Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 12 months ago)
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Baroness Smith of Basildon
My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.
Baroness Hamwee (LD)
I wonder whether I should come in on the same issue to allow time for reflection. As I said to the Minister through his officials, I did not move my amendment because I assumed that there must be legislation which would require both authorities to agree. I read “consult” in this clause as meaning consult not around the outcome of actual closure but about the things surrounding it. I thought that, rather than taking the Committee’s time, I would simply not move it. Perhaps it would have been better if I had.
Lord Harris of Haringey (Lab)
Perhaps the Minister can assist the Committee by giving us some examples of when this power might be required and what the circumstances would be. It is about restricting the public right of way to a highway, but under what circumstances is that likely to happen and what sort of roads would these be? The requirement is to notify “potentially affected persons”, which,
“means occupiers of premises adjacent to or adjoining the highway, and any other persons in the locality who are likely to be affected by the proposed order”.
Depending on the nature of the highway concerned, that could be a very large number. One also wonders why it is confined to the locality when it might have a much wider impact. I suspect that the answers might be clearer if I had a better understanding of the circumstances in which the Government envisage this power being used. If they are rather narrower than the potential of this clause seems to suggest, I would like some clarity on why that is not made clearer in the clause.
Baroness Hamwee
Baroness Hamwee
This amendment takes us to the clauses on closure notices. My amendments are about closure notices, temporary notices and extensions to closure notices. They insert a reference to proportionality at every point. I anticipate that the Government will say that we need not worry because the mechanism that has been designed involves a local authority or a senior police officer, and they would not apply for a closure notice and the court would not grant a notice unless it was proportionate.
Closing premises is a significant step. Closure has to be necessary but, as I read the provisions, the behaviour itself need not be serious enough to justify an order. For instance, one might want to close premises to preclude offensive behaviour—that is one of the types of behaviour in question—but what if the offensiveness is not of such an extreme to justify closure? There are other types of behaviour that could lead to closure notices being applied for and granted—for instance, criminal behaviour, which surely could be dealt with through other mechanisms.
I anticipate that we may be told that this is a matter for guidance, but closing premises is a serious matter and the legislation must be very clear so that we do not have to rely on guidance. Indeed, because it is a serious matter, one ought to have in mind that in any notice applied for or decision made the process should allow for challenge and possibly even a subsequent claim. Therefore proportionality ought to be integral to the power. I beg to move.
Lord Taylor of Holbeach
“Temporarily”, I said. I am sorry. I might have said “temporary” but I meant to say “temporarily”. It may be me misspeaking or the noble Baroness mishearing but: “temporarily premises that are the focus of public nuisance or disorder”.
A number of existing powers could be used to close such premises but they are similar and overlap in a number of ways. We are consolidating these existing powers into a single scheme applicable to all premises associated with anti-social behaviour. These powers are flexible and can apply to private and residential premises, and to business premises whether licensed or unlicensed. The notice allows for immediate action while the longer-term order is put in place if it is required. This will give professionals a simple and flexible means to protect the public, making it easier to act preventively.
However, noble Lords will agree that such a power requires safeguards. Of course, local agencies already work informally with individuals and businesses to mitigate the risks of crime and anti-social behaviour before resorting to formal powers. This will continue to be the case. Most businesses want to protect their customers and premises. Where there is information that premises may be the location for or contribute to crime and anti-social behaviour, they can be invited to take action to tackle it, and many do.
Clauses 69 and 70 specify a minimum rank for police officers authorising the issue of a closure notice for up to 24 hours, with a higher authority needed for both the police and local authority for the extension of the notice up to a maximum of 48 hours. The provisions also include requirements about notification and consultation, and of course only the courts can require closures of premises for longer than 48 hours.
The noble Baroness has not tabled amendments but I can use some of the information that she was seeking. The court has to be satisfied that there is likely to be serious nuisance or disorderly, offensive or criminal behaviour. The second element is that it is necessary to prevent the nuisance or disorder from continuing, recurring or occurring. In practice, we expect that in most cases informal measures would be the right starting point. The draft guidance directs professionals towards informal measures in the first instance, where appropriate. Indeed, if alternatives to closure are available but have not been considered, it is difficult to see, save in exceptional cases, how it could be argued that the closure notice is necessary. Professionals, as public authorities, would have to exercise their powers proportionately or risk an adverse judicial review.
Additionally, in applying the test, a court, the police or a local authority must have regard to an individual’s human rights—for example, Article 8 rights. As I said when similar issues were raised in respect of earlier parts of the Bill, such qualified rights can be infringed only where to do so is necessary and proportionate in the pursuit of a legitimate aim.
The noble Baroness, Lady Smith, asked me what the reasonable grounds are. It is a matter of evidence, usually comprising of witness statements and statements of victims and police officers, in particular. CCTV evidence, for example, can also be brought into play when deciding whether there is a justification for the grounds. The term is commonly used in legislation and I hope that noble Lords will accept that.
The noble Baroness also asked who has been consulted. Given that the notice is affixed to the premises it would not be appropriate to name all the individuals who had been consulted. Guidance highlights the importance of partnership working and it is advised that the police and local authority keep a record of who has been consulted.
The noble Baroness also asked why we do not require the police and local authority to make information about the closure of the premises more publicly available, such as in a paper or some other way. The closure powers are flexible in that they can be used for residential, business, licensed and non-licensed premises. There may be circumstances where a short-term closure of the premises is needed to resolve a problem, such as closing a residential premises for 24 hours to prevent a Facebook party. That would not be of interest to the wider public in that area, and requiring the police or local authority to make a public announcement of all closures would add an unnecessary layer of bureaucracy. That is why we require the police and local authority to consult anyone they think appropriate as well as the owner and occupier of the premises. Clause 72 requires them, where possible, to fix a copy of the notice to the premises.
I hope that I have been able to answer the questions that the noble Baronesses have posed. I hope my noble friend will accept my explanations and agree to withdraw her amendment and that noble Lords will support the provisions in this part of the Bill.
Baroness Hamwee
I was going to say I will catch up with that when I read Hansard. I wonder whether, rather than starting with my amendment, I should have moved one in the group in the name of my noble friend Lord Greaves. I am grateful to the Minister for responding to my noble friend’s amendments that were not moved and not mine. Clearly, the answers will deserve, and require, some reading.
One comment I will make is that of course the right of judicial review must remain and human rights must apply. However, I do not think that having either of those available means that we should allow legislation which is insufficiently clear or detailed to go ahead without questioning it. At the same time, the Government are trying to reduce the use of judicial review, so the argument that that remedy is still available is not one which particularly appeals to me. However, I imagine that my talking any longer will not appeal to other Members of the Committee, so I beg leave to withdraw my amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(11 years ago)
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Baroness Hamwee
(c) the respondent is aged 18 or over”
Baroness Hamwee (LD)
My Lords, I will also speak to Amendment 21G. The first of these amendments takes us to Clause 12, which is the clause giving power to exclude a person from his home in the case of violence or the risk of harm. This power can be included in an IPNA—in the injunction—if two conditions are fulfilled. The first is that the anti-social behaviour giving rise to the application for the IPNA amounts to violence or the threat of violence and the second is that there is a significant risk of harm from the respondent. My first amendment provides for a third condition, namely that the respondent is aged 18 or over. It seems to me a very severe sanction to exclude anyone from his home. I accept that this power is to be in response to a “significant risk” or behaviour, but if it is so significant as to justify such an action, are there not other courses of action that might be open to be taken? It is not required by the statute to link any of these provisions with a course of treatment or rehabilitation, as one would hope to see in many cases, and particularly that of young people.
The Bill is quite properly focused on the victim; we see that not just in the drafting of the Bill but on almost every page of the draft guidance, with which your Lordships have been provided. But I suggest to the Government that while excluding somebody from his home may mean the immediate protection of the victim, the longer-term protection must be rooted in addressing the victim’s long-term behaviour. Of course, excluding somebody from his home does not mean that he will not meet the victim somewhere else. So I am particularly concerned about this in the case of young people. I wonder, too, what the local authority response would be. Would it have obligations if a person under 18 found himself suddenly homeless?
In the Commons, the Minister referred to the guidance, making it clear that,
“the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate”.—[Official Report, Commons, 14/10/13; col. 543.]
That applied especially to the respondent’s Article 8 rights. It is one thing to issue guidance to local authorities—and I do not, of course, speak for the judiciary—but it is another matter to issue guidance to the courts. I have very considerable doubts as to whether it is right as a response to an IPNA, in the absence of something else justifying this, to allow this at all. I am hoping that there must be some explanation as to whether this cannot be done through any other relevant measure.
Amendment 21G is also about under-18s. I accept that suggesting that there may not be an injunction unless the police have talked to the respondent and his parents or guardian to discuss the behaviour and the respondent has been given an,
“opportunity to enter into an agreement as to future good behaviour”,
sounds a bit “Dixon of Dock Green”—perhaps a bit “Evening, all”. But it comes not from that but from provisions in the Republic of Ireland, which have been drawn to my attention—and from a concern previously expressed by the Home Affairs Select Committee in the Commons, whose report recommended that the legislation should not permit IPNAs to be used against young people unless supportive and informal interventions have failed. I can hear the Minister saying “guidance” to that.
In the Republic of Ireland, there is similar legislation but the courts are permitted to impose a behaviour order, which is their version of the IPNA and ASBO, against children aged 12 to 18 only after a senior police officer has held a meeting with the child and the parents or guardian, and when the child has been warned about behaviour and given the opportunity to sign a good behaviour contract—and, of course, to abide by it. I understand that in the past five years in Ireland the authorities have issued more than 2,000 behaviour warnings and 15 good behaviour contracts but only three behaviour orders to those under 18. I suggest that that is a successful way in which to go about the matter. I beg to move.
Lord Taylor of Holbeach
We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.
Baroness Hamwee
My Lords, we, too, will look at the guidance in the light of the debates. I say that as a promise rather than a threat—and I hope it is interpreted in that way.
My first amendment—as are so many amendments at this stage—is to some extent probing. I thought that the Minister made my case rather better than I did. I am glad that he will be consulting. I would not expect him to move forward on this without talking to the front-line professionals. I make just one comment on what he said: accommodation with other family members is unlikely to be available unless it was there without the need for an order. I am just thinking about the way that family dynamics work. As regards both amendments but particularly the second, I, too, will look at the guidance again and hope to provide some useful input to ensure that what the Minister describes as a longstop is a very long longstop. I beg leave to withdraw the amendment.
Lord Rosser
We acknowledge that there was broad support for the requirement that the youth offending team be consulted before an injunction under Clause 1 is sought against somebody under 18. However, there appears to be no timescale for the consultation with youth offending teams, and as a result there could be—not necessarily will be—delay. For that reason, the time taken for consultation with local youth offending teams should be reviewed. That is the purpose of the amendment. Surely we need to keep an eye on how long the process is taking and to check on whether there are hold-ups when the legislation comes into force.
I appreciate that the Government’s view is that the necessary consultation with the relevant youth offending team will take place with a proper sense of urgency and should not be unduly delayed by protracted consultations. A clear commitment to a review would further strengthen that position and make clear the need to carry out such consultation expeditiously. That is what those who may be victims certainly wish. In the light of the statement in the draft guidelines that the consultation requirement does not mean that the youth offending team could veto the application, will the Minister say what would constitute consultation being completed? Does the person applying for an injunction have to have received a response from the youth offending team for consultations which have been completed? If the response is that the youth offending team is not in favour of the injunction, would discussions have to continue before the terms of Clause 14(1)(a) had been met?
Would a failure by the youth offending team to respond at all within a certain timescale mean that consultation could have been deemed to have taken place? If so, what would the Minister consider a reasonable minimum period for a response? Would a failure to respond by a youth offending team within a certain time be grounds for an application without notice under Clause 5? Could the youth offending team oppose an application for an injunction under Section 1 for someone under the age of 18 in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?
Baroness Hamwee
My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.
We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,
“the local authority for the area where the respondent resides”,
meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord and my noble friend for their amendments. This group again relates to the balance that needs to be struck in ensuring that the appropriate consultation takes place, but relates specifically to cases involving young people under the age of 18.
Amendment 21H is concerned with the duty on applicants for injunctions under Part 1 to consult with the local youth offending teams in the case of under-18s. Crucially, that consultation must take place before the application is made to the court. That is an important change to the process where young people are concerned. Therefore, youth offending teams will help to ensure that the prohibitions in the order are appropriate and understood by the young person, and that any positive requirements are tailored to meet his or her needs. As we all recognise, as do I from my time in local government, youth offending teams are an important and established part of the youth justice system. They are well used to working with young people in these sorts of circumstances.
