister made a number of other interesting and helpful points. I express some concern about the placements—the disposals, if you like—within the secure estate. Because of the Government’s success in reducing the number of young people in custody, a number of secure children’s homes have been shut down. I am not sure if the secure training centres have also shut—I think places in them have been reduced. The courts have less range and freedom in choosing disposals. Sometimes, they will simply be driven to choose what is available, even for a fairly vulnerable young person. One recalls the suicide of a young person who was recognised as being vulnerable but was sent to a secure training centre because there was no space available in a children’s home. Shortly after that, he hanged himself. That was about five years ago. There are difficult decisions to be made. This is an area we will have to agree to disagree on.
I was really pleased to hear that there will not be the detention of children under breach of dispersal orders, if I understood the Minister correctly. That is very good news. I will not keep the House any longer at this time. I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
Lord Ahmad of Wimbledon
“( ) the respondent is aged 18 or over,”
Lord Ahmad of Wimbledon
My Lords, in Committee, my noble friend Lady Hamwee questioned whether it was appropriate for under-18s to be excluded from their own homes on the grounds of anti-social behaviour. After further consideration, I am content to make a change that ensures that only adults can be excluded from their home where there is a threat of violence or a significant risk of harm to others.
Councils have wider safeguarding duties and other legislation that allows for a child to be removed from the home when it is in their best interest. For instance, local councils already have duties under the Children Act 1989 to safeguard and promote the welfare of children. Where a young person is committing serious anti-social behaviour to the extent that agencies are considering applying for an injunction with the power to exclude that young person from their home, the local council should first consider whether the child is “in need” under the Children Act and, if so, provide appropriate support as an alternative to simply excluding a young person from their home. A Part 1 injunction could still play a role in transforming the young person’s life as well as protecting victims from further anti-social behaviour. However, if removing them from the family home is considered necessary, this should be done under existing legislation and not just be seen as a chance to disperse the problem to another area.
I do not believe that this change will weaken agencies’ ability to deal with anti-social behaviour caused by minors. Agencies can still apply for an injunction to stop the young person’s behaviour and the court can attach a power of arrest to the order in cases where an individual has either been violent or threatened violence when committing or threatening anti-social behaviour, or where there is a risk of significant harm to another person by that individual. The power of arrest will act as a deterrent and allow the police to take swift action to protect the victim or communities if the injunction is breached. Of course, youth offending teams will play an important role in identifying the problems that drive the young person’s behaviour and measuring the risk they pose to others to ensure that the right action is taken. However, we accept that excluding a young person from their home using an injunction will not be the right action and I therefore commend the amendment to the House. I beg to move.
Baroness Hamwee
My Lords, the bad news for the government Front Bench is that this amendment was put down in the flurry of amendments that my noble friend Lord Greaves and I rushed to table when the timetabling of business was changed. That encourages me to continue that sort of scattergun approach to matters I think need to be discussed in Committee, but of course I am extremely happy to see this among the government amendments and to know that the change will be made. I am very grateful to the Government for listening.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
My Lords, this amendment follows up the debate in Committee initiated by the noble Lord, Lord Rosser, about Clause 13. This clause preserves an existing power available to social landlords to apply for tenancy injunctions to prohibit anti-social behaviour which relates to or affects their management of their housing stock.
In Committee, the noble Lord, Lord Rosser, sought to challenge Clause 13 on the grounds that its provisions were not tenure-neutral. As I have indicated, Clause 13 simply preserves an existing power available to social landlords under Section 153D of the Housing Act 1996. That section, which, I might add, was inserted into the Housing Act by the previous Administration in 2003, responded to calls from social landlords that they needed to be able to hold their tenant responsible for the behaviour of visitors. However, strictly speaking, Clause 13 is not necessary, as an injunction under Clause 1 can be used to achieve the same end of holding the respondent responsible for the anti-social behaviour of the visitors to their property, regardless of tenure.
We included Clause 13 in the Bill because social landlords were familiar with tenancy injunctions. However, given the points raised in Committee by the noble Lord, Lord Rosser, and after further consultation with social landlords, we have decided to remove the clause to ensure that the injunction is completely tenure-neutral. This will fit in with our wider approach of simplifying anti-social behaviour powers through the Bill, while ensuring that social landlords, like the police and other agencies, will have access to the tools they need. I beg to move.
Lord Rosser (Lab)
My Lords, I thank the Minister for introducing the government amendment. Any move towards increasing tenancy neutrality in the Bill is to be welcomed. I will raise one issue with the Minister, which arises from the letter that he sent to us setting out the reasons for the changes that were being made. The paragraph in question states:
“However, as the IPNA can do everything a tenancy injunction can do, we are satisfied that there is no compelling case for retaining this bespoke provision for those living in social housing”.
Earlier in the letter, the Minister had said:
“The provisions in respect of the IPNA are tenancy neutral”—
I am not sure whether that is regarded as different from tenure-neutral—
“save for the provisions in clause 13”.
From that, one would assume that if Clause 13 is disappearing from the scene, then the provisions in respect of the IPNA are indeed neutral. With the comment in the letter that,
“the IPNA can do everything a tenancy injunction can do”,
that was why the Government felt that they could withdraw Clause 13. Of course, not only does Clause 13 cover what is said in Clause 12(1), that an injunction,
“may have the effect of excluding the respondent from the place where he or she normally lives”,
it also states:
“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,
and,
“any area specified in the injunction”.
In the light of the statement in the letter that the IPNA can do everything a tenancy injunction can do, are we to assume that that part of Clause 13(3) would or could apply to any tenure and not simply to those tenures previously covered by the tenancy injunction? As I understand it, the Government appear to have moved on that point and the provisions in respect of the IPNA are now neutral. Bearing in mind what Clause 13(3) said, which went beyond merely,
“excluding the respondent from the place where he or she normally lives”,
which covered,
“any premises specified in the injunction”,
and,
“any area specified in the injunction”,
is that something that is still to be reserved for social housing tenants or is it something that, if it was deemed necessary or desirable, could now be applied to anybody in any form of tenure?
Lord Ahmad of Wimbledon
My Lords, to clarify, as I said earlier in moving the amendment, an IPNA could impose the prohibitions that were specifically referred to in Clause 13 as well. For example, an IPNA could be used to deal with visitors to a property. As such, the provisions are covered in an IPNA. Therefore we have tabled the amendment in light of the comments made by the noble Lord in Committee.
Lord Rosser
That would be irrespective of tenure? It would not apply purely to social housing?
Lord Ahmad of Wimbledon
As I stated earlier, the purpose behind the IPNA is that it would be tenure-neutral.
The Lord Bishop of Ripon and Leeds
My Lords, Amendments 18, 26 and 29 set out to remove the presumption that a child will be named publicly when they are involved in youth court proceedings relating to the new anti-social behaviour orders. I am very grateful to the Children’s Society, the Standing Committee on Youth Justice and others for concentrating my thoughts on this issue.
The Bill as it is currently written suspends Section 49 of the Children and Young Persons Act 1933 for children subject to the new orders and breach proceedings. For 80 years, Section 49 has provided a presumption against revealing details of a child’s identity. This Bill means that children will be named publicly as a default unless the court makes an active choice not to name them. My amendments do not prevent the court from naming a child if it thinks it appropriate to do so. They simply mean that a child will not be named by default.
The issue of publicly naming children is an important one. It raises a number of concerns regarding rehabilitation and safeguarding and is contrary to the usual presumption of anonymity that is granted to children in criminal proceedings. The presumption to name children has significant implications for the safeguarding of children. Naming a child publicly could mean that they are subsequently targeted by individuals or gangs wishing to exploit their vulnerability. Identifying a child as having been involved in anti-social behaviour could indicate that the child may be tempted to engage in risk-taking behaviour or that they will be more susceptible to being groomed. Children with special educational needs are also more likely to be involved in ASB, making them particularly vulnerable to exploitation.
Naming, thereby shaming, children can hinder the successful rehabilitation of those who wish to make a fresh start. It can be counterproductive by prolonging the problems that children have in re-engaging positively with their community. It can also make it extremely difficult for professionals to obtain services instrumental in a child's rehabilitation. There is little evidence that identifying a child is effective as a deterrent.
In our debates yesterday we were concerned with the Government’s very positive response to the need for education, health and care plans for children in trouble. I believe that this element of this Bill works in the opposite direction. In the age of the internet and social media, details of a child's identity are indelible once they are revealed. Children should not have this stamp on them from such a young age because it can affect their future ability to get a job, obtain housing and contribute to society. Naming and shaming through ASBOs has criminalised, stigmatised and negatively labelled young people and has in some cases perpetuated problems rather than helping to resolve them.
The Joint Committee on Human Rights has expressed concern about the impact of reporting on a child’s right to privacy in its pre-legislative scrutiny report. Naming and shaming contravenes the anonymity usually granted to children in criminal proceedings and denies the right to privacy in the UN Convention on the Rights of the Child. The Local Government Association has also expressed concern, especially about a child who receives or breaches an IPNA but who has not actually committed a criminal offence.
The Earl of Listowel
My Lords, I support the right reverend Prelate. I was grateful to the Minister for the chance to discuss this matter yesterday, and I understood from what he said that he expected the courts to use naming and shaming to a very limited extent. That is comforting to some degree, but I worry about this, because many young people who will be drawn into this procedure are the sort with whom I am familiar from my parliamentary work with young people in or on the edge of care. The familial experience—the father often absent from the home, often violence in the home, often alcohol or other substance misuse in the home—has left many of them feeling deeply worthless and very guilty about themselves. We all know, I think, that when a young person sees a parent desert them, they do not think, “This is a very irresponsible adult”; they think, “What have I done to drive this person away from me?”. The risk is that, by the state coming along and publicising their name in the newspaper as a bad boy, they will think, “Yes, look, even the local newspaper thinks that I am useless, worthless, a bad boy and there is no good in me”. That is one area of concern for me.
The other is that when these young people grow up in a family where there is little love or attention and they are not listened to, sometimes, if they cannot get any fame, at least notoriety—their ability to be notorious—is something that they can chase after. If they will not be listened to in their home or anywhere else or given attention in school, at least if they cause a lot of aggravation they can see their photograph in the local newspaper. There are real reasons to be concerned about this. I am very grateful to the right reverend Prelate for tabling the amendment and I look forward to the Minister’s reply.
Baroness Hamwee
My Lords, in Committee, I tabled an amendment on the clause which was an attempt to suggest a compromise before we had even discussed it, because I knew that the Government would be keen to stick to the general approach. That amendment would have meant that the clause applied only to 17 and 18 year-olds.
As the right reverend Prelate said, the existing provisions are not absolute. I have some questions for the Minister arising from them. Given that there is currently discretion to allow reporting that is in the public interest, and given the public policy underlying the Bill, would that not be a strong indicator to the court on how to view the public interest test? Would not reversing it, so that the individual is named unless the court decides otherwise—apart from the consequences for the individual; I entirely take the points that have been made—mean additional process for the courts?
I suspect that there would have to be a pre-trial application for anonymity. If I am right, how does one ensure anonymity before that or in the listing of the application? The right reverend Prelate made the point that that would overturn the culture—in fact, the practice—of the youth court. It would be much easier for it to be able to continue with its current practice.
The existing provisions contain a lot of detail about lifting restrictions. Conversely, if one has reversed the presumption, what is the trigger for restriction to apply? What would be pointed to in an application to restrict reporting? Another question is whether any stakeholders have argued for the provision that we see in Clause 17.
Finally, what consideration have the Government given to how communications have changed, particularly with Twitter, which spreads information almost faster than a heartbeat and certainly before restrictions could be applied? Ironically, the law brought into effect in 1933 seems more appropriate for the age of speedy communications, where you start with restrictions and then consider whether to lift them. That would work much better for communications 80 years on.
Lord Hope of Craighead (CB)
My Lords, I add just a word based on my experience of how these things are dealt with in the courts. The advantage of the present rule is that a uniform rule applies throughout the country and avoids the problem, which is commonplace in the courts, of different practices in different areas and different judges taking different views. The uniformity of the rule is one advantage.
The second point, which the noble Baroness just mentioned, is that it is essential, if a reporting restriction is to be effective, that it be asked for at the beginning. There is always a risk that somebody nips out of the court before the order is made and the damage is then done but the individual can say, “I wasn’t there when the order was made”. To be effective, it has to be made at the start.
The third point is representation. I do not want to go into the issues about legal aid, which are not a matter for this debate, but there would be concern that people who are not very experienced and not attuned to all the matters raised by the right reverend Prelate fail to take the point. My impression is that if the point is taken as eloquently as the right reverend Prelate made it, the court would be very slow not to make an order unless there were compelling reasons for refusing the application, but it requires an application to be made, because I suspect that a court will not take the initiative without that.
Those are advantages of the present rule which would be lost. Obviously there is a balance to be struck, but I would be interested to know to what extent study has been made of the effect of losing those advantages, if the Bill is to remain in its present form.
Lord Rosser
My Lords, I will be brief. The Minister has been asked a number of relevant questions and I am sure that noble Lords will be waiting to hear the responses. In particular, do the Government anticipate that their proposal, with provision for suspending Section 49 of the 1933 Act, is likely to lead to a significant increase in the number of children being named as a result of that suspension of Section 49? Or do they take the view that it will lead to very little increase at all because they think that courts will regularly make decisions—an active choice—not to name the child in question? The question has already been asked about the Government’s intentions, not in respect of numbers or an exact figure, but whether they are looking for a significant increase in the number of children named. Is that the purpose of this? Or is their view that even though they are making the change, it may not make a great deal of difference because the courts are more likely to look at this matter and make the active choice not to name the child in question?
The answer may be that it is already covered in the draft guidance. I have not looked at the guidance to see if it is. However, if it is not already in the guidance, is it the intention that the guidance which will be issued to professionals will say anything about making applications to courts for children not to be named where professionals are directly involved? If it is not in the guidance is it the intention that it should be put in that guidance, and what in fact would it say?
