Anti-social Behaviour, Crime and Policing Bill
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I am very grateful to my noble friend Lord Marlesford for tabling this amendment, not least because it provides your Lordships with an opportunity to consider the Foreign Enlistment Act 1870—not something that we do every day, or night. The Act prohibits British nationals from fighting in the armed forces of another state, against friendly states. The new clause would go further by creating a new offence of participation in armed conflict against any foreign state at peace with Her Majesty. My noble friend’s amendment raises an important and topical issue: that of people from the United Kingdom seeking to engage in combat abroad in so-called “theatres of jihad”, such as the civil war in Syria, to which my noble friend referred.
Although the issue of British nationals fighting abroad is not a new one, or one specific only to Syria, it is something that the Government take very seriously. Syria is now the number one destination for jihadists anywhere in the world, and there are currently thousands of foreign fighters in Syria, including a large number of Europeans. We judge that more than 200 UK-linked individuals have travelled to Syria to join the fighting. Of course, not all individuals who travel to Syria are extremists. Many simply want to support humanitarian efforts. However, those who do travel there are putting themselves and innocent Syrians in danger, and we know that a number of Europeans have already been killed in the conflict. Moreover, we know that some individuals travel to Syria—or other places such as Yemen or Somalia—to engage in fighting with terrorist groups.
The Government are working with the police and security services to disrupt travel by individuals of concern. Your Lordships will understand why I am unable to provide specific details of all of the actions that are being taken to this end—but rest assured, we support the use of the full range of available measures. In particular, where there is evidence that individuals are planning, promoting, funding, facilitating or participating in terrorist activities overseas—including terrorist fighting—the police and Crown Prosecution Service will look to prosecute them, before they go or on their return. A very wide range of offences already exists on the statute books to capture such activity, not least in the Terrorism Acts 2000 and 2006, which provide extraterritorial jurisdiction in relation to certain activities. Although my noble friend’s amendment seeks to add a further offence to the disruptive arsenal, I fear that this amendment, as drafted, entails a number of drawbacks that would undermine its effectiveness.
Firstly, the amendment recognises that, while the 1870 Act already deals with fighting for another state’s armed forces, many modern conflicts involve an array of non-state actors and irregular militias. However, like the 1870 Act, this amendment deals only with,
“armed conflict against a foreign state at peace with Her Majesty”.
Hard distinctions of war and peace made sense in 1870; Tolstoy’s masterpiece had been published just the year before. But the bases for modern conflicts are no longer so binary. The UK has not been in a declared condition of war since the defeat of the Axis forces in 1945. Today we are at peace with all states, at least in the classical sense of international law.
Secondly, the defence of notification to the proposed new offence has the potential to severely undermine the disruptive utility. Whether it was my noble friend’s intention I do not know, but the amendment as drafted gives the Secretary of State no additional power to prohibit a person who gives notice of their intention to fight overseas from going. A number of existing powers might be used to prevent such a person from travelling—and, of course, the Bill augments these by providing powers to seize passports cancelled on public interest grounds. But the amendment adds nothing to these powers. Indeed, the proposed offence bites only when a fighter who previously failed to notify returns to the UK. Anyone who does notify the Secretary of State would be completely free from the sanctions which this amendment seeks to put in place.
Thirdly, any offence that hinges on such a notification regime is likely to raise significant difficulties in enforcement. A committed jihadist is unlikely to inform the authorities of his travel plans for fear of disruption, either before or after the fact. Evidence that a person has engaged in fighting abroad would be extremely difficult to obtain, so the evidential difficulties in securing a prosecution may be no less than for the other relevant offences available.
Fourthly, although self-defence has a well understood meaning in relation to ordinary offences against the person, how it would apply in the context of overseas conflicts is unclear. Many jurisdictions have laws to deal with the use of defensive force in situations of immediate danger, and we expect British nationals to comply with local laws wherever they are. But the idea of participating in armed conflict as an act of self-defence is a difficult matter. We must take care not to legitimise the wrong-headed extremist narrative that paints so-called jihadists as fighting a war of self-defence on behalf of Muslims internationally.
Finally, the amendment proposes sentences for the new offence that could include forfeiture of a passport and deprivation of British citizenship. As noble Lords will recall from our discussion in Committee of what is now Clause 138, passports are issued under the royal prerogative. The Home Secretary already has the power to refuse or withdraw passports where she believes that a person’s activities—past, present or proposed—are so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest. The British Nationality Act gives the Home Secretary powers to deprive persons of their British citizenship when she is satisfied that deprivation is conducive to the public good, provided that the person is not left stateless as a result. As such, these sentencing options would not be necessary.