The noble Lord raised the issue of consultation. This would be an ongoing process and I would expect the consultation with the youth offending team to take place swiftly for the benefit both of the victims and of the communities that require protection. One of our primary objectives in reforming the response to anti-social behaviour is to speed up that response and I would not expect this consultation requirement to prevent that.
Baroness Hamwee
My Lords, is my noble friend aware of whether the Local Government Association has been consulted—sorry to use the term again—on this provision? It seems to me that the Government should have been talking to it about whether it would want a statutory role. I take his point about occasional urgency but it is always open to a local authority to say, “This is urgent. You had better get on with it”, or, at the other end of the spectrum, to say, “We have no comment”. If he is not aware of what talks underlay the provision as we see it now, perhaps he could let me know after today’s sitting.
Lord Ahmad of Wimbledon
In direct response to that, I can say that representatives from the LGA and other organisations have attended meetings with my noble friend with regard to this Bill. I again reassure her that, as the guidelines are reviewed, I am sure that the LGA will be making representations and will be part of that process.
Baroness Hamwee
Baroness Hamwee
My Lords, my amendment is grouped with the debate on Clause 17 stand part and Amendment 22DA in the name of the noble Lord, Lord Ramsbotham. Within the past few minutes, he has sent me a note asking me to apologise to the Committee. Like many of us, his anticipation of what would happen, and when, was rather thrown. He said that he had an impossible diary today with long-agreed speaking engagements outside the House. However, in case the Minister thinks that that lets him off the hook from attack from that quarter, the noble Lord has primed the noble Earl, Lord Listowel, to speak on his behalf on his later amendments. The noble Lord said that he would not dream of considering voting before Report anyway, although I think one might add “ … ” to that.
My amendment is to Clause 17. I have not sought to delete the clause from the Bill because I wonder whether it might be possible to discuss a compromise. I am aware that this is a delicate issue on which there has already been quite a lot of focus. The clause provides that Section 49 of the Children and Young Persons Act 1933—it has a long pedigree—is not to apply to proceedings on IPNAs. That section restricts reporting of proceedings in which children and young persons are concerned. That provision restricting reporting also has an exception within it. Is that exception not sufficient for the Government's purposes? The exception is that if the court is satisfied that it is in the public interest to do so, it may dispense to any specified extent with the requirements of the section. Is that not sufficient? That is Section 49(4)(a). Section 49(5) provides that the court can similarly dispense with the requirements of the provision if it is appropriate to do so for the purposes of avoiding injustice to the child or young person.
We have talked on a number of occasions about one purpose of the ASBI being to avoid criminalising young people, whom we hope to divert from a criminal career—not to consolidate a criminal career. Given the way in which reporting would be likely to happen, this provision would criminalise the young person and have a very unfortunate long-term impact. “Naming and shaming” is not a term I like to use—it means stigmatising and putting a negative label on the young person. There must be a very high risk of perpetuating the problems which an IPNA should be looking to nip in the bud.
We have also talked about positive re-engagement and rehabilitation. I question whether not imposing reporting restrictions would be a deterrent. Is there any evidence that it might be? There are also, of course, safeguarding concerns. This had not occurred to me, but I am told that professionals consider that there is a risk that children who are identified as having been involved in anti-social behaviour may engage in risk-taking behaviour or be more susceptible to being groomed. This is very much in our mind at the moment.
In all, it seems to me that the risks, quite apart from the concerns that have been voiced by the Joint Committee on Human Rights and the Local Government Association, are too big. Perhaps the Minister can tell the Committee what lies behind this; what evidence the Government have that this is the right way to go; what assessments have been made to evaluate safeguarding risks, and whether the Government have kept in mind the impact on a child’s rehabilitation. I beg to move.
Lord Hope of Craighead
I add just a short point to what the noble Baroness has said. When one looks at the draft guidance at page 26, one can see what the Government are thinking of here. The point is made that making the public aware of the perpetrator and the terms of the order can be an important part of the process in tackling anti-social behaviour. One can follow the thinking behind that proposition. When one reads on, however, one sees that there will be circumstances in which either the police or the council may decide not to publicise the fact that an IPNA has been made. It seems to me that the power—or the discretion, perhaps one should say—to decide whether or not publicity should be given is being taken away from the court and given to the police or the council. Will the Minister explain why that is being done, bearing in mind the point that the noble Baroness has made about the discretion which exists within Section 49?
It is a very big thing to take away from the court the power to restrict publicity, bearing in mind the reach of the whole of Part 1, which is what we are concerned with, including Clause 5, which permits an application for an injunction to be made without notice being given to the respondent. The court would have no power to stop the press if they happened to be there reporting what had taken place. It would be a very serious matter to go as far as the clause goes without a full explanation why exercise of discretion is being taken away from the court and being given to the police or the council, who are not answerable to the court for what they do.
Lord Taylor of Holbeach
I am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am sorry if I struggled to get the place name right but I am delighted that he mentioned this point because I just received a note saying that Section 39 of the 1933 Act gives the court the discretion to impose reporting restrictions.
Baroness Hamwee
My Lords, I, too, was a little confused when the Minister referred earlier to Section 39, which the noble and learned Lord just mentioned. This will require some reading. The point, of course, is entirely right. It is how the court has discretion as regards publicity. I do not at all challenge the point on the injunction. I am very grateful to the noble and learned Lord, Lord Hope, for reminding the Committee that our courts are essentially public; that is where the concern comes from.
The Minister talked about the status quo. That confused me, because I thought that I was arguing for the status quo. He said that the status quo was good, but he challenged my amendment. I cannot see how we will not return to this on Report. However, I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this is a probing amendment on a subject not too dissimilar from the issue raised by the noble Lord, Lord Marlesford. Our new clause is about corporate anti-social behaviour. Other than the community protection order, which includes the power to close premises that cause severe problems associated with anti-social behaviour, the Bill’s emphasis is not on the corporate but on the individual.
Too often the public feel, sometimes justifiably, that although they as individuals have to obey the law or be taken to task, companies seem not to be targeted until things get very serious and action is taken that could lead to their closure. A corporate anti-social behaviour order would be targeted at actions by a corporation or company that are deliberately socially harmful, and cause harassment, alarm or distress at a local rather than a national level. It would not target legitimate businesses or business activities—even businesses that some might regard as unpalatable. For example, there is a lot of talk about payday loans, and some people do not like gambling. The order would not focus on business activity, and there is no intention to comment on business activities that may cause distress at a national level; it would be used only where local disregard for the public and for the environment could cause harassment, alarm or distress.
The purpose of such an anti-social behaviour order would be preventive. It could identify low-level behaviour and seek to prevent it increasing in frequency or becoming more serious, as is often the case. Some of the examples I shall give tie in with the comments about litter in the previous debate—examples such as takeaways and other businesses that fail to deal with rubbish outside their premises, or premises that are unnecessarily noisy. I remember, when I was a Member of Parliament in the other place, dealing with a business in a residential neighbourhood. It had to have delivery vehicles coming and going—but at 5 am, did those vehicles really need to leave their engines running, causing considerable distress to those who could not sleep, or were woken first thing in the morning?
There could also be a pre-sanction stage, with an acceptable behaviour contract, to deal with problems. I think that such a provision would be welcomed by businesses that do their best to deal with such problems, but find themselves up against other companies that cut corners and do not fulfil their obligations to local communities. An anti-social behaviour order for local businesses would complement the community protection order by offering sanctions targeted at businesses, which might be used before more serious action that could lead to closure of the business was taken.
A corporate anti-social behaviour order would be business-friendly, because it would nip the problem in the bud and give the business the opportunity to deal with it before it faced far more serious action. It also gives the opportunity for preventive measures; I am thinking particularly about littering and noise pollution. At the moment the legislation focuses on individual behaviour—that is where the community protection order comes in—rather than on the actions of companies. It is a preventive measure, designed to be more effective, more helpful and more friendly towards business. It could also lead to better engagement between businesses and the local authority, which would have a reason to hold early discussions about problems that could arise and how it would deal with them, and also to better relations with local residents, by nipping any such problems in the bud before they get too serious. I beg to move.
Baroness Hamwee
The noble Baroness raises an interesting point. I have been wondering about other examples, and the one that immediately came to mind was the noise of aircraft coming into Heathrow in the middle of the night, which is a big issue in my area—but perhaps the order is not intended to be as extensive as that.
I have a serious question for the noble Baroness, which is whether it is appropriate for criminal offences to be created by regulations. That is in effect what subsection (3) of the proposed new clause would do, as it states:
“The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed”.
I appreciate that this is a probing amendment, so I do not want to be too tedious about it, but that struck me as a point of principle that one might want to consider.
Lord Ahmad of Wimbledon
My Lords, the Government are often accused of not listening. I listened with great interest to the previous debate, initiated by my noble friend Lord Marlesford, and as I went over to the Box I noticed a piece of litter on the floor. I acted promptly and handed it to the doorkeeper—so there is some hope of instant action on the part of the Government.
I am grateful to the noble Baroness, Lady Smith, for tabling her amendment with the proposed new clause and raising an important point. I agree with her that, where businesses act in a way that is likely to cause harm to others, they should be held to account. However, the Government feel that a corporate ASBO is unnecessary. We believe that we have drafted the new powers in such a way as to be flexible enough to deal with this eventuality.
For example, the new community protection notice, which we will discuss when we come to Part 4, can be issued against a corporate body. If that corporate body is persistently acting in an unreasonable manner and having a detrimental effect on the quality of life of those in the locality, it can be held to account through the new notice. While the community protection notice replaces litter and graffiti notices, it can be used for much more, including noise and other behaviours. What is more, breach is a criminal offence and, on conviction, a business could be fined up to £20,000. It is a power which provides real teeth.
Baroness Hamwee
Baroness Hamwee
My Lords, I will speak also to Amendments 22C and 22D. I hope that I can be quick with these. Amendment 22B seeks clarification as to the standard of proof required for a criminal behaviour order. Of Clause 21, the Minister said in the Commons:
“The draft guidance to the Bill makes it clear that we expect that the courts will follow existing case law from the House of Lords in relation to antisocial behaviour orders and that they will apply the criminal standard to criminal behaviour orders”.—[Official Report, Commons, 14/10/13; col. 543.]
He then said that an amendment similar to this was unnecessary. If guidance is needed on an issue as serious as the standard of proof, it should be in the legislation. The Joint Committee on Human Rights, which reported before Report in the Commons, said that that should be in the Bill.
Amendment 22C would import the test of necessity—as for an ASBO—to the making of a criminal behaviour order. Amendment 22D would import a test that we have already discussed in the context of an IPNA from the Crime and Disorder Act, which would provide that the court should disregard an act that the defendant shows is “reasonable in the circumstances”. That is linked to the standard of proof but is a separate issue. When we discussed a similar provision on Monday, the answer was that, for an IPNA the court must consider whether an injunction was “just and convenient”. That, of course, is not the same test as would apply to a criminal behaviour order. I beg to move.
Lord Taylor of Holbeach
My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.
For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.
Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.
Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.
The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.
Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.
Baroness Hamwee
Indeed, I am partially satisfied and I will not repeat the argument I made about the distinction between IPNAs and CBOs for the purpose of Amendment 22D.
I am puzzled as to why, if the Government expect the criminal standard of proof to apply and then—it is not quite the same—say that it “will” apply, they are reluctant to spell that out. It is a new offence and I would have thought that it would be better to spell it out, but there we are.
I did indeed intend to raise the evidential burden regarding Amendment 22C. For something to “help” is a very low threshold. It is rather a small objective and achievement. I hope it answers the noble Lord, Lord True, if I say that I was linking it back to Clause 21(3) because Clause 21(4) refers to “such behaviour”. That behaviour is described in Clause 21(3) as having “caused” or being,
“likely to cause harassment, alarm or distress to any person”.
We are talking about a criminal order so it seems to me that it is proper for there to be a more exacting test. However, having said that, I am grateful to the Minister for the partial consideration and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving this amendment I will also speak to Amendments 22H, 22J and 22K. My noble friend Lord Greaves has Amendment 22KA in this group.