I will leave it at that; the concerns have been expressed about this. Obviously there are already circumstances where children can be named as far as legislation is concerned, and I do not want to pretend that that is not the case. Clearly the Government were expecting that numbers of IPNAs would be issued and, therefore, that that might have an effect on the numbers of children being named. Whether that would still be the case in light of the amendment that has now been carried will remain to be seen. Nevertheless IPNAs will still be around, and that may lead to an increase in the numbers of children being named. It would be helpful to know the Government’s stance. Is that what they are looking for—or do they not see it making a great deal of difference? Will they be giving advice to anybody? I know that they cannot give advice to the courts, but will they give advice to professionals who might be appearing in court in order to make sure that courts are reminded at the very least that they do have this power to make the decision that children should not be named?
Lord Taylor of Holbeach
My Lords, this again has been a good debate on an important issue. Though it is a small part, it is an important part of these provisions. I thank the right reverend Prelate the Bishop of Ripon and Leeds for presenting these amendments for our discussion.
As the House will know, the Government do indeed believe that there is a need for reporting restrictions in respect of under-18s in certain cases, where it is both necessary and proportionate to allow for effective enforcement of an injunction or criminal behaviour order. This will enable communities to play their part in ensuring that the injunction and criminal behaviour order are effective in tackling anti-social behaviour by alerting the police if the respondent or offender breaches their conditions. Publicising the injunction and the order in certain cases will provide reassurance and increase public confidence in agencies’ willingness and in their ability to take action against perpetrators of anti-social behaviour. Potential perpetrators will be deterred from committing anti-social behaviour due to reporting. So while I understand the sentiment behind these amendments, I believe that there is a strong case for maintaining the default position under Clauses 17, 22 and 29. This mirrors the current position for anti-social behaviour orders.
The Lord Bishop of Ripon and Leeds
My Lords, I am grateful to the Minister for that response and I am at least partially reassured by what he has said, particularly in the promises to discuss with the judiciary and bring this debate to their attention, as well as emphasising the guidance to the professionals involved in such cases. I am grateful to those noble Lords who have spoken in the debate and I emphasise again the point made by the noble Earl, Lord Listowel, on just how damaged the children involved in these cases can be. They often feel deeply worthless.
Whether we are here as legislators or in the actual practice of the courts there is a need for us all to be aware, yes, of the needs of the community, which are very much at the fore of the discussion of IPNAs, but also of the needs of the child and the effect that will have on the community. If those needs of the child are not met then the damage to the community in the future can be much greater. However, I am at least partially reassured and so beg leave to withdraw the amendment.
Lord Taylor of Holbeach
“(1A) Rules of court may provide for a youth court to give permission for an application for an injunction under section 1 against a person aged 18 or over to be made to the youth court if—
(a) an application to the youth court has been made, or is to be made, for an injunction under that section against a person aged under 18, and(b) the youth court thinks that it would be in the interests of justice for the applications to be heard together.”
Commonwealth Games 2014
(10 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text
Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government what steps they are taking to ensure the success of the 2014 Commonwealth Games in Glasgow.
Lord McConnell of Glenscorrodale (Lab)
My Lords, I thank the House for this opportunity to raise the important events which will take place in Glasgow this year on the occasion of the 20th Commonwealth Games. I look forward to hearing the response from the Government by the Minister after our short debate this evening. I welcome those who have chosen to speak here tonight, and in particular I welcome the maiden speech from my noble friend Lord Haughey, who I am sure will be a welcome addition not only to this debate tonight, as a Glasgow boy, but in the debates that we will have in this House for many years to come.
I recall vividly a breakfast meeting on 29 July 2002, after a few glorious days in Manchester supporting Team Scotland at the Commonwealth Games. It was in the immediate aftermath of Sir Chris Hoy’s first gold medal the night before at the velodrome, when Louise Martin from Commonwealth Games Scotland and I shook hands, having looked each other in the eye and felt, “Yes, we could do this too”. We felt that not just Manchester but Glasgow was capable of hosting the Commonwealth Games and, 12 years on, it will be an immense pleasure to see the Games come to Scotland. In those 12 years there have been many moments, both when in office and after leaving it. I recall the bid presentations in Melbourne during the Games there in March 2006, when the Nigerian bid for Abuja claimed that it was a little bit of Scotland in Africa and therefore we should stand aside for them. There was also the elation when, from Sri Lanka in late 2007, it was announced that Scotland and Glasgow had achieved this success.
In July this year we will see 70 teams with 4,500 sports men and women coming to Glasgow for 12 days of high-level sporting activity and competition across 13 venues and 17 sports. It will include a record five para sports where disabled competitors will take part in the main event at a higher level than ever before. That has been recognised as potentially the best ever representation in Commonwealth Games history for that important aspect of these multisport games.
The preparations are well under way. Today the Queen’s baton relay is in Cameroon. Ninety-two per cent of the tickets have been sold. The venues are not only all ready but are all in use by the public, which is perhaps unique for a multisport Games of this sort internationally. The venues are already being used in a way that will ensure the legacy for the future. The Clyde-siders, who are the Games volunteers, had 50,000 applications resulting in 15,000 successful volunteers being chosen. They are currently being notified and are to welcome the thousands and thousands of visitors to Glasgow and look after the competitors during these 12 days in July and August. There is a cultural programme which will include the first ever music biennial, with newly commissioned works that will ensure that the city is promoted not only across Scotland and the UK but worldwide as a centre for cultural excellence, in addition to sporting excellence.
This has been a tremendous all-party effort, supported initially when my Sports Minister, Patricia Ferguson MSP, was leading the bid in the early days through to the now Scottish Government’s Sports Minister, Shona Robison, who has seen through the implementation of the preparations. This is at all levels of Scottish government—the city council, which is clearly in the lead in all this, has played a key role—and in successive Administrations. Of course, there has been advice, assistance and support all along from London 2012.
Today, in relation to the engagement of the UK Government, I hope that the Minister will specifically address in his summing-up a few important issues where the co-operation of the UK Government is important for the efficiency and success of the Games. For example, on visas for athletes and their team supporters, is the Home Office ready to ensure that that demand can be met? In relation to security and protocol, will the appropriate co-operation be in place to ensure that the Games run smoothly? Will UKTI and other UK bodies support investment conferences in attempts to ensure that the Games can maximise business interest in Scotland? Crucially perhaps, after the last few weeks, will the UK weather forecasting authorities keep everybody very well informed?
We had three key objectives when we launched the bid a decade ago. One was to showcase Glasgow and Scotland to the world as a venue for international sporting events. The second was to ensure that there was a lasting legacy in the city and beyond, both economically and socially—and, crucially for Scotland’s and Glasgow’s health, on a sporting basis. The third was to provide a platform on which Scottish and other athletes could perform to the highest level. As I have said, the venues are all in place. They include some outstanding new venues that have already been used for international competitive events. Those venues and the events themselves have been recognised with Glasgow’s ranking in recent weeks as the ninth best venue in the world for international sporting events. We can safely say that the Commonwealth Games this year will not be the last international sporting event to be held in Glasgow. The city has done a tremendous job, efficiently making sure these venues are ready and that they are of the highest possible international standard.
There is an important economic legacy for the east end of Glasgow and the regeneration of that part of the city. There is an economic legacy in terms of apprenticeships and a graduate training programme as well. There will be an economic legacy in the promotion of Scotland as a destination for tourists and for business. There is also a crucial sporting legacy. Since the bid was secured, sporting participation in the city has risen by 40%, using these new venues and the fresh interest there has been. The potential for a sporting and health-related legacy is clearly there and I am sure the city and the Scottish Government will be focused on that in the months and years following the Games. There is an important role for UNICEF, which has been chosen as the major charity partner of the Games. It will be raising funds before and during the Games to spend on sport and realising the potential of young people, not just in Scotland but critically across every country of the Commonwealth, supporting projects that ensure that sport changes lives in the way that we know it can.
In relation to performance, these stadia are going to be fantastic venues to see some incredible performances. The new Emirates stadium includes not just a marvellous velodrome named after Sir Chris Hoy but a fantastic arena which will be used for other indoor sports as well. The aquatic centre at Tollcross is world-class and recently hosted a contest between the USA and Europe in swimming that was so competitive it went to a swim-off. That is the first time I have ever heard of a swim-off at an international swimming competition. It was so competitive and energetic that it resulted in such an exciting conclusion. The most recent venue to open is a new hockey centre, which I hope will generate an interest in hockey among another generation of young Scots, not just for the Games but far beyond.
My final point is that sport has the almost unique potential to unite people in all kinds of different circumstances and to give people the ambition and inspiration to realise their potential. It is really important that in Scotland and Glasgow in July and August we use these Games to their fullest potential to unite not just people there on the spot but a generation in having ambitions for a better future. From the very beginning these Games—the bid, the operation, the organisation, the preparation and now their actual execution—have been conducted on an all-party basis in Scotland at all levels of government. Therefore, it is critical at a time when Scotland faces a huge choice in September about its future that, for that two-week period in July and August, the two contesting points of view in Scotland for a yes or no vote in a referendum due to take place seven weeks later set aside their differences, call a truce, put an end to public campaigning and do not exploit the Games but instead put Glasgow and Scotland first, join together and make sure that these are the best Commonwealth Games ever.
Lord Moynihan (Con)
My Lords, I congratulate the noble Lord, Lord McConnell, on securing this appropriately popular debate and on giving an insightful assessment of the preparation for the Games and the important role government can play in ensuring the success of the Games. He is right; the 20th Commonwealth Games in Glasgow will be a powerful and genuine celebration of world-class sport and culture. Their success will be in no small part the result of the work of three people who deserve recognition and praise for their dedication, professionalism and all-party approach, as he mentioned, to the preparation of the Games. Shona Robison has been a superb champion for the Games and for sport in Scotland. The indefatigable Louise Martin has brought a lifetime of experience and expertise to play in preparing for the Games, and Gordon Matheson, leader of Glasgow City Council, deserves full recognition for understanding how the Games can boost the interests of the city of Glasgow and how sport can be a catalyst for regeneration, enhanced reputation and enthusiasm.
My appeal to the Government in their support for the Games is threefold. First, please will the Government reflect the will of the athletes in the political fora surrounding the Commonwealth Games? Politics and sport are increasingly interdependent. The athletes want visas swiftly and a safe, secure and successful Games. They also look to Government to urge all members of the Commonwealth to meet and practise the aspiration set out in Commonwealth Games Federation Article 7, which reads:
“There shall be no discrimination against any country or person on any grounds whatsoever, including race, colour, gender, religion or politics”.
We are a member of the Commonwealth, where 40 of the 53 member nations—over 70%—have some laws or regulations on their statute books persecuting same-sex relationships. That is unacceptable.
Secondly, I hope the Government can confirm that they have by now learnt one of the more painful lessons from the post-London 2012 experience—namely, the need to invest far more than before into ensuring that we translate the inspiration of the Games into opportunities for participation and that we raise the bar to unprecedented new heights for the young people of tomorrow, particularly in all our schools. That means that work needs to be done now to ensure that local authorities are ready to do more in the provision of access to sports facilities, and that governing bodies are assisted by Government to work through their clubs not just to welcome new members but to have in place the trained coaches, volunteers and equipment necessary to capture the interest of every single individual who will be inspired to take up sport and physical recreation. The capacity and capability to respond with a sports and health legacy for all concerned should be audited now.
Finally, key to the success of this decade of international sporting events is the work of the volunteers. Volunteer Development Scotland and Volunteering in Sport 2011-2015 are excellent initiatives. I hope the Government will work to put in place additional policies to ensure that the 15,000 volunteers—the Clyde-siders—are only the tip of the iceberg when it comes to capturing the enthusiasm of all volunteers to work in community sport after the Games are over. We need a raft of new policies backed by investment to increase participation at all levels, both in Scotland and throughout the United Kingdom. The Commonwealth Games gives us a chance to deliver on that agenda.
Lord Addington (LD)
My Lords, I thank the noble Lord, Lord McConnell, for bringing forward this debate. It is fitting that the Commonwealth Games are in this great cycle of sporting events that we have had. The run of events that we have experienced over the past few years, and are going to experience, started with the Manchester Commonwealth Games where we British proved to ourselves, much to our surprise, that we could do it. My mother’s home town is a very fitting place to make sure there is investment in the people and the structure behind a successful festival of sport, which is what the Games are, unlike a championship, no matter how glorious. Games are where you bring everything together. The most wonderful thing about sport is the fact that it brings people together on common ground where they have common interests and communication. No other subject can do that.
Games present a greater opportunity than even bigger sporting championships. Thus we must cash in on this to invest in our future. I agree with my noble friend Lord Moynihan about the fact that we have to invest in people at grassroots level. We are on depressingly familiar territory here because we usually agree on this. London 2012’s great legacy is the idea. We were never going to get it right first time. Glasgow gives us the opportunity to build on that—not just for Britain but internationally since the Olympics and the Commonwealth Games are the two great international movements—to learn about how to create enthusiasm and to take it into other sports. The Rugby League World Cup has worked on this and the Rugby Union World Cup will, I hope, go on and do more with it. But this is the great legacy that will come from the Games. I am glad that emphasis has been put on participation and involvement. I hope that we will build successfully on the information and practice that have gone before. That is the true legacy of this. Buildings are great but ideas can last for ever.
Baroness Grey-Thompson (CB)
My Lords, I should like to declare an interest in that I sit on the Spirit of 2012 trust, I do some work with SSE which is a Games sponsor, and I am also an ambassador for UNICEF. I am very much looking forward to the Commonwealth Games this summer. The reality is that the vast majority of the work needed to deliver successful Games will already have been done. I have every confidence in the Games time being a great success.
Many experiences of 2012 will have been passed on to Glasgow, which has an experienced team. The House also benefits greatly from having the expertise of the noble Lord, Lord Holmes of Richmond, who did a superb job at LOCOG and has first-hand experience of Games delivery. This is my first opportunity formally to welcome him to your Lordships’ Chamber.
