Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Monday 27th January 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, as the Minister said, I have put my name to the amendment, but the whole House will be grateful to the noble Lord, Lord Dear, for causing the Government, in the words of the Minister in his letter to a number of us, to “reflect carefully” and conclude that pragmatism was the right way.

I am pleased that the Government have decided to propose this change. I did not agree and I still do not believe that the original wording was the threat to freedom of expression which was argued, but it clearly troubled many people a great deal, and whatever the technicalities, I do not think that it is good law to have provisions which trouble people as to precisely what they mean.

I am pleased, too, that the Government have dealt with the tenure point, which was one that I and others picked up at the previous stage. What matters is that it now looks as if we will be able to shift away from the criminalisation of anti-social behaviour implicit in the current legislation and move to a new way to tackle the problem.

[Lord Dear (CB)]

My Lords, I of course welcome the amendment. It is, as the Minister said, substantially the same as the amendment in my name on which we voted on Report. I readily agree the inclusion of private housing in the same context as social housing, which has been on the statute book for a while.

I extend a vote of thanks at this juncture, first, to those who voted in support of my amendment on Report. I am very grateful to them for helping to preserve and protect fundamental rights under the law. I thank the Public Bill Office staff, who were, as they always are, unfailingly helpful to me in the progress of the amendment through to Report. I thank the staff of the Christian Institute, who gave me invaluable administrative help in the run-up to the vote on Report. Finally, I thank the Minister for his unfailing courtesy and help in what were not always the easiest of discussions to make progress on in this part of the Bill. Those of us who have had the pleasure of working with him before will know that that is his default mode, and I am very grateful to him.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I add my appreciation of the work that the Minister has done with the Scottish Government to provide an amendment which is compatible with Scots law. Having read it carefully, I think that it is a very valuable addition to the armoury in Scots law to deal with this very difficult and obnoxious problem.

[Baroness Hamwee]

My Lords, I, too, add my thanks. This issue exercises noble Lords around the House, as well, of course, as many people outside the House. It is not a party-political matter; there may be a range of views as to the nuances of how to deal with the issue. I say to the Minister that this is a great and very important step, but he will not have heard the last of the issue of forced marriage.

[Baroness Thornton (Lab)]

My Lords, I welcome this amendment, to which I was very pleased to add my name. Many months ago, when we started down the route of discussing the Bill, I had a meeting with some of the brilliant organisations that work to prevent forced marriages and to support those who are escaping from them. Almost in passing they mentioned to me that they were concerned about the capacity issue. I looked at the record of the Commons debates and the discussions that took place in Committee there and I noticed that my honourable friend Gloria De Piero had raised the matter there and that she received the sort of response from the Minister there that I received in Committee here. It is a very good example of the way that Ministers in this House conduct themselves. I thank noble Lords, particularly my noble friend Lord Harris, for supporting me in pressing this matter on Report when we persuaded the Minister, as it were, to look at the matter again. I am very grateful that he did so. We have reached a very happy conclusion.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Monday 20th January 2014 Lords Chamber

[Baroness Howarth of Breckland (CB)]

My Lords, I shall speak briefly in support of this amendment and make three points. First, during my life, I have worked in some of London’s most insecure areas and seen insecure estates in the rest of the country. In north Brent and Brixton, crime was rife and burglary, in particular, was at a very high level. On a huge estate—I will not name it, because it has improved so much and I do not want to give it another bad name—I saw design improvements which removed some of the interconnecting corridors and looked at locks, considering the way in which the whole design process was put together so that it reduced crime substantially. If we start with design and local authorities have the option of putting design in place, we will ensure from the beginning that we do not create new estates where problems begin and residents suffer great dismay.

My second point is the localism argument, which has already been made very successfully. The third point is that anything that prevents burglary anywhere must be supported. Like other speakers, I do not understand how it is possible to assess where burglary is going to take place before an estate has gone up. In any case, people should be protected equally. Anyone who knows people who have been victims of burglaries, particularly some of the most vulnerable, will know that we should do everything in our power to prevent the emotional trauma—it is almost like rape—that they feel when they go into their homes and find tremendous damage. It is not just that things have been stolen; it is the feeling of intrusion into their lives.

There are very good reasons to support this amendment. The technical reasons have been put clearly by the noble Lord who moved the amendment and other speakers, and I support it on those grounds.

[Baroness Hamwee (LD)]

My Lords, I have been enthusiastic about designing in security for as long as I have had any involvement in planning, not just for the protection of property, but for the protection of people.

Two things confuse me about the amendment. One is that the debate, both on the last occasion and to a large extent today, seems to be about products and materials. I have always thought that designing in security starts with things such as defensible space, mentioned by the noble Lord, Lord Condon, and lighting, sight lines and corridors, mentioned by the noble Baroness. I am puzzled why so much of the debate has been about the strength of locks and window locks which, if they are considered anywhere, seem to be more a matter of building control than development control of the planning area.

Like many other noble Lords, I am instinctively against topdown impositions of requirements which should come about bottom up, organically, by local authorities, police and others working in partnership. The noble Lord, Lord Harris, talked about localism and I of course support that, but I would like to ask the Minister some questions relating to this. Perhaps he can explain to the House, and flesh out a little, the extent to which the security issues which we have been discussing can be taken into account in the refusal or imposition of conditions on planning consent currently made by a planning authority. Are there material considerations? I am asking whether the planning authority can currently specify as a condition the sort of security issues that we are all concerned about.

What the amendment proposes is, in a sense, statutory guidelines that would be discretionary in their application. That takes me to the second area where I confess to being a bit puzzled. I am unclear what precludes a local authority drawing up guidelines without having legislation requiring the guidelines to be there and available for the local authority to adopt at its discretion. Do we actually need something in an Act of Parliament which says, “Let’s do some work on something very sensible, but we are not even going to require it to be implemented”?

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, although I have not been involved in these cases, I have been involved in the examination of these kinds of cases when I was a member of a police authority in London for 12 years and I still sit on the police committee at City Hall.

Something like the amendment is absolutely necessary because, putting aside the civil rights, human rights and civil liberties of the women and the people involved in the environmental movement whose lives have been trespassed upon for no information and without subsequent charges against them—these were innocent women who were trespassed against—you have to think about the civil liberties and human rights of the police officers involved. Again and again, officers were embedded within environmental groups for long periods of time. It was not like getting into a drug cartel or organised crime of some kind; this was a quite different kind of policing. The police officers have suffered quite deeply afterwards. It is very easy when you are embedded for three months or six months to get to like the people you are working with and to understand what their motivation is, and many officers have come out of this quite damaged and unable to work any further.

There is also an argument about the cost of the court cases in which some of these police officers were involved—they went to court and were charged as protestors and were either convicted or not convicted—because those cases are now being overturned. Two cases will be coming up in the next two weeks in London on this issue. It is costing us a fortune and justice is not being done. We need an independent way of judging and assessing whether or not this kind of action is necessary. It is time that the Metropolitan Police understood how important this is and I hope that the Government will approve the amendment.

[Baroness Hamwee (LD)]

My Lords, we had the opportunity to consider the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013, which the Minister sent round after the previous debate and is now in force, as I understand it. Any of us could have prayed against it.

We need to understand as a House that we are not at the point in the development of this—“work” seems to be the wrong term—matter that one might think from looking at the amendment. That is not to say that I do not have sympathy with the amendment. One of the times when I was most shocked at work since becoming a Member of your Lordships’ House was on hearing recordings of the testimonies of women, and their families, who have been affected by activities under CHISRS. I remember the family of one woman saying, “We treated this man as our prospective son-in-law; we welcomed him into our family”. It was very moving.

That causes me to say that what matters more than anything—although I do not know how you deal with it other than by putting formal technical oversight in place—is a change in practice and culture. The police need to take that matter on board but you cannot write that into legislation in that way.

The 12-month period for approval before review is required seems on the long side and I look forward to the Minister explaining it to the House. As I say, we should have questioned some time ago—I am as much at fault as anyone—why 12 months was chosen, rather than six months or even three months.

[Lord Taylor of Holbeach]

My Lords, this has been a worthwhile debate, although we have discussed this matter before. As the noble Lords know, the statutory instrument has come into effect, so we are in a different regulatory regime from the one we were in when we discussed this in Committee. In no way do the Government endorse activities to which the attention of the House has been drawn in the speeches of noble Lords. I am grateful to the noble Baroness for tabling the amendment. I agree that covert techniques are sometimes necessary to protect the public from harm or to prevent or detect crime. I think all noble Lords will accept that. These techniques need, however, to be closely supervised and constantly reassessed to ensure that they are justified.

Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000. RIPA provides a strong set of safeguards. As I said in Committee, we have recently brought forward secondary legislation, further enhancing this oversight of undercover deployments by law enforcement agencies. The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into effect on 1 January 2014.

I was a little concerned that, in our debate last time, the noble Lord, Lord Rosser, might not have been aware of this order, so, following the debate in Committee, I wrote on 21 December 2013 to draw it to his attention and to that of the noble Baroness. As a negative instrument, there was the normal opportunity for the Opposition or any noble Lord to pray against the order, perhaps on the ground that its provisions fell short of what was needed. Unfortunately, however, it is a matter of record that no such step was taken. The order, which has now been in force for some three weeks, provides a number of additional safeguards to ensure that the technique is used only when it is just to do so. I will give some examples of what I mean.

First, law enforcement agencies must notify the Office of Surveillance Commissioners, all retired senior judges, of all undercover deployment by law enforcement officers. Secondly, an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner, who, I remind your Lordships, is someone who has held senior judicial office. It may be that the original deployment is not authorised for 12 months. Thereafter, if it is to be renewed at 12 months, a surveillance commissioner will be required to pre-approve all renewals for long-term deployments every 12 months.

In addition, we have increased the rank of authorising officer. Deployments of undercover law enforcement officers now need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent as well as by a surveillance commissioner. The seniority of those who are now required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. I hope I can reassure my noble friend Lady Hamwee that all authorisations are notified to the commissioners at the outset. They monitor the cases during their normal inspections. Each case is approved specifically after that 12-month interval. It reflects the existing legislation and implements the HMIC recommendation to increase oversight of long-term deployments. As I have said, deployments can be for shorter terms, but they still have to be notified to surveillance commissioners.

We believe that the new arrangements will create a regime that contains considerable safeguards while not hampering operational effectiveness. We should allow them to bed down and be given a chance to prove themselves. We will of course keep them under review. Given these recent changes, I do not believe that this amendment, well intentioned as it is, is required. I therefore invite the noble Baroness to withdraw it.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I will speak at the same time to Amendments 94DB to 94DF inclusive. These are all connected to Part 12 of the Bill concerning extradition.

I will briefly summarise what appears to be a slightly technical and arid set of amendments, but which would nevertheless have a very significant impact. They would restore to individuals arrested under an extradition warrant the automatic right of appeal which currently exists—an automatic right which the Government are proposing to remove under the terms of this Bill. Let me make it absolutely clear that these amendments do not somehow let individuals off the hook who are arrested under an extradition warrant. They merely preserve the right that those individuals enjoy at present. Noble Lords will probably be aware from the briefings they have received that these amendments are supported inter alia by Fair Trials International, of which I need to remind the House that I am a trustee, by Liberty and by Justice.

I will now set that summary in context. First, my particular concern is the impact of the Government’s proposal on those arrested under what is known as a Part 1 warrant—more familiarly, the European arrest warrant—because of the very short timetable of EAW proceedings. Secondly, I want to make it clear that this is not an attack on the EAW generally. The EAW has enabled many very nasty criminals—terrorists and the like—to be speedily brought back or sent back to face justice. That is as it should be. Thirdly, and quite understandably, this Government—and, indeed, the previous Government—focus on these very high-profile cases, but the vast majority of cases do not involve matters of high importance.

In the last year for which records are available, there were 1,438 arrests under the EAW and 1,057 surrenders. For the most part, these involve ordinary members of the public for whom this will be an entirely strange and unfamiliar process and one which they are not well equipped to challenge. Some of them will have been arrested for crimes which they did not commit. Therefore, it is on behalf of these people—Edmund Burke’s “little platoons”—that I have tabled these amendments and ask for the House’s support today.

I shall be fair to the Government and my noble friend on the Front Bench. The Government asked Sir Scott Baker to review the operation of this country’s extradition arrangements and they have implemented a great many of his recommendations. Further, as part of the Lisbon opt-out, opt-back-in procedure, the Government have indicated a number of further changes. For example, they expect much less use in future of the EAW for trivial crimes and that greater efforts will be made to ensure that cases are trial-ready before the surrendering of individuals takes place. Those are indeed welcome changes and I congratulate the Government on making them. However, while increasing these protections, the Government are proposing to remove one great protection—that of the automatic right of appeal.

I hope that the House will forgive me if I remind noble Lords of two particular aspects. The first, as regards the EAW, is just how compressed the process of surrender is. An arrest will be followed by a court hearing at Westminster magistrates’ court within 48 hours. The accused will be represented by a duty solicitor who may or may not know anything about extradition. Edward Grange, a specialist extradition solicitor, has explained:

“At present there are over 400 individual solicitors signed up to the extradition rota at Westminster Magistrates’ Court. The majority of individual solicitors have never had conduct of an extradition case before and yet these are the solicitors that are entrusted to provide appropriate advice and assistance to those arrested on extradition warrants. The Extradition Act 2003 is complex and the case law it has generated is vast”.

A further hearing after that initial hearing will follow within 21 days, so that in as little as 35 days a person can be on his way to another jurisdiction, many of which will be operating with entirely unfamiliar procedures and conducted in a language which the accused probably does not understand at all.

Further, it is worth while remembering that, if the person wishes to appeal, he has in any case to make that appeal within seven days. I ask noble Lords to imagine the case of an unsophisticated person remanded in prison. His first legal representative, it turns out, knows nothing about extradition, so he has to make a change. He has to gather evidence, probably from at least two jurisdictions, perhaps involving many people, and put all that together into a case, and he has to do so within seven days while he is confined to prison. So much for the specifics of the compression of the EAW procedure.

The second point is the catastrophic impact that extradition can have on an individual—on his family, on his home, on his employment and indeed on his whole life. I shall not weary the House today with quotations from people who have been involved in these cases, but the stories of how people’s lives have been turned upside down by mis-arrests and an inability to get the appropriate advice and help are truly horrifying. The step of a state arresting one of its own citizens and handing him or her over to another state to try is a very fundamental one. It needs to have a proper level of safeguards. That is why I have tabled these amendments today and why I think they are so important.