On Monday, when we were discussing the relationship between provisions in the Bill and statutory nuisance, I explained that I had been asked to raise the matter by the Chartered Institute of Environmental Health, of which I am vice-president. I will speak briefly to my amendments today, but I also ask the Minister whether we can discuss the matter before Report. The institute is clearly concerned about remedies such as the community protection orders and noise abatement orders being too similar for comfort. The institute talked to me about the potential for confusion and conflict and twin-tracking by different authorities and different professions. However, I assure the Minister that we are willing to contribute to the guidance around all this. We take the point that the guidance is still in draft form. We are concerned to get the legislation right, not just to rely on guidance where the legislation may in itself not be as clear as it might be.
Amendment 22NA would provide for a significant detrimental effect to trigger a community protection notice. Where there is a civil process, the de minimis principle would apply. It has been put to me that the alternative to dealing with this in legislation is for it to come out over time in case law, which would obviously have a cost implication.
Amendment 22ND would require a person in authority to assure himself that the conduct is not already subject to any other statutory control. As drafted, that person may think it appropriate as a discretion. This seems to be quite a weak protection against different agencies wasting each others’ time chasing the same end. What is most important is to avoid obstructing or contradicting action that has already been taken, such as an indefinite prohibition in an abatement notice.
Amendment 22NE would provide that no notice was served where it would be controlled under any other statute, which is again about conflict. Where the problem is noise, apportioning responsibility and sorting out a fair and effective remedy can take a lot of technical—
Lord Ahmad of Wimbledon
I am responding to this debate, so I am listening with great attention, but for a moment I thought I had lost my place. I must point out that we are discussing group 9, which starts with Amendment 22E. I believe that my noble friend is speaking to group 13, which starts with Amendment 22NA. My apologies for not intervening sooner, but I thought that I had lost my place. Perhaps she would like to speak to the earlier group.
Baroness Hamwee
My noble friend is absolutely right. I apologise to the Committee. There is such enthusiasm to move on today that I was moving too fast. I must give my noble friend an opportunity to accept or possibly reject my Amendment 22E. It would provide in Clause 21 that the court must receive evidence about suitability. There must be a proportionality element in the requirements provided in the orders. I may be told that this yet again is something that is dealt with in guidance.
Amendment 22G takes us to the duration of the orders. We are presented in the case of under-18s with a fixed period of not less than two years or an indefinite period. I suggest that there should be a limit for everyone, as there is for under-18s. The criminal behaviour order can include a lot of requirements and restraints, which could, if they go on indefinitely, have a disproportionate impact. To have something hanging over one’s head indefinitely could be a disincentive—you could give up hope of ever getting it right.
Amendment 22H would provide that reviews are not confined to under-18s, which continues more of that thought. Amendments 22J and 22K are consequential on that. I beg to move.
Lord Greaves
My Lords, Amendment 22KA is a modest attempt to help the Government to get their legislation correct. It refers to the review of criminal behaviour orders which has to take place under Clause 27. Clause 28(2) states:
“The chief officer, in carrying out a review under section 27, must act in cooperation with the council for the local government area in which the offender lives or appears to be living; and the council must co-operate in the carrying out of the review”.
Clause 28(4) states:
“In this section ‘local government area’ means—
(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.
That definition is archaic and does not apply to the local government map of England as it now stands. It misses out large tracts where there are no districts and where there are unitary counties.
There are other parts of this legislation—under IPNAs and community protection notices, for example—that get it right and refer to counties where there are no districts. They clearly have to be added. My amendment adds this so that large parts of England are simply not missed out. Since the Bill refers at the moment to districts or London boroughs, I assume that the district or lowest level is meant. Where there is a unitary authority only—a county such as Cornwall, Northumberland or various others—that needs to be added. This is in the spirit of being as helpful as possible to the Government, as I always am.
Lord Ahmad of Wimbledon
With all things legalistic and legislative, my noble friend will agree with me that it is important, as he himself stated, to get it right. Let me assure him that we will certainly take into account his insight and expertise in ensuring that in our drafting we correct any omission, if indeed that is the case.
I hope, based on the explanations I have given, that my noble friend will be minded to withdraw the amendment.
Baroness Hamwee
My Lords, I apologise again to the Committee for getting so confused over these amendments. I say to my noble friend Lord Greaves that he knows precisely why an amendment is not accepted now—because they never are, are they?
I remain troubled about the issues that I have raised. Proportionality seems to be more than a matter of human rights in the technical way in which we sometimes refer to them. An indefinite order period over five years is a very harsh response. As I understand it, there is no statutory requirement for review in the case of over-18s. There is a page, thereabouts, of provisions for reviews in the case of under-18s, but for the over-18s it is left to everyone’s good sense.
As I say, I remain troubled, but let us see where we might go when the little bits of this which will be further considered have been considered. For now, I beg leave to withdraw the amendment.
The Earl of Listowel (CB)
My Lords, in moving Amendment 22KB in the name of my noble friend Lord Ramsbotham, I shall speak to Amendments 22KC, 22NZA and 22NZB. My noble friend apologises to the Committee for his absence. He has a long-standing commitment and asked that I might present his case for him. There seems to have been a little confusion. His amendments were tabled late in the day and I, also late in the day, called for a clause stand part debate. I do not think that I will need to call for a clause stand part debate, given the useful amendments tabled by my noble friend. The amendments deal with Clause 29, on the breach of orders, and Clause 37, on offences. They would take minors out of both those clauses.
As an aside, several of my colleagues who would be interested in our debate are involved in the Children and Families Bill, as am I, and there has been confusion about the timing of that Bill, which may have been an obstruction to colleagues interested in the area of children to come to discuss this Bill. If the Minister has not agreed to this already, perhaps there may be an opportunity to meet with him and officials to discuss how this Bill affects children with those Peers who are particularly interested in the welfare of children.
Over the past few years, there has been a welcome reduction in the number of children in custody, as a result of the recognition by Her Majesty’s coalition Government that imprisonment is not an effective way to deal with children’s offending behaviour. As your Lordships will be aware, the new police dispersal power to tackle anti-social behaviour is introduced by the Bill. Children who breach the order and are convicted of failing to comply with the police dispersal order are to face a fine and/or up to three months in prison. I suggest that those sanctions are disproportionate, counterproductive, incompatible with children’s rights and risk reversing the positive downward trend seen in children’s custody numbers.
As a bit of background, currently, nearly seven in 10 children breach their anti-social behaviour orders. That is typically due to a lack of support, rather than wilful non-compliance. It is a much higher breach rate than for adults. Imprisonment is imposed as a sanction for juvenile ASBO breaches in 38% of cases, with an average sentence of just over seven months.
The purpose of the amendment is to remove imprisonment as a sanction for children when they fail to comply with a dispersal order. The amendments replace imprisonment with robust community alternatives. I have mentioned several times my concern about the guilt that many of those young people will carry with them. They will feel responsible for the failures in the family. I have spoken to young men who have made it their job to be at home when their father has returned home from the pub so that they can stand between their mother and their father at the time. I have already spoken about those boys who grow up without a father in the home. Of course, there are young men who are beaten by their father on a regular basis. Those young men feel responsible for having to stand up to their father and protect their mother, for being beaten by their father or for having their father absent from the home.
My wide experience of this is that children do not think rationally in those times. They tend to think that they are responsible for those failures. Being too harshly punitive of young children may be counterproductive. I spoke recently to a lawyer with several years of experience of working as a defence lawyer for such children. To get them prepared to stand up in the witness box and give a reasonable case, he would say to a child, “Look, Richard, I know that there is good in you. My partner, Margaret, knows that there is good in you. You can make the choice. You can do the good, the right thing or you can choose not to”. By speaking in those terms to the child, he gets the best from them.
My concern is that if we are overly harsh, if we imprison children, if we punish them too severely, they will be confirmed in their belief that they are bad to the bone, that they are responsible for all the bad things in their life and will go on to be a nuisance to society and cost society a large amount of money when they are later imprisoned. A further problem, to which I just alluded, is that once children get involved in the prison system, there are much more likely to get involved with it again. They will be returnees. I look to the Minister for some reassurance in his response.
Baroness Hamwee
The noble Earl has raised extremely important points, and I do not want to repeat arguments that I made on my earlier amendment about publicity, which also apply here. It is not only the noble Earl, who has massive experience, who makes these points. As I said earlier, so many organisations which have practical experience and great success in diverting children at risk of going down the route of a criminal career back to a better road, have suggested that such amendments should be made. We should take that extremely seriously.
Baroness Linklater of Butterstone
My Lords, I support these amendments wholeheartedly. We are talking about punishment. Punishment must, as a fundamental, be appropriate, proportionate and likely to succeed. I suggest that the provisions have none of those things right. It is entirely wrong to have a sanction which involves the potential imprisonment, which is the ultimate sanction for breach of a CBO, of children between the ages of 12 and 18. A detention and training order, which is a possible likely outcome, can be given to such children for breach for a minimum of four months and a theoretical maximum of 24 months, half of which would in fact be intervention, supervision and the rest.
Children who fail to comply with a police dispersal order can also get up to three months. We are looking at a whole range of options to incarcerate young people. It has already been referred to tonight that children routinely breach ASBOs—about two-thirds of them do. Once they get into the world of breach, we are in very dangerous territory. All the successful work that we have seen and in which I have been closely involved with the Youth Justice Board has been to avoid the incarceration of children. This is simply because it does not succeed; the noble Earl has indicated why. In all cases, incarceration should be for the most dangerous, severe and violent behaviour. Those are the kinds of criteria that we should apply to anybody going to prison. In other words, the criteria apply to adults, too, but how much more do they apply to children?
Baroness Hamwee
Baroness Hamwee
I shall speak also to Amendment 22N. Amendment 22L would add the term “proportionate” to the period during which a dispersal order would apply so that the use of the power is both necessary and proportionate. When this matter was discussed in the Public Bill Committee in the Commons, the Minister said that he was confident that the powers will not be used disproportionately and referred to the need for authorisation by an officer of at least the rank of inspector. My amendment would insert a degree of objectivity into the clause. This is not intended to be critical of police officers, but if the power is intended always to be used proportionately, should that not be spelled out and be capable of being challenged?
My second amendment, Amendment 22N, would provide that the authorisation must clearly identify the locality in question. That is a matter of clarity, but rereading the clause over the past few minutes, it strikes me that the term “locality” could be understood in different ways in Clause 32(1), which is the specified locality to which the order will apply, and Clause 32(2)(a), where we are directed to reducing the likelihood of members of the public in the locality being harassed, alarmed or distressed. In the second case, the normal meaning of “in the locality” would be in and around the area, not in the specified locality referred to in Clause 32(1). I have only just thought about this. Reading things again, they sometimes read slightly differently. I do not know whether the Minister can assist me on that.
The amendment relating to proportionality was raised in the context of concern about peaceful assembly. I think we will come to that later, but I shall just say that I, too, am concerned that we should do nothing in the Bill to prevent peaceful assembly when people in a proper manner exercise their democratic rights as citizens. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I rise to speak to Amendment 22M in the name of my noble friend Lady Smith of Basildon, which would insert into the Bill the words,
“and once the relevant local authority has been consulted”.
I do so on two main grounds. One is to revert to a topic that we discussed in Committee on Monday, which concerned the importance of the powers in the Bill being exercised as part of a wider pattern and a wider agreement with local government and other interested parties. That is a general principle that we should not move away from. However, the main issue is that this is clearly a power that relates to a specific locality. It might relate to, for example, aggressive begging in a particular park, square or precinct. Therefore, you would expect the local authority or the custodian of the public space concerned to have very clear responsibilities and interests. There may well be community implications. There may well be a need to listen to what the local authority may feel will be the community impact of such an action or, indeed, to consider the local authority’s view on whether the community benefits from such an action.
I understand that the local authority should be the custodian of those public spaces and that these are the circumstances in which this power may be used so it is appropriate that it be involved. I understand that the parallel of this power, the old anti-social behaviour order regime, did involve consultation with the local authorities concerned, yet the Government have specifically excluded it in this Bill. I would be interested to know a little more about the rationale behind why this has happened in this particular case as this seems to me an obvious area where you would expect there to be consultation with local authorities.
If the argument is that local authorities have been slow in responding to consultation and that this has led to a continued problem, I would be surprised because local authorities usually are well aware of concerns that are being expressed by local communities about a problem in a particular area. If that is the case, I suspect there are some faults on the side of the local authority. These could be remedied by some expectation of what the normal period is within which the local authority should respond when asked for its views on these matters. However, I think there is an extraordinary weakness in the way that these powers could be pursued. The way in which the legislation is framed, this is a quite a broad power. The authorisation could come from a police officer and would proceed solely on the basis of the authorisation of a police inspector. This is not something that would have necessarily gone to court, although obviously it relates to people about whom there are clearly concerns.