The Commonwealth Games are different. There is a reason why they are called the friendly Games. I competed for Wales at three of them and have many happy memories. I am delighted that the Commonwealth Games have led the way in terms of the inclusion of disabled athletes in such a positive way. While in the past there were wheelchair racing demonstration events at Olympics and major athletics events, such as world and European championships, the Commonwealth Games have embraced disability sport with full medal status events.
It is easy to forget that it has not always been that way. In the Commonwealth Games in Auckland in 1990, 1500 metres and 800 metres wheelchair races were included in the programme, but the teams were not allowed to stay with the mainstream teams or to have any kit. I remember that my fellow Welsh athlete Chris Hallam, who sadly passed away last year, and I had to share a single vest. Luckily, my event was first. In 1994, in Victoria, Canada, we were very nearly part of the team. There was a little bit more inclusion, and thanks to the largely negative comments of the Australian chef de mission, who suggested that disabled athletes should not be there, there was suddenly a turnaround in people’s opinions. That set the path forward for Manchester, which, as the noble Lord, Lord Addington, said, also had a massive effect on the London Games.
While I do not wish to see an integrated Olympics and Paralympics, I think there is much greater possibility within individual sports at international level for the integration of disabled people. The Commonwealth Games prove very clearly that it can be done. In future, I would love to see integrated world championships and European championships. People go to watch the sport, not necessarily to watch disabled or non-disabled people.
Now that the excitement of 2012 is behind us and Glasgow is very nearly upon us, I urge the Government not to forget the importance of elite sport. We clearly see the decline of Australians in Olympic sport—but sadly not in cricket—since they thought that with the major games out of the way they no longer needed to support sport at this level. Nobody wants that to happen in the UK.
The legacy of these Games is not just about participation or stadia, although they are important. It is a massive opportunity for young athletes. For me, it bookended my career. It gave me a step up, and it gave me the way out at the end. We have a huge opportunity to look at how we use those athletes at a local level. With the size and scale of the home country teams, I am really looking forward to seeing what plans they have to keep the momentum of participation going as well as giving the governing bodies another chance to see what they can do for coaching and volunteering. Some really embraced 2012, and some sadly missed the boat completely. They have a second chance to do better. I am also looking forward to what can be done to improve accessible tourism and transport and it gives us another chance to look at PE in schools, which I do not believe we have quite right at the moment.
Finally, I wish the Glasgow Commonwealth Games much success. It will be a great event.
Lord Haughey (Lab)
My Lords, it is with a feeling of great honour and humility that I stand before the House to deliver my maiden speech. First, I would like to thank my noble friend Lord McConnell for securing this debate that will allow me to talk on a subject that is very dear to my heart. Before I broach the subject matter, I would like to say thank you to Black Rod and his staff who have been nothing but supportive when I have been lost in the building. I thank the doorkeepers who have been great and supportive and the catering staff who looked after my family famously when we were here on the day of my introduction. I would also like to say a thank you to my mentor, my noble friend Lord Browne, and a very special thank you to my sponsors, the noble Lord, Lord Martin, and my noble friend Lord McAvoy. I also express my appreciation for the extent and depth of welcome that I have received from noble Lords on all sides of the House.
For my part, I would like to talk about the legacy of the Commonwealth Games. As I drive through Glasgow, I see many infrastructure projects that are in full flow on both the stadia and the housing requirements, and I am heartened by the amount of construction jobs that have already been created and, more importantly, the ones that will be sustained going forward. When all the medals have been distributed and the Games have come to a conclusion, Glasgow will be left with world-class sporting infrastructure that I hope will help young budding athletes to achieve their dreams and goals. It is vitally important that we utilise these facilities to the maximum for many years to come. The way the athletes’ village, consisting of 700 houses, will be converted to affordable housing is a master stroke by Glasgow City Council. It is something the east end of Glasgow was crying out for. It will also play a major part in the overall regeneration of the area.
Securing the Games for Glasgow gave us a great opportunity to tackle youth unemployment. Two of the legacy initiatives that went a long way to achieving this are the Commonwealth graduate fund and the Commonwealth apprenticeship initiative. The graduate fund is designed to encourage employers to create new graduate-level jobs in and around Glasgow. It targets the recruitment of unemployed graduates by offering financial incentives to employers to take on a new employee. The fund is worth £l0 million and is providing funding opportunities for 1,000 graduate jobs in the city. The apprenticeship initiative was created by Glasgow City Council as a way to assist suitably qualified Glasgow school leavers into apprenticeships by offering financial incentives to businesses in return for new vacancies. The success of this initiative will not only benefit Glasgow school leavers but will help business growth in the city as well. Over 2,500 apprenticeships have already been created, which is remarkable. As a result of the success of this initiative, the leader of Glasgow City Council, Gordon Matheson, has committed to the continuation of this initiative to the end of the current administration in 2017, which is a great boost for some of Glasgow’s young people at a time when it is most needed.
As someone who employs 170 apprentices and is committed to helping to create opportunities for the young people of today, I applaud these efforts by the council in creating a lasting legacy from the Games. For the unemployed who are part of the 15,000 volunteers, I hope that the experience they gain through working at the Games will give them confidence and enable them to find employment thereafter.
I am sure that the great people of Glasgow will deliver a memorable occasion that will be well received throughout the world and one that we can be truly proud of. This will be equalled only by the legacy that will be enjoyed by thousands of Glaswegians for many decades thereafter.
As noble Lords have probably already heard, people from Glasgow tend to talk a bit faster, so all week I have practising making my speech last a bit longer. I got my six-minute speech off to a tee, and I had a wry smile when I arrived tonight and was told I had three minutes and should make it snappy. I shall finish as I started. I feel truly privileged and honoured to be part of this wonderful establishment. I hope that my experiences in business and life will help me add further value to this noble House.
Baroness Prashar (CB)
My Lords, it is huge privilege to follow the very thoughtful maiden speech of the noble Lord, Lord Haughey. He is a fine example of what apprenticeships can do. We can see that not only has he benefited from an apprenticeship, but he is benefitting others. I share his affection and passion for Scotland because I was a post-graduate student in Glasgow and did my placement in Gorbals. My experience of Gorbals reinforces for me how awe-inspiring the noble Lord’s achievements are. From very humble beginnings as a Gorbals boy, through an apprenticeship he has set up a global business that is now the largest employer in Scotland. He is truly a Gorbals boy made good, not just a Glasgow boy made good. His commitment to giving back to society is equally impressive. Through his City Charitable Trust he supports local and global initiatives, sports, particularly football, and entrepreneurs and he acts as a role model by visiting schools. The commitment of the noble Lord, Lord Haughey, to social justice and zero youth unemployment and his real-life experience and commitment to giving will be a great inspiration to this House and we all look forward to his further thoughtful contributions. I thank him for a wonderful maiden speech.
It is clear that a great deal of effort is being devoted to ensure the success of the Commonwealth Games, and they will be successful. Crucially, these Games also provide opportunities above and beyond the hosting of a major event. They offer the potential to inspire cultural engagement, creativity and learning. This is an opportunity to promote intercultural relations, global citizenship and the values of the Commonwealth as enshrined in the Commonwealth charter, and also to deepen connections between the people of the Commonwealth. Intercultural and interdisciplinary learning, and the international links they will foster, will be important in developing understanding and trust among the nations of the Commonwealth, which in the long run will help with the prosperity agenda. Glasgow has a rich cultural tradition, and the Commonwealth Games are an opportunity to add another chapter to the city's cultural story and further enrich its cultural and educational credentials through intercultural experience.
As deputy chairman of the British Council, I am delighted that the British Council, in association with others, will be using education and the arts to make such connections between Scotland, the wider UK and the Commonwealth, through projects such as Commonwealth Class, and a rich and diverse cultural programme, which will provide a platform for voices from across the Commonwealth to be heard through music, dance, visual arts and the written word.
It is important that such activities are seen not just as a sideshow but as an integral part of these friendly Games. They will lead to long-term connections between the citizens of the Commonwealth and help to promote the values of the Commonwealth for the common good. After all, the Commonwealth is the Commonwealth of the people, not just an intergovernmental organisation. Its strength is its people, and these Games are an opportunity to showcase that, particularly after the controversial CHOGM held in Sri Lanka. It will be helpful if the Minister can assure the House that these educational and cultural activities will be both highlighted and supported in the long run.
Lord Holmes of Richmond (Con)
My Lords, the Commonwealth Games are unique, with a personality of their own, and will be truly sensational in Glasgow this summer. They are not the Olympic Games or the Paralympic Games, but they have the potential to ignite that same spirit that we all felt so keenly in the summer of 2012. I know this from my own experience. When my swimming career was coming to an end, I realised that I had the opportunity to do my final swim at the Manchester 2002 Commonwealth Games trials—finishing not so much on home soil as in Mancunian waters.
I am delighted that Glasgow is following the tradition of holding events for disabled athletes; indeed, there will be the most events ever for disabled athletes at a Commonwealth Games. Post-Glasgow, we will all need to look at how we can develop this element further to make it even more meaningful and impactful. I am also interested in the whole idea of soft power, and the impact that the Games can have in that respect. Will the Minister comment on what is happening, particularly with his colleagues in the Foreign and Commonwealth Office, to ensure that we have the largest number of high-level Ministers and Heads of State at the opening ceremony and throughout the Games this summer?
Glasgow will get it right if it puts athletes at the centre of the Games, if it has sport at its heart, and if it builds an extraordinary, exceptional experience for athletes, spectators, the Commonwealth family and the media. Thousands of people are already working to this end, and they are in the final straight of their preparation. Hats off to Louise Martin, who has already been mentioned. Hats off, too, to Mike Hooper and his team at the Commonwealth Games Federation, whose expert eyes have been all over this project from the outset.
We should also look further than Glasgow, because it is not beyond the realms of possibility that we could think about another home nation bid for a future Commonwealth Games in the not-too-distant future—perhaps in Wales, perhaps in London, but certainly another event that could extend further that decade of fantastic sport throughout the UK. Glasgow 2014 has the potential to be sensational, to light up this summer with the golden hue of sporting success and to leave a sporting, social and economic legacy. It has such potential for Glasgow and for Scotland. It will be great for Britain and great for the Commonwealth.
Lord Purvis of Tweed (LD)
My Lords, I, too, congratulate the noble Lord, Lord McConnell, on securing this debate. Before I go further, I also congratulate a fellow new boy in your Lordships’ House, the noble Lord, Lord Haughey, on his maiden speech—a snappy but sincere speech about the benefit for young people in his native city. When the eyes of the world are on Glasgow and Scotland, they will see the friendly Games in the friendly city, which will afford the athletes the best platform to strive their hardest in their given sport.
In what both the noble Lord, Lord Holmes, and the noble Baroness, Lady Grey-Thompson, said, we saw politics and sport mixing. However, as the wise counsel of the noble Lord, Lord McConnell, indicated when he talked about the caution that we should exercise, politicking and sport do not mix. The noble Lord’s warning about the constitutional and political debates that will be taking place in Scotland at the same time as the Commonwealth Games should be heeded.
For completely understandable reasons, major events such as the Commonwealth Games are hosted by cities. However, in view of the level of funding that goes into them, I hope that your Lordships will allow me to make one comment about the areas and sports that are not from the cities. That includes a sport—rugby sevens—that originated in the constituency that I formerly represented in the Scottish Parliament. Rugby sevens is one example of how the Commonwealth Games can show, in a microcosm, the benefits that sport can bring. It will now be featuring in its fifth Games, and I hope that friends from New Zealand will not be too disappointed when I say that I hope that they will not win the gold medal, because they have won it for every Games that they have participated in so far. The sport originated in 1883 in the Greenyards in Melrose; it will now be in Glasgow, and then an Olympic sport for the first time in Rio in 2016. With the World Cup sevens coming soon in 2018, we can see the best example of an amateur sport, with a community basis and a strong heart, also having a global profile.
As the purpose of this debate is to ask the UK Government to do what they can, I share the view of the noble Lord, Lord Holmes, about using all the might and all the persuasive powers of the United Kingdom Government to promote this sport as one element of the Commonwealth family—the family of sports in the widest sense.
Last week I was in Taiwan, and I flew from Hong Kong, where the Hong Kong sevens is now possibly the biggest sport in the area. It is sponsored by Cathay Pacific. Then, coming back to London, when you are on the Heathrow Express you see that that sponsors the English rugby sevens team. This is a local sport with a massive heart, and with, we hope, a global following to come. It is one of the examples of the sort of sport for which Glasgow will afford one of the best windows that we can secure.
Lord Taylor of Warwick (Non-Afl)
May I add my thanks to the noble Lord, Lord McConnell, for securing this timely debate? I also congratulate the noble Lord, Lord Haughey, on his excellent maiden speech. He is a man of great achievements, who will clearly add much value to this House.
As noble Lords have said, there is no doubt that the Commonwealth Games is a fantastic sporting event, but it is much more than that; it is about the wider Commonwealth family. It was sport that first brought my father to Britain in the late 1940s after serving in the British Army in the Second World War. As a Jamaican, he was a member of the Commonwealth, and in coming to England he did not see himself as travelling to foreign parts. As far he was concerned, he was coming to another part of the extended Commonwealth family. He was coming home, in effect. Even the fact that it snowed on his first day as a professional cricketer for Warwickshire did not diminish his feeling of belonging to that family. But he did remark that he thought he had signed for Warwickshire as a professional off-spin bowler, not as a professional snowball thrower.
The noble Baroness, Lady Grey-Thompson, made a point about cricket, and I note that cricket has been included in the Commonwealth Games only once, in 1998 in Malaysia. I was going to suggest that one way of securing the success of the Glasgow Commonwealth Games would be to bring in cricket, even at this late stage. However, given the current state of the England cricket team, perhaps we need another four years to reflect on that idea.
The Glasgow Games will be another opportunity to promote para-sporting events. One of the most exciting developments in sport over the past few years has been the recognition of Paralympic athletes as stars in their own right. The noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Holmes of Richmond, have played a huge role in that success.
