Communications Data and Interception

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Thursday 10th July 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am grateful to the Minister for contacting me earlier this morning. Obviously, bringing this stop-gap legislation in such a hurry to both Houses has been a difficult process, and the opportunities for consultation have therefore been limited. There are very strong and divided views on these issues, including among human rights and civil liberties groups. I wonder whether the Minister can reassure the House that there will be consultation with those groups on regulations and guidance, if there is to be any, as well as their involvement in the review of RIPA.

I welcome what was described as a package of pro-civil liberties measures mentioned in the Statement. Will the Minister tell the House whether they will be introduced to the same swift timetable? Also—I do not mean the question to be frivolous—we are proposing to talk to the Americans, but have they agreed to talk to us?

[Lord Taylor of Holbeach]

We have good discussions with all our allies and I can assure the noble Baroness that I have no fear in that regard. I understand what she is saying about civil liberties and much of the discussions about this have centred on ways in which we can enhance privacy protection. The noble Baroness is quite right; we have not had time to consult. Letters will be going to a large number of people and I know that the list includes a number of the best-known civil liberties groups. As far as future business is concerned, and the implementation of the powers in the Bill, they will be parties to the discussion in the usual way. I will do my best to ensure that the noble Baroness is also kept informed.

Serious Crime Bill [HL]

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 8th July 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I am grateful to my noble friend. This amendment relates to an interpretation provision. In Clause 35, new subsection (6B) provides for what:

“References to property or a pecuniary advantage”,

mean in the context of the proceeds of crime. It seems to me that in that legislation and in the legislation that we are amending, some references to property or advantage would be to the whole of it—for instance, if the property is to be subject to confiscation—while some would be to the extent of what has been obtained by a criminal act, for instance the amount confiscated. My amendment really amounts to a question to the Minister as to whether to take it that we should read what is appropriate in the context. In other words, is what I have said implicit and am I worrying about something quite unnecessarily? The second of these examples—in other words, a limited extent—seems not to be provided for in the clause. I beg to move.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

Perhaps I may help my noble friend and reassure her because Clause 35 deals with a technical amendment to the Proceeds of Crime Act, which will expand the types of cases that UK authorities can deal with on behalf of their international counterparts. The Proceeds of Crime Act currently enables, among other things, requests and orders made by courts in other jurisdictions to be given effect in the United Kingdom. One such order is that allowing for the recovery of specified property or money where that property or money is believed to have been obtained as a result of, or in connection with, criminal conduct. The scope of the order is therefore restricted solely to the recovery of specific property or money.

Domestic law, by contrast, recognises that the proceeds of crime can include not just specific money or property but a so-called pecuniary advantage, such as not paying a tax that is lawfully due. The reason that pecuniary advantage was not originally included within the assistance that could be provided to other jurisdictions was due to the scope of international agreements at the time when the Proceeds of Crime Act was enacted. In recent years, however, the international approach has broadened but the law has not kept pace. As a result, law enforcement agencies are unable to assist those in other jurisdictions in recovering from a defendant convicted of crimes such as tax evasion amounts held in the United Kingdom.

I am sure that my noble friend agrees that it is right that we should be able to co-operate as widely as possible in such matters; this clause will help us achieve that. The clause does not affect the position with regard to domestic cases. However, it extends our ability to assist foreign jurisdictions with the recovery of any pecuniary advantage obtained as a result of criminal conduct. I hope that, with that explanation, I have satisfied my noble friend and she will be able to withdraw her amendment.

[Baroness Hamwee]

My Lords, this is one of those occasions when one wants to hold back and read the answer, which is not at all to suggest that I doubt my noble friend. Of course, I share the intention and I am grateful to him for that. I will read the answer but, for the moment, I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, Section 47 of the Policing and Crime Act 2009—PACA, as my noble friend referred to it a few minutes ago—provides that the Secretary of State must issue guidance relating to gang-related violence injunctions. Under Section 47, the Secretary of State must, before issuing or revising guidance, consult the Lord Chief Justice of England and Wales and such other persons as the Secretary of State thinks appropriate. Given the multidisciplinary nature of gang-related violence, it is interesting that the only specific consultee is the Lord Chief Justice—the courts, essentially. My amendment would add consultation of representatives of chief police officers, local authorities, health authorities and persons concerned with the care of young people, the Youth Justice Board and, again, such other persons as the Secretary of State thinks appropriate.

I do not need to persuade the Committee of the interest, in a technical sense, of all those whom I have listed, in the issue of gang-related violence and the formation and operation of gangs. I appreciate that, under PACA, the Secretary of State is able to consult all these people but it would be appropriate to list a wider number of officeholders and interests than is simply caught up in “such other persons”. I beg to move.

[Lord Taylor of Holbeach]

My Lords, I am grateful to my noble friend Lady Hamwee for outlining her thinking behind this amendment. I entirely agree that the contents of any statutory guidance should be developed and agreed on by all the relevant parties in advance. I assure her that this is already the case. The statutory guidance on gang injunctions is being revised, as we have already discussed, and will be reissued in the autumn. We are already consulting the Youth Justice Board, the Ministry of Justice, HM Courts and Tribunals Service, the Judicial College, the Crown Prosecution Service and the College of Policing. We also plan to consult police forces and local authorities, through the Local Government Association, as well as the Department of Health and the Department for Education. This will ensure that the welfare of young people is integral to the process. I have emphasised, in my contributions, the importance of this guidance in making gang injunctions effective.

In legal terms, the current requirement to consult the Lord Chief Justice and,

“any other such person as the Secretary of State thinks appropriate”,

allows enough flexibility so that relevant parties are involved in the process as judged most appropriate. It is a commonly used form of words to describe this sort of consultation. Although I understand exactly why my noble friend has tabled this amendment, it is not possible to set out in legislation a comprehensive list of all those who should be consulted and I am not persuaded that anything further would be achieved by laying out a list of consultees. For this reason, and in the knowledge that the new guidance involves considerable consultation—though not I hope so much that it would mean it is not available by Report—I hope my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, we know the phrase well. When my noble friend started to list those who are currently being consulted, I thought that this was sticking, again, with the court system. However, he widened that, and I was very pleased to hear confirmation that the importance of the welfare of young people, not just a criminal justice response, is being encapsulated in the consultation going on at the moment. I do not intend to pursue this, but I am glad to have that information and to have the recognition articulated in that way. I beg leave to withdraw the amendment.

Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2014

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 7th July 2014 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, as noble Lords will know, Schedule 7 to the Terrorism Act 2000 allows an examining officer to stop and question—and, when necessary, detain and search—individuals travelling through ports, airports, international rail stations or the border area to determine whether that person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. Examining people at ports and the border area contributes on a daily basis to keeping the British public safe. Those engaged in terrorist-related activity travel to plan, finance, train for and commit their attacks. Most major international terrorist plots have involved individuals travelling through international borders to plan and prepare their attacks. Schedule 7 is an important part of the UK’s counterterrorism strategy and integral to the UK’s border security arrangements.

The Anti-social Behaviour, Crime and Policing Act, which received Royal Assent on 13 March 2014, made changes to Schedule 7—and to Schedule 8, which provides for the treatment of persons detained under Schedule 7 powers. These changes were made following extensive public consultation in 2012 and are intended to reduce the potential scope for Schedule 7 to be operated in ways that may interfere with individuals’ rights unnecessarily or disproportionately, while retaining operational effectiveness.

The changes made to Schedule 7 include: reducing the maximum period of examination from nine to six hours; extending to individuals detained at a port the statutory rights, already available to individuals detained under Schedule 7 at a police station, to have a person informed of their detention and to consult a solicitor privately; clarifying that the right to consult a solicitor includes consultation in person; ensuring that all individuals examined for more than one hour are formally detained and given their statutory rights; introducing statutory review of the need for continued detention; introducing a statutory requirement for training of examining and reviewing officers; establishing a statutory provision that undertaking strip-searches of persons detained under Schedule 7 powers requires reasonable grounds to suspect that the person is concealing something which may be evidence that they are involved in terrorism, and requires a supervising officer’s authority; repealing the unused power to seek intimate samples— for example, blood or semen; and making express provision that an examining officer may make and retain a copy of information obtained or found in the course of an examination.

Noble Lords will appreciate that our discussions are consequential on the full debates that we had when the Bill was before us. The existing code of practice must be revised to reflect the changes made to the powers by the Anti-social Behaviour, Crime and Policing Act and to make specific provision on training and reviews. I am grateful to noble Lords for attending this debate and beg to move.

[Baroness Hamwee (LD)]

My Lords, this is consequential on previous debates. It is amazing how much and how quickly all that agonising goes out of one’s head, and one has to remind oneself of the subject of it. I am glad that we have had the chance to consider the draft code of practice and the covering SI. What concerns me is the delay in the introduction of the review arrangements, which I assume is because it has simply not been possible to get the training in place quickly enough. I am not suggesting that the better provisions of the legislation, as they are after the work done on the then Anti-social Behaviour, Crime and Policing Bill, should be delayed. However, could my noble friend confirm that training is on track for the more senior officers, who will be detailed to undertake the reviews, and how supervision will be carried out in the mean time? I notice that the code says that it will be delayed until the relevant provisions come into force. However, in distinction, the paragraphs about audio recording say that there is no requirement to follow the code until next April. That is the time when the review provisions are to come into force, or so we are told. I do not know whether I am seeing a problem where there is none. Perhaps my noble friend has information, although he may not, about the proportion of officers who will be trained to undertake the more senior role.

I shall raise a point again that I raised during the passage of the Bill. Will training cover how officers should deal with the family or other accompanying passengers of the individual who is being held or detained? I think that I mentioned during the Bill’s passage that I had come across an example, which I hope was a rare one, of an individual being told that, if he insisted on waiting for a legal representative, it would be a problem for his elderly mother, with whom he was travelling. In other words, inappropriate pressure was put on him to forgo a right. I am also not clear what happens if, because of detention, passengers miss their flights. I hope that my noble friend can also confirm that the facilities for this work are satisfactory and appropriate. We have talked about short-term holding facilities a good deal, of course.

The code refers to legal privilege, where the restriction seems to be on copying, not on looking at it. You cannot erase something from your head although, obviously, there would be a restriction on using it—but what happens if a privileged document is copied when it should not be?

Paragraph 41 suggests that consultation with a solicitor is invariably not allowed. This is in the examination part of the code, not the detention part. I had thought that it was always allowed, but not necessarily with a solicitor of the individual’s choice. Is that only when the individual is actually detained?

Paragraph 42 states that an examining officer may grant a request that a named person is informed of the examination at his discretion and that:

“Where reasonably practicable, the request should be granted”.

Is it discretion or reasonable practicality?

Paragraph 45, which is where we get on to detention, states that the power may be exercised,

“where the examining officer considers it is appropriate to do so”.

The last bullet point of paragraph 46 states that:

“Detention is an option (during the first hour of examination)”.

Is that bullet point just about the first hour of detention? If I am asking too many questions, I have no doubt that my noble friend will ask to write to me.

However, I will raise a couple of matters which I hope he can confirm now. First, paragraph 7.2 of the Explanatory Memorandum reads:

“Examining people at ports and the border area contributes daily to plan, finance, train for, and commit their attacks”.

I shall not reread that, but when the Minister looks at it, he will realise that some words must be missing. I do not think you detain people in order to help them plan their attacks. I have had a word with the Minister’s officials, and I think they think it is a typo, but quite an important one.

My second question is on similar lines, but I think I am on dodgier ground. It is on annexe A to the code, which explains to the detainee that he is detained to determine essentially either whether he is involved in terrorism or whether he is entering or leaving Northern Ireland. I thought, or perhaps I had assumed without applying much thinking, that it should be “and” rather than “or”. Looking at Schedule 7, Northern Ireland is dealt with in a separate paragraph. Will my noble friend confirm that detention can be solely to establish whether somebody is going into Northern Ireland without any terrorism-related aspect? I am sorry to have slung that at my noble friend. I looked at this rather too close to the time of the debate to give him notice of the rather detailed points which I have just raised.

Serious Crime Bill [HL]

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 2nd July 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am opposing the Question that this clause stand part of the Bill simply to probe. I hope that nothing I say will take the Minister by surprise. I would like to use this opportunity to thank him and his officials for the factsheets that we have had and, in particular, for the Keeling schedules. I discovered that in my pile of copies of statutes, I had a copy of the Proceeds of Crime Act 2002. I then rapidly discovered how out of date that print was, so the material that we have been sent is very useful indeed.