I would like to know why it is not felt to be appropriate in these circumstances for the local authority to be consulted. If the argument is that there have been unconscionable delays associated with that, can the Minister give us some examples of where they have occurred, and can the Minister say why it would not be possible to build in to the legislation something which required a specific time period for the local authority to respond when such a power is being considered?
Lord Taylor of Holbeach
I accept the noble Lord’s explanation, but perhaps I can turn to the points raised by the noble Baroness, Lady Hamwee.
The noble Baroness asked about how we undertook in the draft Bill to provide the consultation with local authorities; we did not do that in the draft Bill. I have made it clear that I would expect police and local authorities to work closely together in the exercise of all anti-social behaviour powers under the provisions in the Bill. We believe that this clause and the dispersal power that arises from it are useful. The current Section 30 dispersal power has worked well in dealing with longer-term issues. Those powers are held by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems. The arrangements set out in Clause 32 balance the need for safeguards with the flexibility vital to dealing with a wide range of anti-social behaviour. I commend the clause to the Committee.
Baroness Hamwee
My Lords, I do not think that I should prolong this debate, and I shall keep until after today the questions that have occurred to me during the course of this debate.
My noble friend Lord Greaves has a much better memory than I have and has reminded us of the distinction between locality and location, as identified in previous legislation. I could not help but notice that my noble friend the Minister, in talking about Clause 32(1), used the term “location”, so I think we may need to be absolutely clear about that. But that can wait until after today.
I will say to both Front-Bench speakers who were sorry to have missed the Countryside and Rights of Way Bill proceedings that we dealt with an awful lot of it at unearthly hours of the morning and right through the night. On one occasion, breakfast was provided for the House, except for those who were stuck in the Chamber dealing with the Bill. So the noble Baroness may be a bit less sorry that she missed it. I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(11 years ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I should probably start by saying, “as I was saying”. I apologise again to the Committee for some confusion about an earlier amendment. Members of the Committee were either excessively polite, in the manner of your Lordships’ House, or completely unengaged with what I was saying, and did not interrupt me for some time. I am grateful to the noble Lord, Lord Ahmad, for eventually doing so.
I do not want to repeat what I have already said, but refer the avid reader of Hansard back to the report of earlier this evening. I will repeat my requests that we discuss before Report the relationship between how statutory nuisance and nuisance under the Bill are dealt with. Community protection notices, particularly noise abatement notices, address very similar problems. I am aware that guidance will have a role to play here, and I hope to contribute to it.
Amendment 22NA, which provides that the detriment under Clause 40(1) should be significant, speaks for itself. It should be more than a de minimis matter. Amendment 22ND deals with the possible clash of the use of CPNs and existing statutory powers, as does Amendment 22NE. Amendment 22NF, unlike the earlier amendments, seemed desirable to me—I do not mean that the others are not desirable but that this is my drafting, not someone else’s. I suggest that the community protection notice should explain not only the points set out in Clause 40 but the remedial action proposed given the powers to be provided under Clause 44, which will essentially allow the local authority to go in, carry out work and charge.
Amendments 22QD and 22QE take us into Clause 43, which is about appeals against community protection notices, and are probing in the hope that the Minister will be able to confirm that modification of a notice which the magistrates’ court may make on appeal can be only in favour of the applicant and that modification can include variation by reducing the requirements—in other words, that the appellant will not be in danger of finding himself with harsher restrictions or provisions. I beg to move.
Lord Greaves (LD)
My Lords, I have tabled Amendment 22QC in this group, which I will comment on in a minute or two. Since this is the first group about community protection notices, I thought that it might be helpful to say a few things on the back of that about them generally. Of all the new measures to deal with anti-social behaviour that are being put forward by the Government in their new battery of weapons, I am most enthusiastic about community protection notices if they are done in an appropriate way.
My first question to the Government is about those notices, which may be issued on reasonable grounds that,
“the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and … the conduct is unreasonable”.
In what ways does this differ from the criteria and the test in Clause 1 for serving an IPNA? These require that a person,
“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”.
What is the difference between “nuisance” and “annoyance” on the one hand, and on the other conduct that,
“is having a detrimental effect … on the quality of life”,
of people in the locality? I am not entirely sure what the difference in meaning is but perhaps the Minister can tell me.
Secondly, what kind of things are community protection notices intended to deal with? Clearly, they are intended to deal with different things from injunctions to prevent nuisance and annoyance. There is a hint in Clause 54, which talks of repeals and transitional provisions of litter abatement notices and two other litter notices under the Environmental Protection Act 1990, and of defacement removal notices under the Anti-social Behaviour Act 2003, which refer to graffiti really. What else is there? Is this just about litter and graffiti? I am sure that it is not, but for what other things do the Government envisage that this potentially wide-ranging power could be used?
For example, could it be used to deal with accumulations of rubbish in the back yards of empty houses, or of houses where tenants do not care too much about such things? Could it be used to deal with odour, if someone was making regular bonfires and causing lots of smoke in the area? Could it be used for animal nuisances, such as dog dirt? Could it be used for somebody who insisted on hanging out their washing across the front street rather than in other appropriate places at the back? Could it be used against gatherings in the street—for example, if people wished to use it, in the complaints being made at the moment about Roma people in Sheffield? Would this be an appropriate way of dealing with that or, whether or not it is appropriate, could it be used for that? It would be very helpful if, after this debate, the Minister could list 10 useful things it could be used for. Then we will have a fairly good idea of whether those of us who are local councillors and so on might consider that this is a power which we can use.
There are some concerns that a number of these powers and the existing ASBOs criminalise anti-social behaviour if notices are not complied with, although things such as litter already involve the criminal law. If this is an exciting new power that can be used for all sorts of things in a proportionate manner, there are concerns about the lack of resources, and of new resources, for local authorities to use it. As I keep saying in debates in this Committee: tackling anti-social behaviour and nuisances, and helping to make our residential streets more civilised places at local level, is resource-intensive. It means lots of different agencies co-operating.
For example, in my ward, every month there is a local environmental audit. People from the local neighbourhood policing team, localities officers, councillors and people from the council’s anti-social behaviour unit and its refuse collection and litter sections go round with a little wagon. If there are any accumulations of rubbish, they do not bother serving notices on anybody; they just stick it in the wagon and take it away. That kind of thing is quite resource-intensive and, at a time when all local authorities are under real pressure, it is the kind of thing that will be found difficult to keep going. Yet these powers will be no good whatever unless there are people on the ground who can investigate reported problems, see problems for themselves and have the resources to serve the notices, follow them up and deal with the people.
Amendment 22QC probes what happens in a slightly interesting situation. If you serve a notice in relation to a nuisance that refers to a piece of land and the person who you are serving it on transfers its ownership from, for example, one company that they own to another that they own or are involved in, or to their wife or their husband, you have to start all over again because you are dealing with different people. The proposal I am putting down here does not work but is there to probe. Have the Government got any ideas about how to deal with this? A remarkably high proportion of anti-social behaviour problems are caused by a few individuals who just enjoy playing the system and opposing the council. They regard it all as a great game. How on earth we deal with these people, I do not know but if my noble friend the Minister has any ideas, I would certainly like to hear them.
Lord Rosser
I hope the noble Lord will accept that the definitions the Minister was giving seemed to come under the requirement to do specified things, not achieve specified results, which is what I had asked about.
Baroness Hamwee (LD)
My Lords, my much less elegant interpretation of these provisions is that paragraph (c) is about “how” and paragraphs (a) and (b) are about “what”. There is an absolute requirement to achieve paragraphs (a) and (b) but there can be only a reasonable requirement—and a choice of ways—as to how to to get there.
Lord Taylor of Holbeach
I would see it as being about outcomes as opposed to methodology. Noble Lords are familiar with this concept and understand the particular example.
Moving on to Amendment 22NG, while I cannot think of a specific example where it would not be necessary to include the specified time for actions to be undertaken on a notice, I am not the front-line officer dealing with anti-social behaviour on a daily basis. Those officers have told us that the additional flexibility afforded by the new powers is exactly what they want. They do not want to be constrained on a time limit. This is directional and they want to be satisfied that the direction of travel is working properly. To put a time limit on it may be counterproductive. The amendment would erode that flexibility.
The noble Lord, Lord Rosser, asked what is meant by “reasonable”. We have discussed “reasonable” before. In this case, the power will be used by council enforcement officers and police officers. These are trained professionals who make this judgment on a daily basis. What is reasonable in one situation is not reasonable in another. The judgment has to be made on a case-by-case basis. I hope that the noble Lord will accept that.
The noble Lord, Lord Harris, came up with the notion of CPNs for a string of shops promoting payday loans or for an off-licence. The conduct has to be defined as being unreasonable and a notice that imposes unreasonable requirements can be appealed. However, if an off-licence has benches outside encouraging people to congregate and engage in conduct that would be detrimental, it could be required through a CPN to remove the benches. That would be a perfectly reasonable request.
Except for the seven examples that I owe my noble friend Lord Greaves, I hope that I have given noble Lords the answers to their questions—but I appear not to have done so.
Lord Taylor of Holbeach
I suppose that this comes back to the accountability of Ministers. I am accountable to the Committee this evening in giving answers to somewhat difficult questions. I promise to write to the noble Lord with an explanation. He was very astute. I saw him leap with alacrity at a particular point and show it to a colleague on his Bench, so I knew that something might be up. I will write to the noble Lord.
Baroness Hamwee
My Lords, I should have thought that the noble Lord, Lord Beecham, would have been glad to ensure that if there were conduct on the part of a government department that might justify a CPN there would be someone there on whom it could be, not literally, pinned.
I come back to my amendments. The Minister said that victims do not care how a problem is solved or who solves it. I agree with that. In my group of amendments I am seeking to ensure that the most effective mechanism is used. That is why I keep coming back to the need to ensure that the professionals who will be left to use the existing statutory powers are confident that no confusion will be caused. If it would be helpful to undertake further discussions with probably not only the Minister’s own department but Defra, I know that there are people who will be happy to try to thrash this issue out in a practical fashion following today’s proceedings. For the moment, I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(11 years ago)
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Baroness Hamwee (LD)
My Lords, my noble friend has rightly referred to the series of actions that the Government are proposing in the new regime. Like him, I welcome the fact that the new injunctions will not be criminal. I think he said that this distinction in the eyes of young people may not be as great as it is to us. Does he agree that that is particularly the case with the widespread powers that the court has on breach of such an injunction?
On this amendment, may I make a point that may come up time and again? This is on the place of guidance, as used by all those who will be involved in the new regime. Guidance is one thing. It is important and has a significant place in the way any measure is applied. However, guidance is only guidance. If an issue is really important, it should not be left to guidance and therefore, while it may or may not happen, it should be a matter for the legislation itself. I am glad that my noble friend has raised this issue right at the start of today.
The Earl of Listowel (CB)
My Lords, I speak as vice-chair of the All-Party Parliamentary Group on children and young people in care and leaving care. Half of young people in custody have experience of care: they have been fostered or have been in residential care. Many of those unfortunate young people, who are in that position principally because they have been abused by their families, are also likely to get tangled up in the law and in the situations with which we are concerned here.
I begin by putting two questions to the Minister. First, there has been concern in the past that the assumption relating to media reporting when dealing with children is reversed in these circumstances. One of the tabloid newspapers published a string of photographs of children and their addresses some time ago. This was a few years ago and perhaps things have moved on, but I would be grateful to the Minister if he could write to me on where things stand with regard to publicising the names and photographs of such children.
My second question relates to youth services. We all know that the devil makes work for idle hands. With the cuts that have come about, youth services have taken a very heavy blow. Research has shown that where there have been summer activities for young people, the crime rate among young people reduces. We need to think about the positive things that we can do as well as the negative things—the stick and the carrot, if you like—when we discuss this issue. What guidance and advice on protecting youth services are being offered by central government to local authorities at this difficult time? In particular, what advice is being offered to the new PCCs, which have a lot of resources and which could perhaps funnel some of them towards supporting youth services? I was very gratified to hear recently how much support the Government are giving to mentoring young people in the criminal justice system and in schools. That information would be helpful.