The Glasgow Commonwealth Games chief executive has wisely ensured dialogue with LOCOG 2012, so that lessons learned from the London Olympics can benefit the Glasgow Games. In particular, there is an awareness that the ticketing system must be efficient and the cost of tickets affordable for most people. As he has said:
“It’s your Games. Filling the stadia has been one of our key principles”.
As the noble Lord, Lord McConnell, said, the fact that 50,000 people from all over the United Kingdom have applied for 15,000 volunteer roles shows the level of interest.
This event is a great one for sport, but it is bigger than that; it is about the wider Commonwealth family. It is a window to the benefits of that family—and that is a gold medal message.
Baroness Seccombe (Con)
My Lords, I add my congratulations to the noble Lord, Lord McConnell, on giving us this joyous subject to debate. On a really lovely summer day in 2012, I was fortunate to have a ticket for the stadium for both the Olympic Games and the Paralympic Games. I was with my family, all of us wearing the obligatory GB T-shirt and equipped with the union flag, and so on. As we boarded the Tube, it was such fun to see other families similarly attired and excited in anticipation of what was to come. After all, we knew it was unlikely that any of us would ever see such a glorious event in our lifetime again.
The welcome we received from the Games-makers was exceptional and certainly made a huge contribution to the excellent organisation. They also created a great atmosphere of fun and enjoyment. Our seats for the Olympics were in row 57, which was quite a climb, particularly when once I went up the wrong staircase. In contrast, at the Paralympic Games, row 20 was a fantastic change, from which we watched the wonderful achievements of the Paralympians. Both days made me very proud to be British, and I am sure that the support given to our athletes lifted their magnificent performance. They gave us a superb and humbling experience, and one I shall never forget.
The Government’s role was imperative throughout, and the organisation and attention to detail was of the highest standard. I am sure that lessons were learnt which must be of assistance to the Scottish organising committee as it makes the final push to fine-tune its plans and to enthuse the public. I am sure that it will be the greatest success, so I can only encourage everyone to enjoy this most important sporting association.
This year, I am off on what I hope will be an equally balmy summer’s day to the Commonwealth Games in Glasgow. I am geared up to be suitably attired and ready to roar our home teams on as they battle to win. Whatever the results, I know that we will have had another very special day, when probably some will indulge in a wee dram.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank my noble friend Lord McConnell for securing this debate and, in particular, for not being in any sense modest about the way in which the Games came about, and the distinguished role that he played in that. It would not have happened without his foresight and his thinking about it, and that it has happened has been because, as with our experience of the Olympic and Paralympic Games, these things work only if they are done on an all-party basis. My noble friend exemplifies how that can happen.
I played a very minor part in the Paralympic Games, as I was involved in distributing the flowers as part of the medal ceremonies. A flower girl I was, and I enjoyed it very much; it was one of the highlights of my summer in 2012. Through that, I met Shona Robison, and was impressed, as has been said already in this debate, by the care and concern expressed and her acknowledgement of the need to work together across parties towards this event. I am sure that it will be successful.
I thank all speakers for the wide-ranging contributions, which will help us to focus on some of the important issues. In particular, my noble friend Lord Haughey made a very good point in his snappy maiden speech that a lot of these things are very local. The great value that comes from these huge projects is that they can and do invigorate across all sectors of the host city and town, with the apprenticeships and the work involved on graduate schemes, and will have a lasting legacy around that.
The Question asked the Minister to respond as to what steps Her Majesty's Government were taking to ensure the success of the Games. However, as has been pointed out, there are very limited direct steps that the Government can take, since this is not a reserved issue. Indeed, if noble Lords read the reports from the organising committee, the Games preparations are going extremely well, so I do not think that there will be much to say on that. But the wider context that has been raised in this debate by many speakers is that we need to think again about how we do big projects in the UK and the values that come from that. The investment is not just in the Games itself but in the enthusiasm that it generates, and the focus on the sport —and how good it is that my sport, squash, is being played in Glasgow, although it does not yet appear in the Olympic Games. All that makes for a much better country, with a much better engagement of people in the activities that make us the nation that we are.
When he comes to respond, I hope that the Minister might pick up on some of the legacy issues that have been touched on. I was very struck by what the organising committee said about this when they did a survey which asked people what they wanted the legacy to be. They found that in Scotland—and I would not think it would be different in the UK as a whole—people wanted a successful Games, of course, but they also wanted their children to be more sporty, which is shorthand for them doing more exercise and being involved in sport. They also wanted to ensure that funding for sport in primary schools was continued and that more girls could be enthused to enjoy sport. As we have heard today, that might also be applied to those with disabilities. Although one could expect the Government to say that this is not their responsibility, a lesson which was picked up in the excellent report from one of our own committees, Keeping the Flame Alive: The Olympic and Paralympic Legacy, is that we need to invest more in these activities. I hope the Government will pick this point up and respond to it.
Lord Gardiner of Kimble (Con)
My Lords, I too congratulate the noble Lord, Lord McConnell, on securing this debate. I believe that he can take great pride in what he and others embarked upon and are now seeing fulfilled. It has been an excellent debate, and the maiden speech from the noble Lord, Lord Haughey, was, rightly, warmly welcomed across the House. With all his roots in Glasgow, the noble Lord could not have a more appropriate debate to launch what I am sure will be a long and fulfilling career in your Lordships’ House. We all very much welcome the many contributions he is going to make.
It is a privilege and opportunity that the 2014 Commonwealth Games are taking place in Glasgow, in Scotland, in the United Kingdom. The Games are expected to draw around 6,500 athletes and officials, competing in 17 sports in 40 venues—I have increased the number from the one suggested by the noble Lord, Lord McConnell—with a global audience of around 1.5 billion people. We have the prospect of watching countless great athletes—the likes of Usain Bolt, Laura Trott, David Weir and Jessica Ennis-Hill. My noble friend Lord Purvis of Tweed highlighted the rugby sevens, and I do not think that a sport could not have a more robust champion. The Commonwealth Games are the only major games where the sports programme for elite athletes with a disability is fully integrated with that for non-disabled athletes. As the noble Lord, Lord McConnell, said, this is something that we want to build on in the legacy of Glasgow. I also agree with the points made by my noble friend Lord Holmes of Richmond on this matter.
As has been said, preparations for the Games, led by the organising committee, are proceeding extremely well, with venues such as the Sir Chris Hoy Velodrome already open and hosting major events. The Government are committed to strengthening our engagement with, and role within, the Commonwealth. A strong Commonwealth is important to the national interests of all its members and can help promote UK objectives of democratic values, good governance and prosperity. The noble Baroness, Lady Prashar, spoke powerfully about the importance of the Commonwealth for cultural engagement, international relations and the effect on its people. My noble friend Lord Moynihan also mentioned the equally important values of democracy and non-discrimination.
With over 2 billion people, the Commonwealth makes up nearly a third of the world’s population, including some of the world’s fastest growing economies. It provides a platform for trade, investment, development and prosperity. Glasgow 2014 provides an exceptional opportunity to build on the experience and legacy of the 2012 Olympic and Paralympic Games and to promote Glasgow and Scotland worldwide. The Prime Minister has made it clear that the UK Government will do everything they can to ensure the 2014 Commonwealth Games are a success. I know of his visit to the arena, for instance, and his personal commitment.
Working closely with the Scottish Government, Glasgow City Council and the organising committee, the UK Government have a number of reserved responsibilities, referred to by the noble Lord, Lord Stevenson, including managing the border and national security, facilitating entry to the UK of athletes, coaches and support staff from the Commonwealth nations and accrediting them to use the Games venues and managing the more formal international relations with visiting Heads of State and Heads of Government. The contribution of the UK Government is managed through the Cabinet committee system in the normal manner with regular meetings of officials and Ministers. There have been meetings in the past two days while I have been hearing more about these matters. There is no doubt at all that Ministers are fully seized of the importance of their responsibilities to fulfil the reserved matters and to co-operate with those in Scotland.
As has been said, legacy was a key element of the plans for the 2012 Games and the Glasgow Games, from the start of work on the bids. It is striking that the president of the International Olympic Committee, Jacques Rogge, said that London,
“raised the bar on how to deliver a lasting legacy”,
and created,
“a legacy blueprint for future Games hosts”.
I am in no doubt that Glasgow will be very much in the forefront of legacy.
Noble Lords in their places tonight have played a crucial part in the delivery of the 2012 Games and their legacy. I mention in particular my noble friend Lord Holmes of Richmond, a distinguished multi-gold medal-winning Paralympian who played such a part in delivering the 2012 Games. The noble Baroness, Lady Grey-Thompson, an exalted Paralympian, is now a trustee of the Spirit of 2012 Trust—an independent trust established to keep the 2012 Games’ legacy flame alive. Indeed, my noble friend Lord Moynihan, an Olympic medallist, chaired the British Olympic Association with such distinction. I mention this because we wish that all the experiences and knowledge from those Games are shared with all those concerned in organising such an important Games later this year.
The noble Lords, Lord Stevenson and Lord Haughey, mentioned regeneration, apprenticeships, infrastructure and employment. All these matters will make a huge difference to east Glasgow and well beyond. They are part of this economic legacy. UK Trade and Investment has announced that more than £11 billion in trade and investment has been generated from the 2012 Games. The Glasgow Commonwealth Games offer another platform to promote the UK as a partner for business and an investment destination. Her Majesty’s Government, in conjunction with the Scottish Government, will host an inward investment and business conference during the Commonwealth Games. I express particular gratitude to Glasgow City Council for making the city chambers available during the Games.
The economic benefits from the London Olympics and Paralympics have been extremely well spread. In fact, it is estimated that those Games will have created the equivalent of between 51,000 and 62,000 jobs each year between 2004 and 2020. These figures are hugely important, and I am sure that they will be reflected in Glasgow. As regards tourism, VisitBritain is now actively engaged in using the 2014 Games to promote Scotland across the world. The GREAT campaign is also seeking to promote the Commonwealth Games.
The Games makers and other Games-related volunteers were one of the extraordinary aspects of the 2012 Games. My noble friend Lady Seccombe highlighted this. The organisers of the Glasgow Games have been recruiting 15,000 volunteers, known as Clyde-siders. These opportunities were heavily oversubscribed, a testament to the esteem in which the Games makers are, and I am sure the Clyde-siders will be, held. I agree with my noble friend Lord Moynihan about the importance of ensuring that volunteering and fostering the volunteering spirit are enshrined in policy and the way in which we conduct business.
I also want to raise the cultural aspect of the Commonwealth Games. The two strands are a Scotland-wide programme called Culture 2014, and a Games-time celebration running alongside the sporting action called Festival 2014. They will make a very powerful contribution indeed.
A number of points were raised about a truce, including by the noble Lord, Lord McConnell. I have to say that this is very much a matter for the two sides in that debate to decide upon, but my hunch is that most people are going to be rather more interested in the sport and the athletes than in political exchanges.
A number of noble Lords mentioned the Queen’s baton relay. As has been said, it is in Cameroon tonight. British high commissions across the Commonwealth have played an active part in supporting the relay and raising its profile.
In July and August 2014, the Commonwealth family —as my noble friend Lord Taylor of Warwick mentioned; that is absolutely the right reference for this institution—will come together for a festival of sport. The noble Lord, Lord Addington, rightly used the words, “coming together”. It will be a positive celebration of peace and unity. This precedes the first official event to mark this year’s centenary of the start of the First World War, which will take place in Glasgow the day after the end of the Commonwealth Games. It, too, will be a time for the whole nation and our Commonwealth partners to come together and pay tribute to the brave men and women of the Commonwealth who sacrificed so much.
A number of points have been raised, about which I had better write to noble Lords. When future bids are made is a matter for the Commonwealth Games associations of the nations concerned. However, it would be fair to say that if any of the nations were minded to bid, I am sure that it would be very much welcome to the Government. The Games will be in Australia in 2018. There have been five occasions when that country has generously hosted the Games, so let us see.
I conclude by expressing my thanks to the noble Lord, Lord McConnell, and to your Lordships who have spoken in this debate. There is much that I would wish to reflect on regarding the importance of the sporting legacy and, as the noble Lord, Lord Stevenson, said, of ensuring that the next generation of people are playing more sport. I understand that 1.5 million more people are engaged in sports since 2012. We need to build on that, and I am sure that the noble Baroness, Lady Grey- Thompson, will keep us up to the mark on these matters.
I wish the organisers of the Glasgow Games—the friendly Games, as has been said—and the people of Glasgow all the very best for a successful Games. I know that the UK Government will do all that they can within their reserved responsibilities to support the Games and to ensure that they are a great success for Scotland, for the United Kingdom and for the Commonwealth.
Anti-social Behaviour, Crime and Policing Bill
(10 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Guidance
(1) The Secretary of State may issue guidance to persons entitled to apply for injunctions under section 1 (see section 4) about the exercise of their functions under this Part.
(2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Ahmad of Wimbledon (Con)
My Lords, ahead of Report in the House of Commons, the Government published draft guidance for front-line professionals on the new anti-social behaviour powers. With the exception of those sections dealing with the review of criminal behaviour orders and the community remedy, this was to be non-statutory guidance.
In addition to the draft guidance produced by the Home Office, the Department for Environment, Food and Rural Affairs published a draft practitioner’s manual for tackling irresponsible dog ownership. Of course, the content of the draft guidance has been the subject of discussion during our Committee deliberations. On a number of points, noble Lords expressed concern that our expectations of how the power should be used would be in guidance with no statutory basis.
While I believe that the new powers have sufficient safeguards to ensure appropriate and proportionate use, I see merit in making the guidance statutory for all the new anti-social behaviour powers. Our intention is not to be prescriptive; it is essential that professionals and the courts have the flexibility to consider the facts of each case and choose the most appropriate course of action. However, statutory guidance will help them use the new powers more effectively. The amendments in this group will achieve that result and I trust noble Lords will support them. I beg to move.
Lord Greaves (LD)
My Lords, I wish to speak on the statutory guidance sections. I have one little amendment, Amendment 57, in this group, and it is fairly clear what it means.