If I could look over the shoulder of my noble friend on the Front Bench and glance at his speaking notes, what do I think I would see there as the Government’s wish behind the policy of removing the automatic right of appeal? I think the first thing would be that they were doing so because Sir Scott Baker recommended its abolition due to what he saw as a large number of unmeritorious appeals. However, the world has moved on since Sit Scott Baker undertook his review. First, the safeguards introduced by the Government, as I referred to earlier, through their amendments to the 2003 Act will now give weight to arguments which may previously have been deemed to be without merit due to the lack of a legislative basis. Therefore, it is likely that these reforms will reduce the number of unmeritorious appeals reaching the High Court. Further, the Government have introduced a requirement in Clause 145 of this Bill for the National Crime Agency to review extradition requests and sift out cases where it is clear that a judge would be required to order a person’s discharge on the basis that extradition would be disproportionate. Taken together, those steps will certainly mean a substantial reduction in the number of EAW cases.

It is important to remember that, while Sir Scott Baker recommended that the automatic right of appeal should be removed, as a compensating factor he also recommended that the time in which an appeal could be launched should increase from seven to 14 days to match the period that exists for a Part 2 warrant. I tabled an amendment to that effect in Committee. Subsequent to that, and after discussions with my noble friend on the Front Bench, I reflected and concluded that the longer the appeal period, the more the well resourced “nasty” case could take advantage of these delays to frustrate the underlying purpose of the EAW. Therefore, I have not retabled that amendment, which we discussed in Committee on 11 December. Instead, I argue for the preservation of the status quo as regards appeal. I shall not try to pretend to the House that I understand the details of how the appeal process works but the groups with which I have consulted over this matter understand the details and have written to me to say:

“Our review of the judgments of the High Court in extradition appeals … demonstrates that judges are able to dispose of appeals based on weak arguments in an efficient manner which prevents significant court time from being spent on unsuccessful appeals”.

In conclusion, while I congratulate the Government on the changes and improvements they have made, I express sorrow and regret at their apparent determination to remove this important protection. I am convinced that British judges are quite capable of sorting the wheat from the chaff in appeal cases. Preserving the automatic right of appeal will undoubtedly help ordinary people inadvertently caught up in the machinations of the EAW. I believe that it is in the interests of justice that the automatic right of appeal should therefore be maintained. I beg to move.

[Baroness Hamwee]

My Lords, things can go wrong in the best of organisations and the most learned and expert of professions. To me, the right of appeal is fundamental and I support the noble Lord.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Tuesday 14th January 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, our amendment adds a new ground for the issuing of a closure notice that would allow premises to be closed in cases of sexual offences against a child. It is largely a preventive measure but would be an important extra tool in tackling this problem. No one could have failed to be distressed and horrified by the reports late last year of groups and gangs of men who abused young and vulnerable girls. They did so by a cold, calculating and sinister grooming process, sometimes involving drink and drugs, which allowed them to sexually and physically abuse these children. So cleverly warped are these groomers’ tactics that the children—and vulnerable adults—may not even realise at the time that they are being abused and exploited.

We have an opportunity in the Bill to provide more ammunition for those trying to prevent this shocking and evil crime. I hope noble Lords will allow me to put on record my gratitude to those who brought this matter to my attention: Tony Lloyd, the police and crime commissioner for Greater Manchester; Colin Lambert, leader of Rochdale Council; and Jeanette Stanley, Rochdale’s safety community manager. They have given me some hugely important and useful evidence. I know they have been in contact with Home Office Ministers as well. Their experience and knowledge of what works in tackling such crime and where the gaps are in legislation is invaluable. I know that the Minister shares my concerns on this issue and I hope that the Government will share my view of the suggestions that these people brought forward to try to tackle this problem.

They are seeking an immediate closure power where there is a safeguarding threat. Greater Manchester Police has evidence of properties that are unregulated and unlicensed being used in a variety of ways to prey on vulnerable adults and sexually exploit children “behind closed doors”. Yet the only powers the police have—and will have in legislation if the amendment is not passed—is to close premises on anti-social behaviour grounds. Now that the police have evidence of the shape and extent of this problem, that is no longer enough. In Rochdale, they have been able to use the current anti-social behaviour closure order power on a number of occasions to good effect because they also had sufficient evidence of recent and repetitive anti-social behaviour incidents. However, the main reason for obtaining a closure order was because of safeguarding concerns involving children and young adults. That power allows a short-term disruption to the abuse while the police can then take longer-term permanent action.

Norman Baker, as Home Office Minister in the other place, has responded to the suggestion outlined in our amendment that closure powers exist under the Sexual Offences Act 2003. He is absolutely right—they do—but they apply only to prostitution and pornography, not to protecting children and vulnerable adults. The powers do not allow for the swift action that is needed. However, perhaps the most serious problem with that approach is that to use a sexual offences order, evidence of a criminal offence is needed. The grooming method of such gangs is quite sophisticated in a warped way, and many victims of child rape and sexual abuse do not complain. They may even believe that their abuser is their boyfriend and that they have sex with his friends to please him. While in the clutches of these men, the victims cannot even recognise that they are being abused.

This is a simple amendment. It obviously does not solve all the problems but it will make a difference. Tony Lloyd and Councillor Colin Lambert first wrote to Minister Jeremy Browne on 4 October last year seeking this help to tackle the problem. I put on record my thanks to the noble Lord, Lord Taylor of Holbeach, as Minister, for his willingness to discuss these issues with me. I really hope that the Minister can accept this amendment but I would be happy for him to take it away to consider further, and for us to bring something back at Third Reading. I beg to move.

[Baroness Hamwee (LD)]

My Lords, the noble Baroness raises a hugely important matter. I was glad to hear her say that she would welcome the Minister taking the matter away, but I have to say that my reaction would be to wonder whether, as she says—and I am not doubting what she says—there are gaps in our legislation that mean there are problems for the authorities. If that were the case, I should have thought it necessary to make changes to the Sexual Offences Act. I question whether the changes should be made in this Bill, given that the offences she is talking about are of a very different order from the nuisance and disorder that this part of the Bill is addressing.

There is also the difficult issue of taking steps to prevent something that might be a criminal offence—we are talking about something rather different in this part of the Bill—without having gone through prosecution and so on. I have not had a discussion with the Minister —he might be about to take the ground completely from under my feet—but it seems that we are talking about something very important but rather different.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I am extremely grateful to the Minister for his response in this regard. It contrasts quite starkly with the comments from the noble Baroness, Lady Hamwee, who seemed to be much against taking action in the Bill. However, his response—

[Baroness Hamwee]

My Lords, I apologise to the House if I was not clear. I was entirely sympathetic with the thrust of what the noble Baroness was seeking to do but was suggesting, precisely as the Minister has said, that the Sexual Offences Act might well be the place to do it.

[Baroness Smith of Basildon]

It came over rather more negatively than that, but the Minister’s response was very useful and I think it showed a clear determination to take action on this. I am very happy to enter into discussions with him and we should be able to find a way to bring this back at Third Reading. It is an urgent issue: children are being abused today and will be abused tomorrow and the day after, and we have a real opportunity here to make a difference. I am grateful to the Minister for seizing the opportunity and I look forward to our further discussions.

--- Later in debate ---

Moved by

[Baroness Hamwee]

62: Clause 69, page 41, line 37, leave out “habitually”

--- Later in debate ---

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 71, 72, 73, 74 and 75. These amendments are concerned with people who are affected, and how they are affected, by closure notices and closure orders. Amendment 62 addresses those who “habitually”—that is the term in the Bill—live on the premises and their entitlement to access. The subsequent amendments deal with the clauses relating to temporary orders and their extension and discharge, and appeals, as well as the extent of the building which may be the subject of an appeal.

I am concerned about the employees who live on site. Pubs, hotels and other leisure establishments often include accommodation for junior staff and not just for the managers. When I raised this at the previous stage, the noble Lord, Lord Ahmad of Wimbledon, said that closure notices could be,

“tailored to the appropriate circumstances”.—[Official Report, 2/12/13; col. 14.]—

we were talking about security and safety—but that the Government considered that the exception should be limited to residents who are habitually resident and, in the case of an appeal, to those who have an interest in the premises, meaning a financial or legal interest.

The draft guidance, which we have seen, seems to consider these issues only to the extent of the police or the local authority, allowing discretion for the retrieval of items left on the premises. My concern goes wider than that. A young person employed in the sort of situation to which I have referred may well be living a long way from home and quite suddenly lose the place where they are living, if not habitually at that point. I am not suggesting that this may be a widespread situation but, for those affected, it will be very significant and I wonder whether my noble friend on the Front Bench can give me any more assurances. I am simply not confident that the legislation allows for enough to go into the guidance to cover the points that I am making. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, as my noble friend Lady Hamwee has explained, these amendments relate to the closure powers in Chapter 3 of Part 4 of the Bill. She has also indicated that her particular concern is to protect the interests of employees—such as caretakers, for example—who may live on premises subject to a closure notice or order. Amendment 62 relates to the use of the term “habitually” in the context of Clause 69(4). That subsection provides that a closure notice cannot prohibit access by a person who habitually lives on the premises. The term “habitually” in this context means those who routinely or regularly live at those premises. It could, for example, cover students who live away from the family home for part of the year but routinely return to the family home as their main residence or those who spend the majority of the week living at the pub in which they work.

The term is commonly used in legislation setting out entitlement to social security benefits, such as the Income Support (General) Regulations 1987. It is also used in the family law context when a court decides cases under the Child Abduction and Custody Act 1985, where it is often relevant to decide in which country a child habitually resides. When approaching this test in each context in which it has arisen, the courts have said that it is essentially a question of fact to be determined by reference to all the circumstances of a particular case. We expect the police and local authorities to follow the same approach in this context and assess each circumstance on a case-by-case basis. However, it is important to retain this word so that we exclude persons who may only occasionally live on the premises: for example, a friend of one of the residents who may just be spending time there over a weekend or at a sleepover.

Amendments 71, 72, 73 and 75 all seek to extend certain rights—for example, the right of appeal against a closure order—to persons who live on the premises concerned. Such rights already apply to persons on whom a closure notice has been served and on persons who have an interest in the premises. The Government are satisfied that these existing provisions are wide enough to protect the position of employees who may reside on the premises.

In Committee, I explained that the reference in the Bill to a person having an “interest” in the premises covers those who have a financial or legal interest. I would fully expect that any employee who has been furnished with accommodation as part of his or her employment would have their entitlements to such accommodation set out in either their contract of employment or an associated tenancy agreement. That being the case, I am satisfied that in any such formal relationship between an employee and the owner or occupier of any such premises subject to an application for a closure order, the employee will be a person with an interest in the premises and therefore already covered by the provisions provided in Clauses 74 to 77.

Finally, Amendment 74 seeks to clarify the circumstances in which an appeal against a decision to make or extend a closure order may be made. Of course, I understand that my noble friend has in mind the situation where an appellant may wish to challenge the extent of a closure order in terms of those parts of a building or structure which are covered by the order. Again, I can assure my noble friend that the provisions in the Bill as drafted allow for this. Clause 77(6) enables the court hearing an appeal to make whatever order it thinks appropriate. This would include varying the terms of a closure order so that it applies to a more limited part of the building or structure in question. Therefore, an employee living on-site could use the appeal to argue that a closure order should not include his or her living area. I hope that, in the light of the explanation that I have given, my noble friend is reassured and will be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, in the Minister’s explanation of “habitually”, which I understood from the previous stage, the example he used of a student whose real home—if I can put it that way—was somewhere else actually confirmed exactly what I was worried about. That part therefore did not reassure me, but I am helped by his more extended explanation of the term “interest”. I know when I am beaten, so I beg leave to withdraw the amendment.

Amendment 62 withdrawn.

--- Later in debate ---

[The Earl of Lytton (CB)]

My Lords, first, I should like to clarify a point made by the noble Baroness, Lady Lister of Burtersett, and reinforce what she said about the Landlord and Tenant Act issues under secure tenancies.

The legal situation, as I understand it from my profession as a chartered surveyor, is that tenants are responsible for the actions of those living with them only to the extent of the lease terms and the demise concerned. It does not and never has extended to liability for the wider actions of members of a tenant’s household elsewhere. Even general paving clauses such as “immoral or illegal activity” have, as I understand it, been pleaded in vain. I put that clearly. The noble Baroness, Lady O’Loan, has raised a valid point here. The whole of Clause 91 looks like being a knee-jerk reaction that would go beyond what is necessary and desirable.

I would like to ask one or two questions for clarification. What about the whole question of the rehabilitation of offenders? When somebody has been indicted, put into prison, served their sentence and comes out, what are the circumstances in which a court will grant this further period of indefinite rustication, if you like, from any sort of enjoyment of a place that they can call a home and to which they can naturally relate? What are the safeguards? Is this the default position, or does it concern the second or third strike after the event? We do not know and I invite the Minister to clarify the position.

Moreover, what about the selective post-sentence treatment of rioters as a particular species of offender under the Bill—as opposed to, say, murderers or other offenders? Very large numbers of offences are anti-social, and virtually all have a victim class of some sort who would naturally look, under the terms of the overarching principle of this Bill, to some sort of rebalancing. I worry about the singling out of this class of offender. Maybe the Minister can explain how that works. This provision could result in a class of persons without rights to occupy anything that they could call a home of their own. That needs to be circumscribed and contained in some way because the circumstances of the offence will not necessarily be replicated. If there is no risk of replication, what is the court being instructed to do? The justification is rebalancing towards the interests of victims—for them to feel that justice has been done. Would Clause 91 achieve that rebalancing? I am not clear that it would.

[Baroness Hamwee]

My Lords, the term “knee-jerk reaction” was used. I think we are all clear—let me use a synonym—that it was an immediate reaction to the riots of 2011. I am never comfortable with using legislation to give a message. At the previous stage I proposed amendments that were replicated in what we have today because I recognise the political realities of the situation and the circumstances in which that message had been given.

I was horrified when I looked at Hansard to see that I was on record as saying that I was happy with the clause. Hansard now knows that I was not happy with the clause and is correcting the record from Committee stage. As I say, I recognise the strength of feeling and where we might well end up. Knowing how the two Houses work and that this clause has been considered by the Commons, I went straight to what I hoped might be a way of ameliorating the situation, which was to suggest that it be limited to serious offences. That is a very significant change and taken with the other safeguards—that is how I look at them—which the Minister has listed, I am perhaps somewhere between where Hansard said I was and where I was. I am not happy but I am not nearly as unhappy as I might have been.

I was interested to know what had happened in Wandsworth after the 2011 riots and checked with the council. I understand that that council—presumably this is not the case with every local authority—has specific tenancy conditions covering the behaviour of tenants and it considered the criminal activities as coming within those conditions. The housing professional from whom I have heard talked about the double jeopardy term being used as a criticism but said, however, that the ground relating to possession for a serious conviction has existed since 1985. In essence, if the new ground meant that a tenant living in one borough could be pursued if convicted in connection with rioting in another borough I can see the attraction but I doubt whether the courts will agree. I am grateful to the Minister for bringing forward the amendments today.