I am sorry to speak for so long but I should like to make just one point. Many of these young men—boys, I should say—grow up without a father in the home. We know that two-thirds of black boys in the United States grow up without a father in the home. According to the OECD, the level of lone parents in this country is even higher than that, so many boys here are growing up without fathers in the home. The risk is, and my experience shows this time and again, that such young men feel a sense of guilt. They are not rational in trying to understand why their fathers are not interested in their lives. They think that it is something that they did that caused it. I can think of an occasion when I was with a group of looked-after children in Parliament. Somebody popped their head in to ask a question, suggesting that somebody might have done something wrong, and there was an immediate look of guilt among them—“What have we done wrong? What are we to blame for?”. You hear from adults who have had such an experience that they are ridden with guilt and feel negative about their lives, even about the good things in it. The risk is that, by having a low age of criminal responsibility or by introducing these measures for people of such a young age, the state is coming along and saying, “Yes, there isn’t anything good in you. We will put your photograph in the local newspaper. You will be described as a bad person”. In that, we are reinforcing what their parents have told them and what their experience has been.
I remember as a boarder at school becoming particularly attached to my housemaster, who was with me for several years. When he moved on to be the headmaster of a new school, for several weeks I would ask myself before going to bed at night, quite unreasonably, what I had done to him that was driving him away. I felt guilt for driving him away. I cannot stress enough that my experience points to such a sense of guilt in these young people. Yes, they must be made to feel responsible; no, they should not be allowed just to be called victims. There are sanctions available but I worry that there may be a perverse outcome if we keep the age as currently proposed in the Bill. I look forward to the Minister’s response.
Baroness Hamwee
My Lords, I have amendments tabled later on community protection notices and how statutory nuisance is to be dealt with, but I use this opportunity to ask the Minister a couple of questions.
In the Commons, the Government took out the exclusion from community protection notices of statutory nuisance—it was in Clause 40(5)—saying that they had established a technical working group including representatives from the police, the Chartered Institute of Environmental Health and the Chartered Institute of Housing to draft clear guidance as to what to use when. I should declare an interest. I am a vice-president of the Chartered Institute of Environmental Health, which is why it has come to me on this issue. It has told me that it was asked for a comment at one point but that it is not aware of the technical working group. Can the Minister explain to the Committee what is happening in that area?
The institute’s concern is about confusion over who should do what, whose responsibility it should be and whether, in the case of some nuisances, those who might have powers to deal with them are likely to have the technical knowledge. The point was made to me that you can tell what litter is, but it is not always easy to tell when noise is a statutory nuisance, because so many conditions and criteria surround it. I would be grateful for some help and news, which might shorten our debate later—although, of course, it might not.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Greaves for his amendments and my noble friend Lady Hamwee for her comments. It is interesting that she talks about noise. In one’s own personal experience, what is music to some is noise to others. I think we shall be returning to this.
With regard to the amendments to the new injunction, it is our view that they could make the actual process much slower and more bureaucratic—akin to the orders that we seek to replace. It would not help professionals deal with anti-social people and, more importantly, would not help victims who have to endure the perpetrator’s behaviour.
The new injunction is designed to be used quickly and, in many cases, preventively, to stop problem behaviours before they escalate. These problem behaviours will not always relate to a statutory nuisance. Therefore, to include an additional condition which suggests that statutory nuisance should be considered every time would, in all likelihood, result in some social landlords or police forces being unable to act quickly to protect the victim. We expect social landlords and police forces to work in partnership with local councils to deal with shared problems, such as anti-social noise nuisance. If social landlords and police forces felt obliged to seek advice from the local council’s statutory nuisance team before every injunction, this could delay the process of the application unnecessarily, and lead to victims suffering even more. Moreover, this new third limb of the test could open up the process to prolonged and costly legal challenges, as respondents sought to argue that their conduct amounted to a statutory nuisance.
The same is true of my noble friend’s amendment to Clause 40. As he will be aware, we had originally excluded statutory nuisance from situations in which a community protection order could be issued. However, after discussing the matter at length with environmental health officers and other professionals, we discovered that this exemption could result in an undesirable scenario. Some perpetrators might use the appeal mechanism to go unpunished via either the statutory nuisance or the breach of the community protection notice.
My noble friend Lady Hamwee is correct that the Opposition Front Bench raised such concerns in Committee in the Commons. Having considered the matter further, the Commons was content to make this change on Report. So I ask my noble friend to accept my assurances that we continue to work closely with statutory nuisance experts, to ensure that the guidelines reflect the important rule that the regime plays in protecting communities from behaviour that is a nuisance or prejudicial to health. In addition, I assure my noble friend Lord Greaves that the issue of a community protection notice, or the granting of an injunction by the court—which was a specific question he asked—in no way discharges the local authority from its statutory duty to serve an abatement notice where behaviour meets the required threshold.
I say to my noble friend Lady Hamwee that our draft guidelines already deal with the interface between statutory nuisances and the new powers in the Bill. I can reassure her that we continue to engage with environmental health practitioners on how this guidance can be further developed in advance of the commencements.
My noble friend Lord Greaves also asked about the choices available. There is no choice as to whether a local authority serves an abatement notice for statutory nuisance. It must serve one if it is satisfied that a matter is a statutory nuisance. He referred to the Explanatory Notes. There is a good example in there that is illustrative of what may be a nuisance, but not a statutory nuisance. A dog bounding over a fence, or through a hole in a fence, can be a nuisance. Recently, I experienced that with my young son, aged 20 months. Suddenly, a dog scurried under a fence, and appeared next to him. It was certainly more than a nuisance to his father, who was far more startled, whereas the dog was just being playful. In those cases, the first and most sensible thing for anyone who is trying to be a good neighbour to do is to talk their neighbour and see if the matter can be resolved locally. Where such behaviour persists, a non-statutory injunction is not appropriate, and a sensible solution is required before putting it on to a more serious basis.
Let me reassure my noble friend Lady Hamwee once again that the Government continue to talk to experts in the field. Based on my explanation, I hope that my noble friend will withdraw his amendments.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(11 years ago)
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Baroness Hamwee (LD)
My Lords, I have three amendments in this group. Let me take the last one, Amendment 20H, first. I have lifted the wording from the Crime and Disorder Act 1998, and it would provide that the court disregards,
“any act of the defendant”—
I have said “defendant”, although I should have said “respondent”—
“which he or she shows was reasonable in the circumstances”.
That follows neatly from the comments which have just been made, and I agree with what my noble friend said about that. I used the term “defendant” when I tabled the amendment because we think of the respondent as a defendant. This provision would allow the respondent to defend himself or, if you like, respond to the allegations. This goes to the behaviour which my noble friend has just mentioned.
My first amendment would insert the word “a”, and turn “nuisance” into “a nuisance”. This enables me to ask whether “nuisance” in this context is wider and less specific than “a nuisance” in the Housing Act. My second amendment, Amendment 20C, is to leave out “or annoyance” and is not only for the reasons which other noble Lords have given during the course of the afternoon as examples of conduct that each of us undertakes which our colleagues might regard as annoying—in my case probably putting down too many amendments. It is also to understand the distinction between nuisance and annoyance.
I have noticed during the course of the afternoon that many noble Lords have talked as though the clause referred to causing “nuisance and annoyance”. In fact, it is “nuisance or annoyance”. I am sorry to be picky—or, as my noble friend Lord Greaves would accuse me of being, legalistic—but these words are important.
Lord Wigley (PC)
My Lords, I shall speak to Amendment 20GA, which is tabled in my name and that of the noble Baroness, Lady Hollins, and is coupled with this group. It seeks to address concerns that the Bill does not adequately take account of the likely impact which these new provisions will have on people with a learning disability. The amendment says:
“Consideration should be given to people with a learning disability in the issuing of an injunction to ensure they are not discriminated against”.
It may not be the most elegant English, finishing with the word “against”, but I think the gist is generally understood. I should also declare my interest as vice-president of Mencap Wales.
As we heard in the debate on the previous bank of amendments, the Bill introduces civil injunctions to prevent nuisance and annoyance—IPNAs as they are called. These may be imposed if the court considers it “just and convenient” to prevent anti-social behaviour. The Joint Committee on Human Rights, in scrutinising the Bill, highlighted that this is a lower test than the test of necessity, as required by human rights law. Furthermore, it considered that the new IPNA definition of anti-social behaviour is broad and unclear.
This has set alarm bells ringing with Mencap and others who work with people with a learning disability, fearing that this will lead to IPNAs being used inappropriately. As many know, people with a learning disability are disproportionately likely to be victims of anti-social behaviour. Mencap's report Living in Fear found almost nine in 10 people with a learning disability had experienced bullying, harassment or some form of anti-social behaviour.
The root of this, of course, is attitudinal and is based on the value that we as a society place on disabled people. In some people's eyes they are different and sometimes regarded, sadly, as dangerous. This was brought into sharp focus by the recent murder of Bijan Ebrahimi. Bijan was a disabled man picked upon for being different on his estate in Bristol. He suffered from low-level harassment before being accused of being a paedophile. He was questioned by the police, who found him innocent, but unfortunately by this point rumours had begun circulating that he was a child abuser and two days later he was brutally murdered.
My concern is therefore that a lower threshold for IPNAs, together with a murky definition of anti-social behaviour, will result in these new injunctions being used out of misunderstanding, fear and ignorance of people with a learning disability, and of behaviour that might be associated with their impairment. It could also lead to a rise in vigilantism and will do nothing to improve people’s understanding of the needs of disabled people.
There is also a fear that victims may in turn be branded perpetrators. For example, a person with a learning disability might be continually verbally abused by a neighbour. What if that victim is at the end of his tether and snaps, so to speak, at the neighbour? Such behaviour might in turn result in an IPNA being placed on that individual. The Bill sets out examples of certain prohibitions and requirements in Parts 1 and 2, and the amendment would include consideration of learning disability at this juncture. Such a step, if backed by robust guidance, would undoubtedly go some way towards meeting these concerns. I hope that the Government might look at this area further, not least because I understand that no equality impact assessment of the Bill has been carried out to date. I look forward to hearing the Minister’s thoughts on these matters.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I may be about to surprise the noble Baroness. Well, to some degree—modestly surprise her. With these amendments we return once again to the issue of the test. I understand the concerns that noble Lords have articulated. Some of the arguments are returning to this issue and it is very important that we debate them and get them clear in our minds. I shall start with Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins.
This amendment raises the important issue of the proper considerations which must be considered in applications for IPNAs under Part 1 against respondents with learning disabilities. The amendment may not be necessary, because I have already spoken at length about the test for the injunction and the two limbs of the injunction, but I reiterate that, in deciding whether to grant an injunction, the court will consider whether it is fair, reasonable and proportionate to do so. That is within the terms under which a court would consider any injunction. In doing so, the court will be aware of its obligations to prevent discrimination against any respondent and to ensure that a respondent’s human rights are respected. Of course, the court will also ensure that the respondent is capable of complying with the terms of the injunction—indeed, that is specifically mentioned in the guidance. If the noble Lord will look at that section he will find that it is referred to. It is all part of the “just and convenient” part of the test which goes along with the whole business of nuisance and annoyance as being a joint, two-limbed test.
Returning to Amendment 20B, my noble friend Lady Hamwee pointed out that the Housing Act refers to “a nuisance”, not simply “nuisance”. I can reassure her that the test for the new injunction is based on that used for anti-social behaviour injunctions in the 1996 Act. No difference is intended but one of the two usages had to be used in this case to provide that continuity. Similarly, in respect of Amendment 20C, the use of the term “annoyance” in addition to “nuisance” also derives from the Housing Act 1996. The two terms will take their ordinary meaning. The dictionary definitions we have heard from my noble friend Lord Greaves are very interesting, but there is a meaning in law, by precedent, which is clear to the courts and, indeed, the Law Society has made clear that it welcomes that definition. They are commonly used together and may cover a broader range of behaviours than either would alone. We see the benefit in retaining the familiar test that includes both; that was mentioned in previous debates.
My noble friends Lord Faulks, Lady Hamwee and Lady Berridge, and the noble and learned Lord, Lord Hope of Craighead, all made similar points about Amendments 20 and 20H, as, indeed, did the noble Baroness, Lady Smith. The amendment in the name of my noble friend Lord Faulks was, of course, one of those recommended by the JCHR. Both amendments seek to add an explicit test of reasonableness to the threshold for making an injunction. The Government are aware of the concerns about the test for the injunction under Part 1 and I listened carefully to those concerns expressed at Second Reading and again today. I agree that it is important that the courts consider reasonableness, fairness and proportionality in deciding applications for injunctions to prevent nuisance or annoyance. The courts will consider these factors as a matter of course as part of the second limb of the test—that it is just and convenient to grant an injunction—as I said in my answer to the amendment in the name of the noble Lord, Lord Wigley. However, the courts will be aware of their obligation to discharge their functions compatibly with the European Convention on Human Rights, an exercise which requires a consideration of necessity and proportionality. However, we will want to consider whether we have done everything necessary to ensure that this is so with the drafting of Clause 1.