This is the first time that I have spoken at this stage of the Bill, apart from one intervention, so I should declare my interests again in relation to this group and some others that we will come to. They are my membership of a district council in Lancashire as a councillor, my membership of the British Mountaineering Council, of which I am a patron, and my vice-presidency of the Open Spaces Society, and they relate to things that will come up later.
I thank the Ministers—particularly the noble Lord, Lord Taylor of Holbeach, who is not yet in his place—for the way in which they have approached this Bill, for the way in which they have been open to discussion and to holding meetings with the Bill team, and for the large amount of material that they have sent out in letters and so on. Their readiness to look at a lot of the questions raised at Second Reading and in Committee, and to come forward with quite a lot of amendments today—most of the amendments that we are discussing at the moment are government amendments—shows that they have been willing to listen. I have absolutely no doubt that the parts of the Bill in which I am interested—those on anti-social behaviour—are a lot better for that process, so I will put on record my personal thanks to them.
These amendments are all about guidance. As the Minister said, they mean that the guidance that we were told would be issued—we have already seen the draft guidance—and that is now out for consultation with various bodies will become statutory. This is very welcome. A caveat to that is that I would much have preferred the guidance to be statutory instruments and regulations, as those would have had the benefit of having to come before the House of Commons and your Lordships’ House. Nevertheless, it is better that the guidance should be statutory rather than it being left open as to whether or not people will bother to produce guidance. The fact that it is statutory guidance means that there will have to be proper consultation on it, that it will have to be published and everybody will know that, and that the Ministers issuing the guidance will have some accountability to the Houses of Parliament if we want to raise questions as a result of what is in it. That is welcome and it is being welcomed by a number of organisations with which I am in touch.
The guidance referred to in this group of amendments covers a number of different parts of the Bill, including IPNAs—I am interested that we are still calling them IPNAs following the amendment that was agreed this afternoon; I was trying to work out whether they should now be called IPHADs but at the moment they are called IPNAs—criminal behaviour orders, the powers of police community support officers, community protection notices, public space protection orders and the question of the closure of premises, and there may be others. The point that I would have made if I had been able to get in during the debate this afternoon is that the Bill is not really about everything that was discussed this afternoon.
Most of the debate was about free speech, freedom of assembly and the right of people to protest, as by-products of Clause 1. In practice, this Bill is about anti-social behaviour—or at least the majority of it that refers to anti-social behaviour is—and about whether it is successful in tackling anti-social behaviour more effectively than the existing regime based on ASBOs. I am optimistic that it will be more successful, but the guidance that we are discussing is going to be crucial to how it works on the ground. At the moment if you have to make an ASBO, you have failed.
Lord Rosser (Lab)
As has been said, the Home Office has already published draft guidance for front-line professionals. The purpose of these amendments is to refer to it in the Bill, with the conferring of powers on the Secretary of State to issue it. In one of the letters sent to us, the Minister also said that:
“We also undertook in response to yet other amendments to revisit the terms of the draft guidance for frontline professionals”.
That letter set out a list of the areas where they would review the draft guidance.
Is the outcome of that review known or is it still taking place? If it is still taking place, is the intention that we will see the outcome of the review of the draft guidance and know what it is before we get to Third Reading? We have at least had the advantage in the discussions we have had so far of knowing what was in the already published draft guidance and, if it is being looked at again, we ought to have sight of any revisions being made to it before we conclude our discussions on the Bill. That would be extremely helpful. Is it now the Government’s intention to review the draft guidance in the light of the carrying of the amendment earlier today, which must presumably have some impact on the draft guidance that has been issued?
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Greaves for his amendment and his comments. I have scribbled down here that I would convey his thanks to my noble friend Lord Taylor of Holbeach. I have so conveyed them and he has obviously heard them, so there we are.
Turning to Amendment 57, I can assure my noble friend that any guidance produced under the new clause proposed in Amendment 56 will automatically apply to any person or body designated under the new clause proposed in Amendment 53. We will come on to that amendment later in our proceedings but suffice it to say that, by virtue of subsection (2) of the proposed new clause, any designated person or body would be treated as a local authority for the purposes of Chapter 2 of Part 4 as a whole. As such, the guidance produced for local authorities under the terms of Amendment 56 will be applicable to persons or bodies designated in accordance with the provisions in Amendment 53. I hope that reassures my noble friend in relation to his amendment.
On the questions raised by the noble Lord, Lord Rosser, and taking the second question first on revisions to guidelines in the light of the vote, obviously the vote has happened and we shall look at the outcome. The guidelines will be finalised once the Bill has reached its final stages in Parliament.
As to where we are on the guidance, we are currently working with councils, the police and others. Over the coming months we will discuss the effects of the guidance but any results and further alterations will, unfortunately, not be available before Third Reading. However, the final draft of the guidance will reflect the terms of the Bill as enacted.
With those reassurances to my noble friend, I hope that he will be minded not to move his amendment.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
My Lords, Amendment 22 is in similar terms to the one tabled in Committee by my noble friend Lady Hamwee and proposed by the Joint Committee on Human Rights in its report on the Bill. The amendment will specify in the Bill that when considering whether to make a criminal behaviour order, the court must be satisfied to the criminal standard of proof that the offender has engaged in behaviour that causes or was likely to cause harassment, alarm or distress to any person.
The government position was that, as the case law is clear on this point, there was no need to provide for the criminal standard in the legislation. This approach is in line with that taken in other legislation providing for other types of civil preventive orders. However, on reflection, we are satisfied that there are sufficient grounds here for taking a different approach. Part 1 expressly provided that an IPNA was subject to the civil standard of proof so, unless express provision was made in Part 2, we accept that there could be some doubt that the criminal standard would apply in proceedings in respect of the criminal behaviour order. This amendment therefore removes any such doubt. I beg to move.
Baroness Hamwee (LD)
My Lords, I am grateful to the Government for having reflected and I thank them for the amendment.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
Lord Greaves
Lord Greaves
My Lords, this amendment is just trying to help the Government. They have a bit here that is wrong. I raised it in Committee and I thought it would be sorted out. I apologise that I did not notice that it had not been until it was too late to get it on the Marshalled List. Never mind: it has appeared.
In all these different sections and all the alphabet soup of IPNAs, PSPOs and the rest, there is a definition of what the local authority is in relation to that particular area. In the case of IPNAs it is all the principal local authorities. In most of them it is the lowest-tier principal local authority. For example, in relation to public space protection orders it reads:
“‘local authority’ means—in relation to England, a district council, a county council for an area for which there is no district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly”.
The definition here in relation to criminal behaviour orders is outdated. The definition in Clause 28(4) has, I think, been picked up from previous legislation which must have been enacted before there were any unitary authorities apart from the Isle of Wight, and certainly before there were any unitary counties. It simply reads:
“‘local government area’ means—in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.
This means that those areas where there is a unitary county, not a unitary district, are not included and so they are simply missed out of the list. These include Northumberland, Durham and Cornwall, for example, and, I think, one or two more.
My amendment will simply delete “the Isle of Wight”, which is a unitary county, and insert the words,
“a county in which there are no districts”.
That is equivalent to the wording elsewhere. As I say, I am just trying to help the Government by making the legislation cover the whole of England and to get it right. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I am for ever grateful to my noble friend Lord Greaves for continuing to keep us on our toes with his scrutiny of the various definitions of local government area as used in the Bill. This amendment relates to Clause 28 which, as my noble friend said, requires a chief officer, in carrying out a review of a criminal behaviour order made against a person under 18, to act in co-operation with the council for the local government area where the offender lives.
This is an area of statute law where there is more than one way of defining a local government area. I have to advise noble Lords that the definition in Clause 28 is correct, but I accept that the drafting could always adopt a different approach. In order to preserve the overall structure laid down by the Local Government Act 1972, the area of a unitary council is usually designated both a county area and a district area, even though it has only a district or a county council. Therefore, in an area where there is a unitary county council, that council will be the council for the district in which the offender resides. In short, the provision works as drafted.
Just as a clarification on the issue of the Isle of Wight, my understanding is that it is a case apart in that it still has districts, albeit no district councils. The express reference to the Isle of Wight therefore avoids any ambiguity in this respect. In light of this explanation, I hope that my noble friend is minded to withdraw his amendment.
Lord Greaves
I refer the Minister to page 31 of the Bill and the meaning of “local authority” under community protection notices, for example, where the list is different. That specifically refers to,
“in relation to England, a district council, a county council for an area for which there is no district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly”.
It does not refer to the Isle of Wight specifically and separately but refers to,
“a county council for an area for which there is no district council”.
In Clause 67, on page 40, the definition is identical to that for community protection notices.
It may be that, as the Minister said, Northumberland, Durham and Cornwall are districts as well as counties, but that would be news to them since they think that all their districts were abolished a few years ago and that, in common parlance, they are unitary counties. In normal lists of local authorities in England, you refer either to unitary authorities if that is what you mean—you could do that—or to unitary districts and unitary councils. Clearly, unitary districts such as those in Berkshire are districts and so come under the general thing of districts.
Even if the Minister’s rather obscure explanation is right, why is the same terminology not used in different parts of the Bill? Different terminology is used for IPNAs, community protection notices and public space protection orders. It is different because it has simply been picked up, in the case of Part 2 of the Bill on criminal behaviour orders, from previous legislation. All I ask is that the Minister goes away and looks at this again. Even if what he says is right, surely the terminology in the different parts of the Bill should be the same. Could the Minister respond to that?
Lord Ahmad of Wimbledon
My Lords, again, if I follow my noble friend’s point, it partly proves my own that different drafting approaches to this issue can achieve the same end. I am assured that the Bill is not defective as drafted so I urge my noble friend to accept the approach we have taken, but I listened to his comments again. I assure him that I will sit down with my noble friend Lord Taylor and the officials once more to get the required assurance that the drafting is correct. I will write to my noble friend Lord Greaves in that regard.
Lord Greaves
I am grateful for that. I hope the Minister will write to me in good time: I will put the same amendment down at Third Reading if I do not get satisfaction. If it is true that the Isle of Wight is a case on its own and has to be mentioned separately, why is it not mentioned separately in all the other cases of IPNAs, PSPOs, community protection notices and so on? The Minister seems to have it both ways. Again, he has not answered my basic question as to why—so that people can understand it—the same terminology is not used in different parts of the same Bill. The answer will be that different officials wrote different parts of the Bill but that is no reason for not standardising it when you have the opportunity. Having said that, when a Minister makes an offer, I believe it is within the traditions and courtesy of the House to accept it. I will do so and beg leave to withdraw the amendment.
Lord Taylor of Holbeach
“Guidance
(1) The Secretary of State may issue guidance to—
(a) chief officers of police, and(b) the councils mentioned in section 28(2),about the exercise of their functions under this Part. (2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Taylor of Holbeach
“( ) In deciding whether to give such an authorisation an officer must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.
“Convention” has the meaning given by section 21(1) of the Human Rights Act 1998.”
Lord Taylor of Holbeach
My Lords, there are two government amendments in this group. It may assist the House if I set out the case for the reform of the existing powers available to the police and, in doing so, also address Amendment 32, which has been tabled by the noble Baroness, Lady Smith.
In Committee, the Opposition questioned whether the new dispersal power is needed—indeed, the noble Baroness mentioned that earlier in the debate—and whether there is any problem with the existing powers. It is true that both of the existing dispersal powers have been used successfully to deal with anti-social behaviour and alcohol-related disorder. However, they also have limitations. Section 30 of the Anti-social Behaviour Act 2003 is used to deal with persistent anti-social behaviour in an area and requires the agreement of the local authority in designating a dispersal zone. That approach is not as swift and responsive as it could be. This Bill takes a different approach. Where there is persistent anti-social behaviour in an area, it is the council that is able to put in place the measures to promote long-term, sustainable change in an area. It uses not a dispersal power but the new public spaces protection order.
Section 27 of the Violent Crime Reduction Act 2006 is a police-only power, so can be used more quickly; but it can be used only in relation to alcohol-related disorder, and that is too limited. In reforming the anti-social behaviour legislation, we have sought to streamline the powers and make them more flexible. That is the philosophy behind all the anti-social behaviour powers in this Bill. The new dispersal power will allow police to respond quickly so that victims do not have to suffer the anti-social behaviour while a dispersal zone is put in place. I believe that agencies should not have to label an area an ASB hotspot before the police are able to act. These labels are a stigma on communities and can hinder the hard work of local agencies to improve the quality of life in those areas. I agree that the existing dispersal powers are not “broke”—to use a well known expression—but that does not mean that we should not take this opportunity to improve them. Combining the best elements of the existing powers makes the new power a more effective tool to protect victims of anti-social behaviour.
In its written evidence to the Home Affairs Select Committee, ACPO stated that the new dispersal power,
“will strengthen police powers to remove people from areas for poor public place behaviour in general and are not overly focussed on alcohol related disorder as at present”.
It said that the two existing powers,
“have proved to be very effective tools and combining these orders will simplify their administration and reduce costs”.
This is echoed by a number of individual police forces and the Mayor’s Office for Policing and Crime, which also welcome the new dispersal power. The Criminal Justice Alliance stated that the new power,
“could alleviate antisocial behaviour from particular areas quickly with far less administrative bureaucracy than previously”.
All these organisations caveat their statements with the note of caution that it will be important that the new power is used proportionately and sensitively, and we agree. As I have explained, the new power is designed to allow the police to act quickly to prevent anti-social behaviour from escalating. This does not mean that we expect the police to act in isolation from other agencies; indeed, we acknowledge that there will be many situations where it is appropriate to involve the local authority in the response to anti-social behaviour.
However, to require the police to consult the local authority routinely before the dispersal power is used would severely constrain its use. As for providing democratic oversight of the police, which some have suggested is the reason for local authority involvement, that is not the role of the local authority. As with all police activity, police and crime commissioners will provide the democratic accountability for the use of dispersal powers.