--- Later in debate ---

[Baroness Hamwee]

With the leave of the House, just to pursue the point made by the noble Lord, Lord Ponsonby, the information that I had from the chief executive of Wandsworth was that, in that borough after the 2011 riots, 12 notices of seeking possession were served, which is the first step in eviction proceedings. That resulted in an outright possession order and subsequent eviction in one case; seven others resulted in possession being granted but suspended on terms or an undertaking being given to the court. That, of course, supports what the noble and learned Baroness said about the court’s position.

[Lord Taylor of Holbeach]

This has been a good debate on an important subject, and I am grateful to the noble Baroness, Lady O’Loan, for bringing it to us today. However, I reiterate that, as with the existing discretionary grounds for possession, the legislation has always contained important safeguards—not least the discretion of the court, at the end of the day. However, this has been recognised by the Government in our amendments, reflecting the key concerns, if not all the concerns, of the Joint Committee on Human Rights.

A lot of noble Lords have spoken in this debate, including the noble Lord, Lord Rosser, the noble Baroness, Lady Lister, the noble Earl, Lord Lytton, my noble friend Lady Hamwee, the noble Baroness, Lady O’Neill, my noble friend Lord Elton, the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Paddick and the noble Lord, Lord Ponsonby. A number of points have been made, all working on a theme.

To put the debate in context, I remind the House that the Housing Act 1996 already provides for a ground of possession where a tenant, a member of their household or a visitor has been convicted of anti-social behaviour or a criminal offence in the locality—there is the difference—of their property. Many of the issues that noble Lords have pointed to are already familiar to those who have to make the decisions. The noble Lord, Lord Ponsonby, referred to the debates in Wandsworth, and I am grateful to my noble friend Lady Hamwee for giving us the figures there. Such decisions have to be made by housing authorities and landlords over time in any event, and the courts themselves have to consider the impact not only on the perpetrator of the crime but on the family. This is familiar ground.

--- Later in debate ---

[Baroness Hamwee]

My Lords, it seems that in Scotland the provisions which are in force have not been as effective as one would have hoped. I am not sure that the laws against proxy purchasing of alcohol have been terribly effective. I would be concerned if bringing in a further measure which failed to achieve what we wanted to see was a deterrent to anything more effective. Is the Minister aware of what the police think about this? After all, enforcement is what matters when one is introducing a new offence.

[Lord Taylor of Holbeach]

My Lords, when we debated this issue on 4 December, we agreed that, because smoking is largely an addiction taken up during childhood or adolescence, reducing the availability of tobacco to young people is important if we are to succeed in reducing overall smoking uptake. This new clause seeks to create a new criminal offence of an adult purchasing, or attempting to purchase, tobacco products on behalf of a child or young person under the age of 18. This act is commonly known by the phrase, “proxy purchasing”.

While smoking prevalence among young people has declined considerably in recent years, there are still each year around 300,000 young people in England under the age of 16 who try smoking for the first time. As a starting point, we must continue to take action to encourage adults to quit smoking. If smoking is seen by young people as a normal part of everyday life, they are much more likely to become smokers themselves. The Government’s Tobacco Control Plan for England is clear that, to promote health and well-being, we will work to encourage communities to reshape social norms, so that tobacco becomes less desirable, less acceptable and less accessible. We aim to stop the perpetuation of smoking from one generation to the next.

We need to think carefully about whether creating a proxy purchase offence would have an impact on how accessible tobacco is to children and young people, and whether it would have a meaningful impact on reducing smoking rates among young people. Obtaining cigarettes from retailers is just one of many avenues by which young people access tobacco. We know that children and young people obtain their cigarettes from a wide range of sources. Some young people take tobacco from their parents, from other family members or from older friends. In such circumstances, no proxy purchase has occurred. Introducing a new proxy purchase offence would not tackle that particular way of getting tobacco.

I understand that introducing a proxy purchase offence for tobacco is supported by some retailer organisations, including the Association of Convenience Stores and the National Federation of Retail Newsagents. Let me be clear that I recognise the important role played by retailers in ensuring that tobacco products are sold in accordance with the existing age-of-sale legislation. I also want to recognise the important work that retailer organisations have played in recent years to support their members in meeting age-of-sale requirements.

I realise the difficulties that some retailers face, and I understand why some feel that it should be an offence to buy tobacco on behalf of under-18s. I also understand that the creation of a proxy purchasing offence has the support of the tobacco industry—as the noble Lord, Lord Faulkner, said. However, I am sure that noble Lords will agree that the creation of effective and practicable legislation should be informed by evidence. In the area of proxy purchasing, the Government’s current view is that we want to see evidence that a proxy purchase offence would be effective both in reducing young people’s access to tobacco and in having a deterrent effect on those adults who are prepared to buy cigarettes on behalf of children and young people.

In fact, I am concerned that some of the evidence that is currently available suggests that creating a proxy purchasing offence would have only limited benefit. For example, a Scottish study published in August 2013 looked at how young Scottish smokers living in disadvantaged communities obtained their cigarettes. The study concluded that the introduction of a proxy purchasing offence in Scotland had had little discernible impact.

Nevertheless, that is not to say that evidence does not exist, and I encourage those who support this amendment to provide evidence of the likely public health benefits of creating a proxy purchasing offence to the Department of Health for further consideration. Proxy purchasing of tobacco is an area that the Department of Health is keeping under review, and any further evidence that is provided will be carefully considered. I assure noble Lords that I will draw the attention of my noble friend Lord Howe to the debate we are having on the subject this afternoon.

As the noble Lord, Lord Rosser, said, those in support of a proxy purchase offence point to Scotland, where the offence was introduced in April 2011. While I understand that a light-touch approach has been taken on enforcement and that the legislation has been in place only for a few years, I note that only one fixed penalty notice has been imposed since the offence was introduced, and that there have been no convictions. Furthermore, whether the legislation has had any deterrent effect is also not clear.

The statistics for the similar offence of the proxy purchase of alcohol show that convictions are few and far between in that area, too, in no small part because of the burden of proof required. Furthermore, the alcohol offence includes a defence that the purchaser had no reason to suspect that the individual they bought the alcohol for was under 18. This amendment does not address that point.

Whether local authorities want the creation of a proxy purchasing offence is not at all clear at the moment. After all, they rather than the police would be responsible for enforcement. The Minister responsible for public health made it clear during a debate on this issue in the House of Commons in October that the Government would be happy to hear the views of local authorities on the potential for effective enforcement, or to hear of good examples of existing local measures to reduce access to tobacco by young people. I also call on those in the public health community to provide this sort of evidence for the creation of a proxy purchasing offence. I want to be clear that we are not rejecting the creation of a proxy purchasing offence outright, but we need to give the matter further consideration.

While we understand the views of retailers and the tobacco industry on proxy purchasing, the Department of Health will continue to work with local authorities and the public health community to understand their views. I want to reassure your Lordships that the Department of Health will also keep under review relevant evidence and experience from elsewhere. I again encourage those with evidence to make it available; I cannot reiterate that enough.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, the noble Lord, Lord Foulkes, was kind enough to mention me, and perhaps I may add a footnote to what he said about Scotland and the measure that deals with emergency workers. Of course, an assault, in both the law of Scotland and the law of England, is a crime, and in a sense you could say that it was not necessary to pass that measure at all because any court when presented with evidence of an assault would pass an appropriate sentence if the individual was convicted.

However, the value of the measure, which got a lot of publicity, was its deterrent effect. After all, the last thing that one wants is to have the assault committed. The Government in Scotland were trying to reduce the very unfortunate crescendo of assaults on emergency workers—firemen, ambulance people and so on—and to some extent the measure appears to have had that effect. Therefore, the deterrent effect is as valuable as any sentencing. As I said, in an ideal world, if something was a crime, the individual tempted to do the act described as criminal would refrain from doing it. It is because of the deterrent effect that I think there is a good deal of force behind the amendment.

[Baroness Hamwee]

My Lords, I thought that at the previous stage the noble Lord, Lord Condon, had it right when he said he feared that,

“the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action”.—[Official Report, 4/12/13; col. 255.]

I asked questions of my noble friend about sentencing, the aggravating nature of that type of offence and so on, and I am afraid that I have not changed my mind about those two aspects.

I am interested in the definition of “worker” in the noble Lord’s amendment. One qualifies, as it were—that is not quite the right term but he will know what I mean—only if one is “physically present”. Reading that, I wondered how that works with his requirement for malice in subsection (2) of the proposed new clause. When I saw the word “malice”, I thought that he had in mind, for example, someone who—possibly for very personal reasons—does not like people who work in jobcentres but then discovers that his neighbour works in a jobcentre. Is that malice towards all such people for that sort of reason or are we talking about something very personal? Does it mean being in the workplace or in the sort of situation that I have suggested, hanging around until one’s neighbour comes out of the house and having a go at him for that reason?

I was also interested in subsection (4) of the proposed new clause. If I remember rightly—I have not gone back to check—I think that on the previous occasion the noble Lord talked about “evidence from a single source”. That seems to be a matter for the courts. We should not tell the courts how to assess evidence. If he is saying that there is some restriction on the way they are working at the moment, it may be a different matter—but, again, that made me wonder where the noble Lord was going with this.

On the aggravating nature of the offence, we have to be careful not to devalue the importance of that approach to sentencing. This, of course, is not the only aggravating factor for the courts, but the Sentencing Council does a very important job in identifying appropriate aggravating factors.

[Lord Rosser]

My Lords, my noble friend Lord Foulkes of Cumnock very eloquently made the case in support of this amendment. It is really about supporting victims of assault by a member of the public in the course of their employment and in the course of earning their livelihood. I suppose that the question is whether one feels that the matter should be dealt with by regarding that kind of assault as one of a great many aggravating factors in an assault case, or whether it should be regarded as a separate offence. The noble and learned Lord, Lord Hope of Craighead, referred to the impact of the new offence in Scotland in relation to assaults on emergency workers.

It is worth looking at some of the figures that have emerged. Those from the HSE’s Crime Survey for England and Wales show that there were nearly 650,000 reported incidents of violence at work and that workplace violence comprises some 31% of all reported crimes of violence. The HSE found that the occupations at greatest risk were those that involved working with the public. That is hardly a surprise, but nevertheless it was confirmed by the HSE.

Reference has been made to the position of shop workers. USDAW, the union that represents them, undertakes members’ surveys, which show that in the past year 4% of retail staff were attacked at work—which is equivalent to some 120,000 assaults—and 34% were threatened with violence. In addition, 17% of those attacked did not report the offence—and we can all speculate as to why that might have been the case.

People at work—in their employment, in the course of earning their livelihood— are in a different situation from most other people. The reality is that an assault on somebody at work can be quite traumatic. It can lead to a situation where somebody is reluctant or fearful to go back to their place of work and be in exactly the same situation that they were in when they were attacked, facing a constant stream of strangers, any one of whom could become violent. One can also find cases of people assaulted by a member of the public in the course of their employment where the assault leads to them actually losing their job and their livelihood, because they are so traumatised that they are no longer able to return to the same job at the same location and to carry on with that employment. Those are among the victims who feel that sentencing probably does not reflect the effect that that kind of assault can have on their lives.

As has already been said, many people in the course of their employment are actually put in the way of danger by their work. They are the kind of people who have already been mentioned: public transport staff, fire workers, security staff, emergency service workers and shop workers. They often have to deal with people who are aggressive, drunk or attempting to break the law. Those workers are the kind of people who can be working late at night, sometimes on their own and in areas of anti-social behaviour which most people voluntarily avoid for their own safety. Workers in that situation do not have that particular option.

Some staff in the course of their employment dealing with the public have an obligation to seek to enforce the law. Those, for example, who serve alcohol are required to obtain proof of age from the purchaser. They are required to refuse to serve someone who is drunk and they are required to refuse a proxy sale of alcohol—although not of tobacco, as we were discussing earlier. Those kinds of actions are all major triggers for assaults on staff, and reference has already been made to the situation in that regard. In the USDAW survey, some 30% of assaults arose from challenging age-restricted sales, and some 15% related to people who appeared to be committing theft.

Those actions, carried out by people in the course of their employment who are required to seek to enforce the law, place workers at risk. If they are not undertaken—particularly in relation to refusing to serve people with alcohol when they are under age, or refusing a proxy sale of alcohol—staff can be liable for prosecution or for action to be taken against them for failing to carry out their duty to seek to enforce the requirements of the law where it applies.

There are, therefore, differences in the position of people who are assaulted in the course of their employment. They cannot run away; they cannot move somewhere else; they have to go back to their employment after an assault and be in the same situation in exactly the same circumstances as they were, facing members of the public and probably fearing that the same kind of thing might happen again. In some cases, it can cost them their jobs because the experience has been so traumatic that they feel they cannot carry on. Many are put in danger by the nature of their work or the kind of job they have to do; many are required to enforce the law as part of their work.

Like my noble friend Lord Foulkes of Cumnock, I hope that we will get a more sympathetic response to this amendment. There is a case for having a separate offence of assault on a person in the course of their employment by a member of the public, and for not regarding it as simply one of a large number of aggravating factors for the offence of assault.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Tuesday 14th January 2014 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as chair of the Freedom Charity, which works to provide education and support for individuals who may be at risk of forced marriage. The noble Baroness, Lady Tonge, is right to highlight that many organisations believe that the Government are correct in trying to make forced marriage a criminal offence. The Freedom Charity is precisely one of those organisations and, in my view, the Government’s approach to this is right.

However, the amendment moved by my noble friend Lady Thornton, as opposed to the general principle which seems to have been aired, raises another, separate and extremely important issue—the circumstances in which an individual who has been forced into marriage lacks proper capacity to consent to that marriage. I have no doubt that we will be told by the Minister that somehow that is covered by the phrase at the end of Clause 109(1)(b) about a person entering into a marriage,

“without free and full consent”.

I understand that argument, but it seems to me that nothing is lost and rather a lot is gained by specifically highlighting the problems of those who may not have the capacity to consent to a marriage.

I am in no doubt that there are instances where young people, or not so young people, who have limited capacity are being forced into marriages, perhaps from benign motives—that is, to protect or support them—but perhaps also from less benign motives. Forced marriage is pretty abhorrent in itself, but the implications of forcing into marriage somebody who does not even understand what is happening to them seems to me particularly vile and is something that I hope this legislation will address.

That is why the amendment moved by my noble friend Lady Thornton is important, and I hope that the Government will be prepared to accept and support it. As I said, I understand that they will no doubt say that,

“without free and full consent”,

covers the point but, unless it is highlighted and unless the particularly vulnerable state of people with limited capacity is made clear, a great opportunity is being lost. Making it a specific and separate criminal offence is important, and I hope that the Minister will be able to accept the amendment.

[Baroness Hamwee (LD)]

My Lords, when I first saw the amendment, I thought that, as the noble Lord, Lord Harris, has just said, it was covered by Clause 109(1)(b). However, I realised that it is not, because paragraph (b) comes into play only if paragraph (a) applies. Therefore, my question to the Minister is: what does “coercion” in paragraph (a) mean? If the argument is that it is covered, I think that we need to understand the extent of coercion and whether that covers the situation that the noble Baroness has set out.