That is not to say that we necessarily agree with the amendments as they are drafted. Both would revise the “nuisance or annoyance” test, and I have made it clear that we see the merit in keeping a test that is already familiar to the courts. However, we want to consider whether we can make it clearer in the legislation that the courts must be satisfied that it is reasonable to issue an injunction under Part 1. This is what the amendments seek to achieve and, in that sense, we are not very far apart on this issue, so I will reflect carefully on Amendments 20 and 20H in advance of Report.
In conclusion, the test for the new injunction is tried and tested, it has a long pedigree and I see no evidence that it has given rise to the difficulties that a number of noble Lords have suggested in this and previous debates. The previous Administration sought to recast and strengthen the “nuisance or annoyance” test for an anti-social behaviour injunction back in 2003. This House endorsed that strengthening and on this issue, as I have said before, I am happy to endorse the position then taken by the noble Lord, Lord Bassam. The police, local authorities and others will not act lightly in seeking an injunction. They and the courts must exercise such powers in a reasonable, fair and proportionate manner. As I have said, I am ready to take away Amendments 20 and 20H and explore, without commitment, whether it would be appropriate to introduce into the test an explicit reference to reasonableness. That point aside, for the sake of the victims of anti-social behaviour, who must be at the forefront of our deliberations on the Bill, I would be loath to weaken the effectiveness of the new injunction. I have no doubt that we will return to this matter on Report. I thank noble Lords for speaking to their amendments and I hope that they will be content not to press them.
Baroness Hamwee
My Lords, before my noble friend responds, of course let us all think about it, but may I put one further, supplemental thought in the Minister’s mind? He talked about the pedigree of the term “nuisance or annoyance”. If a lot of that pedigree comes from the housing context, then we need to be careful about transposing the words without the constraint around it. That may not be the right word, but we need to consider the reasonableness of the term if we are moving into a different context.
Lord Taylor of Holbeach
Perhaps I should rely less on the Housing Act and draw attention to other matters such as the abuse of alcohol in public places, for example, which uses a similar test, or the parking of vehicles on highways and the obstruction of highways, which was also mentioned by me in a previous debate. This does not apply just to housing matters; there are other issues that have used the test of nuisance and annoyance. I do not see the problem that my noble friend suggests.
Lord Faulks
My Lords, I am grateful to all noble Lords and noble and learned Lords who have taken part in this debate. I am grateful to the Minister for his reassuring noises; he has shown himself, as usual, to be a listening Minister. The expression “nuisance or annoyance” has a pedigree, as I think he said, in the housing context. It is almost a term of art, so widely has it been used over the years in the context of breach of covenant in common law, and it has found its way into statute.
Of course, a particular housing situation is not precisely analogous to anti-social behaviour. Nonetheless, there is a substantial accumulation of case law that the judges will understand and, I suggest, they will interpret it accordingly. I repeat what I said earlier: it seems that in any event the reasonableness is part of the judge’s task in deciding whether or not it is just and convenient to grant an injunction. Reasonableness will be the watchword, as will the obligations that the court has under the Human Rights Act.
Where I suggest it is important to import reasonableness, as the noble and learned Lord, Lord Hope, said, is at the stage of defining with some degree of objectivity the nuisance and annoyance so that neither the agencies nor the court are in any way diverted by simply having to accept a subjective interpretation of what counts as anti-social behaviour. I hope that the Minister will reflect on that. I appreciate that this does not in any way weaken the power, but it should reassure those who are naturally concerned about the potential for this power to be used oppressively, and that reassurance would be at least provided, I hope, by an appropriate amendment. With that, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I say in response to my noble friend’s point about education and training, “Call me legalistic”. The noble Lord, Lord Harris of Haringey, is very bold in raising these important points. He used the phrase “bona fide” several times in his speech, as well as in the amendment. Followers of paganism would say that their religion was bona fide. As the noble Lord was speaking, it occurred to me that a call to prayer at a very early hour is very annoying to some people, but would one challenge that? He raises bold and brave questions.
Baroness Berridge
My Lords, I refer to the report of the Joint Committee on Human Rights. The examples raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Harris, all seem to relate to the manifestation of somebody’s religious beliefs. The report states that the holding of religious beliefs by any individual is an absolute right under both the European convention and in international law, under Article 18 of the Universal Declaration of Human Rights. It is only the manifestation of one’s religious or humanist beliefs that can be restricted by a country on certain grounds, as defined in European and international law. Would the Minister please outline why the Bill, as currently drafted, only allows prohibitions and requirements to,
“so far as is practicable … avoid any conflict with the respondent’s religious beliefs”?
It should, surely, be the manifestation of those religious beliefs that the Bill is aimed at.
Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(11 years ago)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, I support the noble Lord, Lord Flight. I remind the Committee that I sit as a magistrate in central London, and in my time I have certainly given many ASBOs for persistent and aggressive begging. When I sit, it is relatively commonplace to have an ASBO application from Westminster City Council, and it is something that magistrates are experienced at dealing with. As I said at Second Reading, in my experience, magistrates are more sceptical about granting ASBOs than they were when they were first introduced, and certainly not all ASBOs that are applied for are given.
The noble Lord, Lord Flight, has set out the case very well. I have been lobbied by Westminster City Council and the central point is that, if the existing mechanisms within local authorities are used to dealing with a particular administrative structure, there will inevitably be a cost if one changes that structure. Therefore, I think that it is incumbent on the Minister to explain why he thinks that the new measures he proposes to introduce will work more effectively and potentially reduce those costs. As I said, certainly from the point of view of magistrates administering this, it is a relatively well oiled machine, and we take a sceptical view when we put them in place in the first instance.
Baroness Hamwee (LD)
My Lords, the noble Lord knows that I have concerns about this amendment. I hear what he says about other cities. I have obviously not been able to undertake a scientific assessment but there seems to be quite a variation in views—in London, at any rate—about whether this is the right way to go about the matter.
The language in the amendment seems to be very general;
“intentional or deliberate anti-social behaviour”,
could mean pretty much anything, as we heard earlier. I would have thought almost all anti-social behaviour could potentially be persistent; most conduct would be potentially persistent, but that is not really my concern. The begging that we have heard about troubles me a lot for a variety of reasons; one of them is the criminal gangs behind the beggars. I am not immediately convinced that this measure, dealing with those who are forced into the activity, will actually solve the problem or deter the activity. I am also concerned—though I accept this might be the position with the current arrangements—about the revolving door of arrests. Some are in the cells overnight and then they are out again.
There is other legislation as well; I am sorry that the Minister has apparently not responded at length. I had understood that quite a long letter giving the Government’s views had gone out. That is a matter for my noble friend. I have not seen the letter; I just heard that there was one. It dealt with the other legislation, which might be quite old. That does not mean to say that it is necessarily bad.
I went to the noble Lord’s briefing with Westminster City Council. I heard Councillor Aiken’s views very powerfully expressed. I did not gain the impression that everything was okay now, so I was a bit confused as to the argument against scrapping the current system. I may have been wrong, but I picked up the feeling that there were problems now.
Lord Flight
I would like to respond to that. Yes, there are problems; persistent begging is a very hard thing to deal with. I think that the Westminster argument is that its present tools include a tool which has had some success; it is concerned that the new arrangements, because of the double doing, would be less useful.
Lord Taylor of Holbeach
My Lords, I am very pleased to have the chance to talk about this issue because I am concerned that Westminster City Council, a flagship council, has expressed anxieties. I reassure my noble friend Lady Hamwee that the letter has gone to Councillor Nickie Aiken from my honourable friend Norman Baker, who was the Minister responsible for crime prevention and was the lead on this Bill in the Commons. I have met with my noble friend Lord Flight. I hope that we had a very productive discussion. Much of the information that he has been able to give came out of that meeting on Friday. It is now Monday and things have moved in a rather compressed way.
I will conclude my remarks in saying what I intend to do but, first, I should express that we are aware of the problems of persistent and aggressive begging with which a number of councils are faced. I attend the meetings of the safer communities board of the LGA fairly regularly nowadays because I enjoy them and find them very useful. When I went, I think that I was able to explain to those gathered, who included the leader of Bradford City Council—a large city—that the measures provide a portfolio of remedies to deal with this sort of circumstance. The criticism from Westminster City Council came to me rather out of the blue.
However, the Government appreciate those concerns and acknowledge the impact that aggressive begging can have on individuals, businesses and communities. I am aware that Westminster is working with its partners to do what it can to tackle the problem. I think that noble Lords will realise that it is extensive. Westminster has expressed its concerns. It is important that councils, the police and others work together on all these matters, which is one of the underlying themes behind this Bill.
As I have said, last Friday I met my noble friend Lord Flight. It seems that the concerns about the injunction to prevent nuisance and annoyance stem from its differences from the ASBO with regard to powers of arrest. The breach of an ASBO is of course a criminal offence and, as such, someone can be arrested simply for a breach. In contrast, the new injunction is a purely civil measure with civil penalties for a breach. Consequently, we do not consider it appropriate or proportionate for it to have an automatic power of arrest. As such, we have limited the court’s ability to attach a power of arrest to the most serious cases; that is, cases where a perpetrator has been violent or has threatened violence, or if there is a significant risk of harm to another person.
I understand the intention of my noble friend’s amendment and I am sympathetic to local councils’ concerns. He has mentioned other councils and I accept that others may have notified him of their concern. However, I should like to make two points. First, the effect of the amendment may not actually achieve its aim and, secondly and more importantly—we can change the amendment but it is a question of how the Bill operates—there are more appropriate powers that could be used as provided for in this Bill.
The amendment would require a threat of,
“intentional or deliberate anti-social behaviour”.
As has been mentioned by my noble friend Lady Hamwee, this is rather a broad brush. These words insert subjective elements that raise evidential thresholds for enforcement agencies and the courts. The courts would have to consider the state of mind of the perpetrator in ensuring that the power of arrest has been used lawfully. Before arresting an individual under the amendment, the police would need to satisfy themselves that the perpetrator had deliberately or intentionally committed anti-social behaviour. That may look easy to do on the face of it but may be different in practice. For example, it has been suggested that some of the foreign nationals who beg aggressively are coerced into these activities by organised crime gangs. My noble friend Lady Hamwee referred to that too. This is rather different from the current situation with the breach of an ASBO where there is no subjective element. That is why we say this amendment may not help councils in practice in the way that they hope.
However, there is a more fundamental reason why I believe the amendment is not necessary. I can understand why councils have focused on the injunction. It is, on paper at least, the direct replacement for the ASBO on application. However, it seems what the councils actually want are swift, efficient and cost-effective powers to prevent anti-social behaviour, supported by meaningful punishments. As I indicated earlier, as did my noble friend, such powers are in this Bill. The community protection notice under Part 4—which we will being coming to, I hope, soon—is intended to deal with particular ongoing problems or nuisances which negatively affect the community’s quality of life. The notice could be used to direct an individual to stop causing the problem and can, if necessary, be served on the spot. While a written warning is required, depending on the behaviour in question, it would not be necessary to wait too long before the actual notice was issued. It could almost be done immediately where appropriate and necessary.
The notice could be used to stop a specified action or wider behaviour, such as aggressive begging. It will then be available to councils as well as the police to ensure either agency was able to deal with the problem there and then. Breach of any requirement in the notice—for instance, failing to cease begging in a certain area—will be a criminal offence, subject to a fixed penalty notice or prosecution. Critically, a person may be arrested on suspicion of a breach. On conviction an individual would be liable to a fine of up to £2,500. That to my mind is a significant punishment.
Alternatively, where a persistent problem is detrimental to the local community’s quality of life, the public spaces protection order could be used by the council to impose restrictions. For instance, in areas where aggressive begging is a problem, a blanket ban could be imposed on it, ensuring that the council or police can act quickly when it occurs. In addition, the order can be used preventively, so if the council reasonably believed that the problem would simply move to another location—which is a real problem—it could use the new order there too. Local authorities would need to consult the police and other interested parties before seeking to impose an order, but the decision to use the new power would be theirs. It would be vested in local authorities. Again, breach of the order would be a criminal offence, subject to a fixed penalty notice or prosecution. Here again, a person could be arrested on suspicion of a breach. On conviction the offender could face a fine of up to £1,000.