I believe that it is right to reform the dispersal powers. That said, we have listened to the concerns expressed in Committee that the new dispersal powers could be used to restrict peaceful protests and freedom of assembly. That brings me to government Amendments 31 and 33, which I hope will be agreed by the House. I remain satisfied that the test for the exercise of those powers precludes them from being used in such a way. However, given the strength of feeling on the matter, we have tabled the amendments. Amendment 31 makes it clear that, before authorising the use of the dispersal powers, the authorising officer must have due regard to the rights to freedom of assembly and expression as enshrined in the European Convention on Human Rights. Similarly, Amendment 33 makes clear an officer’s duty to consider those rights before issuing a dispersal direction.
Similar concerns were raised in the context of public spaces and protection orders. Although not in this group, Amendment 54 places a similar duty on the local authority to have particular regard for those two convention rights before making such an order. Again, as public authorities under the Human Rights Act, local authorities are already duty bound to act compatibly with convention rights, but we recognise that, in the context of the Bill, it is helpful to reinforce that point.
I hope that that reassures noble Lords that the new dispersal powers will not be used in a way that conflicts with an individual’s convention rights. I commend the government amendments and the provisions of Clause 32 to the House.
Lord Harris of Haringey (Lab)
My Lords, I am sure that we are all grateful to the Minister for Amendments 31 and 33. They are clearly intended to address one of the problems which arises from the clauses on dispersal orders. They address the issue of whether this power could be used in respect of people conducting a demonstration of some sort—at least, I assume that that is what they do. Perhaps when the Minister responds, he could tell us the strength of the words,
“have particular regard to the rights of freedom of expression”,
in relation to a demonstration which may be a bit rowdy, a bit difficult or a bit challenging, as opposed to a straightforward, entirely sedate slow march or, indeed, to someone standing still waving a placard.
For example, could the power be used under circumstances in which, having given regard to the rights of freedom of expression, the inspector concerned decides that he has thought about it but, none the less, he wishes to use the power? If the Minister can reassure us about that, clearly the issue has been adequately addressed by Amendments 31 and 33.
I address my remarks to the wider issues raised by Amendment 32 in the name of my noble friend, which would remove Clause 32. I suspect that that is a rather blunderbuss approach to a matter on which we have been trying throughout the passage of the Bill through your Lordships’ House to get clarity on: in what circumstances the power might be used and how that might happen. We asked many questions in Committee about how this might happen, to which we have had very little in terms of answers. I certainly recall raising the issue of the rank of the police officer who would authorise the use of the power in a specified locality. I accept that the Minister described inspectors as comparatively senior police officers—and indeed they are comparatively senior police officers compared with a constable or a police sergeant—but they are not comparatively senior compared with an assistant chief constable or a superintendent. These are relative terms.
Baroness Smith of Basildon (Lab)
My Lords, I am grateful to the Minister for the amendments that he has brought forward. He did respond to the debates in Committee by bringing them and we welcome the provisions on freedom of expression and assembly. However, as my noble friend Lord Harris of Haringey said, he and I both raised more fundamental concerns about the changes being made by the Government. I do not propose to repeat the comments made by my noble friend or comments that I made previously but the fact is that we did not receive satisfactory answers in Committee, particularly on how the dispersal orders will work in practice or on the evidence base for why they are being extended and changed.
In Committee, the Minister said that he would write to me with that information. Again, I take the same view as my noble friend Lord Harris: my apologies if I have missed the Minister’s letter to me in the many letters that we have received or have been copied into. However, I do not appear to have received the letter that he promised with information on the evidence base for changing the orders. I was very interested in the comments that the Minister made this evening when he opened and I wish that I had had them in writing previously, as I thought I would. That would have given me an opportunity to consider them properly but I will read Hansard to see what he said.
In Committee, the noble Lord, Lord Harris of Haringey, tried to extract information about how the orders would work in practice. He made a similar point tonight, but when he made it in more detail in Committee the Minister accused him of being mischievous. It is fair to say, he does have a mischievous streak. That has been evident but it was not evident on that occasion and it is not evident this evening.
Lord Taylor of Holbeach
I think that was the phrase I used—that the noble Lord had a mischievous streak to his nature.
Baroness Smith of Basildon
No, it was not. The Minister accused him of being mischievous in that regard. He cannot rewrite Hansard. My noble friend was making then, and is making now, a genuine attempt to find out how the orders will work in practice, step by step. The points made about the police officers are ones to which I should like answers.
We are not opposed to dispersal orders. I made that point before and I will make it again. We introduced them in 2004. There was some controversy at that time but we think it was the right thing to do. The issue we have is with the significance of the changes being made in the geographical area and the timescale and the lack of involvement from the local authority. The noble Lord, Lord Harris, made the point that our issue is not with any demographic oversight the PCC can provide after the event. It is with ensuring that, where there is to be a dispersal order, democratically elected community representatives ensure that the power is used to the best effect and that they do not cause any further problems and misunderstandings by not using it appropriately. That consultation and involvement with local authorities is very important.
When the Home Affairs Select Committee recommended as part of its pre-legislative scrutiny in the other place that there should be a duty to consult local authorities over dispersal orders of more than six hours, the Government agreed and said they would amend the legislation. They have not done so and it would be helpful to hear from the Minister why the Government are not now fulfilling their commitment to HASC. There must be a reason why they are no longer choosing to do that.
As far as I understand it, the Minister said that the police have now said that they find the dispersal order powers useful. At the risk of being accused of a blunderbuss approach, I have tabled the same amendment to try to get some answers. What was the evidence base for bringing such significant changes forward? Did the police come along and say to the Government, “There is a lack of flexibility in the current orders. There are delays in implementing them. We do not want to have to liaise with local authorities. We want to go it alone. We need them to be longer. We need a wider area.”? Did they raise those concerns prior to the Government bringing this forward? I am not aware that they did or that there were any such concerns raised by the existing orders, but if there were, can the Minister let us know that? In his comments in Committee regarding the involvement of local authorities he used phrases such as “it is likely” the police will work with the local authority and he referred to draft guidance, which states that the authorising officer “may wish where practical” to consult local council or community representatives. That is very vague and it is not my understanding of the commitment made to the Home Affairs Select Committee.
I am just trying to understand why the changes were brought forward in the first place, who complained about local authority involvement and who thought that was hampering the process or the use of orders? If the Minister is unable to answer these questions at this stage we will have to conclude there is no evidence base but I would very much regret the Government bringing forward such significant changes without an evidence base. I reiterate the point made by the noble Lord, Lord Harris. We need some real understanding of how this will work in practice, given the very significant changes that are being made.
Lord Taylor of Holbeach
My Lords, this gives us an opportunity to come back to a subject where there has not been a great deal of meeting of minds. I am anxious to make sure that we are all reading this situation in the same way. I will address the various points raised by the noble Lord, Lord Harris of Haringey—I accept that he is not making them out of mischievousness but out of genuine inquiry as to how the operations are going to work—and the remarks of the noble Baroness, Lady Smith.
When we talked about setting this process up, I thought my speaking notes made it clear that information that we provided in the consultation we had on this was about making efficient dispersal arrangements and providing them in connection with the public space protection order. One of those things deals with territory and one deals with situations. I think we all agree that when we are dealing with territory, there is often quite a bit of history—there is certainly a lot of experience—and local government and the police can work very happily in hand together to deal with it. When we are dealing with situations and people, it is very important that we have a clear order of command. In areas which may well have provided trouble in the past or, indeed, in situations which are known to the police and local authorities to be likely to be troublesome, there may well be some prior discussions.
One of the great advantages of using inspector grades to take these decisions is that most inspectors have territorial responsibilities and local knowledge is very important. Indeed, in terms of policing—and it is an operational matter involving the police, not local authority employees, for example—it is the police who have that local knowledge. They have access to that local knowledge and an inspector would have access to it by consultation with sergeants and constables. Indeed, it need not be at inspector level that the decision is ultimately made. If it is a complex issue that requires great sensitivity, the inspector is perfectly entitled to go up to superintendent or even chief constable level before determining that the dispersal order is made. However, this legislation provides the facility for it to occur.
The noble Baroness talked about the evidence. To my mind, the evidence is pretty self-explanatory in that what we need is a clear command structure. The Government feel that this is the right thing. We have presented it to the police. I met Richard Antcliff of Nottinghamshire Police city community protection team before Christmas. He welcomes these new powers. His team is a partnership team of police officers, police staff and council officers. I went to Nottingham in October to see its work. He is very positive about the new dispersal power and sees it as a key intervention in dealing with anti-social behaviour in the city of Nottingham. The work in Nottingham is co-operative, and that is surely the sort of thing we want.
Lord Harris of Haringey
I am not trying to hold up progress through the Bill. I am sure the project that the Minister went to see in Nottingham is excellent, but if it is being interpreted, on the basis of a conversation that he had with somebody there, who was no doubt in deep awe of the Minister, as a statement of police support for this change, it is going a little far. It may be that it is more than that, but the point still remains. The clause we have at the moment simply states,
“a police officer of at least the rank of inspector”.
It does not say, “a police officer of at least the rank of inspector who has, for example, an intimate knowledge of the communities concerned and the likely impact of this action”. If it said something like that, and I appreciate that that is not legislative drafting, that would reassure on that particular point, but it does not. It could simply be an inspector. I think it quite likely that some police forces, given that they are about to receive a large new volume of technical legislation, will decide to have an inspector somewhere—or maybe even a superintendent; it does not really matter which—whose sole purpose will be to ensure that all the boxes have been ticked in terms of following the legislation. That is not the same as someone with an intimate knowledge of what the community consequences are likely to be in that locality.
Lord Taylor of Holbeach
Although the noble Lord is not being mischievous, he is being extraordinarily cynical. Effective operation of a police force is that police force’s job; it is not our job here in Parliament, as we construct the law, to tell the police how they should effect the law. The law requires us to ensure that dispersal orders are operated properly and that full consideration is given to the rights of peaceful protest and political expression. We have made it clear what the law is, and it is up to the police to decide what they should do. The view that I have expressed—it is, of course, just an opinion—is that it is right to involve inspectors in this sort of decision-making, because, as I think the noble Lord would agree, when it comes to local knowledge of policing situations, it is frequently the inspector who is in the best position. If he does not know, he can ask a superior officer, and also consult the officers involved in policing that particular area.
I am sorry, but I feel that the noble Lord is making heavy weather of what I considered to be a fairly straightforward matter. He asked what sort of protest would not be approved of. I have already said that if people were carrying hate messages on placards they might well be considered to be out of order, and a dispersal order could be the most effective way of handling that situation. I gave that simply as an example.
As I explained in Committee, the dispersal will be authorised by an officer of the rank of inspector or above. This is in line with all the other responsibilities that police inspectors have. A neighbourhood policing inspector will have a detailed knowledge of the local area and what the consequences of using the dispersal power may be. Ultimately, as I have said, it is an operational matter.
I hope I have answered noble Lords’ questions. Have I answered the question asked by the noble Lord, Lord Harris, and the questions asked by the noble Baroness, Lady Smith? The noble Baroness asked me about our response to the Home Affairs Select Committee. As she said, we did not make any commitment. We made it clear that we would accept the committee’s argument that the dispersal power would benefit from the additional safeguards, to ensure that its use was proportional and appropriate, and that we would change the legislation to state that the use of the dispersal power should be approved in advance by an officer of at least the rank of inspector. This ensures that the wider impact on, for example, communications can be considered properly before use. Those were the commitments that we made to the Select Committee.
Lord Harris of Haringey
I am under strict instructions from my Front Bench not to pursue this point at any length. But before the Minister sits down, may I ask him whether he would accept that if, at Third Reading, there was an amendment that said, “In deciding whether to give such an authorisation, an officer must have particular regard to the likely community impact of such an order”, that would solve the problem? It would place an obligation on those in the police service, however they had chosen to organise themselves, to consider the community impact. At the moment, the officer’s only obligation is to consider whether he or she is,
“satisfied on reasonable grounds that the use of those powers in the locality during that period may be necessary for the purpose of removing or reducing the likelihood of”,
certain events. That is not the same as having regard to the likely community impact.
Lord Taylor of Holbeach
No. I am sorry. I cannot commit the Government to accepting such an amendment.
Lord Taylor of Holbeach
“( ) In deciding whether to give a direction under section 33 a constable must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.
“Convention” has the meaning given by section 21(1) of the Human Rights Act 1998.”
Lord Taylor of Holbeach
“Guidance
(1) The Secretary of State may issue guidance to chief officers of police about the exercise, by officers under their direction or control, of those officers’ functions under this Part.
(2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon (Con)
My Lords, under Clause 45 it is an offence to fail to comply with the terms of a community protection notice. The defences provided for in Clause 45 in respect of this offence in part repeat the grounds on which the making of a notice can be appealed. However, criminal proceedings on breach of a notice should not be the forum to repeat earlier proceedings on an appeal against a notice. Amendments 37, 38 and 39 therefore remove this particular defence contained in subsections (3) and (4) of Clause 45. It will continue to be open to a person charged with the offence of failing to comply with a notice to argue that they took all reasonable steps to comply with the notice or that they had some other reasonable excuse for the failure to comply. This will bring this aspect of the Bill into line with the approach taken with the public spaces protection order and the closure powers where a reasonable excuse defence also applies. I beg to move.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
(a) to a constable, or(b) to a person employed by a local authority or designated by a local authority under section 50(1)(c)”
Lord Ahmad of Wimbledon
My Lords, the Bill confers the power to issue a community protection notice on the police, local authorities and persons designated by a local authority. Provision is made for items used in the commission of the offence of breaching a notice to be forfeited or seized on the order of a court. As my noble friend Lady Hamwee pointed out in Committee, forfeited items must be handed over to a constable and disposed of by the relevant police force. Similarly, the power to seize items is vested in a constable. My noble friend suggested that amendments be made to confer similar powers on local authority personnel in the interests of parity. The Government are satisfied that this would be a sensible extension of these provisions and Amendments 40 to 45 to Clauses 47 and 48 modify the provisions accordingly.