While I am on my feet, perhaps I may say that I hope my noble friend Lady Tonge will seek the leave of the House to speak to her amendments in this group. She got so carried away with enthusiasm for the noble Baroness’s amendment that she forgot to cover them. I am intrigued by my noble friend’s amendments. We were all left floundering somewhat listening to the debate on their predecessor amendments in Committee, knowing that there were good intentions behind them but not quite finding the means to support them because we were rather doubtful about them. These amendments are much more comprehensible.

[Baroness Tonge]

My Lords, with the leave of the House, I should like to carry on with my remarks, as I had intended to introduce Amendments 87A and 87B. They seek to make it an offence under the law of England and Wales if someone is,

“the parent or guardian of a child, and … gives consent for that child to enter into marriage before the age of 18 unless the written consent of both parties to the marriage has been obtained”.

The reason we have tried to clarify this is due to a lot of experience from all around in our all-party group. I must emphasise that we also want these provisions to apply to marriages contracted abroad, not just in this country. I must apologise for not being present at Committee stage; I was abroad at another conference so my noble friend Lord Rea spoke on my behalf.

We have good laws in place to make forced marriage illegal and these are strengthened by this Bill. I would like to commend the excellent work being done by the Forced Marriage Unit at the Home Office, which really is commendable. These amendments seek to close a loophole which I think still exists concerning children between the ages of 16 and 18. In general, not every forced marriage is a child marriage, but every child marriage is usually forced; hardly any take place with the agreement of the participants, who are often tricked into marriage by their families on the pretext of going on holiday or some treat or other.

According to the international Convention on the Rights of the Child, to which the UK is a signatory, a person is a child until the age of 18. I notice that in Committee some noble Lords felt that, if children could vote at 16 and join the Armed Forces at 18, they should be allowed to marry at 16 with the consent of their parents. However, I would contend that marriage is a very binding contract indeed, from which it is very difficult to escape. A young person can leave the Armed Forces and can refuse to vote, but they cannot easily get out of a marriage that was contracted sometimes without their consent.

If young people want to have, hopefully protected, sex—which many do; I was not born yesterday—they can do so legally after the age of 16. If they want to live together in many cultures now, they can do so legally after the age of 16. So what is wrong with asking them to delay the legally binding step of marriage until they are 18? That, however, is not the point of my amendment, but I had to say that because I feel very strongly about it. I know that noble Lords rejected that in Committee.

At present, any parent who wishes to force a marriage on their son or daughter can do so by claiming that consent has been given if the child is between 16 and 18. In Clause 109(1)(b), the Bill mentions the “full and free consent” of the individuals concerned. However, it does not specifically mention this group between 16 and 18, who can marry with parental consent. I think this needs clarifying. We must make as certain as possible that children involved have given their consent too.

I was horrified years ago, when I worked among Indian and Pakistani communities as a doctor, at how many of my patients were whisked away from school and married as soon as they were 16 years old. I remember two girls in particular, who were twins, who had done absolutely brilliantly in their O-levels. They were crying as they told me that it was now time to go back to the subcontinent to be married to men whom they had never seen, one of whom was illiterate. All their hopes of university and a career were dashed by parental consent to their marriage.

I thought the practice had nearly died out until the all-party group which I chair produced a report called A Childhood Lost. We heard from many witnesses who related their stories of being taken abroad for a holiday, only to be shut away on arrival until their marriage to an unknown groom had taken place. There were others whose religious marriage had been contracted during early childhood on a holiday and then was ratified with parental consent as soon as they were 16 years old. All of this happened with total disregard of the wishes of the young people concerned.

We know that marriage as early as 16 is a public health issue as well as a violation of human rights. It takes away opportunity for education and economic independence; it is associated with violence, rape and sexual abuse; it contributes to higher rates of maternal morbidity and mortality and contributes to poor child development. We know that around 5,000 to 8,000 young people are at risk of being forced into marriage in this country every year, based on research done by our Government in 2011. A higher number may not have been counted because they were over 16 and it will be argued that the parents have not forced the marriage but have given their consent.

This is my last ditch attempt to try to strengthen this Bill. I ask the House to support these amendments that I have put forward, which apply to Scotland as well, as an attempt to ensure that consent to marriages has also been given by the two children to be married in that age group. I think that the consent should be given verbally and in writing.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

Hearing what the noble Baroness and, indeed, the noble Lord, have said, with the leave of the House, I will return to this issue. I will consider its practical application with my noble friend. When the noble Lord, Lord Harris, was speaking, I was listening attentively but, as he rightly said, I was waiting for inspiration from the Box. This is too important an issue to deal with in a non-comprehensive way so, as I said, I would like to return to it.

[Baroness Hamwee]

My Lords, when the Minister is considering this with his advisers, on the point about an application to the court, will he consider both the practicality and the legal capacity of the people we are concerned about to make that application?

[Lord Ahmad of Wimbledon]

That is a valid point. I have had discussions with officials on the issue of ensuring assistance. If someone has not had the mental capacity to consent, would they have the mental capacity to take up the issue? That is a point understood and well made.

I hope that, based on the assurances and clarification that I have given that we will look at the issue again, at this juncture the noble Baroness will be prepared to withdraw her amendment.

--- Later in debate ---

[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.

[Lord Taylor of Holbeach]

My Lords—

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Wednesday 8th January 2014 Lords Chamber

[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.

--- Later in debate ---

Moved by

[Baroness Hamwee]

4: Clause 1, page 2, line 18, at end insert—
“( ) 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.

--- Later in debate ---

[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.

Amendment 4 withdrawn.

--- Later in debate ---

I beg to move.

[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.

--- Later in debate ---

[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.

Amendment 16 agreed.

--- Later in debate ---

[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.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Wednesday 8th January 2014 Lords Chamber

[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.

Amendment 22 agreed.

--- Later in debate ---

[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.

Amendment 40 agreed.

--- Later in debate ---

[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 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.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Wednesday 11th December 2013 Lords Chamber

Moved by

[Baroness Hamwee]

56YG: Schedule 7, page 169, line 38, leave out paragraph (b)

[Baroness Hamwee (LD)]

My Lords, in moving Amendment 56YG I shall speak also to Amendment 56YH. I have to say that I am amazed by the influence of my noble friend the Chief Whip, who just by sitting there has prevented anyone walking in front of me.

Schedule 7 deals with the powers to seize invalid passports, and these are two quite small, probing amendments, although they are serious. The first amendment would leave out the provision for a constable, who has various powers of search and seizure, to authorise a person—any person,

“to carry out on the constable’s behalf a search under this paragraph”.

That is a search which may involve the use of force—reasonable force, but nevertheless force. I question whether it is right for such powers to be authorised—perhaps not technically delegated, but to the outside world they would seem to be delegated.

My second amendment would leave out the requirement to return an expired travel document, but not where it is thought that it might be intended to be used for purposes for which it is no longer valid. My question, of course, is: why not? If the document has expired, what harm is there? Are there no other systems that are sophisticated and efficient enough to pick up whether an expired travel document is, in fact, expired? This seems an odd sanction, merely on the basis of reasonable belief. My particular reason for questioning it is that it might really irritate people quite unnecessarily. I have written “unnecessary aggro” against this, and I genuinely think that we should avoid causing unnecessary aggro, because there are enough sensitivities around passport and immigration controls and so on without adding one which, to my mind at any rate, is not necessary. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

I thank my noble friend Lady Hamwee, who explained that these two amendments relate to the powers to seize invalid passports. As she has said, they are probing in nature. Such powers may be necessary where a passport has been withdrawn in the public interest; for example, to disrupt a person’s travel overseas due to the serious issue that they may be engaged in terrorism.

Amendment 56YG relates to the ability of a constable to authorise a person to carry out a search on their behalf. The purpose of this provision is to allow a constable to make use of support if required when carrying out a search at places other than a port. Such support would be exercised under the authority of a constable, and I reassure my noble friend that, in view of the type of case to which this paragraph applies, it would in practice be likely to be carried out in the presence of a constable. The authorised person—such as a police community support officer—would not be empowered under the provision to use reasonable force or to require a person to hand over the passport for inspection purposes.

Amendment 56YH, which I think my noble friend labelled the “avoiding unnecessary aggro” amendment, relates to expired travel documents. I agree with my noble friend that there is often little harm in returning an expired document to the passport holder. Indeed, there is provision in paragraph 4 of Schedule 7 for that very purpose. The provision recognises that the passport holder may wish to retain the expired passport because, for example, it may include extant visas for travel to other countries. It may even provide memories of places that they have travelled to previously; as well as a visual record, for good or bad, of how we may have looked some 10, or even 20, years ago.

However, on a more serious point, the British passport does of course remain the property of the Crown at all times. There is no entitlement to a passport and no statutory right to have access to it. If a person intends to make use of an expired passport for a purpose for which it is no longer valid—in other words, for a fraudulent purpose—it is right that a constable should be able to remove the document. This would prevent it being used elsewhere for fraudulent purposes, where the level of checks may not be so robust.

It is also entirely inappropriate that a constable should hand back an expired passport to a person where he or she reasonably believes that it is intended to be used for a fraudulent purpose. It would send out the wrong message to the passport holder and would simply allow—if not, indeed, encourage—them to continue to make use of the document for wrong and potentially unlawful reasons. I hope, in light of the explanation I have given, that my noble friend will withdraw her amendment.

[Baroness Hamwee]

My Lords, I will do so but I have to say that, first, on the issue of the expired passport, there are some good reasons which a passport holder may not even think of at the time. One that immediately occurs to me is the need to be able to show the number of days you have been in the country, which involves showing when you have travelled out of and back into the country. There are tax reasons why a number of people need to be able to show that. It is a matter of the officer’s discretion and reasonable belief but I find it difficult to imagine how the conversations would be conducted. I should perhaps ask my noble friend whether he can tell the Committee how one challenges an officer’s decision. His notes may say, even if I did not think of it beforehand.

As regards whether someone other than a constable can exercise the powers of search and seizure, my noble friend says that, in practice, it would be the constable. If that is the case, the obvious question is: why allow for anyone else to do it? Another question is whether there will be instructions to officers—guidance, codes of practice or whatever—that might deal with this. I do not know whether my noble friend can deal with either of those at the moment—I know that colleagues are here particularly to talk about the next group of amendments—but if he has anything to say, that would be good. If not, perhaps he could write to me.

[Lord Ahmad of Wimbledon]

I will just assure my noble friend that I do not think I can add to what I have said other than, on the first point about why we should not restrict the power in that way, it is important that there is a level of flexibility that allows the constable to exercise it. In most cases, as I have said, the person would be someone such as a community support officer. As far as the document is concerned, my noble friend raised the point about other reasons. Of course it is at the discretion of the officer, but one hopes that at that point a case could be made. She raised the issue of tax, which is not one that I was thinking through as she spoke. I am sure that there is a list of other circumstances. However, ultimately, it boils down to the document being the property of the Crown, and it should remain so.

[Baroness Hamwee]

Perhaps after today the Minister could let me know what arrangements there will be for a challenge, and about a code of practice. He nods and, on that basis, I beg leave to withdraw the amendment.

Amendment 56YG withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

56YJ: After Clause 132, insert the following new Clause—
“Report by Secretary of State
The Secretary of State shall, no later than three months after the coming into force of section 132, report to Parliament his or her recommendations—(a) for the introduction of safeguards in respect of legally privileged material, excluded material and special procedures material in respect of a person detained under Schedule 7 or 8 to the Terrorism Act 2000, and(b) for the introduction of a statutory bar to the introduction in a criminal trial of admissions made by a person detained under Schedule 7 or 8 to the Terrorism Act 2000.”

[Baroness Hamwee]

My Lords, in moving Amendment 56YJ I will speak also to Amendment 56YK. I also have Amendment 100A in this group, which is a consequential amendment. The whole of this group deals with Schedule 8, which is Schedule 7—port and border controls—in the previous legislation. My amendments have come up as a curtain raiser, though in this debate they are probably more of an epilogue. They relate to future possible action rather than to anything that might happen immediately, as would other actions flowing, in most cases, from the work of the JCHR. I am not suggesting that noble Lords who are moving and speaking to them are merely acting as mouthpieces—I know that that is not the case.

My noble friend Lord Lester is unwell and very sorry not to be here to speak to amendments in his name and to which he has added his name; my noble friend Lord Avebury has his instructions. I do not want to make a Second Reading speech at this point—perhaps speeches on these issues will be longer on Report—but I will make some general remarks. I acknowledge that the Government have moved forward a little on the relaxing of the arrangements to which this schedule applies, but like others I am eager for more.

I was interested in some of the comments that the Government included in their publication responding to the response to the review of the operation of Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A self-declared police officer says:

“Schedule 7 should also incorporate a clear commitment and implementation process to the Equality Act 2010 general duty of ‘fostering good relations’”.

There are comments about,

“More tactful or less intimidating examinations”.

The report says of the community engagement events which the Government undertook that,

“The conduct of examinations was raised repeatedly”.

The Equality and Human Rights Commission commented at length on the lawfulness of stopping without suspicion. It said that,

“there should be no power to detain and question for more than 1 hour”,

on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not detain for up to nine hours.

The Government asked whether respondents had any personal experience of being stopped and detained. I note that the proportion of those who said that,

“Schedule 7 powers are unfair, too wide ranging and should be curtailed”,

was considerably higher than the proportion who said they had personal experience. Even if you add the “prefer not to say” responses, it is still a higher proportion.

I was also interested to see the advice to examining officers following the recent case about,

“the right to consult a solicitor in private, in person and at any time during the period of detention”.

I know of a man who was detained but did not exercise that right because he was told by the officer who detained him that this was bound to lead to a delay, meaning that his wife and his elderly, infirm mother, with whom he was travelling, would be left even longer not knowing what was going on—a practice that I hope never to hear of again. Clearly, training in this is an issue.

Of course, my underlying point is about the balance between protection and security, and individual liberty, some of which is about what the Government can do through officers and some of which is about safeguards written into the legislation.

My amendments anticipate what we might be seeking if this debate were following the report by the independent reviewer of terrorism legislation when we know the outcome of the Miranda case, but I have picked up on his evidence to the recent Home Affairs Select Committee inquiry into this. Amendment 56YJ picks up two of his recommendations, 4 and 7, on the introduction of safeguards in respect of legally privileged material and on a bar to the use in a criminal trial of admissions made in the circumstances of such a detention.

Amendment 56YK shows that I am ever the optimist. I would never expect wording such as this to be used in legislation, but we are only in Committee. It seeks assurances from the Government about following through on—although I would say, for the purposes of the debate, looking seriously at—recommendations made by the independent reviewer following the Miranda case. I am sure that my noble friend the Minister will give assurances about that. I remain optimistic but also vigilant. As I said, Amendment 100A is consequential. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I will speak to Amendments 57 to 64. It is important to consider the backdrop here. Schedule 7 of the Terrorism Act 2000 is a highly intrusive police stopping power and it operates outside the normal regulatory framework that covers other police powers of stop and search.