This debate is closely tied to the previous one—still on third parties’ interests. Clause 4 is about receivers, and proposes an addition to the Proceeds of Crime Act involving proposed new Section 10A of that Act, which is inserted by Clause 1 on determining the extent of an interest in property. Essentially, the purpose of this stand part debate is to ask who deals with what, and when. How would all this operate? Who determines whether and when there has been no,

“reasonable opportunity to make representations”,

or whether there would be,

“a serious risk of injustice”?

I am of course quoting from proposed new Section 51(8B) —whereas proposed new Section 10A(1) in Clause 1 provides that the court, not the receiver, determines the extend of a defendant’s interest,

“if it thinks it appropriate to do so”.

My request, therefore, to the Minister is simply for him to explain the procedure.

[Lord Taylor of Holbeach]

My Lords, it was kind of my noble friend Lady Hamwee to thank those who are supporting me at official level in the Bill; I am supported by a very fine team, and I am grateful. I am also grateful for the fact that a number of noble Lords have taken time to talk to me about the Bill. That has helped us all to get an understanding of a complex measure. Those Keeling measures are needed in order to have the faintest idea about what is going on. Noble Lords will therefore understand the complexity of the matter and why the excellence of my officials is important to me.

Clause 4 deals with the circumstances in which an individual affected by a determination of interest may make representations to the court appointing an enforcement receiver. A court can confer certain powers on an enforcement receiver, including the power to realise property. This power is accompanied by a requirement to allow persons with an interest in the property a reasonable opportunity to make representations to the court.

As we discussed in the previous debate, the basic principle is that an appeal against a Section 10A determination as to the extent of the defendant’s interest in a property will be permitted only where the person was not given an opportunity to make representation to the judge who made the determination, or there is a serious risk of injustice. In cases where there is no receiver, the Court of Appeal will hear the appeal in the normal way. In cases where the court appoints a receiver, however, it is not bound by the determination and can hear representations. It is in effect hearing an appeal.

As interested third parties will generally have had an opportunity to make representations to the court prior to it making a determination of interest in property, the changes made by Clause 4 limit to certain circumstances the right of such parties to make further representations to the court appointing the receiver. As I have explained, it is not a right of appeal at large and does not allow representations to be made that are inconsistent with a determination, except under the two circumstances I described: first, when the affected party was not given a reasonable opportunity to make representations to the Crown Court before it made its determination; and, secondly, where the court considers that the determination would result in a serious risk of injustice to the person. These two circumstances mirror those in Clause 3, which set out the grounds under which the Court of Appeal may hear an appeal against a Section 10A determination.

So that we are in no doubt as to what it means, the “serious risk of injustice” will include an instance where an innocent third party with no links to criminality has an interest in a house that is to be sold to satisfy a confiscation order against a defendant. The innocent third party may have been out of the country when the determination was made and, consequently, had not received notification of the hearing. By contrast, it would not include instances where there has been an inconvenience to a third party—for example, if they had to move out of rented accommodation that was to be sold to satisfy a confiscation order. A serious injustice is not anticipated to be such a rare instance that it would be considered to be an exceptional circumstance. It will be a matter for judicial discretion, based on the facts of the individual case.

The clause enables an interested third party to make representations where their interest in the property came to light only after the Crown Court had made its original determination. Subject to the court’s consideration of any such representations, and to the outcome of any appeal, a determination made by the court is binding on the receiver. As I have said, in cases where there is no receiver appointed, any appeal will be dealt with by the Court of Appeal. This represents an equitable balance between the effective enforcement of confiscation orders and the important rights of third parties. On that basis, I beg to move that Clause 4 stand part of the Bill.

[Baroness Hamwee]

My Lords, that is very helpful. I commented to my noble friend when we discussed Part 1 that flow-charts might be quite useful. As he has described the sequence of events, it occurs to me that flow charts or some sort of fairly straightforward step-by-step explanation would be particularly helpful to third parties who get caught up in these proceedings. A defendant will be likely to have legal representation and advisers who can assist with what happens at what stage. A third party may suddenly find that he or she is affected and they ought to be able to find out what steps are available to make representations and how they should be made, without necessarily having to go to the expense of instructing lawyers themselves.

The right thing to do would be to make this user-friendly to people, about whom we should not assume any degree of guilt or their being reprehensible at all. I just use this opportunity to air that thought and of course I am not going to resist Clause 4.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I am pleased that my noble friend Lady Hamwee has raised these issues. We do not take the impact of restraint orders lightly and we fully understand her points. However, these orders effectively freeze property to prevent it being dissipated before a confiscation order is made. This is important in effective use of the Proceeds of Crime Act. The property is then available to sell, which helps to satisfy a confiscation order which may subsequently be made.

The intention of the Proceeds of Crime Act was to introduce the ability to obtain a restraint order as early as possible in the investigation to remove any possibility that a criminal will become aware, as a result of the investigation, that their assets are at risk and so move or hide them. We have been discussing this for much of the afternoon. Restraint orders are, therefore, available from the earliest stages of a criminal investigation. As I have already said, and as my noble friend is aware, the current test for obtaining a restraint order in all circumstances is that there is a “reasonable cause to believe” that the alleged offender has benefited from his criminal conduct. This is a proportionate test in circumstances where a defendant has been charged and is being prosecuted. In this case there will be available evidence to meet the test of “belief”.

However, the operational experience of our criminal justice colleagues in relation to this issue has shown that, at the early stage of an investigation, it is very hard to prove belief. The reality is that at that stage of an investigation there may be limited evidence, simply because the investigation has not yet had time to gather it. It is notable—as the noble Baroness, Lady Smith, has said—that the number of restraint orders has fallen since 2010-11, despite the Government’s push for more asset recovery action. The number of restraint orders obtained had been increasing and reached a peak of nearly 2,000 in 2010-11 but has dropped every year since then, with fewer than 1,400 restraint orders being made last year.

Delaying the obtaining of a restraint order until there is sufficient evidence to meet the “reasonable cause to believe” test can provide suspected offenders with an opportunity to dissipate or hide their assets to protect them from seizure. The amendment we are making to POCA in the Bill therefore revises the test for restraint in the earliest stages to “reasonable grounds to suspect”—I emphasise “suspect”—that the alleged offender has benefited from his criminal conduct. It is also of note that the amendments include a requirement for the judge making the restraint order to set a date for the matter to be returned to the court so that it can consider whether sufficient progress has been made with the investigation or give reasons for not arranging such a hearing. This reflects current practice of the court when it makes a restraint order in the absence of the person who will be the subject of the order. Making the practice mandatory will ensure appropriate judicial oversight of restraint orders made during a criminal investigation.

It is important that the Committee understands that Clauses 11 and 31 are not breaking new legal ground. “Suspicion”, as opposed to ‘belief’, is a test in other similar matters. Within POCA itself, a judge has to be satisfied that there are reasonable grounds for suspecting that a defendant has benefited from their criminality in order to issue a production order. Also, under the Police and Criminal Evidence Act 1984, a police officer may arrest without a warrant anyone whom he or she has “reasonable grounds for suspecting” has committed an offence. So, at the early stages of a criminal investigation, it is appropriate that the court uses the threshold of suspicion, rather than belief. We think that this is a direct parallel supporting the amendment we are seeking to make in Clause 11.

This was one of the issues considered by the Joint Committee which undertook pre-legislative scrutiny of the Modern Slavery Bill. In its report, the Joint Committee made the following comment:

“It is imperative that law enforcement authorities should be able to freeze relevant assets at the earliest possible stage in an investigation, and rarely, if ever, more than 24 hours after arrest. We therefore strongly recommend that the test for obtaining a restraint order be amended to make it less stringent. We note that the Government has already committed to reducing the test from ‘reasonable cause to believe’ to ‘reasonable suspicion’. We approve of this formulation.”

I hope the Committee will do so too.

My noble friend Lady Hamwee asked what would happen if a defendant were able to make an application to a court to lift a restraint order. A court may discharge a restraint order, on application, where the investigation has not progressed to its satisfaction. That freedom is available to a defendant, who may also apply to the court to vary a restraint order. It must do so if the investigation has not progressed satisfactorily. I hope that noble Lords will be happy with my explanation and that my noble friend will be content to withdraw her amendment, in the light of my comments.

[Baroness Hamwee]

My Lords, I am glad to hear about the judicial discretion which might be applied. I would like to think that the reduction in the number of restraint orders or applications for them is because of a problem with the legislation and not something inherent in the new arrangements with, for instance, those concerned not directing their minds to the lower test. That can always be an issue and changing the test does not change it. I am, of course, happy to beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

Amendment 19 would remove paragraph (b) of new subsection (7A) in Section 67 of POCA. Amendment 20 would make an order under this new subsection (7B) an affirmative order. Having had the benefit of a discussion with the Minister, I know what is meant by the phrases,

“money that is represented by”,

and “may be obtained from” as distinct from money actually obtained from. It was an interesting discussion, but it would useful to have the information on the record.

On the order which is required, what is proposed by the Government is quite significant, and it seems to me that an affirmative order would be more appropriate in this case. I beg to move.

[Lord Taylor of Holbeach]

My Lords, Clause 14 amends Section 67 of the Proceeds of Crime Act with a view to speeding up the confiscation of funds held in bank accounts. In addition, the clause enables, through secondary legislation, the powers in Section 67 to be updated to include other realisable cash-like financial products, such as share accounts and pension accounts that may be held by banks or other financial institutions.

Currently, seizure powers under Section 67 of POCA apply only to money in its traditional form held in an account with a bank or building society. Money can also take the form of, or be represented by, innovative financial products. This includes digital currencies whereby the user obtains goods or services by virtual means rather than a physical or electronic exchange of funds.

Currently, it is not possible to realise such instruments for the purposes of seizure under Section 67 of POCA. The extension of powers to encompass other financial products may require modifications to Section 67 to provide for such financial instruments or products to be converted into cash. The new subsection (7B) of Section 67, inserted by Clause 14(3), provides the power to make such modifications.

Clause 14(3) also applies to money that may be obtained from a financial product that is something other than a standard current or savings account. I shall give examples of this, and I am grateful to my noble friend for giving us the chance to put this on the record. An example of such a product would be a pension plan that has yet to mature but will pay an annuity and a lump sum on retirement. Other examples could include a share account or a virtual currency such as Bitcoin. Essentially, therefore, the clause provides for the capture and realisation of instruments with an economic value. I hope that that explains to my noble friend the use of the term “represented by” a financial instrument or product in Clause 14(3).

By virtue of Clause 14(5) an order made under new Section 67(7A) of POCA will be subject to the affirmative procedure. New Section 67(7B) simply amplifies the scope of the order-making power in new Section 67(7A)—it is not a second free-standing order-making power. I hope that I have made that clear. Accordingly, it is not necessary to refer to new Section 67(7B) in Clause 14(5). That being the case, I hope that my noble friend will agree that her amendment is, strictly speaking, unnecessary. However, it has served a useful purpose in that I have been able to explain the purpose of the provisions in Clause 14. In the light of that explanation, I hope that my noble friend will be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am afraid that it occurred to me only while I listened to my noble friend’s explanation that I have not pursued the issue, where it is digital currency or an annuity under a pension plan, of how that will be assessed in cash terms at the point when the cash needs to be calculated. I assume that that must be somewhere else in the legislation—probably in existing legislation. However, that is an issue. We heard recently about how bitcoins are fluctuating in value. Therefore the point at which the calculation is made is very important. Also, we all know that there are issues around the value of an annuity. Therefore I realise, listening to my noble friend, that there is a lot more to this to be thought about than I am afraid I had thought about. Of course, I will beg leave to withdraw the amendment at this point, but—

[Lord Taylor of Holbeach]

I will willingly write to my noble friend. I am not in a position to be able to tell her the process of valuation of those things from the Dispatch Box today, but I am sure that it would be of interest to the House to know how those valuations occur. I do not suppose that that is the only circumstance in which those things have to be valued.

[Baroness Hamwee]

My Lords, I am grateful for that; I did not seek to put my noble friend on the spot today. However, as I said, there is a lot more to that than might appear in the Bill. I beg leave to withdraw the amendment.

Student Visas

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 24th June 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am sure that the Minister shares my and many people’s anger and shame that so many innocent students have been duped and have had cheating promoted to them as if it were a British value—which clearly it is not. Can the Minister tell the House whether the individual students caught up in this will have a chance to retake the tests before immigration action is taken against them? Can he also say what positive steps the Government are taking to promote the sector, which we all agree is such an important export? We know that a factor in students choosing to come and study here is whether they feel welcome or not.