My noble friend mentioned the dispersal power under Part 3, which may be useful to deal with individuals or groups causing problems by allowing the police to move them on immediately and away from the area where they habitually operate, for up to 48 hours. We will talk about how dispersal orders operate when we come to consider relevant amendments. Failure to comply with a direction is a criminal offence which will normally be tried in the magistrates’ court or a youth court for people under the age of 18.
There is a portfolio of measures in this Bill which can be used by local authorities, I think, effectively. The fact that begging persists here in the capital is an indictment of the fact that we still do not have effective measures to deal with it. I think that the Bill provides them.
I hope that I have been able to reassure my noble friend of my earnest desire to get this matter sorted. I am very pleased to meet with Nickie Aiken or for that matter any other councillors responsible for this area of activity in their local authorities, to try to explain to them how in practice they can use the measures provided for in the Bill to deal with what is a very serious problem.
Baroness Hamwee
My Lords, the Minister has given a very detailed reply as to the measures available, but I am sure that he would agree that none of that reduces the need to deal with trafficking and immigration control, which I think is actually behind quite a lot of what is happening which is so offensive.
Lord Taylor of Holbeach
In some circumstances there is undoubtedly some suggestion that people involved in begging have been brought here as part of criminal gang activity. But that is another crime and there are other measures to deal with it. Meanwhile, local authorities’ concern is to make sure that members of the public, tourists and businesses are not interfered with by beggars in public places.
Baroness Smith of Basildon
My Lords, I think I can move this amendment fairly briefly. It concerns applications made for the issue of an arrest warrant for the breach of an IPNA. One of the things that strike us when we look through the clauses is that there is no timescale from the time when the application is made for an arrest warrant to when it would be issued or the application rejected—the Bill is completely silent on that issue. My attention was drawn to this by the report of the Home Affairs Select Committee, when it reported on delays in county courts, saying:
“We heard that this was likely to severely slow down the process for dealing with ASB”,
and the committee said how concerned it was. Local authorities have also expressed concern about delays in the county court system. In Clause 9(2), it seems that most of the applications would be to a county court; the only time it would go to a magistrates’ court would be if it was a youth court that had granted the IPNA. In other cases it would be a county court, and in some cases the High Court. If there were delays in the county court system, that would be a serious blow to the idea of moving swiftly—one of the major reasons that the Minister has given for having IPNAs rather than anti-social behaviour orders—in the introduction of these new injunctions.
There is another point that is not covered by the amendment but is also relevant to this. All the legislation should be subject to post-legislative review after five years. That seems quite a lengthy time on an issue like this where, if there is a problem, it will have to be dealt with much more quickly than waiting five years to see if there is in fact a problem. With issues of anti-social behaviour rising so high in public concern—and indeed in the Government’s concern, given the Bill before us—it would not be reasonable if we passed legislation but were then not able to enact it because of the delays that are currently being seen in the county courts.
The proposal to the Minister is that we look at this issue first and the Government make an assessment of, and issue guidance on, how long it should take for a county court from the moment it gets an application for an arrest warrant for a breach of an IPNA to when that court has to make a decision. If the Government could issue that beforehand, that obviously would speed up justice, which I understand is the purpose of this measure. That fairly briefly sums up and describes why we are putting the amendment forward. I beg to move.
Baroness Hamwee
My Lords, I have Amendment 21C in this group. It is extraordinarily inelegantly drafted, but I hope that the Minister is aware of my concerns that lie behind it. Where a respondent has certain requirements imposed on him as part of the IPNA and these have rehabilitative or therapeutic aspects—indeed, in many cases one would hope that they did—the further proceedings should not be taken in such a way as to prejudice the benefit of those requirements. My straightforward question—I was going to say “simple” question, but it might not be quite that simple—is to ask for some assurance from the Minister that will help to allay that concern.
Baroness Hamwee
My Lords, I propose to speak to this; I realise that a number of people in the Chamber will be aware of that, but not the Chairman. I do not know whether the Committee would wish me to do that now or to save my fire-power. I am just aware of interest in the time, and the very creative way in which the time that I think we had agreed to finish had been reached.
The Deputy Chairman of Committees
I put it that Schedule 2 be the second schedule to the Bill, but I did not take the voices on that, so the noble Baroness is entitled to speak on this if she wishes.
Baroness Hamwee
In that case, my Lords, I apologise to the House but I do want to raise at this point whether Schedule 2 should stand part of the Bill. The Minister is aware of the particular concern that I have, which is that the schedule provides for sanctions in the event of a breach of the injunction. My concern is about the sanction applicable to children—the sanction of imprisonment. Children who breach an IPNA can be given a supervision order or, if they are over 14, up to three months’ detention. I do not think that the Minister will be surprised at concern as to whether such a sanction is proportionate, productive and compatible with children’s rights, for reasons of which the Committee will be very well aware.
Detention of any length in the case of children is something that many noble Lords are concerned about—whether it is not only not effective but also particularly harmful for children. I am not aware of evidence that imprisonment for breaching an ASBO acts as a deterrent for children committing anti-social behaviour. We are all aware of the potential harm for children’s development and the impact on their rehabilitation. We all know stories about fast-tracking children into the criminal justice system by dealing with them inappropriately at a very early stage in what may or may not—one hopes not—turn out to be a criminal career. Only the most serious crimes committed by children lead to custodial sentences. The IPNA is, of course, a civil measure, and detention is a very disproportionate sanction for a breach when the child has not actually committed a criminal offence. In brief—and I have kept it brief—I would be grateful if the Minister could tell the Committee how detention for children can be justified in this way.
Lord Taylor of Holbeach
My Lords, I hope that the Committee will forgive me if I rattle through my notes here, as I am aware of the lateness of the hour. I am grateful that my noble friend Lady Hamwee has raised this issue; it is an important point about the justification of detaining under-18 year-olds if they have breached the terms of an injunction in Part 1.
It is important to remember that, although the test for an injunction is the civil standard of proof, in the event of the breach of the test what applies will be the criminal standard of proof—beyond reasonable doubt. The court must also consider whether the young person has a reasonable excuse for breaching the injunction. Only a young person over the age of 14 can be detained and for not more than three months. Currently, under the anti-social behaviour regime, a young person can be detained for up to two years. It is also important to say that detention can be used only as a very last resort,
“where the court determines that because of the severity or extent of the breach no other power available to it is appropriate”.
Secondly, when the breach is established, it will be a civil contempt of court. This means that a young person will not be saddled with a criminal record, unlike with the breach of the anti-social behaviour order. We have also said in draft guidance that informal approaches should be used in most cases involving young people. When agencies believe that a more formal intervention is necessary, the courts must have the power to deal with young people who have not responded to the informal approaches or who wilfully ignore the terms of their injunction.
I hope that I have made it clear to my noble friend that these powers are used extremely sparingly. They are certainly not a power of first resort—they are of last resort only.
Baroness Hamwee
My Lords, I have already made clear this afternoon my concern about reliance on guidance. I wonder whether, if this sanction is so rare, a child would find himself faced with it, and there is no other basis on which to consider detention—that is, if you believe that detention, even used sparingly, is a correct approach. I expect to come back to the matter, and apologise to the Committee that, in the rush to get amendments tabled with the change of timing of this Committee stage, I missed this last week.
EU: Eurojust (EUC Report)
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Lord Stoneham of Droxford (LD)
As a member of the sub-committee that produced this report, I support what has been said tonight, the report itself and the words of the noble Baroness, Lady Corston.
A lot of the arguments have already been made so I will not repeat them. However, I will say three things that I believe are important. Everyone knows that Eurojust aims to,
“improve the coordination of investigations and prosecutions among the competent judicial authorities of the European Union Member States”.
That is its purpose. It is inevitable, in a competitive single market, that just as capital, labour and goods will move between borders, criminals recognise no borders either. They will use whatever weaknesses there are in domestic legal and police systems to ply their trade and to seek protection. It makes no sense, as the Government have recognised, that we should pull out of Europol, Eurojust or the European arrest warrant. They all complement each other. The Government have agreed this, and last week we also agreed that the further proposal for a linked European prosecutor was a step too far, and the coalition is opposed to that.
However, now we have proposals for a new regulation for Eurojust which will look at its structure, its new provisions for governance and management structure, new provisions for its accountability to the European and national Parliaments—including the fact that the Eurojust president will have to appear before Parliament—the setting up of an executive board, and the removal of individual member states’ discretion.
The Government have concerns about all of those and have pointed them out. They are concerned about the ramifications for fundamental rights, the change to Eurojust’s existing governance and management and the whole nature of the extended powers given to national members. However, as we have heard, it makes no sense at all and it is silly that we are not prepared to get involved in the negotiation of these new proposals, and will mean that in Europe we will be seen as petulant and awkward.
Surely the great danger to us is that if we opt out of these negotiations things will emerge that we are not happy with. We know that there are many countries in Europe that agree with us on the whole issue of whether or not to have a European prosecutor and on getting further accountability of Eurojust. It is too important a body to us for us to ignore the process of reforming it. Finally, on this question we should send in the openers to bat, not rely on the tail end to pick up the pieces.
Baroness Hamwee (LD)
My Lords, my point is a general one. I apologise to your Lordships if it is trite—it probably is—but to me it is blindingly obvious that you cannot play the ball if you have taken your bat home. Every noble Lord will have had experiences of negotiation in some context, if only the domestic, and we know that if you choose to walk away you have to pick your moment. You have to be clear what the deal breaker is and know what your own compromise would be. However, until then you have to remain part of the story, not least because you risk losing respect if you are not prepared to get stuck in and stay stuck in to the project. You certainly risk losing influence. My noble friend’s phrase that you are “looked on as petulant” was absolutely spot on. You risk not being regarded as a serious player if and when negotiations resume. Indeed, you risk being thought of as having disqualified yourself from further negotiations in a serious way if you have distanced yourself.
Lord Rosser (Lab)
My Lords, I thank my noble friend Lady Corston for her introduction to the report from her committee and for the clarity of the committee’s case made in its report for the recommendation that the UK opt in to the negotiations on the proposed Eurojust regulation.
As has already been said, the European Union Agency for Criminal Justice Co-operation—Eurojust—was established just over 10 years ago. Provisions in the 2009 Lisbon treaty agreed by the member states included provisions that required the EU’s institutions to pass legislation in the form of regulations to determine Eurojust’s structure, operation, field of action and tasks. The proposed Eurojust regulation seeks to fulfil the member states’ aims.
Eurojust is involved in major crimes such as drug trafficking, human trafficking, terrorism and financial crimes, which cross borders and require co-operation between different jurisdictions if they are to be successfully investigated and prosecuted. Since 2003 there have been just under 1,500 requests from EU member states for co-operation with Britain through Eurojust. The objective of Eurojust is to support member states in conducting investigations, and we are very supportive of the value of the work that it undertakes.
As has already been said, the proposed Eurojust regulation will apply to the United Kingdom only if the Government indicate a decision to opt in by 21 November. The Government’s position in the House of Commons when it was debated there, I think last week, was that we should not opt in to the new Eurojust proposals at the outset of negotiations but should conduct a thorough review of the final agreed text to inform active consideration of opting in to the Eurojust regulation post-adoption, in consultation with Parliament. If the Government decide to opt in to the negotiation of the proposed Eurojust regulation, which seeks to replace two existing Council decisions, the legislation currently governing Eurojust will no longer fall within the scope of the Government’s 2014 opt-out decision, under which the Government are seeking to rejoin the current Eurojust arrangements as part of their 2014 opt-out decision.
In the House of Commons debate last week, the Minister referred to government concerns about the proposed connections between Eurojust and the proposed and strongly opposed European Public Prosecutor’s Office. The Minister also expressed government concern about the proposed new Eurojust regulation creating mandatory powers for national members. These powers, said the Minister, would allow a requirement for coercive measures at a national level with the ability to insist that national authorities take investigative measures in some circumstances, which could cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland, and the sole ultimate responsibility of the Lord Advocate in Scotland for determining investigative action in Scotland.