Under Schedule 7, individuals are stopped and they are not under arrest but they are examined for up to nine hours, under the current arrangements, where they can be questioned, searched and have their belongings searched; they can be strip-searched; and they can have samples of their biometric data, including their DNA and fingerprints, taken from them, regardless of the outcome of the encounter and in the absence of a lawyer. People are stopped under it and are obliged to co-operate or face arrest, a period of imprisonment or a fine for any refusal. In addition, there is no right to compensation or assistance in rearranging any flights or other transportation that they might have missed as a result of this examination or detention. It is important to see just how extraordinary these powers are.

Recent research has shown that in 2011-12—the examination of this material has only just been encapsulated in a report—63,902 stops were carried out under Schedule 7. Of these, 2,240 lasted more than an hour and 680, which is less than 1%, resulted in a detention. Although no information has been provided on the number of people convicted, and on what charges, there were just 10 terrorism-related convictions between 2009 and 2012. I have been involved in most of the cases and can tell you that none was as a result of a stop at an airport or any port. We have no convictions based on these stops.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I thank the Minister for his very considered response to the matters that have been raised. I am grateful to him for indicating that further thought will be given to some of the matters that have been part of the debate here. I know that there will be no movement on certain things, but that there might be some movement on others. On that basis, I will not press my amendment.

[Baroness Hamwee]

My Lords, I am extremely grateful to my noble friend for his very helpful response and I am glad that there will be further opportunity to discuss these things. He has given some important assurances on a number of points. My amendment 56YK was really rather tongue-in-cheek, of course. It was also a bit of a nod to my honourable friend the Member for Cambridge, who had it down in the Commons but did not really manage to speak to it. I would not subcontract such matters, but the assurances of further consideration are very helpful to hear. I have never doubted the very serious way in which the Government are considering this.

A number of noble Lords will want to take part in discussions of this on Report. In particular, the noble and learned Lord, Lord Lloyd of Berwick, was not able to stay long enough this afternoon, and I am sure that my noble friend Lord Lester will be back to discuss it. I think that I can assure the Committee that there will be a pretty substantial debate next time round. Most importantly, we will be looking at where the Government’s thinking is going before we come back onto the Floor of the House. There are clearly very important discussions to be had. On that basis, I beg leave to withdraw the amendment.

Amendment 56YJ withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Wednesday 4th December 2013 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, the Government remain committed to strengthening the system of firearms control where necessary in order to protect people from harm. We have identified two loopholes in the Firearms Act 1968 that we are taking the opportunity provided by this Bill to address.

The first change is in response to a recommendation made by the Home Affairs Select Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences. The Government have accepted that recommendation, and subsection (1) of the new clause will ensure that the same prohibition applies to people who have suspended sentences.

A person who has served a custodial sentence of between three months and three years cannot possess a firearm for five years after the date of their release. For the purposes of suspended sentences, this prohibition will start from the second day after the date of sentence rather than the date of release. This is because a person with a suspended sentence will not be in custody from the date of sentence, so the prohibition needs to begin almost immediately. We have said the second day after the date of sentence so that, if the person does have a firearm, they are not instantly in breach of the law upon receiving their suspended sentence. In effect, they may have around 24 hours to sell the firearm or transfer ownership of it to someone else.

I should say, however, that this requirement on a person given a suspended sentence immediately to divest themselves of any firearms is subject to the transitional provision in subsection (3) of the new clause. This provides that a person who has had a suspended sentence imposed, and who holds a firearm or shotgun certificate on the day that the new legislation comes into effect, will be able to continue to possess their firearm or shotgun for the duration of that certificate. This is to ensure that we are not placing any additional burden and bureaucracy on the police by obliging them to go through their records to find certificate holders who have suspended sentences. As I have already said, this is purely a transitional arrangement; it will not apply to anyone given a suspended sentence after commencement.

The second change, made by subsection (2) of the new clause, will ensure that prohibited persons are prevented from possessing antique firearms. Currently a person with any criminal conviction would be able to possess an antique firearm. Intelligence indicates that there is a growing interest in antique firearms from criminal groups. This amendment will ensure that persons convicted of a criminal offence and sentenced to at least three months’ imprisonment, including a suspended sentence, will be prohibited from possessing antique firearms in the UK.

We believe that closing both these loopholes will strengthen public protection by ensuring that, as the 1968 Act intended, persons convicted of a criminal offence carrying a sentence of at least three months’ imprisonment are prohibited from possessing firearms. Amendment 104 simply makes a consequential amendment to the extent clause. I commend the new clause to the Committee.

[Baroness Hamwee (LD)]

My Lords, my noble friend the Minister said that an offender would be allowed a couple of days’ grace, as it were, to sell or hand over the firearm. If the offender wanted to hand it to someone in the same household, would that person have to have a licence, so that there would be no question of it being kept around on the premises and available unless the licence was already there for someone else?

[Lord Ahmad of Wimbledon]

I am sure my noble friend saw me nodding. That is quite correct.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I understand, and can picture, some of the incidents that have been described. When I used to have to go up to Manchester regularly at weekends, I took to checking whether Manchester United was playing at home and took care not to travel back on trains which might be full of supporters. Having said that, I agree with the noble Lord, Lord Condon, on this. I would be very reluctant to make this a new criminal offence and add it to the statute book. Indeed, I would be reluctant to add any new criminal offence to the statute book unless it was absolutely necessary. Will my noble friend say a word about aggravating factors in sentencing? Would this be a matter for sentencing guidelines, which I know are not under the control of the Government given that we have a Sentencing Council? If an offence has been committed in this context, a sentence can be imposed without the need to create a new offence. I take the point that has been made about that. If a new offence were created in this context, the same problems would arise in pursuing a prosecution as arise with existing offences.

[Lord Rosser (Lab)]

My Lords, the amendment we are considering, which was moved so ably by my noble friend Lord Foulkes of Cumnock, would create a specific offence of assault against workers in public-facing roles. Reference has been made to various people who fall in that category such as shop workers, and they also include bus drivers and health workers. The proposed offence would carry a period of imprisonment not exceeding 12 months or a fine not exceeding level 5 on the standard scale.

Reference has been made to statistics provided by organisations such as the Association of Convenience Stores, USDAW and the British Retail Consortium. The latter estimated that 30,000 attacks on shop staff were reported last year. Women comprise a high percentage of staff in shops, and that is the case with a great many public-facing roles. Given that it is their employment, if they see a potential incident arising it is not particularly easy for them to walk away from the scene.

It has been argued that there is no need to create a different category of offence. I think that the issue is fairly clear cut. The noble Lord, Lord Condon, and the noble Baroness, Lady Hamwee, have expressed the same view on this issue and we wait to hear whether it is shared by the Minister. However, I think a lot of people feel that those who are attacked and assaulted in the course of their employment are entitled to greater protection than might be the case in other circumstances.

The current sentencing guidelines for assault indicate that an offence committed against those working in the public sector or providing a service to the public should be regarded as an aggravating factor adding to the seriousness of the offence. However, as has been said, that is just one of a number of possible aggravating factors. There is a wide range under the sentencing guidelines for common assault offences of this kind.

We are also aware that many of these assaults do not seem to be reported where they happen in the course of people’s employment, which is what we are talking about. The survey by USDAW, as I think my noble friend Lord Foulkes mentioned, showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done. There is also a feeling among some employees that many cases which are reported are not prosecuted, even where the assailants are known to the police.

Reference has been made to the separate offences of assaulting police officers in the execution of their duty and, in Scotland only, assaulting emergency service workers. The offence in Scotland in respect of emergency service workers is defined by the Emergency Workers (Scotland) Act 2005 and is, I think, subject to a maximum of nine months in prison or a fine of up to £10,000. Prosecutions using that Act have grown year on year since its introduction. There were 324 prosecutions in 2010-11 and, in total, there have been just over 1,100 prosecutions since the Act came into force, with the implementation of the Act raising the profile of assaults on those who provide emergency services.

The evidence indicates that if we had a separate offence in England and Wales of assaulting public-facing workers—we are talking about people in contact with the public in the course of their employment—with tougher penalties than for common assault, that would increase the likelihood of cases being prosecuted. It would restore what is clearly waning confidence among many public-facing workers that the judicial system will protect them, and it would act as a deterrent, as preliminary evidence from Scotland shows that while the number of prosecutions for assaulting emergency service workers has gone up, the number of such incidents has declined. That suggests that the message may be getting over, but I am afraid that attacking and assaulting people in the course of their employment when they are carrying out that role in direct contact with the public just will not be accepted. There has to be a change in attitude towards assaults of this kind, and I suggest that that can only properly be reflected in making clear that the penalties will be higher than they would be for other kinds of assaults.

The present arrangements in England and Wales do not appear adequate, as assaulting a public-facing worker in the course of his or her employment is not a separate specific offence and is regarded as being only one of a number of potentially aggravating factors relating to the crime of common assault. The result is that such assaults are not regarded as being much more serious than many other assaults in the way that applies, as it should, to assaults on a police officer in England and Wales and emergency service workers in Scotland.

If the Government want to assert that this Bill is about putting the victim first, they should recognise that public-facing workers are all too often victims of assault in the course of their employment, and they should accept this amendment, which creates a separate specific offence, with tougher penalties, for assaults of this kind.

--- Later in debate ---

[Baroness Meacher (CB)]

My Lords, in speaking to Amendment 56NA, I commend the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, for tabling it. We need government and, indeed, all political parties to get together to try to create a safer world for our young people while new psychoactive substances are so readily available to them. The amendment has merit on two grounds: first, it seeks to remove these substances from the shop window, as one might put it, which has to be helpful; and secondly, a feature of the amendment is that it focuses exclusively on suppliers and does not seek to criminalise the users of these substances. Those are two important points in favour of the amendment.

However, we need to be aware of some of the potential problems with the amendment. My only qualification for speaking today is that I chaired the APPG inquiry into new psychoactive substances, which received evidence from all the major governmental and non-governmental organisations involved in this field, as well as academics and those working on the front line, who really understand the implications of policies and perhaps their ineffectuality. As a result of that work, I have a number of concerns.

The first is the absence of proportionality or logic in the proposal. We have to accept, albeit reluctantly, that a sizeable proportion of young people will use drugs that may harm them. Our aim must surely be to reduce the incidence of addiction to any dangerous drug and, in particular, to reduce addiction to the most dangerous drugs, whether legal or illegal. We also need to reduce as far as possible the risk of a young person having a single dose of a substance that can cause death or serious injury.

Our drug policies must face reality. We will not stamp out drug use through bans and punishment. Our only hope is to create a rational system which makes abundantly clear to our young people those substances that are seriously dangerous, those that cause medium harm and those with short-term and relatively mild ill effects. We have not even begun to go down the road of proportionality in our drugs policy and, unfortunately, this amendment does not adopt this essential principle. Some other countries have done so, with impressive results, and even the US is beginning to take steps in a rational direction.

My comments on this amendment reflect my increasing conviction of the need for proportionality in our drug policies, combined with extensive information, education, treatment and psychological support for those who need it. Only with such an approach will we have a chance to achieve a safer drugs policy.

We need young people to respect the law. If the law is an ass, young people will get round it or simply ignore it. The amendment does not offer a proportionate response to these substances. There is also a lack of logic in the amendment, if I may put it that way; for example,

“a herbal substance with the appearance of cannabis”,

would be banned under this amendment. Why those particular herbal substances? They may in fact present a far lower risk and be far preferable for the health of young people than legal drugs such as tobacco and alcohol, and certainly the many other drugs that are available.

The Angelus Foundation, the organisation behind this amendment, argues in its briefing that the ban should apply only to synthetic psychoactive substances. It accepts that head shops have sold a number of substances that are non-addictive, do not cause significant social problems or are mild in their effects. It rightly says that such substances should not be caught by this amendment. But why should synthetic substances of similarly low risk and lack of social consequences be banned? Young people will very quickly realise the inconsistency in the situation.

Turning to a different issue, I find myself in agreement with the Home Office concern that the amendment completely bypasses the ACMD—the Advisory Council on the Misuse of Drugs. That august body of scientists should be at the heart of drug policy-making, assessing risks and actually making decisions—if I had my way —on the classes of different drugs. If we had scientists making these decisions, we would arrive at a more sensible set of policies.

Another and quite different concern is that if this amendment were passed it might be seen as a solution to the problem of NPS. Of course, a proportion of these young people will immediately go to the web if they cannot get what they want from the local head shop, and that proportion could be very close to 100%. Young people know all about the web—far more than I do—and it would not take them many minutes to realise that that is all they have to do to get what they want.

A very different question is whether the authors of the amendment explored the implications for research of this measure. Already, serious psychopharmacological researchers are having incredible difficulty obtaining the substances they need to undertake their research.

Also, have those supporting the amendment considered its cost implications? Trading standards representatives who gave evidence to our APPG on Drug Policy Reform made clear that if they are to take responsibility for policing head shops, they will need money to do it. That money has to cover the testing of those substances. It is no good their picking up a substance from a head shop if they have no idea what it is and no money to test it.

In conclusion, I applaud Angelus for its untiring work to try to reduce the access of young people to dangerous psychoactive substances. I welcome the attempt to reduce the risks to our young people of NPS. Whatever is agreed on the amendment, I hope that all political parties will work together to achieve improved policies to deal with the considerable risks presented to our young people by new psychoactive substances.

[Baroness Hamwee]

My Lords, I well understand the concern expressed by the noble Lord, Lord Rosser. For instance, I recognise what I can think of only as collusion between sellers and buyers of substances labelled bath salts, plant food, and so on. The noble Baroness says that this is her only qualification—come on, it is some qualification. We are very lucky to have her explain her point so clearly and, to my mind, so persuasively. As she says, trading standards authorities are as concerned as everybody else and struggling to find a way to deal with this. Has the noble Lord had comments on the proposal from the Trading Standards Institute?

Like the noble Baroness, the points that occurred to me, which I will not repeat but simply support, are: is this risk-based, is it evidence-based, will it bring the law into disrepute, does it recognise the psychology of the consumer? Chemists in China will stay ahead of the game and will use the internet. Of course we have to be smart, but we have to be smart differently, not try to beat them in the way that they are working.

[Lord Howarth of Newport (Lab)]

My Lords, the problems of new psychoactive substances are real and perilous. My noble friend Lord Rosser mentioned the number of recorded deaths. It is simple for an organic chemist to synthesise a new psychoactive substance to mimic the effect of a substance that has been banned. We understand that, across Europe, about 250 new psychoactive substances have been introduced in recent years. The Angelus Foundation, which originally proposed the new clause, has counted at least 250 head shops offering to provide such substances on the shopping streets of this country. There are other outlets, as has been mentioned, all of which succeed at the moment in evading existing regulation.