[Lord Taylor of Holbeach]

I will start with the last suggestion made by my noble friend because it is really important. Despite having to deal with this problem— I think the whole House will understand why the Government have had to deal with this problem—we recognise the enormous asset that we have in the higher education and further education facilities in this country. They are global assets and we want them to be available to the world. But they must be conducted under rules which reflect the fact that people come here to study and not as a short cut to involvement in working.

We have had a lot of debates in the House. I think that some of the best have been on this subject, but sometimes I have been the only person saying that students should remain within the net migration figures. I hope that noble Lords who thought differently will be thinking along my lines now and seeing how important it is. I have emphasised that we want the brightest and the best to come here, but they should do so with their sponsorship in order and without the criminality that has been revealed by this particular investigation.

Passport Office

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Thursday 12th June 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the government website still shows the waiting time as being generally three weeks. Are the Government considering putting updated news on that website so that the public are aware of the position? The Post Office is another route to obtaining travel documents. Is it experiencing extra demand? Has there been an impact on Post Office services and on its level of work?

[Lord Taylor of Holbeach]

I cannot answer with specific information on the latter point, but I can say that, even at this point, 97% of passports have been issued within three weeks and 99.24% have been issued within a four-week period. None the less, because of the large number of applications, small percentages can mean large numbers of people whose lives have been inconvenienced. That is why the Passport Office is working seven days a week and efforts are being made to ensure that people are not inconvenienced. The Home Secretary’s Statement made that quite clear.

Immigration Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 12th May 2014 Lords Chamber

[Baroness Hamwee]

My Lords, noble Lords will be glad to know that I will be as energetic as I can in editing my remarks to exclude questions which have already been asked. However, I retain some points and concerns on the amendments, including on the principle.

Questions have been asked about what is meant by being “able”, and also about the practicalities of the matter. The Minister in the Commons said: “I am sure that”, the Secretary of State,

“would … have to consider practical issues and the other surrounding circumstances … She will, therefore, wish to consider those other practical or logistical arrangements as part of her determination”.—[Official Report, Commons, 7/5/14; col. 193].

Can my noble friend give the House assurances as to how all that will actually be reflected in statute or, if not in statute, then in guidelines? I mention here the guidelines published by the UNHCR on statelessness, which specifically refer to the application of nationality laws in practice being,

“a mixed question of fact and law”.

On the right of appeal, the noble Lord, Lord Pannick, has said that he trusts that there will be an assurance that the issues will be dealt with as open evidence. I add to that, while having the same hope, that if there are aspects which cannot be dealt with openly, will the provisions—I do not much like them, but they are what we have got—on gisting and special advocates apply? I have seen some doubt as to whether that would be the case.

On the amendment for review, I am glad that the Government have tabled this, as I did both in Committee and on Report. However, I stressed then the importance of independence. That term is missing from the Government’s amendment. Perhaps I can put it this way to my noble friend: can he confirm unequivocally that the review will not be in the hands of somebody who is within the Home Office?

Like others, I would welcome this being a matter for the independent reviewer of terrorism legislation. Concern has been expressed about resources, but whoever does the job is going to need the resources to do the job. I, too, have a question about why, after the first year, it should be triennial. If we are dealing with small numbers, then the job should be correspondingly small. I also ask the Minister to give us an assurance that the Government will support the reviewer undertaking more frequent reviews if he considers that they should be undertaken.

In debate, we have barely touched on the impact on communities of whom an individual in question is a member. I would support the appointment of the independent reviewer of terrorism legislation, because that postholder deals with people who are in rather connected situations where other measures might be applicable—and, indeed, might apply if deprivation is not to be used. It is clear that there is a danger that the use of the state’s powers, which focus on neutralising—if that is the word—the individual without considering the negative effect on the community, is an issue, as well as the specifics for the individual and their family. I am sure that the independent reviewer would focus on that as well.

[Lord Taylor of Holbeach]

My Lords, this has been an extremely good debate: a serious one, on a very serious issue. We have been fortunate to be able to hear from a large and well qualified body of the Members of this House. I am grateful to all noble Lords who have spoken, and I will do my best to provide those assurances that have been sought by noble Lords. The noble Lord, Lord Pannick, in welcoming the Government’s move in tabling their amendments in the Commons, wanted assurances. I am most grateful to him for letting me have sight of the things he was concerned about so that I was able to address them. I can say the same of my noble friend Lady Hamwee, who did not raise all the issues she had intended to because they had been raised by other noble Lords. However, I think that that most noble Lords have a similar need for reassurance, and I am well aware of the responsibility to provide that assurance to Members of the House.

Perhaps most important is the whole question of the meaning of “reasonable grounds to believe” and whether those reasonable grounds of belief are appropriate for determining the ability of a person to acquire another nationality. The Home Secretary’s decision must be “reasonable” based on the evidence available to her on the nationality laws of those countries and the person’s circumstances. That will include having regard to any practical arrangements, but those will vary from case to case, and it is not possible or appropriate to speculate about what weight those issues would carry in a particular case. “Satisfied” has been interpreted to mean that SIAC decides for itself whether a person is a dual national. In some circumstances a person, after being deprived of British citizenship, may take steps which guarantee that another country will not recognise him or her as a national. The appeal should therefore review the decision at the time it was made, which is why the phrase “reasonable grounds to believe” instead of “satisfied” is used.

Both the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy of The Shaws, asked what the position would be if the foreign state had some discretion in whether to approve an individual’s request for citizenship. I think that the noble Baroness went as far as to say that she thought that there were likely to be grounds for discretion in almost any case. The clause refers to whether under the laws of a country or territory a person is able to acquire the nationality of that country. The key issue will be whether the Secretary of State reasonably believes that they are able to acquire the nationality. It does not say that the person must have a right—an automatic entitlement—to that other nationality. Where there is a discretionary judgment there may be reasonable grounds to believe that the discretion will be exercised. However, reasonableness would require something more than saying that the person should apply for the exercise of a general discretion to grant citizenship to any country that has such discretion. I hope I make myself clear on that. The Home Secretary must have reasonable grounds to believe that, at the end of any application process—if one is required—the person will become a national of another country.

Immigration Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 17th March 2014 Lords Chamber

[Baroness Hamwee]

My Lords, this afternoon’s speeches have reassured me that I was not misreading the clause when I ended up, time after time, in confusion—not just as to the principle, but as to the point. I would sum up my confusion with three questions to myself. If someone is stateless, it seems he may be allowed to remain in the country, so how is the threat diminished? Indeed, is not any threat increased because of the reaction of the individual and his community against the state’s action? Secondly, what happens to his dependants—are they not likely to become more of a burden on the state? Thirdly, is this one of those occasions when neither Parliament, concerned with the principle, nor the individual, at the sharp end of the practice, is able to challenge the decision—one of those occasions of “If you knew what I know”? We are not thought police, and I was reassured when I read in the clause a reference to a person having “conducted” him or herself in a prejudicial manner—but of course we cannot know about conduct any more than thought.

Like the noble Baroness, I read the report in the Independent today and I thought it a clear example of the impact on someone left stranded. I think he was served with the decision when he was transferring between planes: he was part way—as he would have said—home, and had to return to, I think I am right in saying, Waziristan. However, he was stranded: separated from his community and perhaps family—I do not recall—in the UK, but regarded almost as an outlaw, and, as he put it, in danger from those in Pakistan and Waziristan who regarded him with considerable suspicion. It is a very disturbing story.

[Lord Taylor of Holbeach]

My Lords, this has been a very thorough debate on a clause which, as the noble Lord said, we owe it to discuss thoroughly.

I start by adding some further perspective to the debate on the deprivation of citizenship. The measures in the Bill to deprive someone of citizenship can be used only against someone who has chosen, as an adult—not as a child—to naturalise as a British citizen. When choosing to seek British nationality they will have taken an oath, or sworn allegiance, to Her Majesty, and pledged their loyalty to this country. Despite this—

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[Lord Taylor of Holbeach]

My Lords, after the passion of the previous group of amendments, I find this a little easier to respond to. The noble Baroness, Lady Smith, has made the point that there is a pre-existing independent monitor, and indeed my noble friend Lady Hamwee referred to the role occupied by John Vine. His role was set up under the UK Borders Act 2007, and he is able to monitor and report on the efficacy and effectiveness of functions relating to immigration, asylum and nationality. That includes the effectiveness of decision-making on deprivation of British citizenship, so it exists already.

This is not an annual review process, and I think that that is probably one of the things we disagree on. With all his independent inspections, the chief inspector is permitted to examine only individual cases for the purpose or in the context of considering a general issue. But it illustrates that in addition to the judicial scrutiny of individual cases—I have explained that the power of appeal still exists—Parliament has already agreed an independent inspection regime which covers nationality and hence the deprivation of nationality.

Throughout the passage of the Bill, the Government have stressed the serious nature of the cases that will be considered under this new power. Clause 60 itself carefully limits the uses of the power to circumstances where an individual’s behaviour meets a new, higher threshold of being,

“seriously prejudicial to the vital interests of the United Kingdom”.

This will ensure that the courts subject the strength of the Government’s rationale for deprivation to close and anxious scrutiny in each and every case. In this case, I do not believe a new independent reviewer is necessary.

There has been a lot of discussion regarding the requirement to publish guidance and how individual cases will be considered, evidenced and decided. As I have said, deprivation is nothing new—it has gone on under this Government and previous Governments. Established practice exists, and guidance is published for fraud and deception cases, for example. Every case is different and will have its own case-specific facts. The core requirement on officials is to assess evidence and circumstances, consult colleagues across government and carefully weigh the evidence before making a recommendation to the Home Secretary. This is central to all cases. The Home Secretary herself reviews and personally signs off all deprivation decisions. Beyond this, there is little additional detail that would necessarily be appropriate, given that matters in cases that will fall under Clause 60 will be to do with national security. More importantly, in every case, the individual will be told the reasons for the decision and there will be a statutory right of appeal to the courts in each case.

I will address the bid for a sunset clause in this matter. The Government have a responsibility to protect the public and to respond to threats, and this clause is aimed at dangerous individuals who abuse their British citizenship and threaten the security of the UK. As I have emphasised, the power will be used only against those who pose such a threat. However, it is impossible to predict as and when these threats will emerge and I do not believe it would be appropriate therefore to time-limit the clause.

As I have said, I hope we have an opportunity to meet between now and Report, and this will no doubt be one of those matters which could be discussed at that stage. In the light of these points, I hope that the noble Baroness will agree to withdraw the amendment and that other noble Lords will not press theirs.

[Baroness Hamwee]

My Lords, I did not have in mind the Independent Chief Inspector of Borders and Immigration but the independent reviewer of terrorism legislation—I plagiarised the provisions in current legislation on terrorism for this clause—who I think would be the appropriate reviewer to undertake the work. I am not suggesting a new reviewer. This would fit very well with, and ought to be reviewed by, the same person who considers the application of terrorism legislation. However, I do think that there should be a review and statutory provision for it. I am a little puzzled as to why the Government might resist what, in the circumstances of Clause 60, is an extremely mild proposition, but perhaps that is something that we can discuss following this stage of the Bill. I beg leave to withdraw the amendment.

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[Lord Taylor of Holbeach]

The logistics are a matter for detailed planning with the airlines. What the Bill does—what this schedule provides for—is give those people who are responsible for dealing with this work the powers which at present they do not have. Advance passenger information already supports electronic texts on a large number of outward-bound journeys. API will be part of the exit checks solution along with other options, including checks conducted and data collected at the port of departure. These matters are being discussed so that this can be done efficiently, but API is a contributory element of this provision. As to the detail of how it is going to operate in every form of transport—every airport, railway station and port—I cannot possibly say at this stage. The powers of this Bill give those who will be challenged to perform this task the right to conduct those checks. Otherwise the checks would have to be done by immigration officers and we do not consider that this is an appropriate role for the Border Force.

[Baroness Hamwee]

My Lords, this debate has gone well beyond my amendment. I am not entirely sure that I had an answer to my amendment, but perhaps my concentration lapsed. I beg leave to withdraw the amendment.

Visas: Health Insurance

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 17th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, my noble friend to some degree misunderstands the reason for the surcharge, which is, as I have said, to ensure that temporary migrants pay a fair contribution towards the health service. It is not intended to be a full cost recovery but, none the less, it will raise in the region of £2 billion over 10 years. Visitors are not covered by this scheme and they will be liable for full cost recovery, which they may indeed choose to insure against.