Unusually for this Government in regard to a European Union agency, they publicly rather value Eurojust. Their stance indicates they would prefer to stay in rather than find themselves outside because they do not like the look of the new regulation once it has been adopted following the deliberations of all those member states participating in the negotiations. In this regard it would at least clarify the Government’s position if the Minister could indicate whether, if the European Public Prosecutor’s Office proposal does not proceed, and with it the references to the link up with Eurojust, the Government will still not opt in to the proposed Eurojust regulation unless other significant changes are made to the proposed regulation. In other words, is it the connection with the EPPO proposal that is the showstopper for the Government or are there other aspects of the proposed Eurojust regulation that the Government also regard as a showstopper as far as opting in to the regulation is concerned?
The Government should be able to answer that question in general terms since they are not disclosing their negotiating position on what significant changes would be required as, under their stance in the House of Commons, they do not intend to opt in to negotiations anyway on the proposed Eurojust regulation. What the question does—if the Minister will give a straight answer—is indicate whether the Government’s relative enthusiasm for Eurojust is greater than their dislike of the proposed new regulation as it stands minus any interweave between Eurojust and the EPPO, or whether the Government’s dislike of the proposed new Eurojust regulations minus the interaction with the European Public Prosecutor’s Office is still such that if there is no significant change in the regulation in line with their position, they are prepared to accept no longer being a full participating member of Eurojust.
The view of your Lordships’ European Union Committee is that were it not for the provisions governing Eurojust’s interaction with the EPPO, the argument in favour of the UK opting into the negotiations would be clear and the committee would have no hesitation in recommending that the UK opt in. The committee’s view is that the Government’s key issues with the text could be dealt with during the proposal’s negotiation, but they recognise that the Eurojust proposal has not been brought forward in a vacuum but is closely associated with the Government’s policy towards the EPPO proposal. However, as has already been said, there will be changes in relation to the EPPO proposals since those proposals have been given what I think is known as a yellow card as a result of decisions by a not inconsiderable number of member states’ national Parliaments, which means that the Commission is now required to review its position.
The European Union Committee considers that the non-participation in the EPPO by other member states in addition to the UK, will inevitably mean that the contentious aspects of the proposal dealing with the reform of Eurojust will be subject to negotiations in the Council, and that the United Kingdom ought not to miss out on such negotiations. The committee takes the view that if the UK Government decide not to opt in to this regulation they will not be at the table for the important discussions addressing the position of those states wishing to co-operate within Eurojust but who choose not to participate in the EPPO. The committee says that it could not advocate such a course of action.
Referring to the Government’s position that they value the work of Eurojust, the committee says that it cannot foresee a situation whereby in practical terms the UK would be allowed to remain a full participating member of Eurojust operating under defunct or superseded legislation that they have decided to opt back in to, while the other participating member states co-operate under the new proposal once it is agreed. The European Union Committee has therefore recommended that the UK opt in to the negotiations on the proposed Eurojust regulations. Its report points out that the Director of Public Prosecutions said that the UK’s involvement in Eurojust provides many benefits and in his view represents good value for money, and that the Lord Advocate said that he would be concerned if the UK left Eurojust.
In his letter to the chairman of the European Union Committee, the Minister in the other place said that the Government would take an active part in the negotiations to protect the national interest, and also on the EPPO. The Government, he said, would also continue to challenge the Commission’s evidence base and justification for bringing forward the Eurojust proposals at this time. In addition, the Minister said that the Government would oppose any changes that would reduce the influence of member state representatives over the functioning of Eurojust, and seek confirmation that the opinions of Eurojust acting as a college are non-binding on member states.
Anti-social Behaviour, Crime and Policing Bill
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Baroness Hamwee (LD)
My Lords, scrutiny can be misunderstood. Criticism, however gentle and constructive, can be heard as objection. Therefore, I apologise to my noble friend the Minister that tonight I focus on what concerns me in the Bill—many aspects of which I welcome. However, I am explicit in welcoming my noble friend Lord Paddick.
The focus of the Bill is the issue of victims, which is hugely important. As I thought about anti-social behaviour, which can have an enormous impact, I also thought that identifying all victims is not always easy. Perpetrators may be victims, too. Those who engage in conduct capable of causing nuisance and annoyance may themselves be the victims of health problems, learning difficulties or the failings of society. They may become society’s victims because the response, through measures such as these, is neither appropriate nor effective. They may be victims in the traditional sense—for instance, beggars run by criminal groups.
I welcome the inclusion of positive requirements to help turn around behaviour, which, of course, is resource-intensive. However, there seems to be a blurring of lines between the civil and the criminal. We have due process for a reason: to differentiate between the factually guilty and the factually innocent, and thus between those who should and should not be subject to sanction. However, here we are without the criminal standard of proof that would be appropriate and strict liability means that we risk using orders against those who do not comprehend fully their actions or their impact. That, of course, is once we get past whether we should address through these measures conduct of as low a level as nuisance or annoyance, in the normal sense of those words. The terms are very wide; you do not even have to travel on the Clapham omnibus to invoke them.
Indeed, some people truly regard as a nuisance what is to others the exercise of civil liberties—many of your Lordships will have heard representations from naturists on this point. Other people will regard conduct that is a nuisance to some as simply normal. Some immigrant communities gather on the street because that is normal to them, but it may make other local residents uncomfortable. ACPO commented yesterday on the importance of not becoming,
“intolerant to normal child-like behaviour”.
It is alert to this, of course, because the police have to respond. We all know that legislation cannot do everything but, to quote ACPO again, talking about the importance of diverting young people from committing anti-social behaviour,
“A small minority of children and young people commit anti-social behaviour so enforcement responses need to be proportionate and effective”.
I would like to understand better why ASBOs have not been successful, given that there is such a high rate of breach. I am depressed that the impact assessment for this Bill assumes a breach rate of 40% for IPNAs, which must mean considerable reliance on the criminal or contempt of court proceedings without, for adults, the possibility of community penalties.
I will mention two other aspects. In the criminal courts, the default position is not to name and shame a child or young person for reasons of rehabilitation and safeguarding. I would like to see the same approach here. In my view, imprisonment as a sanction for breach of a CBO, an IPNA or a dispersal order, particularly in the case of a child, is not proportionate. Surely any action that justifies detention will be an offence under other legislation. In 1997, the then Government said that ASBOs would rarely be used against under-18s but that has not been the case. It is a reminder that legislation needs to be precise.
The response to many of these points often directs us to guidance and judicial discretion to mitigate harsh impacts. Even if it is appropriate that a matter gets as far as a court, I, for one, would prefer to rely on the law as expressed in statute. My noble friends Lord Dholakia and Lady Linklater, who are voices of compassion—including for those at risk of harm, whom I do not want to be thought to be ignoring— and experience of the dangers of stigmatising and criminalising, will have a lot to say on that part, I am sure.
The community remedy documents, which have been mentioned, involve the community, and I welcome that, but, as their object needs to be solely punishment, should we have concerns such as those which this House expressed when police and crime commissioners were introduced? In preparing these documents, a PCC, for electoral reasons, might not take a rounded view but might respond in a rather simplistic manner.
Having talked about proportionality and reasonableness, noble Lords will not be surprised by my reservations about dispersal powers, which I fear are too restrictive for a society that values its freedoms. I do not even get as far as mere reservations about riot-related powers of possession. Generally, the powers of eviction that the Bill introduces worry me intrinsically and for practical reasons, including the duties of local authorities whose role across the Bill needs more exploration. Nor will noble Lords be surprised at my view that public spaces protection orders are potentially oppressive. That is one issue where we are asked to look to guidance. My noble friend Lord Greaves will have a good deal to say on that.
My noble friends Lady Doocey and Lord Redesdale will talk about dangerous dogs. I take the view that the legislation should be about dangerous owners. No doubt my noble friend Lord Marks of Henley-on-Thames, along with the other stellar cast of lawyers, will address the extradition provisions in forensic detail. I warn him that I will join in on the issue of compensation for miscarriage of justice. Happily, far fewer people are affected by that than by other parts of the Bill—which is an argument in itself for not rolling back the law—but it is ironic that the burden of proof is lowered at the start of the Bill and then raised at the end when it deals with individuals who suffer a miscarriage of justice at the hands of the state. They should not have to prove their innocence, a concept not used elsewhere in the criminal justice system.
Many of my noble friends will speak about forced marriages. I give no guarantee that their views will be the same. I confess that I am not convinced about criminalisation. It has not eradicated female genital mutilation. The danger of increased underreporting because of fear of incriminating family members seems real to me.
My noble friends Lady Harris of Richmond and Lady Doocey have long been concerned about the powers and effectiveness of the IPCC. The accountability and professionalism of the police is particularly topical. So is the extent of the Schedule 7 powers under the Terrorism Act. My noble friend Lord Avebury and I will have a good deal to say in Committee on this, when we will want to understand the justification for powers that are still very broad. I welcome the proposed changes as far as they go, but without justification for the changed powers and how they are exercised in practice public confidence is jeopardised.
I return to and finish on the early clauses. These are not my words but those of Kevin Brown of Newcastle University, whose work on this I read with interest. He said that balancing can become a zero-sum game when policymakers assume that by taking rights away from one set of people they can improve the lot of another.
Drugs
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Baroness Hamwee (LD)
My Lords, it is no surprise that this has been a very intelligent debate on a multifaceted issue. I congratulate my noble friend on packing so much into a scarily short time. I attended a seminar a little while ago. During the first session, the politicians blamed the media for blocking debate through overdramatic reporting. The second session was led by a journalist, who blamed the politicians for being risk averse. We say something about this in the report of the APPG, which is led so energetically by the noble Baroness. I add my thanks, too, to Frank Warburton and Jonathan Hurlow, who did a huge amount of work on it.
We said that we recognised that politicians were apprehensive about proposing change because they might be perceived as irresponsible or soft, so they shy away from rational decisions. The report states:
“Our current drug policy suggests a preference for a flawed policy rather than appear soft on a contentious issue”.
That was addressed to all politicians. However, changes are afoot. Like others, I am attracted by the Portuguese approach of—the description is perhaps more accurate than “decriminalisation”—depenalisation. It is not a soft option, nor is it regulation. There, the number of young people becoming addicted is falling, and so are drug-related deaths.
I will focus on one part of the all-party group’s work. We realised that the world had changed. As others said, drugs are traded on the internet. If we close a site here, another will pop up there. We may ban a new drug, but already there will be several in the pipeline, because scientists in China are poring over published research—using the detail of what is in the public domain—to make small changes in the composition of the drug so that it does not fall within the current classification. It is simply not possible to keep up under the system that we have now.
They are called “legal highs”. Well, yes, they are not illegal—but how do you get over the message that not being illegal does not mean that the drugs are not unsafe? As for cigarettes and alcohol, I cannot defend the fact that some drugs are taxed and some are banned.
The all-party group welcomed the fact that temporary class drug orders do not criminalise the user—not least because a criminal record carries so many problems with employment, relationships and so on, but does not necessarily involve treatment. We heard that some young people use new psychoactive substances—legal highs—because they do not want to break the law. I do not discount that. However, the orders seem to feed a drive for the development of alternatives that are subject neither to the orders nor to the Misuse of Drugs Act. Those alternatives may be very dangerous because their contents are unknown and change from week to week, and because young people make their own risk assessments without reliable information. A harm-based policy, which must be the logical approach, suggests that temporary orders should be in place long enough for a comprehensive risk assessment, with the benefit of avoiding criminalising young people.
The Misuse of Drugs Act is clunky. A witness told us that the system was designed to cope with alcohol, heroin and cocaine, one at a time. It focuses on criminal activity, with the obvious difficulty that if neither users nor police know the content of a substance, in the absence of accurate field-testing devices, what do you do? This and more led to our recommendation that the ACMD should become an independent decision-making body,
“to oversee risk analyses; coordinate the research they need; and make decisions on a scientific basis as to the correct classification for each drug, beginning with new psychoactive substances”,
leaving the politicians to focus on political decisions.
Of course, we need to be as imaginative as the suppliers and to look at all possible responses and tools, such as the use of the internet for good and using trading standards personnel. At the moment they are constrained in what they can do and frustrated by knowing that there has not been any deception of a buyer, who knows that they are not buying plant food or bath salts. It is a very odd collusion.
Like the noble Lord, Lord Birt, I was around in the 1960s. I do not know whether that qualifies or disqualifies me, but life was simpler then. The “war on drugs” is indeed too simplistic, and I have been greatly cheered by a lot of the views that I have heard today.
Visas: Foreign Domestic Workers
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The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
My Lords, it is the turn of the Labour Benches.