It follows that the buyers of those substances have no information about the composition, toxicity or purity of what they are buying. It is not only from the head shops that those substances can be obtained. Increasingly, they are being bought over the internet. Social networking spreads the news of the arrival of a new substance, and it is not at all uncommon for party invitations, distributed through social networking, to contain links to the suppliers of such substances.

The situation is very dangerous. The substances are cheap to produce and pretty cheap to buy. Sadly, young people are willing to take extraordinary risks with their own health and safety. A survey by Mixmag of club drug users found that no fewer than 25% of respondents said that they were willing to purchase and consume any white powder, unidentified.

The Angelus Foundation is right to have highlighted this issue and to have dedicated itself to improving the education available to people about new psychoactive substances. I pay tribute to Maryon Stewart, who created the Angelus Foundation following the tragic death of her daughter, who had consumed a new psychoactive substance. Maryon Stewart was impressive when she gave evidence to the inquiry which the noble Baroness, Lady Meacher, chaired on this issue.

However, with genuine great respect for the Angelus Foundation, and of course for my noble friends Lady Smith and Lord Rosser, I believe that this proposed new clause is not the right way to approach the problem. Attacking head shops in the way that it envisages might indeed succeed in driving them out of business, but my worry is that it would drive the people who are purchasing these substances into the arms of nastier criminals—into the danger and squalor of engaging with gang-related street dealers in car parks and alleyways. If they are not already using the internet, and I suspect that most of them will be, it will of course drive them into its seductions and dangers, perhaps particularly those of the dark web. The European Monitoring Centre for Drugs and Drug Addiction reported in its 2013 annual statement that it has identified 693 different internet outlets offering new psychoactive substances for sales. Actually, what I think will happen is that the internet will drive the head shops out of business, just as it has driven record shops and book shops out of business. This is not a measure that would enable us to police the net.

The Angelus Foundation has been candid that its purpose in proposing this new clause is to ban the sale of new psychoactive substances but all the evidence from 50 years of prohibition is that banning substances does not stop trafficking in drugs or people using drugs. In fact, it drives innovation; as one avenue is closed, another is opened. Prohibition has been an engine of crime. It has been counterproductive and has produced appalling consequences.

There are also civil liberties implications in this proposed new clause. Since an earlier version was debated in another place, it has been revised to require a lower standard of proof. The proposition is now that if a court is satisfied merely on the balance of probabilities, and not beyond reasonable doubt, it may make an order against a head shop listing products which appear to trading standards officers to be psychoactive and synthetic, and to have been bought for the purpose of intoxication. If the proprietor is unable to demonstrate that that is not the case, he will be liable to a prison sentence of six months or a level 5 fine. It is inconceivable that in this country we should legislate to imprison people because it appears to an official of the state that such and such is the case and the accused is unable to disprove the allegation. We have not seen legislation like this since the days of the Warsaw Pact in eastern Europe. It would be wrong for us to lower our standard of justice.

I am also bemused to note that the expectation, according to the Angelus Foundation briefing, is that consultation should follow once the legislation is on the statute book. That would be Alice in Wonderland legislation. I had not hitherto seen my noble friend Lady Smith of Basildon as the Red Queen, or my noble friend Lord Rosser as the Red King.

The Intoxicating Substances (Supply) Act 1985 is, I suggest, a bad model for legislation to deal with the problem that we are addressing. It was designed to ban the sale of glue or lighter fluid for purposes of intoxication, but we know what glue and lighter fluid are. The very difficulty is that we do not know what these new psychoactive substances are, so how would the court establish the balance of probabilities? Would it be on the basis of guesswork or on the say-so of a trading standards officer? Justice, like policy, ought to be based on evidence. One of the great difficulties that we are facing is that the infrastructure for forensic testing in this country is entirely inadequate. We have not invested as we needed to do in it. That is a point that we made in the all-party group’s report. The result is that the Misuse of Drugs Act 1971, temporary class drug orders and the whole apparatus of the Advisory Committee on the Misuse of Drugs are underresourced and unable to deal with a problem of the scale, complexity and pace of change that we have to deal with in respect of new psychoactive substances.

--- Later in debate ---

Debate on whether Clause 115 should stand part of the Bill.

[Baroness Hamwee]

My Lords, I am taking this opportunity to ask the Minister, who knows about my question, whether Clause 115 has the effect which it seems to me to have. The new section which is to be inserted into the Police Act will provide for powers to anyone to disclose information to the College of Policing where this is,

“for the purposes of the exercise by the College of any of its functions”.

Will the Data Protection Act be overridden in its entirety by this provision? What checks, possibility of challenge and possibility of complaint will there be? Is there any proportionality, propriety and so on? I am sure that I will be told that there is a difference between the college’s functions and its powers but I am not clear about the extent of this clause, which seems to be very wide.

[Lord Ahmad of Wimbledon]

I take it that my noble friend’s comments primarily were probing. Clause 115 provides the basis of information-sharing agreements between individuals and the College of Policing. In order for the college to fulfil its objectives it will need, from time to time, to have access to certain information. This information could cover a range of issues, including information about data in support of its work on the effectiveness of policing practice, data to inform the standards it sets for police officers and staff, and information that will help it produce the standards of ethics and values for the police. For example, as part of the college’s work to develop standards and ethics for the police, it may need information from the IPCC about its investigations and some of the lessons it has learned from the conduct of police officers. This information will be general and it should not be necessary for the IPCC to share information that would enable the college or its staff to identify individual police officers. I hope that noble Lords agree that it is important for the IPCC and other public authorities to have a clear legal power to share this valuable information with the college.

--- Later in debate ---

This enabling power ensures that organisations which may wish to share information with the college are able to do so. We have not specified those organisations or the information that they may need to share in the Bill. We want the college, working together with the police, to determine how it can best deliver its objectives. That should include allowing it the freedom to identify the organisations with which it will work and how it wants those organisations to support its delivery. This clause will enable the college to do so successfully. In that explanation, I hope that I have addressed the questions raised by my noble friend and, if she is satisfied, that noble Lords will agree that the clause stands part of the Bill.

[Baroness Hamwee]

Of course, at this stage I am probing. Anything more comes later. I understand to an extent the purpose of the clause, which is to give powers. Perhaps it is a failure of my imagination but I am not clear as to what sort of information the college might require to be disclosed. I will look at what my noble friend has said. As I have said, this seems to be a very wide clause. I will have to do some work on this after today but I am not clear on how the restrictions to which my noble friend has referred would work in this connection. For the moment, I am left with one question. Has the Information Commissioner specifically been consulted about this clause?

[Lord Ahmad of Wimbledon]

I suggest that between Committee and Report I meet my noble friend to address her specific concerns, which I hope will help with clarity and understanding at the next stage.

[Lord Harris of Haringey]

Does the noble Baroness agree that it might be helpful if the Minister, in writing to her, sets out a precise list of what is required and explains why it would not be possible for that list to be laid in regulations so that it is clear what information is being referred to? The way in which it is written at the moment seems extraordinarily broad.

[Baroness Hamwee]

I agree with that. I was going to press my noble friend a little on whether the Information Commissioner has been consulted. I hoped that there might be time for inspiration to flow across half the length of the Chamber but I do not think that it has.

[Lord Ahmad of Wimbledon]

While inspiration may be somewhat limited, I take on board the noble Lord’s suggestion. As I have said, I will suggest a meeting to address some of the concerns.

--- Later in debate ---

Moved by

[Baroness Hamwee]

56QZB: Clause 119, page 87, leave out lines 12 to 18

[Baroness Hamwee]

My Lords, in moving this amendment, I shall speak also to Amendments 56QZC and 56QZD, which are on the same issue. Clause 119 deals with consultation on regulations about hours, leave or pay. My amendment, which is probing at this stage, would remove the provision whereby the duty on the Secretary of State,

“to consider advice from the Senior Salaries Review Body or to refer the matter to the Police Remuneration Review Body does not apply if the Secretary of State considers that”,

the matter is so urgent that there is not enough time, or the nature of the proposed regulations makes it unnecessary to undertake that. The duty is to “consider” advice rather than consult, so perhaps the message goes out but one does not wait to receive responses.

In my mind, this boils down to hours, leave and pay. What can be so urgent about these matters that the Secretary of State should not have to undertake process? If they are minor, the SSRB and the PRRB can say so. Indeed, if they are urgent, the two bodies could say, “We appreciate the urgency but we simply do not have time to deal with this”. The provision in new Section 52A(5) is a check on the Secretary of State, so I am concerned that it may be sidelined. The other amendments in this group are with regard to the Northern Ireland Secretary and the Department of Justice in Northern Ireland. I beg to move.

[Lord Taylor of Holbeach]

My Lords, I thank my noble friend for the opportunity to address this important safety mechanism in the functioning of the Police Remuneration Review Body. The provisions that my noble friend’s amendment would delete from the Bill are intended to be used in only two instances. The first is if a matter is so urgent there is not enough time for the Secretary of State or the Northern Ireland Minister of Justice to consult the review body, which is of course not in constant session. To illustrate that, the Government have in mind a time of national emergency—for instance, ongoing, widespread rioting, or co-ordinated terrorist attacks across the country, or even, because we must always plan for every eventuality, at a time of war. There might be, for example, an alternative process for arranging officers’ shift patterns, or officers might be called to take on special duties that we could not foresee but which might be critical to the national response to an emergency, and for which we would want them, rightly, to be compensated.

Secondly, the provisions that my noble friend has drawn to our attention are intended to be used in situations where it would be unnecessary to consult the review body on a matter. For example, if a minor drafting error in the regulations needed to be corrected it would be inefficient and unnecessary to have to consult the Police Remuneration Review Body before correcting the error. Similarly, if there was an uncontroversial change to employment law that did not automatically apply to police officers by virtue of their unique employment status, of which noble Lords will be aware, we would want to amend regulations to reflect this change in the law without reference to the review body.

We added this power specifically in response to comments by policing partners, including the Police Federation and the Police Superintendents’ Association, that they would be concerned that not being able to make police regulations without reference to the body, in certain circumstances, could actually make the system more cumbersome. We believe that this provision addresses that concern.

I should conclude my comments on this proposed amendment by noting that in all cases, regardless of whether the review body is consulted or not, a draft of the proposed changes must be supplied to all interested parties before any changes are made, and this includes the opportunity for interested parties to make any representations. Therefore, neither the Secretary of State nor the Northern Ireland Minister of Justice would ever make changes to police officer remuneration in a vacuum, and would always have the input of representatives of police officers and those responsible for maintaining police forces. I hope in the light of my explanations that my noble friend will be able to withdraw her amendment.

[Baroness Hamwee]

My Lords, it is helpful to have that explanation on the record. On the point about hours, leave and so on in the event of a national emergency—I believe that “national emergency” is being used in a rather non-technical, wide sense—I had assumed that the terms and conditions of the regulations already allowed for the flexibility needed for the circumstances referred to by my noble friend. That is no doubt naivety on my part. As to whether something is necessary, I simply say that it can be a matter of judgment. That is why I thought it was important to understand what was meant here. I beg leave to withdraw the amendment.

Amendment 56QZB withdrawn.

--- Later in debate ---

[Baroness Hamwee]

Before my noble friend responds, perhaps I may add to the list of things that she might want to mention. As I understand it—I would be interested to know whether I read this correctly—my noble friend seeks a spread of experience. Points can be made about the date and the percentage, but what is important, apart from independence and the perception of independence, is that good practice—there is a lot of it among the police, but it is not confined to the police—could be spread to the non-police investigators and, conversely, that experience from elsewhere might be shared with those who have that professional background.

The last time that I took even the slightest issue with the noble Lord, Lord Stevens of Kirkwhelpington, somebody said to me, “Watch it, they’ll all have your car registration number”. However, I drive so slowly as perhaps to be a problem in that way.

We are trying to get to a good mix. Nobody exclusively has the right experience or the right way to approach these matters.

[Baroness Doocey]

My Lords, I thank the Minister—my noble friend the listening Minister—for his positive response. I confirm that I was referring to serious cases —he was right about that—not the cases that should rightly be dealt with at a lower level. I apologise to the House if I did not make that entirely clear.

I am delighted that the Minister has confirmed that, in future, all serious cases will be investigated independently by the IPCC. That is very important. Everyone who has made comments agrees that it is important that the IPCC is not just independent but seen by the public to be to be independent. We can all agree on that.

However, I am concerned about the issue of a date. To me, the words “direction of travel” mean, “Kick it into the long grass”. It would be sad if that happened. I understand the experience of noble Lords who have spoken, and it may well be that the date that I chose is too soon, but there must be a date as a cut-off point. If there is not, it could go on and on; that would be very wrong. We must deal with this issue of the perception of the police investigating the police. That will continue as long as the vast majority of investigators are former or seconded police officers.

Having said that, I have no desire for the IPCC to lose very good officers who are doing a very good job and who have experience. The issue is not to throw the baby out with the bath water. There is time for us to modify my proposal, which the noble Lord, Lord Harris of Haringey, has agreed that we should do. With that in mind, I beg leave to withdraw the amendment.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Monday 2nd December 2013 Lords Chamber

Moved by

[Baroness Hamwee]

56ZF: Clause 69, page 41, line 31, leave out “habitually”

[Baroness Hamwee (LD)]

I shall speak also to Amendments 56ZG, 56ZH, 56ZJ, 56ZK, 56ZL, 56ZQ, 56ZR and 56ZS.

This group of amendments takes us to Clause 69, Chapter 3, on the “Closure of premises associated with nuisance or disorder”. The heading ends with “etc”. We have talked quite a lot about the “etc” in this Bill. I am concerned in these amendments with who may be affected by a closure order. For instance, Clause 69(1) provides that there may be a closure notice if,

“the use of particular premises has resulted, or … is likely … to result, in nuisance to members of the public, or … that there has been, or … is likely soon to be, disorder … associated with the … premises”.

The closure notice will prohibit access by everyone, essentially, subject to some particularities. It occurred to me that premises that may well be affected are pubs, which very often have staff living in them. There are particular rights for people who habitually live on the premises, but “habitually” is quite a high test. The provision that I have just mentioned is about access to the premises. I read that as allowing the people listed to continue to occupy the premises, but I may be wrong in that. The guidance that the Government have issued in draft suggests that it means access in order to collect belongings. Will the Minister confirm, or otherwise, that the closure notice could mean that people will be turned out of where they live? The amendment removes the word “habitually” and Amendment 56ZK is consequential.

Amendment 56ZG would add a right of access not just for the owner but also for an operator. I am again thinking about pubs and other leisure or business places. The owner is not necessarily the person who operates the business on the premises. In a later clause, there are provisions for rights of appeal. Again, I seek to add an operator in there, because I am not clear whether an operator would have an interest in the premises for the purposes of these provisions. Interest in land has a narrower meaning than I read it here. I also suggest that there should be access by anyone designated and agreed by the police who is required to ensure the safety and security of the premises. It would be unreasonable to refuse access if looking after the safety and security of the premises is required, as I assume that it would be.