[Baroness Hamwee (LD)]

My Lords, I suspect that health insurance for visa applicants would be extremely complicated to administer. Does my noble friend think that there might be something to be said for it if the Government go down the route recently recommended by the Migration Advisory Committee of auctioning about 100 visas a year, with a reserve price of £2.5 million, to get accelerated settlement in the UK? I sincerely hope that they will not go down that route.

[Lord Taylor of Holbeach]

My noble friend is tempting me to elaborate a policy into a direction in which the Government have no intention of moving at the present time. There is a review of health service charges going on. Currently the recovery of health service charges is a problem. The health service is not getting the income that it should be getting from health service charges, but my noble friend is right to say that the merit of this scheme covering temporary migrants is that it makes a significant contribution and is very simple to administer.

Immigration Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 12th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

It is not a question of payment, but of whether that is their principal or main home. If it is not, and they are just a guest for the weekend or for a month, or whatever, that would be a different matter, but if it is the person’s main home, whether there is payment is not relevant to their status. I hope that that is clear.

[Baroness Hamwee]

On the same point, it is common in leases and tenancy agreements to provide a prohibition against subletting or having a subtenancy. In some of the less formal arrangements that the noble Baroness and I are aware of—I am thinking now about the head landlord and tenant—it may not be normal to provide for that, even though a mortgage company that has lent on property would expect it. I hope that landlords, as we understand them in the normal way, would not be penalised if they had a fairly informal arrangement with a tenant of the sort that would fall within this that did not preclude a subtenancy or sublicence. I hope that I am being clear about that. I can see that there may be more calls on what the landlord should do by precluding the possibility of somebody coming in and lodging or having a sublicence without the landlord himself knowing—and I would not like a landlord to be penalised because of that. It is an allied point; I am seeking for there not to be more requirements on the landlord.

[Lord Taylor of Holbeach]

I am sorry because, as my noble friend Lord Attlee whispered to me, “You’re wrong”. He is so delicate in these matters. But I am wrong. This transfer of responsibility occurs when rent is paid; when no rent is paid, that is not an arrangement under this scheme. I hope that that is understood, and that it helps to clarify the border as to where the reporting happens.

[Baroness Smith of Basildon]

I am grateful to the Minister and thank him for clarifying that—we all make mistakes. Does that not seem some kind of a massive loophole in the law—the landlord will have to undertake all these checks to ensure that the landlord’s tenant is a legal citizen of this country and entitled to stay, but the person who is renting the property could then allow guests to stay permanently, with it as their main home and with no payment? It would be possible for a rogue landlord to charge exorbitant rent to one person and for the others to stay for free. There seem to be complications around that, allowing a significant loophole in this legislation, if I am correct—but I may be wrong.

[Baroness Hamwee]

My Lords, I might add to the complications by pointing to the provision that, although the residential tenancy agreement of rent must provide for payment of rent, it need not be a market rent.

[Lord Taylor of Holbeach]

Yes, a further elaboration of the point is that the restriction applies only when the person is under an agreement, formal or informal, where the tenant pays rent. The immediate landlord is responsible; if the tenant sublets without the superior landlord’s knowledge, the tenant is responsible for the subtenant. This is quite convoluted language, if I may say so, and it might help noble Lords if I wrote to clarify that point. I see the importance of making it clear where the responsibility lies in these matters; I thank the noble Baroness for raising the issue in the first place and my noble friend Lady Hamwee for her comments.

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[Lord Taylor of Holbeach]

My Lords, I do not want to sound complacent because I recognise that this is a cause of anxiety which has been expressed in meetings I have attended. It has also been expressed by other noble Lords in our earlier discussions about the Bill. I do not want to lay too great a store by the codes, but those codes exist, and I do not want to lay too great a store by racial discrimination legislation, which would clearly apply in such circumstances.

What I will do is to ask the right reverend Prelate to accept that this surely applies in connection with employment. I do not know whether the right reverend Prelate feels, as he looks at the nature of people who are engaged in work in this country, that there is widespread evidence of racial discrimination, but I would have thought not. I think it is to the great credit of this country that it is able to welcome people, and this is certainly not a Bill that is designed to make people unwelcome, as long as they have a right to come here and to remain here. That is the principle of this legislation, and I hope the right reverend Prelate will be reassured by that. It is not meant complacently but I believe that, at bottom, the analogy with employer provisions is a good one and leads me to suggest that the particular fear that the right reverend Prelate refers to is not the cause for concern that he thinks it is.

[Baroness Hamwee]

My Lords, this discussion has confirmed for me the complexity of the provisions, and therefore the advantages in having the sort of verifying body to which the noble Lord, Lord Best, referred in the previous group of amendments. We will come later in the Bill to the position of immigration advisers and tightening up arrangements there. It seems that, as well as rogue advisers, there must be many who are simply incompetent. One could almost say, “Who can blame them?”, but nevertheless I do blame them. Any arrangements which can make it simpler for those who are, as it were, at the coalface to operate will be very welcome. This debate has confirmed that in my mind. My noble friend Lord Avebury has been muttering in my ear about whether case law on employment restrictions applies here. That is another area where I dare say the Minister would say that it depends on the facts, but it is a good illustration of what we may be dealing with.

The Minister said that there was no need for a certified copy of a document, but I was suggesting—I hope—that it could be an option. The reference to the 48 hours to check reminds us all that, in this extraordinary letting market, the property will be gone in 48 hours. The Minister in the Commons talked about the increase in the penalty being based on “aggravating factors”. He said:

“If new information comes forward that demonstrates that, for example”—

I must concede that—

“the mistake was not innocent, but some sort of connivance was involved … it seems only right … that someone looking at the issue afresh should take that into account and reach a conclusion accordingly”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 272.]

In my mind, that sort of connivance would be a new fact. I would be very happy to look at the language but I am concerned about the deterrent properties of this. I would hope that we might be able to pin that down a little more.

I will carefully read what the Minister said on this as it is a technical point. He referred to the detail of Schedule 3. My noble friend again questioned whether paragraph 8 of Schedule 3 covers the ground that we are concerned about. Going back again to the workability of these arrangements, I must of course read carefully what the Minister has had to say. I thank him for his answers and for what I think he said implicitly. These are detailed points which we might, if it is appropriate, look at again before Report so that we can make sure that anything we raise on Report is justified and not already covered. The Minister is nodding. I beg leave to withdraw the amendment.

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[Lord Taylor of Holbeach]

I start from the position that an informed House is better able to make decisions and judgments on issues. Having said that, I am not sure that I could commit to making a periodic Statement on this issue, although I know that the Home Office will always respond to questions that might seek updated information of this type, and indeed there are other ways in which this House has the capacity to bring the Government to account on policy. At least by promising this Statement I am giving an indication that we are confident that this particular measure will be a success and raise money for the National Health Service, which will be to the advantage of the taxpayers of this country and a bargain for migrants to this country. I hope that my noble friend is reassured by that point.

[Baroness Hamwee]

My Lords, I am sure that my noble friend is reassured. However, I think that the Committee would also be glad to know—I do not expect the Minister to pin down the detail tonight—the range of issues that will be covered by a Statement. That addresses my noble friend’s point about the data which will be collected. We were quite rightly reminded about the costs of the services, which have not been included in our list. I am sure that there are other points as well. It is the detail that is important and that noble Lords will be interested to know. Perhaps I may leave that with the Minister as something to think about after this stage.

Immigration Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 10th March 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 50B, 51B, 51C, 51D and 54ZA. This group of amendments takes us to the type of accommodation. Amendment 50A deals with a point that has been referred to already—that is, where there is no exclusive right of occupation.

The Minister has referred a number of times to the known unknowns, or the unknown knowns. I think there may be a lot of unknown unknowns in this, and my amendment asks whether the Government are confident that arrangements can work where what comes within the definition of a tenancy is, as we have heard, not what one normally understands to be a tenancy, such as lodgers and all sorts of licences which are not exclusive licences. A lot people live in premises on an informal basis, which is hardly the ideal home, but they may be the only residents, and that is what brings the accommodation into the Bill. Noble Lords have already referred to whether a landlord will go through the checks, whether discrimination will be fed and whether an underground black market will be created. Amendments 55B and 55D, tabled by the noble Lord, Lord Best, address similar points.

The Minister told us not that long ago that there would be a range of penalties. He talked about £80 perhaps going up to £500 for multiple offences and £1,000 going up to £3,000. I am not sure whether I got his words quite correctly, but he referred to something like a proper mechanism for evaluating the level of the fine. I do not know whether he is in a position to say a little more about what the mechanisms for evaluating the level will be. It is clear that the Government have given this some thought. Indeed, it was referred to in the evidence session of the Public Bill Committee by the representative of one of the landlords organisations. She said,

“we do not agree with the proposed disparity in penalties””.—[Official Report, Commons, Immigration Bill Committee 29/10/13; col. 56.]

That is not my point. I just want to get some clarity as soon as we can on this.

Amendment 50B would preclude the Secretary of State reducing the types of excluded—which I find quite a difficult term in this context—premises which do not come within the scheme.

Amendments 51B, 51C and 51D relate to the way in which refuges are defined in Schedule 3. I am delighted that refuges are now within the schedule. My amendments would be refinements. The schedule does not at the moment take account of the fact that costs may be provided by a voluntary organisation or charity. The term is simply “operated”. The Bill states,

“its costs of operation are provided wholly or in part by a government department or agency, or by a local authority … it is managed by a voluntary organisation”.

There are a variety of models. A hostel may be owned by a voluntary organisation and the provisions seem to stand being reread and made as extensive as they are in practice.

Amendment 51D would extend the group of those who might benefit from the provision from being simply those who have been subject to an incident or pattern of incidents of the behaviour spelt out to those who are threatened with or avoiding such behaviour or who might be subject to it. It is looking ahead to prevention, as it were.

I accept that it would be unusual for somebody to flee without actually having been subject to some of the behaviour that is listed here, but I want to ensure that we are as inclusive as possible. No one seeks a place in a refuge. Nor, indeed, would a refuge, the places in which are in short supply, provide a place lightly. We should not add to the difficulties of someone seeking refuge, nor to those of the refuge operator. I should perhaps declare an interest as having been chair of Refuge for some years. I would be concerned if the operators of refuges had to interrogate their prospective clients in the way that this clause might suggest.

Finally, Amendment 54ZA would add holiday and short-term business lettings to the excluded premises. I am probing here because of the amount of administration required; the Minister may disagree with that, given his earlier comments. However, I think that most noble Lords see the Bill as requiring a lot of administration. I hesitated before tabling this amendment, because I would not like to think that it might mean taking the use of accommodation as a home out of the ordinary private rented sector. I mention that in order to try to avoid the criticism, but also to probe the point that holiday and short-term business lettings may be excluded by Clause 15(4), which refers to,

“their only or main residence”.

Perhaps the Minister can help me on that one. I beg to move.

[Lord Taylor of Holbeach]

My Lords, I shall jump in quickly on this. I hope we can move this debate on because I think I can satisfy my noble friend Lady Hamwee on the points that she has raised.

Amendments 50A and 50B would exclude temporary living arrangements from the scheme and prevent the Secretary of State from removing living arrangements from the excluded list once added. In relation to the first point, I draw attention to Clause 15(4), which sets out that the restriction on letting will apply only to agreements which allow a person to occupy the premises as their only or main residence. Further, Clause 27 provides for the Secretary of State to set out in a code of practice the factors she considers when determining whether someone is occupying premises on this basis, and provide guidance relating to holiday lettings or lettings connected with business travel in particular. In relation to Amendment 54ZA, the Government have no intention of requiring a status check where these circumstances pertain.

Further, while other temporary living arrangements such as hostels and refuges are expressly excluded from the scheme by Schedule 3, excluding other instances of multiple occupations will simply undermine the scheme. I am looking carefully at Amendment 50B. This would restrict the Secretary of State’s power to amend the provisions in Schedule 3 in the future, so that she could not remove a description from the list. It may assist my noble friend if I clarify that the intention of this provision is not to allow the Secretary of State to reduce the scope of the exemptions from the scheme in the future: exemptions have been provided for arrangements which ensure important services can be provided to the vulnerable, and where the restriction would impose a double or disproportionate regulatory burden.