My noble friend also tabled amendments in Committee which sought to enable persons authorised by a local authority to serve a closure notice. I said then that I could see merit in such an approach and that is why the Government have tabled amendments to achieve just that. Amendments 63 to 70 would allow the local authority to contract out the service of the closure notice, while the decision to issue the closure notice would continue to rest firmly with the local authority. I commend the amendments to the House.
Baroness Hamwee (LD)
My noble friend Lord Greaves often describes what this House is about as ensuring that Bills are workable. That was what was in my mind in tabling these amendments at the previous stage. I do not suppose that the world will change dramatically as a result of them, but I am glad that we are making the Bill more workable at local level. I am grateful for that.
Lord Taylor of Holbeach
“( ) Where an item ordered to be forfeited under this section is kept by or handed over to a person within subsection (2)(b), the local authority by whom the person is employed or was designated must ensure that arrangements are made for its destruction or disposal, either—
(a) in accordance with the order, or(b) if no arrangements are specified in the order, in whatever way seems appropriate to the local authority.”
Lord Taylor of Holbeach
“( ) In this section “designated person” means a person designated by a local authority under section 50(1)(c).”
Lord Taylor of Holbeach
“Guidance
(1) The Secretary of State may issue—
(a) guidance to chief officers of police about the exercise, by officers under their direction or control, of those officers’ functions under this Chapter;(b) guidance to local authorities about the exercise of their functions under this Chapter and those of persons designated under section 50(1)(c).(2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Greaves
“( ) A public spaces protection order on land which has the status of—
(a) a town or village green or forms part of such a green,(b) access land under Part I of the Countryside and Rights of Way Act 2000, or(c) a footpath, bridleway, restricted byway or byway open to all traffic that is shown in a definitive map and statement of rights of way under Part III of the Wildlife and Countryside Act 1981,shall not restrict those rights that are conferred on persons by virtue of that status.”
Lord Greaves
My Lords, I return again to the relationship between public spaces protection orders and what I call special categories of land. This in an important issue, so I will dwell on it for a few minutes. I raised this at Second Reading and in Committee I suggested that these special types of land, where public access is specified and guaranteed by other legislation, should be excluded from public spaces protection orders. The categories of land are: access land under the Countryside and Rights of Way Act, which is mountain, moor, heath, down and commons and now includes the coastal footpath and coastal access land where that has so far been designated in England; village greens and town greens; and rights of way—mainly footpaths and bridleways—which appear on a definitive map and the statement of rights of way which nowadays comes under the Wildlife and Countryside Act and is held by top-tier local authorities.
The purpose of the designation of these kinds of land is to allow public access. To have public spaces protection orders put on them which deny that access looks like an easy and quick way for local authorities to prevent access, which is otherwise a fairly difficult and convoluted process. Public footpaths can be closed or diverted. There is a process by which, over time, access land can have its designation removed. There is also a process by which exceptions and exclusions can be made to access land, under the CROW Act. However, these take time and are difficult, for very good reasons.
In Committee, the Minister said this was okay but that rights of access were for specific purposes. For village greens it is informal recreation. For footpaths it is, obviously, walking along them. For access land it is for accessing that land on foot, together with a restricted number of ancillary activities, such as stopping and having a picnic or taking photographs, but there are a lot of activities which are not allowed. Anti-social behaviour may well be taking place on some of that land which is affecting the enjoyment of it by the people for whom the designation has been made, such as the people walking on it. That is a fair point, so Amendment 47 does not say that public spaces protection orders should not be made on this land. It says that, if they are made, they cannot remove the right of access which is the whole purpose of the land.
I know the Government do not want to do this. I do not know why, because it is very sensible. Nevertheless, I am pressing the case to give the Minister the opportunity of saying exactly how these access rights will be protected. I have had a letter about this from Norman Baker, who was in charge of the Bill within the department. I will read some of it out, because it has not been widely circulated and it is worth putting on record:
“I note your concerns that the new public spaces protection order is a much wider power than the three orders it replaces, and as such could be used to restrict access to common land, access land and rights of way on the definitive map. However, I believe the test and the safeguards we have built in mitigate such a risk.
As Lord Taylor made clear during the debate in Committee, these types of land are important and certainly worthy of the additional debate they received. In fact, in the draft guidance, we specifically mentioned a number of these categories of land because of their importance to both the local community and visitors to the area”.
One of the points that I raised in Committee was the importance of the national bodies that look after this kind of land—the Ramblers, the British Mountaineering Council and the Open Spaces Society, as well as landowners’ organisations and others—being involved in any change in the system. Mr Baker writes:
“We also made clear that where restrictions were necessary, national bodies could play an important role in the consultation process”—
that is not something that I had picked up—
“to ensure that all those affected have a chance to comment. I know my officials are continuing to work with interested groups with a view to making this even clearer in the final iteration”.
This is the vital importance of the statutory guidance, as it now will be, to prevent what I might call rogue local authorities—there are one or two—taking advantage of this legislation and doing things that are not intended. The letter continues:
“However, in terms of restricting access on certain categories of land, I do not believe that this would pass the test, in part because of the final limb, which states that the anti-social behaviour, ‘justifies the restrictions imposed by the notice’. Given the importance of these areas, whether coastal access land or registered common, I cannot envisage a level of behaviour that would constitute such a draconian response. Where a problem behaviour does exist, the flexibility within the PSPO means that the behaviour itself can be targeted rather than access in its totality. This is a major failing in the current system where unless the anti-social behaviour is related to dogs or alcohol, the local authority is left with limited options, too quickly resorted to ‘gating’ in some situations.
In addition, the behaviour that has to be restricted on this land has to be ‘unreasonable’. Again, given the rights afforded to commoners through other legislation, I fail to see how someone exercising these rights in a responsible manner (for instance, pannage) could be considered to be acting in an unreasonable way. As such, I believe these rights are adequately protected”.
In reading that out, I apologise to the Minister if I have stolen his thunder and he was going to say exactly the same things. However, at the very least, I would like him to guarantee here in the Chamber that what I have said is true and that that is the way in which the Government look at it. In the end, of course, how it comes out in the wash will be how we will judge it. However, the discussions that we have had have been useful in clarifying these issues and in concentrating the minds of people in government as to exactly how these things might work. I hope that the Government will accept my amendment. I have no great optimism about that but, anyway, I beg to move.
Lord Taylor of Holbeach
My Lords, my noble friend Lord Greaves has once again articulated his argument well and, if I may say so, he has also articulated mine. In quoting the letter from Norman Baker he has to some degree stolen my thunder. However, as my noble friend asked that I reiterate the position of the Government on the record, I will do so.
The types of land that he mentioned in his amendment are important and worthy of the additional discussion. Common land, village greens, rights of way and open access land all play an important part both in local communities and in our nation’s heritage. This is exactly why they should be protected from the minority of anti-social individuals who ruin this enjoyment by acting in a way that is unreasonable. I am glad that my noble friend has accepted that the new public spaces protection order could be used positively to protect the categories of land he identifies.
The amendment itself, though, seeks to protect any rights conferred on individuals or groups as a result of other legislation. As I have said before, this amendment is unnecessary. For a new order to be made, the activities have to be “unreasonable”. I do not believe that someone exercising their rights to, for example, collect firewood in a particular woodland could be considered to be acting unreasonably. In addition, while in theory the council could seek to restrict access to that land altogether, I do not believe that that would meet the final limb of the test—namely, that the activities justified the restrictions. Such an absolute ban would likely be disproportionate in legal terms. Indeed, it is the flexibility that we have built into the new power that makes sure that the nuclear option, to use that phrase, is truly a last resort. Where problem behaviour does exist, this flexibility means that the behaviour itself can be targeted rather than access in its totality. This is a major failing in the current system where unless the anti-social behaviour is related to dogs or alcohol, the council is left with limited options, and too quickly resorts to gating in some situations.
However, I do believe that where the anti-social behaviour is unreasonable and so bad as to justify restrictions, the council, in consultation with the police and others, should have the ability to act, and act fast. That said, given the continuing concerns which my noble friend has expressed, I assure him that Home Office officials will continue to work with interested bodies to see how the statutory guidance can address these issues more effectively. We have already emphasised in the draft guidance the importance of these categories of land, but the draft guidance is exactly that—a draft. We want to make sure that by the time we publish the final statutory guidance, it reflects the needs of professionals and the interests of the users of rights of way, access land and village greens.
Many professionals will be aware of the special rights and protections afforded to such land, but where they are not, we can make sure they have the relevant information so that their decisions and actions reflect the needs of the whole community. In the light of these assurances I have given, rather reiterating points made by my friend, colleague and fellow Minister Mr Norman Baker, I ask my noble friend to withdraw his amendment.
Lord Greaves
I also dodged the issue of whether Norman Baker was right honourable or honourable.
I am grateful for what the Minister has said and I think that the general tenor of what the Government are saying on these has shifted a little bit in the right direction. I am grateful to the Minister for his help and assistance in these matters.
I still think there is a possibility of conflict—for example, if there is a village green where traditionally the kids play cricket in the middle of summer, and the cottages around the village green are all bought up by townies who go and live there at weekends and complain about the fact that cricket balls are coming into their gardens. That is the kind of conflict which could happen, and where a PSPO might try to stop them playing cricket despite the fact that that was part of the traditional informal recreation there.
However, the national organisations now clearly have an accepted role, which was in doubt at the beginning of this process, so—combined with the tenacity and vigour with which my friends in the Open Spaces Society pursue these matters—I hope that it will never get to the High Court to sort things out, but at least I am happy in the knowledge that that would be possible if it came to it. Having said that, I am grateful to the Minister for all his help, and for that of his colleague, and I beg leave to withdraw my amendment.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
My Lords, the government amendments in this group flow from the debates we have had in Committee about the consultation requirements attached to the making of a public spaces protection order and the preparation of the community remedy document. In responding to the points raised in Committee, particularly by my noble friend Lord Greaves, we have sought to strike a balance between the need to ensure that appropriate consultation takes place, while avoiding the imposition of unnecessary bureaucratic burdens on local authorities, the police or police and crime commissioners.
In relation to public spaces protection orders, the key amendment is Amendment 54, which brings together and augments the consultation and notification requirements already provided for in Chapter 2 of Part 4 of the Bill. The key additions are the requirement to consult with the owner or occupier of the relevant land, so far as it is reasonably practical to do so, and to notify any county council, parish council or community council. These requirements are in addition to the existing duties to publish the proposed text of an order before it is made or varied, and to consult the chief officer of police, the local policing body and any community representatives whom the local authority thinks it appropriate to consult.
Lord Greaves
My Lords, I suppose that I ought to say thank you. As my noble friend Lady Hamwee said, when amendments come back like this from the Government, you sometimes think that all the time and effort spent in Committee has produced something worth while. Therefore, I am very grateful to the Government: when I saw this particular amendment, I thought that it was a late Christmas present.
It is an odd amendment because it is an odd new clause, including two completely different things. However, both are very welcome. The reference to the rights of freedom of expression and freedom of assembly are extremely useful. With this Bill—and all the fuss this afternoon bemused me a little—I have always been of the view that the public spaces protection order provisions had the potential to be a greater danger to freedom of speech and assembly and to the civil right to protest and so on than the injunctions for the prevention of nuisance and annoyance. The reason, as the Minister said when he introduced an earlier amendment, is that PSPOs are about territory and areas, and therefore, unless very specific provisions are made, they apply to everybody. Unlike IPNAs, which are injunctions against individual people or groups of people, as I understand it public spaces protection orders, which can last for up to five years and are renewable, would apply to everybody and stop normal activities such as handing out leaflets, parading with banners, making speeches and holding meetings. Therefore, this part of this new clause is extremely useful and valuable and the Government are to be congratulated. I am a little bemused as to why on earth they did not just produce a clause such as this and attach it to IPNAs, as that might have defused a great deal of the fuss earlier today. However, that is for the Government to think about, not me.
The publicity stuff is useful. A lot of this brings together what is already in different bits of the Bill and puts it in one place. The specific provisions are very useful. My amendment is just to query the difference in subsection (4) of the proposed new clause, under the definition of “necessary publicity”,
“in the case of a proposed order or variation, publishing the text of it”,
and,
“in the case of a proposed extension or discharge, publicising the proposal”.
I am not quite sure what the difference is there, and this is to probe that in a minor way. I am grateful for the inclusion of the county councils and parish councils under “the necessary notification”, which is common sense, but sometimes you put forward amendments on these matters and common sense does not always apply. On this occasion it has and again I am very grateful.
My final point is that one of the things that my friend Norman Baker sent to me was a draft of the Anti-social Behaviour, Crime and Policing Act 2014 (Publication of Public Spaces Protection Orders) Regulations. This point is not exactly in this amendment but perhaps noble Lords will bear with me for two sentences. The regulations set out the instructions to local authorities that where a public spaces protection order has been made it has to be published on the council’s website and the council has to,
“cause to be erected on or adjacent to the land in relation to which the public spaces protection order has been made … such notice … as it considers sufficient to draw the attention of any member of the public using the land to the fact that a public spaces protection has been made and the effect of that order being made”.
It is the same for variations.
Again, this is very welcome. The fact that it will be in regulations is welcome, because councils will not be able to get out of it. If the notices fall into disrepair over time, they will have to replace them and keep the information before the public. I put these amendments forward in Committee, and I am grateful that the Government are taking them up and putting them into a statutory instrument regulations. I thank the Government for this amendment and those in relation to the community remedy documents, where, as the Minister said, the Government have taken up my suggestions about consulting the local authority. That will be in the Bill. This is all excellent stuff. Thank you very much.
Baroness Hamwee
My Lords, may I say a word following on from Amendment 54? It is on a matter that I raised in Committee, which is how parts of this Bill fit in with the existing nuisance legislation.