I thank my noble friend Lord Marlesford for raising the issue of British nationals fighting overseas. I assure your Lordships that this is something that the Government take extremely seriously. Nevertheless, for the reasons that I have set out, I do not believe that the amendment would be the right way to proceed and I ask my noble friend to withdraw it.
Lord Marlesford
My Lords, I am most grateful to my noble friend for having raised so many points so clearly and in such detail. I hope very much that there will be action under the present provisions of the law to ensure that, wherever possible, British citizens who have engaged in jihadism overseas, will be prosecuted on their return to this country—as he said that they already can be under the existing law. I hope very much that the removal of passports—and, if appropriate, of British citizenship—will take place.
This is a very serious subject. The evidence given by the security chiefs to Parliament was chilling. I had no idea what a serious situation we face, and I am delighted that the Government have stated that they are well aware of it and are dealing with it. I therefore beg leave to withdraw my amendment.
Baroness Hamwee
My Lords, I entirely agree with what lies behind these amendments but have one concern about them, with which the noble Lord may be able to help me. We heard in an earlier debate on the Bill that a number of police and crime commissioners are already dealing with anti-social behaviour as one of their objectives. I assume that, as they are doing that, they are able to do so. Therefore, I wonder whether it is necessary to refer specifically to this Act, as it will be, in the second of the noble Lord’s amendments in this group.
Given that we already have a requirement under new subsection (1A) of the relevant Act for each of the responsible authorities to have regard to the police and crime objectives, I am not sure whether the proposed new subsection (1B) is necessary. We often hear that things are not necessary but it is helpful to be clear about them. However, my real concern is whether, by referring specifically to the Anti-social Behaviour, Crime and Policing Act, there might be a suggestion that it should have priority over other legislation which could be listed among the objectives. The relevant police reform Act, the obligations of the police and crime commissioners and the police and crime plans use wide and general terms. The Anti-social Behaviour, Crime and Policing Act, as it will become, will not be the only legislation to which all responsible authorities need to have regard, so I am concerned about knock-on effects outside what we are considering at the moment.
Baroness Smith of Basildon (Lab)
I understand the noble Lord’s eagerness to accept this, and it may have something to do with the hour, but, just occasionally, I have a few words to say on the proposals put forward by my noble friend Lord Harris of Haringey. I must admit that when I first looked at these amendments I had a slight concern about the role of the community safety partnerships and their responsibilities. My own CSP has seen a massive cut in its budget and its capacity to deal with some of the issues before it. But when resources are short, planning is most essential. It would be extremely useful to have the kind of co-ordination function that is laid out in the amendments.
I am sorry that the Minister laughed when my noble friend said how helpful he was trying to be. He has been accused of many things during the course of proceedings on the Bill. He was accused of being mischievous when he was trying to be helpful. He put on record that he is trying to be helpful now and there was hilarity from the Benches opposite, which I genuinely think is most unfair. This is the kind of amendment that sets in place how the objectives of the Bill can be achieved by those responsible for implementing it.
There are new powers in this Bill. It is important that all the partners understand their role and the expectations. I give one example. The noble Lord will recall that I proposed amendments in Committee on dispersal orders. One of the issues is that there is no longer a responsibility on the police to consult the local authority when issuing dispersal orders. The new orders that the Government are proposing are wider and can last longer than the ones in place at the moment. There is also no obligation to consult the local authority, but the guidance says—I cannot remember the exact phraseology—that there is the opportunity to discuss or that that is expected or is likely. Before any dispersal orders were issued, would it not be helpful if discussions took place within the community safety partnership about what the expectations would be when it came to the point of issuing one? It is fitting to have that kind of co-ordination, to know what the expectations and responsibilities are, to ensure that the legislation being put forward by the Government has an impact, that it does not disappear into the ether somewhere but can be worked on. I would expect that this is the very least that the Government would expect—to have this way of taking the new legislation into the existing framework.
I certainly accept my noble friend’s comments that he is seeking to be helpful. It is a very helpful amendment. I trust that the Minister will be able to take that on board.
Lord Taylor of Holbeach
I thank the noble Baroness for that comment. Indeed, I thank the noble Lord, Lord Harris of Haringey. I am quite prepared to accept that he has a helpful side to his nature. I am very grateful that he has presented these amendments. I sense the spirit in which he has tabled them. My noble friend Lady Hamwee is always helpful. I am grateful for her contribution to this debate.