Careful consideration has been given to the drafting of the exclusions, and consultation has taken place with stakeholders. However, once the scheme is in operation the exclusions may need to be amended to ensure that they are and remain appropriately targeted. I am afraid that our experience is that circumstances may change over time and that many illegal immigrants will seek to exploit what they see as loopholes in the law. It is surely appropriate, particularly as the initial phase of rollout is to be evaluated, to allow the Secretary of State to address abuse where it may arise, sometimes of course through displacement.

On Amendments 51B and 51C, accommodation provided by charities or voluntary organisations in the form of refuges and hostels is already excluded. Similarly, Amendment 51D will achieve no more than the draft paragraph already provides in relation to excluding refuge accommodation provided to those suffering from or threatened with abusive behaviour. The Government have taken a great deal of care here and have discussed this paragraph in some depth with two leading organisations that provide such accommodation.

I hope that in light of those points I have been able to satisfy my noble friend. If not, I hope that she will come back to me after Committee so that we have the chance to talk about it. I hope that she will withdraw her amendments.

[Baroness Hamwee]

My Lords, on Amendment 50B, if the objective is to allow refinement rather than wholesale change, I hope that we may look at refining the provision so that that is quite clear in the Bill. Yes, I would welcome a further word on Amendments 51B and 51C. On Amendment 50A, sadly, some lodgers and some sofa surfers are using friends’ or—I do not know what the term is—lodging-providers’ premises as their only or main residence. That is an outcome of homelessness. Therefore I hear what the noble Lord says about the intention, but I am not sure that it quite meets the point that I am making. However, obviously at this time I beg leave to withdraw the amendment.

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[Lord Taylor of Holbeach]

My Lords, I think that most of us have spent all day trying to catch up and find out where we are. The day started off with a considerable readjustment of groupings, which has meant that sometimes matters which were going to be discussed at one point were discussed at another. I apologise if that has sometimes meant that our debates may have appeared a little disjointed.

I am sure that, in moving this amendment, my noble friend Lord Clement-Jones had not anticipated that I would be in a position to make an announcement. Although he says that it does not meet all the points that Universities UK has suggested, I think that it goes a very long way towards it. At bottom, it succeeds in making it plain that, where the university itself is responsible for arranging a student’s accommodation, be that a student coming to this country for the first time and making accommodation arrangements ahead of time, or a student already at the university who needs accommodation, they will be excluded from any further checks. I believe that this is a considerable step forward. I am pleased that I have had an opportunity to make the point again because throughout these debates we have said that we welcome the brightest and the best students. There is no limit on numbers and we are very pleased to see overseas students coming to study at our higher education institutions.

Lawful students should not be deterred by the provisions in the Bill. We need to make sure that those do not get in the way of them coming to this country. They are not designed adversely to affect students during their stay here. I understand the reasoning behind the amendments tabled by my noble friend Lady Hamwee and spoken to by my noble friend Lord Clement-Jones. We do not want to have to check the immigration status of any person more than once. Educational institutions already conduct checks of students as part of their obligations as sponsors of non-EEA migrants. They have taken a position of responsibility in respect of their students which we would like to reinforce by the amendments that we will bring forward on Report to extend their responsibilities in this regard. If accommodation is controlled by a registered educational institution, we agree that the tenancy should be exempt from any further checking requirement. The Government intend to bring forward an amendment on Report to broaden this exemption to cover a wider range of circumstances where student accommodation is arranged by the university or college.

I know that noble Lords are concerned about other matters and want to talk about other impacts of the Bill on students in general. When we had the previous debate on the amendment of the noble Lord, Lord Hannay, I indicated that I thought it would be good to have a further discussion with him. I want to make sure that we get these matters right, and it is most important that by Report we will have made every effort to do so as a result of contributions made by noble Lords. I hope that my noble friend will be prepared to withdraw his amendment.

[Baroness Hamwee]

My Lords, perhaps I may raise one issue for the Minister to consider before Report. Before I do so, I should say that I very much welcome the Government revisiting this issue but, as my noble friend Lord Clement-Jones said, it does not sound as if it is going to go as far as we would like.

One of the areas in which we would go further is on whether the premises are within the control of the university or college. We are looking at this matter from the student’s point of view. My noble friend Lady Manzoor, who will jump because I have mentioned her, said to me the other day that she thinks that a landlord needs to see evidence that the tenant is a student for council tax purposes. If that were so, it would go a long way towards dealing with any potential abuse. Can I leave that with the Minister to consider? Perhaps a bit of lateral thinking there might help to reassure the Government as regards the rather more extensive amendments that we are proposing.

[Lord Taylor of Holbeach]

It may be late but it is not too late to hear an idea that is worth considering, and I am grateful for that suggestion.

Immigration Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 3rd March 2014 Lords Chamber

[Lord Taylor of Holbeach]

I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.

Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.

Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.

Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.

The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.

However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.

[Baroness Hamwee]

My Lords, other noble Lords have spoken very effectively about the impact of detention. I will just mention again the first of the amendments in this group, which is on the presumption of liberty. As we heard, a presumption of liberty is already something that judges would consider almost automatically as a matter of instinct. Of course, the drafting of the amendment could be tweaked but we are only at Committee stage. However, subject to reading Hansard and the Minister’s confirmation that the Government will consider the points before the next stage—I know he made no commitment and I would expect no less of him than that he would consider what has been said—I think that a presumption of liberty is so important that is should be in statute. Guidance can be changed. I would like to see the matter put absolutely beyond doubt. I appreciate that the amendment might have elephant traps in it—amateur amendments sometimes do. Of course, at this moment, I beg leave to withdraw the amendment.

Hillsborough

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 12th February 2014 Lords Chamber

[Lord Taylor of Holbeach]

I am most happy to take that back to the Home Secretary. I am meeting her this afternoon, in fact, and I will carry that point home. This certainly was not the press’s finest hour but, having said that, I am sure that we all cherish the fact that we have a free press in this country. However, this was a situation where, as the Statement said, the conduct of the press exacerbated a grievous situation.

[Baroness Hamwee (LD)]

My Lords, I welcome the Statement and the fact that the Home Secretary has chosen to make it in what I might call an unprompted manner: I think the Minister will understand what I mean. He referred to the importance of process. Perhaps I might ask him about the reference group, which I understand has been set up by the CPS, the IPCC and the investigation team to ensure the families’ rights under Article 2 of the European convention. I am sorry that I was not able to give notice to my noble friend of this question. I understand that the reference group is to monitor the progress of the investigation. That seems to raise the question: what powers may it have?

If I am giving time for inspiration by asking a second question, I hope that will be helpful. My second question is with regard to the IPCC. There was concern about the resources available for this substantial piece of work, both in itself and for any knock-on effect on the rest of the IPCC’s activities. Can the Minister tell the House whether the IPCC is as happy as one might reasonably expect it to be with the resources available, both for this investigation and the rest of its work, given the burden that this must be on it?

[Lord Taylor of Holbeach]

This is by far the largest investigation that the IPCC has ever been involved in. Right at the beginning, the Home Secretary wanted to emphasise that this was a priority that needed proper resourcing. I have no doubt that the resources are available to get to the truth of this matter. The challenge panel, which was mentioned in the Written Ministerial Statement on 19 December, is working well. There were a number of helpful discussions over the summer between the investigatory and prosecutorial authorities and the families to establish the best way of ensuring that they are kept up to speed with the various ongoing investigations. These discussions were chaired by Bishop James Jones. It is not so much that the reference group actually has, or even needs, power. The power lies in those bodies which are working together with the reference group. They are the people who actually have the power to pursue the inquiry and, further to that, to effect prosecutions if necessary.

Police: Private Prosecutions

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 4th February 2014 Lords Chamber

[Lord Taylor of Holbeach]

Yes, indeed—I hope I have given the House an assurance that we take those remarks seriously.

[Baroness Hamwee (LD)]

My Lords, I am sure that the Minister agrees that trust in the police is absolutely essential. To be trusted they need to be trustworthy, and to be trustworthy they need to be seen to be trustworthy.

[Lord Taylor of Holbeach]

My noble friend is right about this. The public expect the highest level of professionalism and integrity from the police. Next month will be the first anniversary of the Home Secretary’s Statement to Parliament on the College of Policing, which I repeated here. The College of Policing is setting out those measures to ensure that the integrity of the police force we share is of the highest standard. This year will see the publication for the first time of a code of ethics by the college.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 20th January 2014 Lords Chamber

[Baroness Hamwee (LD)]

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

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

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

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

[Lord Taylor of Holbeach]

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

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

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

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

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

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

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 14th January 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I entirely agree with what lies behind these amendments but have one concern about them, with which the noble Lord may be able to help me. We heard in an earlier debate on the Bill that a number of police and crime commissioners are already dealing with anti-social behaviour as one of their objectives. I assume that, as they are doing that, they are able to do so. Therefore, I wonder whether it is necessary to refer specifically to this Act, as it will be, in the second of the noble Lord’s amendments in this group.

Given that we already have a requirement under new subsection (1A) of the relevant Act for each of the responsible authorities to have regard to the police and crime objectives, I am not sure whether the proposed new subsection (1B) is necessary. We often hear that things are not necessary but it is helpful to be clear about them. However, my real concern is whether, by referring specifically to the Anti-social Behaviour, Crime and Policing Act, there might be a suggestion that it should have priority over other legislation which could be listed among the objectives. The relevant police reform Act, the obligations of the police and crime commissioners and the police and crime plans use wide and general terms. The Anti-social Behaviour, Crime and Policing Act, as it will become, will not be the only legislation to which all responsible authorities need to have regard, so I am concerned about knock-on effects outside what we are considering at the moment.

[Lord Taylor of Holbeach]

My Lords—

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 14th January 2014 Lords Chamber

[Baroness Hamwee]

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

[Lord Taylor of Holbeach]

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

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

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

--- Later in debate ---

[Baroness Hamwee]

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

[Lord Taylor of Holbeach]

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

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

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

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

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

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

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

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

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

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

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

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 8th January 2014 Lords Chamber

[Baroness Hamwee]

My Lords, may I say a word following on from Amendment 54? It is on a matter that I raised in Committee, which is how parts of this Bill fit in with the existing nuisance legislation.

My noble friend Lord Clement-Jones and those with whom he worked on what is now the Live Music Act 2012 remain concerned about the possibility of local authorities using public space protection order powers when there is existing nuisance legislation that could be used against a particular nuisance—though I think that they do not regard much music as “nuisance”. There have been some awkward examples of some local authorities banning busking and other live music-making during “reasonable hours”; and when I say that, I would probably agree that they are reasonable, but I do not particularly want to bring that into the equation here. During hours when there have been a small number of complaints, the local authorities would argue that such action is reasonable and there is a concern that the powers might be used far more extensively than the Government would have in mind. They have spoken to me about balancing competing rights between freedom of expression and the right to peaceful enjoyment of one’s possessions—in this case the items that are being used for busking.

I am making the point now in the hope that the Government may be able to say something about guidance on the fit between the statutory powers under this Bill and statutory nuisance. I raised the issue at the previous stage following discussions with the Chartered Institute of Environmental Health. I know that officials are working on this area of the guidance but I also know that those who have been in touch with me will be grateful if they can have further discussions on and further input into what will now be statutory guidance. Clearly those who are working on these issues day-to-day still feel uncomfortable that their concerns about what I called “workability” have not quite been taken on board.

[Lord Taylor of Holbeach]

I thank my noble friends Lord Greaves and Lady Hamwee for their hard work on this section of the Bill. They have proposed a number of amendments, many of which have informed government thinking. Indeed, these government amendments are based on ideas that came from the debates we had in Committee with them. We have yet to dispose of my noble friend’s Amendment 55, but I hope he will at a suitable moment see fit not to move it.

The role that my noble friend Lady Hamwee has emphasised depends on the statutory guidance, which is very important in this area. This is a matter for consultation. We want to get the statutory guidance right and ensure that it allows councils maximum flexibility. We do not want to miss the chance, particularly as the guidance will now be statutory, of making sure that we give background information on the exercise of all the elements of these parts of the Bill for the efficient use of anti-social behaviour powers.

I hope I have reassured my noble friend Lady Hamwee on the importance we attach to the guidance and my noble friend Lord Greaves about our recognition of the need to publicise what is going on in connection with the consultations that will take place.

[Lord Taylor of Holbeach]

I am sure someone will know the answer to that; I am not entirely sure. “Publish”, I suspect, implies that it is in a particular form; “publicise” is perhaps multiple publication. However, I am only hazarding a guess, without being particularly good in my command of language.