My noble friend Lord Clement-Jones and those with whom he worked on what is now the Live Music Act 2012 remain concerned about the possibility of local authorities using public space protection order powers when there is existing nuisance legislation that could be used against a particular nuisance—though I think that they do not regard much music as “nuisance”. There have been some awkward examples of some local authorities banning busking and other live music-making during “reasonable hours”; and when I say that, I would probably agree that they are reasonable, but I do not particularly want to bring that into the equation here. During hours when there have been a small number of complaints, the local authorities would argue that such action is reasonable and there is a concern that the powers might be used far more extensively than the Government would have in mind. They have spoken to me about balancing competing rights between freedom of expression and the right to peaceful enjoyment of one’s possessions—in this case the items that are being used for busking.
I am making the point now in the hope that the Government may be able to say something about guidance on the fit between the statutory powers under this Bill and statutory nuisance. I raised the issue at the previous stage following discussions with the Chartered Institute of Environmental Health. I know that officials are working on this area of the guidance but I also know that those who have been in touch with me will be grateful if they can have further discussions on and further input into what will now be statutory guidance. Clearly those who are working on these issues day-to-day still feel uncomfortable that their concerns about what I called “workability” have not quite been taken on board.
Lord Taylor of Holbeach
I thank my noble friends Lord Greaves and Lady Hamwee for their hard work on this section of the Bill. They have proposed a number of amendments, many of which have informed government thinking. Indeed, these government amendments are based on ideas that came from the debates we had in Committee with them. We have yet to dispose of my noble friend’s Amendment 55, but I hope he will at a suitable moment see fit not to move it.
The role that my noble friend Lady Hamwee has emphasised depends on the statutory guidance, which is very important in this area. This is a matter for consultation. We want to get the statutory guidance right and ensure that it allows councils maximum flexibility. We do not want to miss the chance, particularly as the guidance will now be statutory, of making sure that we give background information on the exercise of all the elements of these parts of the Bill for the efficient use of anti-social behaviour powers.
I hope I have reassured my noble friend Lady Hamwee on the importance we attach to the guidance and my noble friend Lord Greaves about our recognition of the need to publicise what is going on in connection with the consultations that will take place.
Lord Greaves
Why does it say “publish” for one and “publicise” for the other?
Lord Taylor of Holbeach
I am sure someone will know the answer to that; I am not entirely sure. “Publish”, I suspect, implies that it is in a particular form; “publicise” is perhaps multiple publication. However, I am only hazarding a guess, without being particularly good in my command of language.
Baroness Hamwee
I will not speculate about whether “publish” is a technical term, which I think it probably is. “Publicise” is about spreading it around in a practical way.
However, returning to my question, will the guidance —I hope it will—make clear that, where possible, it would be more appropriate to use existing legislation, such as noise abatement notices, than these wider powers?
Lord Taylor of Holbeach
It may be that that is one of the things that is considered in the guidance. We will make use of what we have available to us. There is no repealing of the Noise Abatement Act 1960, for example, in the Bill.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Ahmad of Wimbledon
“(7) An interested person may not challenge the validity of a public spaces protection order, or of a variation of a public spaces protection order, in any legal proceedings (either before or after it is made) except—
(a) under this section, or(b) under subsection (3) of section 63 (where the interested person is charged with an offence under that section).”
Lord Ahmad of Wimbledon
My Lords, in Committee my noble friend Lord Faulks and other noble Lords questioned the effect of Clause 62(7). He asked whether this had the effect of stopping an application for judicial review against a council that makes a public spaces protection order. I agreed to go back and consider the matter further. On reflection, it is true that, as originally worded, the clause meant that judicial review was not available. This was because an interested person can challenge an order in a broader way than is open under a judicial review and, as such, the requirement for that process did not seem necessary. I believe that this is right: it ought not to be possible for the same person to challenge a public spaces protection order on effectively the same grounds through two different legal procedures.
However, as my noble friend pointed out, because only “interested persons” as defined in the Bill may challenge a decision to make an order, this has inadvertently left national bodies and others who do not fall into the category of an “interested person” without any means to challenge a decision. Amendment 51 rectifies this and ensures that the option of judicial review is available to those who do not qualify as “interested persons”. I hope the House will agree that this is a fair way of ensuring that all parties with an interest in a public spaces protection order can challenge the terms of the order should they consider there to be a case for doing so. I beg to move.
Lord Greaves
My Lords, there was quite a lot of discussion about this question in Committee and it became clear that the Bill was not very clear. I think that the noble Lord, Lord Rosser was involved in those discussions. The amendment now proposed is extremely welcome and has been welcomed by various national organisations that were concerned about it. Again, it is to the credit of the Government that they have seen the sense of this and sorted it out.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
My Lords, in Committee I undertook to consider an amendment tabled by my noble friend Lord Brooke of Sutton Mandeville that sought to acknowledge the excellent work of the City of London Corporation in managing some of the important public spaces in and around the capital. We agree that my noble friend’s proposal has significant merit. Amendment 53 therefore provides for statutory custodians, such as the City of London Corporation, to be designated by order of the Secretary of State. The effect of such an order will be to enable the designated body to make public spaces protection orders in respect of the land they are also responsible for managing. The amendment also includes the safeguards proposed by my noble friend ensuring that the local authority will continue to have precedence in the decision-making process. Therefore, a designated body will be able to make a public spaces protection order only where the local authority does not wish to act.
In addition, any designated body will be able to make an order only in respect of those matters it already has the power to regulate through by-laws, so there will be no extension of scope. For the time being, the City of London Corporation is the only body that we have in mind to designate under this order-making power. This is in line with a similar provision that currently exists under the terms of the Clean Neighbourhoods and Environment Act 2005 in respect of dog control orders which will be replaced by the provisions in the Bill.
Amendments 52, 58, 59, 60 and 61 are consequential on the main amendment. I am once again grateful to my noble friend for raising this issue on behalf of the City of London Corporation. I trust that these amendments address the issue that he and it has raised and, accordingly, I commend them to the House.
Lord Brooke of Sutton Mandeville (Con)
My Lords, I shall speak to government Amendment 53, to which my noble friend has just spoken. In responding to my amendment in Committee, my noble friend Lord Ahmad was kind enough to acknowledge that there appeared to be a strong case for extending the availability of public spaces protection orders to bodies other than local authorities. I am most grateful that further consideration has confirmed that view. I know also that the City of London Corporation, whose position prompted my earlier intervention, is grateful for the constructive and open-minded approach taken by officials during discussions on this point. No doubt, other bodies that manage public spaces under statute but are not local authorities will also find the change helpful.
My noble friend will recall that in my amendment in Committee, to which Her Majesty’s Government have now helpfully responded, I alluded to Epping Forest. In this appreciation of the Government response, I quote a testimonial about the Corporation of London from 1979—35 years ago—when I moved in the Commons the Second Reading of a private City of London (Various Powers) Bill on behalf of the City which primarily related to Epping Forest. Two of my noble friends who are now in your Lordships’ House spoke in that Second Reading debate: my noble friend Lord Tebbit, then MP for Chingford, and my noble friend Lord Horam, then replying to the Bill as Under-Secretary for Transport. They were thus witnesses to the quotation uttered by the late Arthur Lewis—then and for the previous 34 years Labour MP for West Ham, where he was Tony Banks’ predecessor—when he spoke in that debate. I quote the conclusive passage in his speech:
“I do not trust the Department of Transport. By its actions over the years it has not proved that it has the best interests of the people at heart. The City of London has proved this. It has done so for 100 years, and certainly to my personal knowledge for the past 34 years … I have gone along to many Ministers, ministerial advisers and local government officers. I have never found any of them so accommodating or helpful as the City of London authority and its officers. They have not put themselves out in the way that the City of London’s officials have. When I have problems or difficulties over Wanstead Flats, West Ham park or Epping Forest, I know that I get better treatment from the authority’s officials than I do from ministerial Departments”.—[Official Report, Commons, 6/3/79; col. 1203.]
I am confident that the Home Office will be rewarded by the Corporation of London for government Amendment 53 with just such similar imaginative service in future.
Finally, to wind up, I also thank the Minister for taking up the drafting point in Clause 67(2) that I raised in Committee in relation to the interpretation of Chapter 2. I note that this has been addressed in the Report stage print of the Bill now before us and I express appreciation for the Government’s reaction to that.
Lord Rosser
I will just raise one or two questions on these amendments. Again, I look particularly at what was said in the letter we received from the Minister. On these particular government amendments, that letter ended by saying that any public spaces protection order,
“made by a designated body under the provisions of the new clause would take precedence over a PSPO made by the local authority in whose area the land is situated”.
As I understand it, that means that a PSPO made by the City of London Corporation—if it was so designated—would take precedence over a PSPO made by the local authority covering the area of Epping Forrest, Ashtead Common, Hampstead Heath or any other areas. I would be grateful if the Minister could confirm whether that is the case. It is what the last sentence of his letter dealing with these government amendments says, as I just read out.
On the face of it, that would appear to be rather odd because Clause 55, which deals with public spaces protection orders, says that two conditions must be met, the first that,
“activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality”.
If the City of London Corporation has responsibility for managing an open space, presumably most of those who will be deemed to be affected on the basis of the,
“quality of life of those in the locality”,
are unlikely to actually live in the open space and likely to live in the areas surrounding it, which are presumably within the area of the local authority.
I am not seeking to raise some frivolous point, and my intention is not to oppose this amendment. What I am getting at is whether there are potential areas of conflict now between what the City of London Corporation may deem to be necessary or desirable in a public spaces protection order and the views of the local authority, bearing in mind that it is surely only the local authority that can make the judgment on whether activities were being carried on which had a detrimental effect on the quality of life of those in the locality. I would be grateful if the Minister could clear that up. Perhaps I have misunderstood it. If I have, I am sure the Minister will explain that when he responds.
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend for his kind remarks and I reiterate the Government’s thanks for raising these issues. On the noble Lord’s point on clarification of the letter, it is my understanding—and we are just double-checking—that the letter got the position the wrong way round, so we apologise for that. I trust that clarifies the point.
Lord Rosser
If I may confirm what the letter should have said, it is that the PSPO made by the local authority has precedence over that made by the City of London or a designated body. That clears it up. I thank the Minister very much.
Lord Taylor of Holbeach
“Bodies other than local authorities with statutory functions in relation to land
(1) The Secretary of State may by order—
(a) designate a person or body (other than a local authority) that has power to make byelaws in relation to particular land, and(b) specify land in England to which the power relates.(2) This Chapter has effect as if—
(a) a person or body designated under subsection (1) (a “designated person”) were a local authority, and(b) land specified under that subsection were within its area.But references in the rest of this section to a local authority are to a local authority that is not a designated person.(3) The only prohibitions or requirements that may be imposed in a public spaces protection order made by a designated person are ones that it has power to impose (or would, but for section 66, have power to impose) by making a byelaw in respect of the restricted area.
(4) A public spaces protection order made by a designated person may not include provision regulating, in relation to a particular public space, an activity that is already regulated in relation to that space by a public spaces protection order made by a local authority.
(5) Where a public spaces protection order made by a local authority regulates, in relation to a particular public space, an activity that a public spaces protection order made by a designated person already regulates, the order made by the designated person ceases to have that effect.
(6) If a person or body that may be designated under subsection (1)(a) gives a notice in writing under this subsection, in respect of land in relation to which it has power to make byelaws, to a local authority in whose area the land is situated—
(a) no part of the land may form, or fall within, the restricted area of any public spaces protection order made by the local authority;(b) if any part of the land— (i) forms the restricted area of a public spaces protection order already made by the local authority, or(ii) falls within such an area,
Lord Taylor of Holbeach
“Convention rights, consultation, publicity and notification
(1) A local authority, in deciding—
(a) whether to make a public spaces protection order (under section 55) and if so what it should include,(b) whether to extend the period for which a public spaces protection order has effect (under section 56) and if so for how long,(c) whether to vary a public spaces protection order (under section 57) and if so how, or(d) whether to discharge a public spaces protection order (under section 57),must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.(2) In subsection (1) “Convention” has the meaning given by section 21(1) of the Human Rights Act 1998.
(3) A local authority must carry out the necessary consultation and the necessary publicity, and the necessary notification (if any), before—
(a) making a public spaces protection order,(b) extending the period for which a public spaces protection order has effect, or(c) varying or discharging a public spaces protection order.(4) In subsection (3)—
“the necessary consultation” means consulting with—
(a) the chief officer of police, and the local policing body, for the police area that includes the restricted area;(b) whatever community representatives the local authority thinks it appropriate to consult;(c) the owner or occupier of land within the restricted area;“the necessary publicity” means—
(a) in the case of a proposed order or variation, publishing the text of it;(b) in the case of a proposed extension or discharge, publicising the proposal;“the necessary notification” means notifying the following authorities of the proposed order, extension, variation or discharge—
(a) the parish council or community council (if any) for the area that includes the restricted area;(b) in the case of a public spaces protection order made or to be made by a district council in England, the county council (if any) for the area that includes the restricted area.(5) The requirement to consult with the owner or occupier of land within the restricted area—
(a) does not apply to land that is owned and occupied by the local authority;(b) applies only if, or to the extent that, it is reasonably practicable to consult the owner or occupier of the land.(6) In the case of a person or body designated under section (Bodies other than local authorities with statutory functions in relation to land), the necessary consultation also includes consultation with the local authority which (ignoring subsection (2) of that section) is the authority for the area that includes the restricted area.
(7) In relation to a variation of a public spaces protection order that would increase the restricted area, the restricted area for the purposes of this section is the increased area.”
Lord Taylor of Holbeach
“Guidance
(1) The Secretary of State may issue—
(a) guidance to local authorities about the exercise of their functions under this Chapter and those of persons authorised by local authorities under section 59 or 64;(b) guidance to chief officers of police about the exercise, by officers under their direction or control, of those officers’ functions under this Part.(2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Taylor of Holbeach
“( ) For the purposes of this Chapter, a public spaces protection order “regulates” an activity if the activity is—
(a) prohibited by virtue of section 55(4)(a), or(b) subjected to requirements by virtue of section 55(4)(b),whether or not for all persons and at all times.”
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