I will talk about the issue in general and then talk about how it happens specifically. This is about how police and local councils will use the powers running right through Parts 1 to 5 of the Bill. I will deal with Amendment 90 first and then I will come on to Amendment 91. I have listened to the noble Lord’s comments on the amendment. Although I appreciate the helpful intent behind the amendment, I do not believe that it is necessary. As the noble Lord will be aware, Sections 5 to 7 of the Crime and Disorder Act 1998 already require local authorities and the police to co-operate with each other and other local agencies in formulating and implementing strategies to reduce crime and disorder. The noble Baroness, Lady Smith, is absolutely right. The Government expect local authorities and the police to co-operate together. The formulation and implementation of those strategies would manifestly include a consideration of anti-social behaviour. I am sure that the noble Lord will be aware of the London Borough of Haringey’s current community safety strategy which identifies six outcomes, one of which is to:
“Prevent and reduce acquisitive crime and anti-social behaviour”.
It is in implementing such strategies that it goes almost without saying that the responsible authorities will take full account of the new powers in Parts 1 to 5 of the Bill, as well as existing less formal interventions, to tackle such behaviour.
As a result of our extensive consultation on the new powers with local authorities—the Bill has been drafted with local authority consultation as its backbone—as well as other agencies, I am confident that they are fully aware of the importance in ensuring that the use of the powers is underpinned by a coherent strategy and good partnership working. Indeed, local authorities have played a major role in shaping the new powers and would no doubt be keen to ensure that they work effectively in their areas. Moreover, along with their individual strategies and the Government’s statutory guidance, local authorities will issue their own guidance to front-line professionals on the use of the new powers and their approach to them. This is what they do with their existing powers and I see no reason why that practice would not continue.
I turn to Amendment 91. I will repeat the point that I made in Committee. The election of police and crime commissioners put the public back at the heart of our drive to cut crime, thereby giving them a greater say in how their local area is policed by these directly elected representatives. I admit that it will be a great day when I can get the noble Lord, Lord Harris, to admit that the policy has achieved that objective—but that task is not beyond us.
Under the provisions of the Police Reform and Social Responsibility Act 2011, PCCs are required to issue and publish a police and crime plan for their local area and must consult with their chief constable in drawing up the plan. Such plans must include objectives for reducing crime and disorder. As I indicated in Committee, 30 of the police and crime commissioners have put tackling, preventing and reducing anti-social behaviour as one of their key priorities in their plans. Another eight have put reducing the impact and keeping people safe from anti-social behaviour as one of their individual priorities; and the remaining three commissioners want to encourage the reporting of anti-social behaviour.
Perhaps I may give the noble Lord an example. London’s Police and Crime Plan 2013-2016 states that,
“tackling anti-social behaviour … or quality of life crime, is critical to addressing perceptions of disorder in a neighbourhood, and although MOPAC”—
the Mayor’s Office for Policing and Crime—
“is setting no explicit targets for the police in this area, ASB is one of the three priorities for the London Crime Reduction Board, chaired by the Mayor”.
It is obvious that the successful implementation of this and other police and crime plans when it comes to tackling anti-social behaviour will necessarily involve an assessment of how the new powers in the Bill can be put to best use.
This was reflected by Sir Graham Bright, the Cambridgeshire police and crime commissioner, who said about the Bill in October last year:
“Police and Crime Commissioners have been closely following the progress of the Anti-Social Behaviour, Crime and Policing Bill. We want the police to be given effective powers to tackle anti-social behaviour that provide better protection for victims”.
Sir Graham went on to say:
“It is also important to have a multi-agency approach to tackling anti-social behaviour as the police are only one part of the solution. By working with local authorities, housing associations and other agencies we can effectively combat anti-social behaviour and empower victims and communities”.
In short, the police, local authorities and other agencies recognise the importance of understanding how to use the new powers in the Bill effectively to protect the public from anti-social behaviour. The statutory guidance provided in the Bill will undoubtedly help them in this regard.
In practice, I believe that on this issue there is little between the Government and the noble Lord, Lord Harris. We are at one in recognising the importance of partnership in working to tackle anti-social crime and anti-social behaviour, and of this being reflected in local crime and disorder strategies and police and crime plans. This is what the Government expect local authorities to do.
In implementing such plans, in so far as they relate to tackling anti-social behaviour, we would clearly expect the police, local authorities and other agencies to make effective use of the new powers in the Bill. While we seek the same outcome, I do not believe that these amendments are needed to achieve it. I therefore invite the noble Lord to withdraw his amendment.