[Baroness Hamwee]

I will not speculate about whether “publish” is a technical term, which I think it probably is. “Publicise” is about spreading it around in a practical way.

However, returning to my question, will the guidance —I hope it will—make clear that, where possible, it would be more appropriate to use existing legislation, such as noise abatement notices, than these wider powers?

[Lord Taylor of Holbeach]

It may be that that is one of the things that is considered in the guidance. We will make use of what we have available to us. There is no repealing of the Noise Abatement Act 1960, for example, in the Bill.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 8th January 2014 Lords Chamber

[Baroness Hamwee]

My Lords, Amendments, 4, 5, 24 and 25 are all directed at a defence for an application for an IPNA or for a criminal behaviour order. My amendments are different from definitions of the first condition which is the requirement for an injunction or an order.

There must be cases where the conduct can be expected—or maybe we will end up with “reasonably be expected”—to cause the impacts that we have been debating. Nevertheless, there is good reason for that conduct. It is not clear to me if, as drafted, there is any defence other than “I didn’t do it” or that the conduct does not meet the test.

In the Crime and Disorder Act 1998, Section 1(5) includes a provision similar to the one which I have set out in two of these amendments—that:

“For the purpose of determining whether the condition”,

of the test,

“is fulfilled, the court shall disregard any act … which … was reasonable in the circumstances”.

In case that point is not clear enough, I have specifically used the term “defence” in my more homemade Amendments 5 and 25.

There must be an opportunity for the respondent or defendant to explain himself, and I would not be happy to leave whether or not to proceed to the discretion of the applicant or prosecuting authority, whichever we are talking about. At the previous stage, the Minister said that he would take away the first of each pair of these amendments to explore whether it was appropriate to introduce an explicit reference to reasonableness. I appreciate that he went three-quarters of the way to doing so this afternoon. I know that he gave no commitment at that stage, but in any event I do not believe that his amendment, had he pursued it, would have met the point of a defence. Conduct which could reasonably be expected to cause nuisance or annoyance might still be conduct for which, in particular circumstances, there is good reason. The court should actively have to consider this.

The point is made more important by the fact that it is likely in this area that there will be a lot of litigants in person, so the legislation itself needs to be extremely clear.

[Lord Taylor of Holbeach]

My Lords, I am grateful to my noble friend Lady Hamwee for her explanation of these amendments. She explained that they seek to provide the respondent or offender with a defence as to why an injunction or criminal behaviour order, which are also included in these amendments, should not be granted—namely, that the behaviour was reasonable in the circumstances. My noble friend has pointed out that this issue is distinct from the amendment that we have already debated, which is related to the first condition for the grant of an injunction.

If I may respond at this point to the noble Earl, Lord Lytton, about his queries in the previous debate, I can say that the provisions in Clause 1(5) are not defences; they are factors for the court to take into account when imposing restrictions or requirements. The two issues mentioned should not be confused with defence issues.

--- Later in debate ---

[Lord Taylor of Holbeach]

As I understand it, that is the case. I was going on to argue the question of defences because that was the issue that my noble friend wanted to sort out. However, I hope that we have saved the price of a stamp by clearing that up in the Chamber.

In effect, my noble friend is seeking to argue that it is not enough to be able to establish, in the case of the injunction, that the conduct in question could reasonably be expected to cause nuisance or annoyance but that it should also be necessary to show that the conduct was unreasonable in the circumstances. My noble friend has pointed to the reasonableness defence in Section 1 of the Crime and Disorder Act 1998, which applies to the ASBO on application, although it is worth noting that no such defence is contained in Section 1C of that Act, which relates to the ASBO on conviction. I am sympathetic to the point that she raised and I hope to persuade her that it is already effectively covered.

I will deal first with the injunction. As my noble friend will be aware, the second condition that must be satisfied is that the court considers that it is “just and convenient” to grant an injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. As I have already indicated, in applying this limb of the test, the court will look at whether it is reasonable and proportionate in the circumstances of the case to grant an injunction. It will be open to the respondent to argue that he or she had a good reason for his or her conduct. The court will weigh that up against the evidence submitted by the applicant and come to a view. If the court is satisfied that the reason put forward by the respondent is a sound one, I fully expect it to conclude that it will not be just and convenient to grant an injunction. Therefore, the defence is, in practice, inherent in the drafting of Clause 1 as it stands.

In the case of the criminal behaviour order, it is again important to look at the wider context in which the court will apply the test in Clause 21. The same public law principles of reasonableness and proportionality will apply. It would therefore be open to the offender to argue that there were reasonable grounds for the conduct in question, which the court would then consider alongside the evidence presented by the Crown Prosecution Service.

I might add that there is no reasonableness defence in Section 1C of the Crime and Disorder Act 1998, which provides for ASBOs on conviction—the forerunner to the criminal behaviour order. That section does, however, stipulate that the court may consider evidence presented by the prosecution or the defence, which will be the position in relation to the criminal behaviour order, albeit that is not expressly stated in the Bill.

In addition, it is worth pointing out that, in deciding whether to apply for a criminal behaviour order, the Crown Prosecution Service would need to be satisfied that there was sufficient evidence to provide a realistic prospect of obtaining an order and that it was in the public interest to apply for an order. The prosecution would therefore consider any evidence which showed that the conduct of the respondent was reasonable in the circumstances.

In short, the point made by my noble friend is well made. I assure her that a respondent or offender will be able to raise such a defence, which will then be properly considered by the court alongside evidence submitted by the applicant for the injunction or order. In the light of this reassurance, I do not believe that these amendments are necessary and, as a result, I hope that my noble friend will be prepared to withdraw Amendment 4.

[Baroness Hamwee]

My Lords, my noble friend is having a difficult enough day, so I reassure him immediately that I will seek to withdraw the amendment.

I notice the reference to the public interest test in the case of the criminal behaviour order. As regards the injunction—this is not a matter for this afternoon—I wonder whether my noble friend might consider a reference to the point in the statutory guidance. I reassure my noble and learned friend that I am seeking not guidance to the court—I would not dare—but guidance to potential applicants in order to prevent them going forward if it is not appropriate that they should go forward in the circumstances that I sought to outline. As I said, it is not a matter for this afternoon and I know that the Government are consulting on the guidance but I hope that my comment at this point can be taken as a contribution to that consultation. On that basis, I beg leave to withdraw the amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 4th December 2013 Lords Chamber

[Baroness Hamwee]

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

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

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

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

[Lord Taylor of Holbeach]

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

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

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

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

[Baroness Hamwee]

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

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 2nd December 2013 Lords Chamber

[Lord Taylor of Holbeach]

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

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

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

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

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

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

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

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

[Baroness Hamwee]

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

--- Later in debate ---

[Lord Taylor of Holbeach]

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

[Baroness Hamwee]

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

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 25th November 2013 Lords Chamber

[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]

My Lords, I did not catch what sort of party was mentioned.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 25th November 2013 Lords Chamber

[Baroness Hamwee]

I will not waste the Committee’s time by repeating the arguments, but this is an instance where guidance would not be enough. Unless we can have hard examples of where the provision might be properly used to restrict assembly where there is no other provision to deal with any of the problems, it would not be adequate for guidance to say something like, “The Government would not expect this to be used in such and such a situation”. This is a power that I would be very unhappy to give to anyone because of its misuse, unless there was a very good reason to allow it here and they have no other tools.

[Lord Taylor of Holbeach]

I am really grateful for this debate. It has been very helpful to the Committee to be able to talk in these terms. I draw noble Lords’ attention to Clause 55 and how it is constructed. I am not a parliamentary draftsman and sometimes legislation is difficult to read or understand, but here the tests that are required on public spaces protection orders are quite clear and explicit.

We all agree that rights to freedom of expression and peaceful assembly are important, and we would not wish to interfere with them in this Bill. Noble Lords are right to seek from me reassurance on this. What the amendment seeks to do is not as important as the probing that lies behind it. The legislation sets a very high test that must be applied before a public spaces protection order is used, as I will explain. The first condition of the test, in Clause 55(2), states that the activities must have had a detrimental effect on the quality of life of those in the locality or it is likely that such activities will occur which could have this effect. The second condition is that the activity is persistent, unreasonable and is justified by the restrictions on the notice. I think that gives us a pretty clear idea of the sort of activity which a public spaces protection order is designed to cover.

I consider it highly unlikely that, in the case of a peaceful protest, or holding placards or handing out literature, or talking to people, even the first condition could be met. I do not see that as being a condition which any court would allow.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have Amendment 53FA in this group. It is an amendment to Clause 60, dealing with restricting the right of way over a highway. I am suggesting that in subsection (4), which provides:

“A public spaces protection order may not restrict the public right of way over a highway for the occupiers of premises”,

we should also refer to “users” of premises,

“adjoining or adjacent to the highway”.

This is a probing amendment to ask whether the term “occupiers” includes people authorised by the occupier. Obviously this would apply to all premises, but it was thinking about business premises that made me decide that this needed to be made clear, because restricting in effect the use of business premises would be a serious matter.

[Lord Taylor of Holbeach]

My Lords, I am grateful to my noble friends Lord Greaves and Lady Hamwee for explaining their amendments. Before I start on my notes, I should draw my noble friends’ attention to the underlying conditions that local authorities need to reflect on before they make orders. I think that they condition the whole approach and, to some extent, satisfy some of the anxieties that my noble friends have expressed.

I can assure my noble friend Lord Greaves that, like him, I fervently believe that public spaces are there for everyone to enjoy, but they should not be ruined by a careless and irresponsible minority. These new orders are designed to allow maximum flexibility for the council, meaning that restrictions on access to, or use of, any land should be considered only as a last resort. However, where restrictions on access are necessary, the option should be available to protect victims and communities from anti-social behaviour. That is what we are about and it is what the Bill is about.

On Amendment 41, I accept that the categories of land listed are important and, indeed, worthy of the further debate they have received today. This is exactly why many of them are covered explicitly in the draft guidance. However, making this amendment would stop the local council protecting those spaces more generally from issues that might deter usage. It is important that we do not inhibit the flexibility provided by these new orders.

Perhaps I may illustrate the point. Many of the categories of land listed here are commonly used by dog walkers as well as children. Given the risk to children of diseases spread by dog faeces, it is only right that a council has the ability to introduce measures to ensure that dog owners clean up after their animal. In addition, where some of these areas of land have become a focal point for people to congregate and drink alcohol, making usage by others unpleasant or even impossible, the council should be able to prohibit the drinking of alcohol to free the space for the majority who want to use it responsibly. The amendment as drafted would preclude the council providing these protections or any others that were necessary on the categories of land listed.

Amendment 41A is more specific and is designed to protect any rights of common, such as the right to graze animals, enjoyed by individuals or groups on common land. This amendment is, I believe, unnecessary. A public spaces protection order would not be used to stop a commoner exercising his right of common. In the case of rights of common, it is hard to imagine a situation where a right exercised by a commoner could result in anti-social behaviour, unless it were being done in a particular way. The new flexibility afforded to councils with the public spaces protection order means they can address the problem element of the behaviour while protecting the wider rights.

Amendment 54 would ensure that certain categories of land could not have access restricted. First, let me say that I accept the importance of maintaining access to footpaths, bridleways and byways so that they are available for the enjoyment of all. However, the list in Clause 61 relates to those highways that are of strategic value. This means that, in all probability, restricting access would have a significant impact on the community, if not the region or the country, that far outweighs the impact of any problem behaviours. I do not feel that the same can be said for all public rights of way. However, I agree that they deserve special consideration and I am happy to see how this can be made clearer in the guidance, but where the anti-social behaviour—and it is the anti-social behaviour that we are dealing with, not access—of those using these routes has reached a stage where the community is suffering, the council should have the ability to restrict access either in part or in totality.

I would like to make one more point which I hope my noble friend will appreciate. Due to the way in which the current orders in this area are framed, in many cases a gating order, and indeed the complete closure of a right of way, is the only option available to councils. The new order seeks to change this. Problem behaviours and anti-social individuals and groups can be dealt with more effectively under the new power, ensuring that the restriction of access is necessary only as a last resort. We have made this clear in the guidance, but I am content to work with interested groups such as the Open Spaces Society and the Ramblers, to see whether it can be made any more explicit.