Amendment ZJ is what my noble friend Lord Greaves would call, “One of those legal things”. As the Minister said, he is occupied “Pendling” today, rather than being in your Lordships’ Chamber. Clause 69(4) states:

“A closure notice may not prohibit access by”,

certain people,

“and accordingly they must be specified”.

I suggest that they should be deemed to be specified. If they must be specified, what happens if the specification fails to include them? That would be grounds for a challenge over a relatively small issue. I am trying to be more helpful there than perhaps I am in the other amendments.

Amendment 56ZL is about the service of notices. The guidance to which I referred states that it is a local matter as to who is designated by the local authority to serve the notice. I agree with that, so I think that we should say so and not just say any employee of the local authority.

Amendment 56ZR inserts a new subsection on the display of information. There is a defence of a reasonable excuse. I am not sure whether a lack of knowledge, which this amendment would cure, is a sufficient excuse when we are talking about a criminal offence.

Finally, Amendment 56ZS concerns compensation. In Clause 83(5), it seems that the court needs to be satisfied as to all four matters set out. However, that cannot be right, because the first two are mutually exclusive. This is therefore a drafting amendment, but not a drafting amendment for the sake of it. I am suggesting that the court needs to be satisfied as to the matters in paragraphs (a) or (b) and paragraphs (c) and (d). I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, these amendments address aspects of the new closure power. As noble Lords will recall, the power has two key parts: the closure notice and the closure order. Where informal measures have failed, or are inappropriate, the closure notice allows the police or the local authority to close quickly those premises for up to 48 hours out of court. In some cases this will be sufficient to resolve the problem, but in others a longer-term closure order might be required. Following the closure notice, the police force or the local authority that issued it can apply to the court for a closure order to close premises for up to three months, although this can subsequently be extended by the court to a maximum of six months. This allows the local authority or the police to find a solution to the problem while protecting victims and communities.

Amendments 56ZG and 56ZH seek to exempt the operator of the premises and anyone else designated to secure the premises from the effect of a closure notice. The purpose of the closure powers is to restrict the number of people who are able to access premises, and therefore to reduce the nuisance or annoyance associated with it. The clause allows the owner as of right to access the premises so that they may secure and maintain it and obtain any items or information they may need. As my noble friend has explained, there may be cases where a person other than the owner is in control of the premises. Alternatively, the owner may not be able to attend and secure the premises. The closure powers cover a wide range of premises and therefore a wide range of situations. To include the term “operator” may make the definition too wide, enabling a large number of people to claim that they cannot be prohibited from accessing the premises by the closure order. This could have the effect of undermining the closure notice itself.

However, Clause 69 already contains provisions to allow the closure notice to be tailored to the appropriate circumstances, which was a concern my noble friend raised. Subsection (3) allows for the police or for the local authority to define who is prohibited, at what times and in what circumstances. The police or the local authority will therefore consider what the appropriate arrangement is on a case-by-case basis. It is in their interests to have the premises properly and safely secured, as this will help ensure adherence to the closure notice. They will be able to make arrangements to ensure that the appropriate people can access the premises, whether this be the operator or someone designated by the owner.

The list of those whom a closure notice cannot prohibit relates to those who should not be prohibited by an out-of-court notice in any circumstances. It is our view that this should remain as those who habitually live there or who own the premises. The clause adequately caters for my noble friend’s point as regards the operator of the premises.

Amendment 56ZJ seeks to amend Clause 69(4). Subsection (4) states that the closure notice cannot prohibit access to those who,

“habitually live on the premises, or … the owner”.

This means that those people can continue to access and, indeed, occupy the premises. However, a closure order can prohibit those who live in the premises and the owner. A closure order can be made only by the court. That is an important distinction between the two measures. It is for the court to decide who should be prohibited. The breach of closure notice is also a criminal offence, whether or not it is specified. It is important to be clear who can enter premises subject to a closure notice. It also needs to be clear to those who may seek to enter premises as well as those enforcing the closure notice. Whether this is specified or not does not change the fact that the closure notice cannot prohibit those who habitually live on, or own, the premises, as I have already said. Therefore, even where an oversight occurs, it will not result in an individual having breached a closure notice as the notice cannot prohibit access. As I say, a closure order can be made only by the court.

Amendment 56ZQ seeks to allow the owner, occupier or operator of the premises to appeal a closure order. I am pleased to reassure my noble friend that the Bill already allows for this. Clause 77 sets out two categories of people who can appeal a closure order. These are, first, a person on whom the notice was served and, secondly, a person who has an interest in the premises but on whom the closure notice was not served. Clause 72(2) covers the serving of a notice. It lists a number of ways the police or local authority can serve the notice and requires that they do all of these, if possible. Therefore, in the majority of cases, the owner, operator and occupier will be served the notice and therefore can appeal under Clause 77(1)(a). If, for some reason, it was not possible to serve the notice on the owner, operator or occupier, they would be able to appeal under Clause 77(1)(b), which provides that anyone,

“who has an interest in the premises but on whom the closure notice was not served”,

can appeal the closure order. In this clause, “interest” covers those with a financial or legal interest in the premises. Given those reasons, I hope that my noble friend will not move the amendments I have covered.

Amendment 56ZL would allow a local authority to appoint a business partner to serve a closure notice, as my noble friend explained. I acknowledge from my own experience that this can be helpful. Local authorities considered different ways of delivering these services and concluded that the decision to serve a notice should remain with the local authority. I would like to take the amendment away and come back to it on Report.

Amendment 56ZR seeks to ensure that those who may need to know about a closure notice or order are properly informed of its provisions to ensure that it is not breached inadvertently. The Bill requires that the police or local authority,

“must if possible … fix a copy of the notice to at least one prominent place on the premises … each normal means of access … any outbuildings that appear … to be used with or as part of the premises”.

They must also, if possible,

“give a copy of the notice to at least one person who appears … to have control of or responsibility for the premises, and … to the people who live on the premises and to any person who does not live there but was informed (under section 69(6)) that the notice was going to be issued”.

This ensures that, where it is possible to do so, the notice will be clearly displayed and given to the key individuals who may be seeking to access the premises. If, for whatever reason, the notice could not be served and displayed in the way I have indicated, resulting in an individual accidentally entering premises in contravention of a closure order or notice, it could be considered that in the circumstances the individual had a reasonable excuse. They would not then be in breach of the notice or order and would not have committed an offence.

Amendment 56ZS would allow those seeking compensation to have to satisfy only two of the conditions set out in the Bill rather than all four. I listened very carefully to what my noble friend said about the drafting elements, and I am sure that officials have noted that as well. However, the amendment would mean that the court would have to be satisfied only that one of the conditions set out in paragraphs (a), (b) or (c) of Clause 83(5) had been met alongside the condition in paragraph (d). However, I take on board the helpful comment made by my noble friend Lady Hamwee about the drafting. We will reflect on that in advance of Report.

We have deliberately framed these provisions around the four conditions that have to be met. We often decry the growth of compensation culture and we do not want to add to it here. Of course, where the owner or occupier of the premises subject to a closure notice or order has suffered financial loss, was not in any way associated with the anti-social behaviour on the premises and took reasonable steps to prevent such behaviour, that person should be entitled to claim compensation. However, we do not believe that the ability to seek compensation should extend more widely than this. To do so would open up the police and local authorities to numerous claims, and would make it more difficult for applicants to know whether their claim was likely to be successful. Importantly, this amendment might also deter police and local authorities from exercising their closure powers in appropriate cases, thereby exposing victims to continued distress.

Having said that, I note that my noble friend’s intent in tabling this amendment came from a drafting perspective. However, based on the assurances that I have given, I hope that she will withdraw the amendment.

[Baroness Hamwee]

My Lords, of course I shall do so but, on that last point, when I looked again at my amendment in preparation for today’s debate, I thought that this would be something that would be completely bemusing to anyone who did not have the Bill in front of them. I apologise for that. It should be paragraph (a) or (b) and (c) and (d). It also seems that the applicant having incurred financial loss, as set out in paragraph (c), was a given—one has to incur loss to have a claim for damages. So it may or may not need to be said.

I am grateful to my noble friend for the other points that he has covered. On whether or not one refers to the operator—I am thinking about businesses—we are back to guidance. My noble friend talked about discretion on a case-by-case basis. He is aware that I would prefer to rely on guidance as little as possible.

I remain concerned about the term “habitually resident”. There is a danger of people who live in the premises being adversely affected when they should not be caught up in this. Where will they go?

I note that the Minister talked about “interest”, where it is used in the context of a financial and legal interest, as being something between interest in property and the normal, general meaning of the term. I will think about that. I beg leave to withdraw the amendment.

Amendment 56ZF withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

56AA: Clause 86, page 52, line 37, after “met” insert “and that such an order is proportionate”

[Baroness Hamwee]

Part 5 of the Bill is about recovery of possession of dwelling-houses on grounds of anti-social behaviour. This amendment—and others in this group in my name—proposes that the court’s response should be proportionate and that this should be written into the legislation. I very much support the thrust of the amendments in this group in the name of the noble Baronesses, Lady O’Loan and Lady Young, which are more oppositionist than mine.

The draft guidance on the purpose of the new absolute—I emphasise that word—ground for possession says that it is,

“intended for the most serious cases of anti-social behaviour and landlords should ensure that the ground is used selectively.”

So it is an absolute ground but is to be used selectively. I am very uncomfortable with that. If it is to be used selectively, the legislation should make it clear that the absolute ground is not an absolute ground to be applied in every instance. The Joint Committee on Human Rights, which made this point in relation to exclusion from dwelling houses under other clauses, takes the view that reliance on the Human Rights Act, which the Government have prayed in aid, is not satisfactory when Parliament has the opportunity, as we do here, to define the test in the legislation.

Another group of amendments seeks to leave out the term “visiting” so that possession could not be sought on the basis of behaviour by someone who is visiting premises. Can the Minister be specific as to what may or may not be proportionate to fulfil the conditions in the grounds for possession of properties under various tenures—that is, possession of somebody else’s home—when the visitor may not even be a regular and frequent visitor but an occasional one? I would not be persuaded that the fact that someone was a regular and frequent visitor and behaved badly should be grounds for possession.

Amendment 56AE is a small amendment on the regulations about reviewing the requirements. Sometimes whether something “may” or “shall” be provided seems to be a matter of how you feel on the day and how the wind is blowing. I have always had a problem with understanding the term “may in particular” if it means that you must do something. Frankly, some of the Bill is hard enough without it being elliptical.

My noble friend Lord Greaves has tabled a number of amendments to these provisions, to which I will speak briefly. He seeks to change the term “locality” to “vicinity” and asks whether the term “locality” means the same as where it is used elsewhere in the legislation—for instance, with public spaces protection orders—and whether it is wider or narrower than “neighbourhood”. Of course, in any event, how appropriate is it here? His Amendments 56ACA and 56ABA on Clause 86 deal with conditions surrounding a breach of an IPNA which is not in the dwelling house or its locality, but which is capable of causing nuisance or annoyance to a resident or occupant of housing in the locality or to the landlord or manager. Therefore, as my noble friend says, something that could annoy outside the locality would fulfil the condition and allow possession to be obtained, and a person on his own with nobody else in sight might fulfil the words in the Bill. There would be considerable evidential problems if the person was on his own and nobody else could see it, but in terms of the strict wording he may be right.

Finally—as far as I am concerned—Amendment 56ADD would leave out Clause 87(8), which directs the tenant who needs help or advice about possession notice to,

“take it immediately to a Citizens’ Advice Bureau, a housing aid centre, a law centre or a solicitor”.

My noble friend queries whether it is appropriate to include a reference to the citizens advice bureaux in legislation. Of course, the very obvious questions here are about willing the ends by suggesting that a tenant should go there to seek help, but not willing the means to do so. I beg to move.

[Baroness Young of Hornsey (CB)]

My Lords, Amendments 56ADC and 56AL are in my name and that of my noble friend Lady O’Loan. As something urgent has come up, I am afraid that my noble friend cannot be here today. Essentially, I tabled these amendments in order to find out a bit more about what the Government see as the implications of Clauses 86 and 89. My understanding of the Government’s case is that they want to speed up the process of evictions from social housing in order to,

“better protect victims in the most serious cases of anti-social behaviour and criminality”.

I am sure that we would all support that.

The DCLG consultation described the proposed new measure on possession as limited to cases of proven,

“serious housing-related anti-social behaviour”,

which suggests that there would be limited application of these clauses rather than using them as a way of increasing the number of evictions. It would be helpful if the Minister could clarify this point because only one of the triggers for mandatory possession in this section relates to a conviction for seriously violent crime. The other triggers relate to breaches of injunctions or criminal behaviour orders.

Given the high rate of breaching of ASBOs over the years of approaching 58%—of that figure, another 43% of all ASBOs issued have been breached more than once—there does not seem to be proportionality in these sanctions. Where is the discretion to allow for different circumstances and for the fact that approximately seven in 10 children breach their ASBO, often due to lack of support or organisation rather than calculated non-compliance? It seems that this proposed new power must inevitably lead to a rise in evictions. If this is not the Government’s intention, will the Minister tell the Committee how the Government will prevent such a rise? These clauses could have very severe implications for under-18s. It will affect children who have done nothing wrong but who have had the bad luck to share a dwelling with somebody who has. The clauses could also be deemed detrimental to the children and young people who do breach or offend.

I am concerned in particular that children will suffer. There do not appear to be many, or any, safeguards. Therefore children will suffer due to the impact of, potentially, one person’s behaviour, especially as a family evicted on these grounds may be deemed to have made themselves intentionally homeless—that is, of course, what the amendment seeks to address—and are thus unlikely to be rehoused in comparable accommodation in their neighbourhood. How does this sanction address the underlying causes of anti-social behaviour? Surely making a whole family homeless due to the behaviour of one family member, or indeed a visitor, is both a both a double punishment and counterproductive. My understanding is that even if mandatory eviction would not amount to a breach of the human rights convention, it is still a public policy proposal that doubly punishes the most vulnerable families in our society. A mandatory requirement for the judge to order possession removes all but the bare minimum of judicial discretion in deciding whether or not an individual or a family is to be evicted.

Can the Minister explain how it is desirable that by the simple act of having a visitor in a dwelling place, a family might be made homeless? How is someone supposed to know that a visitor has breached an ASBO? How will these clauses be policed and monitored? I am particularly concerned that care leavers, who may be helped through the allocation of a local authority flat when they leave care, often find it difficult to prevent local drug dealers or other undesirable elements subject to ASBOs entering their property and sometimes settling in for a long stay. What would the consequences be for a young person in this position who felt bullied into providing accommodation for someone in breach of an ASBO?

