Anti-social Behaviour, Crime and Policing Bill
(Limited Text - Ministerial Extracts only)
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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 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
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
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.
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 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