The other amendments my noble friend Lord Greaves has in this group relate to restrictions on rights of way over a highway and appropriate safeguards. Amendment 53B seeks to provide further safeguards on the list of things that need to be considered before the right of way over a highway is restricted. I believe that as currently worded Clause 60 provides those assurances. However, we can consider how to go into more detail in the accompanying guidance to ensure that my noble friend’s concerns are addressed.

Amendment 53D would mean that all those affected would have to be notified in writing. In most cases, I think this would probably be correct. However, it may be that for some orders another medium would be more appropriate, such as speaking individually to those affected if there is only a small number. As such, I do not believe we should tie the hands of councils in this way in the Bill.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 25th November 2013 Lords Chamber

[Baroness Hamwee]

My Lords, last week I, too, had a long reply to an amendment to which I had not spoken. Perhaps that is the way to go.

On the last of my amendments on the power to issue CPOs, I asked whether everyone falling within the description of what will be the new paragraph 1ZB in the schedule to the Police Reform Act would have the power. I think that the Minister is saying that everyone who falls within that description will have the power and not only particular individuals who have received training. Am I right in understanding that?

[Lord Taylor of Holbeach]

There may be certain circumstances in which people are specifically trained for this function; there may be others where the work they undertake would include training in this function; and there may be others who operate under the guidance of other individuals who have been trained as to how it should be effectively done. It will depend on the circumstances.

No authority acting under this provision will wish to make a mistake. They will want to do it properly because it is in their interests that the CPN should be enforceable.

[Baroness Hamwee]

It shows how naive I am, but I have to say that it simply had not occurred to me that the designation under subsection (1)(c) would be of an organisation which is not a public body in the way that we would normally understand it, such as a local authority. As the Minister says, the notice is very powerful and there are criminal consequences. I would certainly like to think about that a little more but of course, for the moment, I beg leave to withdraw the amendment.

Crime: Clare’s Law

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 25th November 2013 Lords Chamber

[Lord Taylor of Holbeach]

I shall certainly attempt to do so. We work with the Department for Education on this issue. The policy is designed to look at the family as a holistic unit and find out ways in which by intervening in early stages of violence we can stop it developing into a situation where children, too, can be affected.

[Baroness Hamwee (LD)]

My Lords, the Minister acknowledged that there has been a call for a much wider look at the issue, particularly at how the police and state agencies respond, coming both from Refuge and Women’s Aid—organisations which know a lot about the subject. I have heard today comments in response to the announcement that welcome the putting of responsibility on to the abused person. That is a very dangerous attitude. I am sure that the Minister will agree that it is unrealistic to create the expectation that somebody should check on a partner’s background. Control and abuse may grow very gradually.

[Lord Taylor of Holbeach]

On the other hand, my noble friend will recognise that much of Clare’s law is about authorities being open with a perpetrator’s possible history of abuse. Alongside this, HMIC also has a role in setting up a special group to check on capacity at police level to make sure that the police, who are key to a lot of this, operate effectively in this area.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 20th November 2013 Lords Chamber

[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.

--- Later in debate ---

[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

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 20th November 2013 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 18th November 2013 Lords Chamber

[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.

--- Later in debate ---

[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.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 18th November 2013 Lords Chamber

[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.

[Baroness Hamwee]

Or even “nuisance or annoyance”?

Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Wednesday 6th March 2013 Grand Committee

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness, Lady Smith of Basildon, for her broad welcome for the directive and the regulations arising from it. I think we are all agreed on it. The opt-out of police and justice measures would not affect this order or the UK’s participation in the trafficking directive. It is not part and parcel of that situation. That is important to know.

I know the opt-outs are a matter that concerns the noble Baroness. The work in relation to all the opt-outs is ongoing negotiation and discussion. She knows that I and my noble friends in the Ministry of Justice will do our best to keep the House informed of the implications of anything that comes forward.

The first review of the regulations will be after five years. By that time, we will see what the implications are. We hope that we can anticipate relatively few prosecutions under these regulations because their existence is the key to making sure that e-trafficking is not used to reinforce this terrible trade.

[Baroness Hamwee]

Did I hear the Minister say that the first review will be after five years? Regulation 8(4) states:

“The first report … must be published before the end of the period of five years”.

Perhaps I am saying this only to register my presence, but we should be clear about that.

Police Integrity

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 12th February 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I, too, welcome the Statement and I agree with the implicit message that transparency and integrity go hand in hand. I do not doubt that, when there is a problem, those who feel it most keenly are individual police officers who themselves have shown the utmost integrity. First, what consultation has been undertaken on these measures, not just with ACPO but with those who represent the lower ranks of the police service? Secondly, will any of these measures —I am thinking particularly of the registers of interests, gifts and so on—apply to civilian staff within police forces?

[Lord Taylor of Holbeach]

My noble friend has raised two very interesting aspects and I thank her for bringing them forward. The key thing about these proposals is that they will affect the professionalism of the police at all ranks so, as she rightly points out, they represent a development that I hope will be welcomed. They will be part and parcel of ongoing discussions that we are having as we seek to create a modern police force in this country—something that covers a whole load of matters and will now include this. We will make sure that that happens.

It is intended that those employed by the police in a civilian capacity will be subject to IPCC involvement, a matter that the IPCC itself has raised with us. I cannot say whether the register of gifts, or of contacts with the media, will be extended into that area but she makes a very interesting suggestion that it should do so.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 27th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I have a difficulty with this amendment because it seems to seek not pre-appointment scrutiny, as the noble Lord has described it, but appointment veto. Pre-appointment scrutiny, questioning a proposed candidate but then leaving it to the appointer to take the final decision in the light of that scrutiny is something which, as the House will know, I have advocated in other contexts. For very senior and important positions I think that that is very desirable. However, I do not go so far as wanting to see Select Committees approving appointments such as this. Although the noble Lord’s speech was very persuasive, what he is seeking the House to agree to is something even more than he was arguing for.

[Lord Taylor of Holbeach]

My Lords, I agree with my noble friend that this amendment seeks to make the appointment of the director-general of the NCA subject to the approval of the Home Affairs Select Committee. This is a step up from the amendment tabled by noble Lords in Committee, which provided only for consultation with that committee.

As my noble friend Lord Henley outlined during the Committee stage, the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is right, therefore, that she is responsible for appointing the director-general. Of course, there is a place for departmental Select Committees to approve certain key public appointments, but we do not believe that this is one of them.

In the Government’s June 2012 response to the House of Commons Liaison Committee’s report on public appointments, we indicated that,

“there are some posts where it is appropriate for Parliament to exercise a formal control over appointments”.

However, the response went on to say:

“This is exceptional and where the remit is associated with the functions of Parliament”.

That is not the case with this appointment, as it was not the case with the appointment of the director-general of the Serious Organised Crime Agency. The Home Affairs Select Committee will, of course, have a role in scrutinising the work of the National Crime Agency, in the same way as it has scrutinised the work of SOCA, and I believe it is in this capacity that it can best contribute. Indeed, Keith Bristow gave evidence to the committee as recently as 16 October, and I expect that he will be frequently before that committee to be challenged on how the NCA is performing.

The Government do not agree to Select Committees having an effective veto on a wider range of appointments and for that reason I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, the Government take their own view on issues, although we, of course, respect the Joint Committee and all its works. I am very grateful to my noble friend for raising this issue. She cares greatly about the responsibility of government to provide transparency and the Freedom of Information Act is just one thing that can be used to provide transparency.

As the noble Lord, Lord Rosser, said, my noble friend Lord Henley dealt with this at the Committee stage. We are committed to ensuring that the National Crime Agency will be open and transparent to the public which it has been created to protect. That commitment is clearly set out in Clause 6. The intention is that this organisation will be fundamentally more public-facing than its predecessor organisations and open in its relationships with the public, partners, the media and, of course, Parliament. Indeed, in the framework document, under the second bullet point in item 10, noble Lords will note a duty to publish information in accordance with publication arrangements that will be set out in a future annexe. It is really designed to indicate in the framework document itself the importance that the Government attach to this. We want the public to be able to access as wide a range of information about the NCA as possible provided it does not compromise in any way the NCA’s effectiveness in fighting crime. We expect that this will include information on what the NCA is doing to tackle serious and organised crime, what it is spending and how well it is doing—so performance indicators as well.

I want to reassure noble Lords that the decision to exempt the NCA from the FOI Act was not taken lightly. We considered this carefully, having particular regard to the fact that some of the precursor functions transferring from the NCA have been undertaken by bodies that are currently subject to the FOI Act. That has been pointed out by both noble Lords. The agency’s largest precursor, the Serious Organised Crime Agency, including CEOP, has not been subject to the FOI Act since its inception. However, we have analysed the FOI requests made to other precursor bodies, such as the NPIA, and we are confident that the agency can balance being FOI-exempt with proactive publication to ensure that there is no loss of public transparency as a result of the approach being taken in the Bill.

I recognise the efforts made in this amendment to apply a partial application of the FOI Act. However, we remain of the view that a blanket exemption is the most appropriate arrangement, not for administrative convenience but to ensure full effectiveness and as a critical operational safeguard. We are talking about a fully integrated, crime-fighting, operational agency that will be charged with spearheading the fight against some of the most dangerous and pernicious criminals and crime groups that impact our communities. Some information about the discharge of those functions will be fit for release into the public domain; some will not. The distinction does not come from an arbitrary line drawn in legislation that seeks to differentiate some of the NCA’s functions from others; it comes from a deep understanding of the types of information that no one would want to fall into the wrong hands. I firmly believe that the National Crime Agency will be able to make this distinction.

I recognise the argument that the scope of the exemptions provided for in the FOI Act could potentially apply to much of the material that the National Crime Agency is seeking to protect. However, as my noble friend Lord Henley said, this is not the only consideration. First, the National Crime Agency will depend on the absolute confidence of its partners to provide the backbone of the agency’s superior national intelligence picture. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more inhibited about sharing that information with the NCA in the first place. Chief among these concerned partners are those in the private sector and overseas—partners who are perhaps not as familiar with FOI as we are.

Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activities. The FOI Act offers them an opportunity to acquire information about the NCA’s operational tactics, to disrupt its operations and to evade detection. While the exemptions might apply to some of this information, the risk is that it might not always be the case.

In short, we remain resolute in our decision to maintain the NCA’s exemption from the FOI Act. To do otherwise would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. While partial application of the FOI Act might, at face value, look attractive, it is simply not a viable option for an integrated crime-fighting agency. In the mean time, the whole purpose of the duty to publish will be to provide the public with as much information about the organisation’s activities as possible. For these reasons, I urge my noble friend to withdraw her amendment.

[Baroness Hamwee]

My Lords, I opened the debate on these amendments by saying that some of our colleagues might be surprised by how quickly the next amendments are dealt with. I could, of course, deal with that, giving them warning by dividing the House, but that may not be possible and I think I see signs that the Whips have the matter in hand. I would say to the noble Lord, Lord Rosser, that what is worse than being illogical—to my mind and, I suspect, to his as well—is to betray one’s values.

I anticipated most of the Minister’s arguments, not surprisingly because they largely repeated, and were consistent with, what we were told at the previous stage. Noble Lords have been directed to the duties under Clause 6, but the problem with reports such as this that are in the hands of the organisation which is the subject of one’s concern, is that that organisation itself determines the content and the depth of information and the level of detail. The use of freedom of information requests puts the impetus in the hands of the person making the request. There is quite a different balance in this. The provisions in the Bill are to be subject to whatever is in the framework document and what the annexe to the framework document has to say will be extremely important. I look forward to seeing what that may be.

I remain disappointed, but the Minister probably anticipated that. He will not be surprised by my last remark, which is that the freedom of information regime should not be optional. Having made that point, I beg leave to withdraw the amendment.

Justice and Security Bill [HL]

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Monday 19th November 2012 Lords Chamber

[Lord Taylor of Holbeach]

I think I can reassure the noble Lord that I am doing my best to make sure that this House is informed before Third Reading of the nature of the document and the context in which it is being presented. I hope that the same document would indeed be available to the House of Commons. Until the Bill is enacted, the document cannot of course be laid before the House other than in a framework format. I hope that I have reassured the noble Lord that he and his colleagues in another place will have the information on which to see how this aspect of the Bill—the memorandum of understanding—is designed to bring flexibility into the procedures of the ISC.