--- Later in debate ---

There is no absolute right to social housing or to accommodation in the private sector. Tenants have responsibilities that are enshrined in the terms of the tenancy. They are duty bound to comply with the terms of such agreements and that includes not engaging in crime or anti-social behaviour, particularly where that makes the lives of their neighbours a misery. Where they do engage in such behaviour they have to expect there to be consequences, including, potentially, having their home repossessed. Where a court has already passed judgment—for example, finding a tenant guilty of breach of a criminal behaviour order—the landlord should be able to take swift action to seek repossession. These clauses provide for just that and I commend them to the Committee.

[Baroness Hamwee]

My Lords, I do not want to go through every amendment again. On the question of the term “locality”, the Minister has explained that there will be confusion if the term used in housing law is not used here and I understand that. My noble friend’s point was that, while that may be the case, there will be confusion if the term is used in the Bill in different places meaning different things, but I will leave that to him to pursue after today.

I was intrigued by the comments of the noble Lord, Lord Faulks, about local authorities being sued for failing to take steps that were open to them. I wonder whether providing an absolute ground, which the guidance says is to be used selectively, might not cause more difficulties as regards what is open to neighbours to claim. I understand entirely the point about the impact on neighbours—although perhaps I do not understand it entirely, because I am lucky enough not to have suffered from such a degree of unneighbourly activity. Having been a councillor, however, one cannot be unaware of what goes on.

I would be repeating what I said before if I were to comment on the term “proportionate” and the use of discretion, so I will simply beg leave to withdraw the amendment.

Amendment 56AA withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Monday 2nd December 2013 Lords Chamber

Moved by

[Baroness Hamwee]

56AM: Clause 91, page 61, line 39, leave out “or a person”

[Baroness Hamwee (LD)]

This group of amendments takes us to Clause 91, which provides for possession in the event of riot-related offences. The first amendment in the group is Amendment 56AM, tabled by my noble friend Lord Greaves, who also tabled Amendment 56ACC. He proposes to leave out the words “a person” from the new grounds so that the ground for possession would be limited to an offence by the tenant residing in the dwelling house, not the tenant or another person. My noble friend, who cannot be here today, asks whether—as he and I read the legislation—this could include, for instance, a lodger or someone who has been taken in by the tenant on the advice of the Government to avoid the spare bedroom tax.

My Amendment 56AB would restrict the ground for possession to the commission of a serious offence, using the definition in new Section 84A in Clause 86 for convenience. I understand and appreciate that granting possession will be a discretionary matter, but the court must take account of some circumstances being such as to justify the exercise. I was concerned, as I have been on similar points, by the Government’s response to the Joint Committee on Human Rights, which said that it was not persuaded by the Government’s justification for this ground for possession. The Government say that this is likely to happen only very exceptionally. The ground is discretionary, which means that the court will not be able to make a possession order unless it considers it reasonable to do so. The court may be less likely to conclude that it was reasonable to evict when the crime was not committed in the locality of the property. As it is a riot-related offence, it may have been committed some way away and have nothing to do with the property. We are talking here about offences which, in all likelihood, are unrelated to the other occupants of the property. The JCHR commented that this response would disproportionately affect women and children.

This Bill is, rightly, victim focused, but I am concerned that this punishment would create new victims—other occupants of the property. If an offender who is about to set out to take part in a riot and to loot is not deterred by the thought that he might be convicted of a criminal offence and be imprisoned, and the effect of that on his family, would he even think about the tenancy? I find it hard to put myself in the mind of such a person, but I doubt it.

My amendments would restrict the offence in question to a serious offence and try to meet the Government part way on this. I have other amendments that would allow the court to transfer the tenancy to the spouse of an offender who herself or himself is not an offender. I am not happy with the clause, but I have cut out the first bit and gone straight to seeking a compromise with the Government. I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

The noble Lord has made that point several times. It is up to other noble Lords to judge whether it correctly identifies anti-social behaviour, which is what the Bill seeks to address.

I would like to talk about the subject of this debate—that is, the specific proposals in Clause 91. As the law stands, thuggish behaviour against neighbours or in the locality of a tenant’s home may be a basis for eviction. However, looting, or other riot-related criminal activity, by tenants further away from their homes would not usually be taken into account. I do not think that is right, although the noble Lord may think that it is. People who wreck other people’s communities through riot-related offences should face the same consequences that they would if they carried out such behaviour in their own neighbourhoods. Clause 91 enables that to happen. It also sends out a strong and important message for the future that if you get involved in a riot, whether that is near your home or not, there may be consequences for your tenancy.

However, I emphasise that we would expect landlords to seek to evict under this new ground for possession only exceptionally. With regard to the concern raised by the Joint Committee on Human Rights—that the ground amounts to a punishment and may disproportionately affect women and children—it is important to note that safeguards will be in place. The new ground is discretionary, and so, just as is the case for the existing discretionary grounds for possession for anti-social behaviour, the court would have to consider whether it was reasonable to grant a possession order in the light of the facts of the case. The impact on the whole household and any young children is likely to be a relevant factor in this.

Amendments 56AM and 56CC to this clause would mean that possession action under the provisions of Clause 91 could be triggered only where the tenant, and not a member of their household, had been convicted of an offence. Amendments 56B, 56C, 56D and 56E would mean that only convictions for “serious offences”, as defined for the purposes of the new absolute ground for possession, could trigger possession action under the provisions of Clause 91.

As I have said before, it is an established principle of tenancy law that a tenant is held responsible for the behaviour of members of their household. There is also an issue of wider parental responsibility here. In practice, though, the landlord would need to prove that it was reasonable to grant possession, and we consider it unlikely that the court would find this to be the case where a child of a tenant has, as a one-off, got caught up in, and committed, an offence during a riot. Clearly, a tenant, or any other parent, should be held more responsible if their teenage child makes their neighbours’ lives a misery over a period of years than if they just let them out of their sight for a few hours. Similarly, in practice we would not expect this new ground for possession to be used where the conviction was for a minor offence. We would expect these provisions to be used only exceptionally and in relation only to serious riot-related offences. Therefore, a landlord might, for example, consider possession action where one of their tenants had been convicted of a serious assault on a police officer, but not where they had stolen a pair of trainers from a shop. Again, even if a landlord were to apply for possession on the basis of a minor offence committed at the scene of a riot, we would not expect the court to consider it reasonable to grant possession. Therefore, we would, in practice, expect the impact of Amendments 56AM, 56CC, 56B, 56C, 56D and 56E to be limited.

I recognise, however, that, through these amendments, my noble friends—I was also grateful for the speeches made by my noble friends Lady Berridge and Lord Faulks—are seeking to ensure that we establish in law that only serious offences committed at the scene of a riot by a tenant could provide a trigger for possession under the new ground. I am, therefore, ready to consider these amendments further, without commitment, in advance of Report.

Amendments 56CA and 56CB would enable the court, when granting possession against a tenant, to order that the tenancy be transferred to another individual. There may be occasions, for example where relationships break down, where it is appropriate for a court to determine to whom within a household a new tenancy should be granted. In general, however, decisions about who should be allocated available social housing locally should rest with the landlord or, where nominations agreements are in place, with the local authority. They, not the courts, understand who is most in need of social housing locally, and are best placed to make decisions in the light of that knowledge.

In short, I believe that these provisions make entirely appropriate changes to the discretionary grounds for possession available to landlords. It will still be for the landlord and the courts to decide whether possession is reasonable in all the circumstances. That said, in relation to the riot-related provision, I will, as I have indicated, take away Amendments 56AM, 56CC, 56B, 56C, 56D and 56E and consider them further. With that assurance, I commend Clauses 90, 91 and 92 to the Committee.

[Baroness Hamwee]

My Lords, I confess that I am a little confused by the comments of the noble Lord, Lord Rosser. As I understand it, he supports the concept but takes issue with differentiation between tenures. However, in supporting the concept and saying that different tenures should be dealt with in a similar way, I assume that he is talking about confiscation of a property. However, we do not have to go there as that is not what is provided by the Bill. Obviously, I am very grateful to my noble friend—

[Lord Rosser]

I said that no redress of comparable severity would apply to an owner-occupier as opposed to somebody in rented accommodation.

[Baroness Hamwee]

As I said, the noble Lord is concerned about differentiation. That is where my logic—perhaps not his—takes me. I am grateful to the Minister. My amendments on the transfer of a tenancy sought to ameliorate the situation, although I recognise landlords’ concern. As regards what is reasonable for a court or a landlord to do, I am not sure whether the reasonableness concerns the seriousness of the offence or the nature of the household—for instance, whether there is a child in the household. I have a bit of a difficulty there. Having said that, my noble friend made my argument extremely well. I am very glad that this matter will be considered further and will not take up any more of the Committee’s time on it tonight. I look forward to coming back to it on Report, whenever that is. It is probably quite soon. I beg leave to withdraw Amendment 56AM.

Amendment 56AM withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

56F: Clause 93, page 64, line 14, leave out “one” and insert “two”

[Baroness Hamwee]

My Lords, in moving Amendment 56F, I will speak also to Amendments 56G and 56H, as well as Amendments 56GA, 56GB, 56HA and 56HB in the name of my noble friend Lord Greaves.

With Clause 93 we reach Part 6 of the Bill—Local Involvement and Accountability—which starts with community remedies. The first of my amendments is to Clause 93(3), which provides that an action which might be included in the community remedy document is appropriate if it has one of three objects: assisting rehabilitation, ensuring reparation, and punishment.

A community remedy should have an objective of more than punishment. The Offender Rehabilitation Bill, which has been through this House and is now in the Commons, makes a very welcome switch in direction in penal policy by the way in which it looks at rehabilitation. There is a change in general thinking along these lines as well. My amendment would require two of those three actions—not punishment alone, but either reparation or rehabilitation as well; and it might just be rehabilitation and reparation.

Amendment 56G is on a completely different point: consultation on the community remedy document. It would require the police and crime commissioner, or MOPAC in London—I do regret the loss of the acronym MOPC—to consult with local authorities. I cannot believe that I have omitted to mention the London boroughs, but I am sure that the Minister will tell me that, for this purpose, they are unitary. Amendments 56GA and 56GB from my noble friend Lord Greaves are much better, but they do the same thing.

Amendments 56HA and 56HB are my noble friend’s amendments to Clause 94. They ask about the relationship between the requirements that the community remedy document places on someone, whether by agreement or conviction, and the requirements under IPNAs and CBOs. Are they the same? Are the requirements in Clause 93 the way in which IPNAs and CBOs will also operate, or are community remedies alternative and additional? Why are they all needed?

My noble friend’s amendments also probe the concept of the community remedy as an alternative to a fixed penalty notice or a caution when an offence has taken place. He is concerned that the whole area of penalties versus cautions might become even more muddled. I share this concern. I think I saw a government statement recently announcing changes in the use of unconditional cautions; I might be wrong, but this is not central to the amendments. Apart from, perhaps, my first amendment on consultation, these are probing amendments as to the provisions in this part of the Bill. I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

Each PCC has to consult within his area on what is considered to be an appropriate menu—if one might call it that—of suitable community remedies. I have little doubt that members of the Association of Police and Crime Commissioners will discuss this matter in some detail among themselves and that there will be considerable input. However, essentially it will be about local decisions made to address local problems and finding local solutions for local anti-social behaviour and for dealing with low-level crime at a local level and in a formal way.

[Baroness Hamwee]

My Lords, I suspect that the debate about the role of the local authority and the relationships between the local authority and local policing bodies is destined to go on and on. However, wherever the word “community” is seen, I move almost seamlessly to local authorities. Police and crime commissioners are indeed democratically accountable but so are local authorities. Local authorities are going to be more local than most of the police and crime commissioners, whose areas of responsibility are very wide, and of course they cannot impose a penalty themselves. Anti-social behaviour is very much a local authority concern. I am not seeking to downplay the role or status of police and crime commissioners—I would expect both to contribute. However, I thank the Minister for his response and beg leave to withdraw the amendment.

Amendment 56F withdrawn.

--- Later in debate ---

I understand what the Minister is seeking here, but it would be helpful if he could look at this in a little more detail. We looked at how this was approached in the Manchester City Council case study and we were quite impressed with the way these issues were looked at. There were four trigger questions to ascertain the vulnerability of the victim. Something like that could be looked at to take into account those vulnerable victims who feel the consequences and suffer the impact far more than others. They could then be dealt with as a matter of greater urgency, rather than having to make three complaints first. I beg to move.

[Baroness Hamwee (LD)]

My Lords, the noble Baroness has made some interesting and important points and I agree that the impact on the victim is what we should be looking at. But I am concerned about the wording. This may be a start, but it is not the complete solution. Notification is not the same as an assessment and certainly not the same as any evidence that there has actually been previous anti-social behaviour and claiming that there has—one can see how mischief could be made of that. What is vulnerability? These things cover a wide spectrum. I take the point about starting from how the victim feels and whether feeling that makes that person a victim whereas another person might not feel victimised by the same behaviour, but it is a complicated area.

My amendment 56L would provide a trigger in the case of more than one complaint if it is made by somebody living at a different address. What I am getting at is that this needs to be about more than just a tiff between two neighbours and not something that is very short term.

Amendments 56LA to 56LE in the name of my noble friend Lord Greaves are, he says, part of his attempt to get uniform and accurate descriptions of councils in different parts of the Bill. The Minister will recognise this. The only thing that I would disagree with him on is the phrase “part of his attempt”—I think one could call it a campaign.

[The Earl of Lytton (CB)]

I come to this area of problems between neighbours or people in residential environments through my work as a chartered surveyor. I see it in terms of being brought into situations where these problems have turned into some sort of property dispute. I have enormous sympathy with what the noble Baroness, Lady Smith of Basildon, set out, and with what the noble Baroness, Lady Hamwee, said. The difficulty is that when people have annoyed each other there are various phases to this annoyance.

The first stage is to say: “Oh, well. They have done something they should not have done”. The second stage is: “If they do that again, I shall take action”. The third stage is when absolutely anything, however minor, triggers the most violent reaction. People who have got themselves in a sensitised situation cannot get out of that psychological bind. That is one of the most difficult and intractable things that one has to deal with. This may result in the police being called out on multiple occasions or the local authority being endlessly rung. That is the reality.

Yes, people will claim that they are vulnerable, although in a sense that is a self-assessment of whether they are actually vulnerable or it is some self-created vulnerability. What I do know is that on both sides of the argument, the perpetrator and the victim are likely to think that the other is completely nuts, irrational and unreasonable in their attitude. I do not know how this Bill or this amendment resolve that issue. There is a case for taking some of these things out of what one might call a heavyweight approach to dealing with the problem.

Whether one fires off in the direction of some other community means of trying to unpick things—getting people to realise that their neighbours’ children are not ogres and the children’s parents to recognise that the affected person is also not an ogre—is a really difficult issue. I am not sure that we have the solution here. However, I shall certainly give the matter some careful thought between now and the next stage, because there is something in terms of social cohesion and peaceable existence for people in residential environments that needs to be addressed much more deeply.