Indeed, we wish to ensure that the memorandum of understanding is not used to restrict in any way the ISC’s remit or its functions as set out in the Bill. As we explained in our memorandum to the Delegated Powers Committee—another memorandum—the purpose of this clause is to enable provisions to be included in the memorandum of understanding to ensure that the ISC’s oversight of operational matters does not: interfere with the statutory accountability of the intelligence services to their Ministers; overlap with the roles of other independent oversight bodies, such as the Intelligence Services Commissioner; or lessen the effectiveness of the intelligence services and other intelligence and security bodies, or place any undue resource burden upon them. We believe that a clear understanding between the Government and the ISC as to how the ISC can most effectively oversee operational matters without compromising these imperatives is best achieved in a flexible instrument agreed between them. These amendments would, I fear, seem to preclude that. On that basis, I hope that the noble Baroness will see fit to withdraw the amendment.

[Baroness Hamwee]

My Lords, I got the assurance that I wanted almost at the end there, in the response to the noble Lord, Lord Campbell-Savours. I was certainly not seeking to reduce the oversight of the parts of Her Majesty’s Government that relate to intelligence and security matters and which are beyond the three agencies. Quite the contrary; I want to make it clear that I do not think my amendments would have done that.

Having heard the Minister tell the House that it is intended to protect the scope of the work of the ISC and, like others, looking forward to seeing some form of document within the next few days because I think Third Reading is next week, I beg leave to withdraw the amendment.

North Wales Abuse Allegations

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 6th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, one area which has not been mentioned in the Statement is support for the victims. Justice will be one form of reparation, but can the Minister say anything about any other form of support that will be given to individuals?

Quite separately, following the question about what is meant by inquiring,

“whether the Waterhouse inquiry was properly constituted and did its job”,

can the Minister assure the House that for every inquiry—I am not talking only about police inquiries—there will be consultation as to its terms so that the best, most proper terms are put in place? If the remit is not right then the outcome will tend not to be right. In this case, for instance, the involvement of the Children’s Commissioner in the terms of the inquiry seems quite obvious.

[Lord Taylor of Holbeach]

I thank my noble friend for her questions. Clearly, the victims are at the heart of this inquiry and providing them with the confidence to come forward is one of the most important things that we can do. I hope that we in this House will echo the wishes of the Home Secretary by giving that support.

The terms of reference of inquiries are very important to the outcomes they produce. I am particularly concerned that we make sure that the original inquiry in North Wales, the Waterhouse inquiry, was indeed set up in such a way. The noble Baroness, Lady Smith, asked about that but I did not reply to her. However, my noble friend has given me the opportunity to do so. We must make sure that that inquiry addressed the right issues. We now have an opportunity to revisit the inquiry and to make sure that it was not too restrictive in what it was seeking to do.

Statement of Changes in Immigration Rules

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 23rd October 2012 Lords Chamber

[Lord Taylor of Holbeach]

That is the decision that was made. The Migration Advisory Committee was asked to look at the amount of money that a couple would require on the single income—the sponsor’s income. Indeed, it is the sponsor’s income that is vital to understanding this case.

My noble friend also asked how the capital should be dealt with. As pointed out by my noble friend Lady Hamwee, the multiplier is two and a half times the shortfall in income, and that, too, I believe, came from the same recommendation from the Migration Advisory Committee.

[Baroness Hamwee]

My Lords, while the Minister is on that point, it would be helpful to the House if after today we could have an explanation of what lies behind both that action, which is less of an issue because it is a judgment, and my noble friend’s question about why a spouse’s income is disregarded. Indeed, one could add to that the question of why support from a third party, such as a parent of one of the spouses who would be prepared to guarantee the income, which I am sure is not uncommon, should be disregarded. What lay behind those decisions? What was the rationale? I do not expect the Minister to answer that now.

[Lord Taylor of Holbeach]

It would be much easier for me if I could inform myself before I sought to inform the House on that issue. I have stated the position as I know it to be, without knowing fully the policy development that led to that conclusion.

There has been criticism of the fact that there is no regional variation but, once people are in this country, they are free to move wherever, and it was felt that there could be great difficulties if a regional variation were permitted for that very reason.

The noble Baroness, Lady Smith, expressed concern about what will happen to people who lose their jobs. We will expect a migrant to be able to meet the same financial threshold when they apply for further leave but, once the migrant is in the UK, we count any income that they earn, as well as money from their sponsor, towards the threshold. That is an important response to the question raised by my noble friend Lord Avebury. In some circumstances, we will allow the migrant to continue at a lower rate on a longer route to settlement to allow that transition to take place. Both the noble Baroness and my noble friend asked about prospective earnings and I will seek to answer that in correspondence, as I promised.

We have also built significant flexibility into the operation of the threshold—for example, by exempting sponsors in receipt of certain disability-related benefits or carers’ allowance. I was asked specifically by the noble Baroness, Lady Smith, about the Armed Forces. The Armed Forces are exempt from these rules.

The noble Baroness, Lady Lister of Burtersett, felt, as did several noble Lords, that the rules were not sufficiently focused on children. We understand the importance of the statutory duty, which goes back to the Borders, Citizenship and Immigration Act, to safeguard and promote the welfare of children in the UK. That is why we have reinforced our approach by bringing consideration of the welfare or best interests of children into the Immigration Rules. After all, the best interests of the child will normally be met by remaining with their parents and returning with them to their country of origin, subject to considerations such as long residence in the UK, their nationality and any exceptional factors. The new rules lay out a clear framework for weighing the best interests of the child against the wider public interest in removal cases.

The minimum income requirement that we have introduced is, I believe, the most effective way to protect taxpayers and deliver fairness in respect of family migration to the UK. I invite the noble Baroness, Lady Smith, to reflect on my response.

Slavery

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Thursday 18th October 2012 Lords Chamber

[Baroness Hamwee]

To ask Her Majesty’s Government what steps they are taking, to coincide with Anti-Slavery Day, to raise awareness among relevant agencies and the general public of the possibility that individuals they encounter may be the subject of modern slavery.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I am sure the House will be aware that today is Anti-Slavery Day, which is an important day. However, human trafficking is not just a one-day issue. As the activity of the interdepartmental ministerial group on human trafficking shows, the Government are not complacent, and cannot be in the light of today’s report. The Government are committed to tackling this issue on a continuing basis.

[Baroness Hamwee]

My Lords, I welcome the publication of the report, which shows that increasing numbers are being detected. That may of course be because increasing numbers are being reported. There is a widespread view among people that trafficking does not happen in their neighbourhood. What advice do the Government give if one suspects that a man working in a restaurant or a young woman working in a nail bar is the victim of trafficking?

[Lord Taylor of Holbeach]

They should report any suspicions of trafficking to the authorities: either the police or their own local authority. There is a lot of cross-agency working to tackle this issue. I think the noble Baroness is correct: this is an increasing problem and one that will need increasing effort to try to contain.

Extradition

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Tuesday 16th October 2012 Lords Chamber

[Lord Taylor of Holbeach]

I thank the noble and learned Lord for his reinforcement of the esteem with which Sir Scott Baker’s report was received. As the noble and learned Lord will know, it was presented a year ago in 2011. I think it is right that an issue as complex as extradition is properly considered, and I think that if the Government disagree with Sir Scott Baker, they have done so because they have considered the issues that the report raised. The noble and learned Lord implied that perhaps the most important thing is the place in which there is the maximum chance of a conviction being achieved. There is also a matter of justice. Justice requires that people are tried where justice may be seen to be done. It will be for the courts to judge this matter. A Home Secretary will not deal with this matter. I believe the courts in this country are quite capable of determining that.

[Baroness Hamwee]

My Lords, this is a welcome Statement. Does my noble friend agree that it is welcome in part because it confirms the importance and relevance of human rights in our law, and that they are not something foreign that is nothing to do with us? The Minister referred to the interests of justice in the question of the forum. Does he agree that that may also raise questions about the burden of proof and prima facie evidence, which were somewhat contentious with regard to the Baker report? Can he confirm that he will use all the expertise of this House, notably on the Cross Benches, as well as in the parties? The Minister referred to parties, but I hope he will agree that in this House “parties” means all sides of the House because there is a lot to contribute on this very difficult issue.

[Lord Taylor of Holbeach]

I thank my noble friend for that very important reminder that this House has an enormous asset in the Cross-Bench contributions, particularly from the noble and learned Lords who sit on them. Nobody, not even the Government, is going pass up the opportunity of free legal advice. I am sure that noble Lords will be very carefully listened to on the matters that have been raised. The Government recognise the complexities of the issue, but we feel that there is now an opportunity to change the arrangement and rebuild public confidence that extradition is properly and transparently conducted. It has been troubling the wider electorate, and this is an opportunity to put it right.

Police and Crime Commissioners: Elections

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Thursday 11th October 2012 Lords Chamber

[Lord Taylor of Holbeach]

I think that is a different matter altogether. Perhaps the noble Lord will forgive me if I do not comment directly on his question. We had good debates on this matter in this House, and we will be scrutinising all Home Office legislation in this House. But after all, at the end of the day, we all believe that an expression of the people’s voice is important, and I hope that Members on all sides of the House will support these elections. Indeed, there may even be candidates from this House standing in these elections.

[Baroness Hamwee]

My Lords, I, too, welcome the Minister to his no doubt uneventful and boring post. Does he agree that the positive attitude taken by those Labour politicians who are standing is the more constructive one? In other words, is it not better to talk the elections up rather than talk them down?

[Lord Taylor of Holbeach]

I am grateful to my noble friend for giving that advice to some Members on the Benches opposite who appear to have rather negative views on these elections. The candidates for these elections are first class; there will be a good choice before the electorate. The role that police and crime commissioners will play is important to bring transparency to the police in this country. That is why the Government have made changes to the law to bring about this arrangement.

Localism Bill

Debate between Baroness Hamwee and Lord Taylor of Holbeach

Thursday 7th July 2011 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, this has been a useful debate, which has reinforced our previous debate and put the NPPF at the heart of it. In its absence, we can but note its significance and importance in relation to the Bill. I will start by reassuring the noble Lord, Lord McKenzie, that the Government plan a full public consultation on the document—it will not be just for Parliament to debate the matter—and will follow established best practice for consultations. We have already sought a variety of consultations in formulating the NPPF, including with community groups.

Bearing in mind the interest of noble Lords in this matter, I will ask that as soon as it is published copies will be made available to all noble Lords who have participated in the debate. I appreciate that there may be an interval before we in the House are able to debate this. That is a matter for the House authorities, not for the Government. However, it is an important part of the discussion of this document.

[Baroness Hamwee]

My Lords, there is a great appetite to see the document. However, on the matter of timing, I note that the noble Lord said that the consultation will accord with best practice. Will that include taking account of the August holiday period, given that publication is likely to be just as that starts?

[Lord Taylor of Holbeach]

I assure my noble friend Lady Hamwee that this is at the heart of what we are trying to achieve.

The Government are not seeking to railway—I am looking at the noble Lord, Lord Berkeley, and I immediately think of railways—railroad this through. They want it to be a proper discussion document because it is going to be at the heart of the planning process. Indeed, community involvement is going to be vital in the planning system at the local level where plans are created and decisions are taken. Community engagement is embedded at the heart of the planning process through tools, such as the statement of community involvement, to ensure that local people are involved in the shaping of their area.

There is no need formally in legislation to forge a link between the framework and sustainable development because the latter has long been the basis for all planning policy, as I said in the previous debate. It will be a core principle of the new framework. The noble Lord, Lord McKenzie, asked about where plans are not up to date. The NPPF will be able to provide a clear basis for determining applications. It will be up to decision-makers to decide the weight to give to the plan and the NPPF in each case.

I understand the desire to put a presumption in favour of sustainable development on a statutory footing as it should be central to the way the reform of planning policy works, but in making it central to the NPPF, as we propose, we believe we can do that without creating conflicts with existing legislation, as this amendment would do. For example, we could not, as proposed here, require in law all individual proposals to be approved wherever possible and still have a plan-led system.

Turning to the proposals put forward by the noble Lord, Lord Berkeley, the transport planning policy has been set out within the national policy. This is the best place to spell out how the impact of new development should be considered through the planning system. Legally, decision-makers must have regard to national policy where it is material to their decision, and transport issues are one of the material considerations routinely taken into account. Importantly, policy is more flexible and more capable of responding swiftly to changes in circumstances than legislation. Therefore, I do not think it is appropriate to make changes to transport policy through legislative means, particularly when the Government are due to publish the NPPF, which will include transport policy. If changes are required to transport policy, they should be carefully considered as part of that consultation and, if appropriate, taken forward through the NPPF.

Moving to the next issue, the proposal that the NPPF should be able to trump all other plans where there is an inconsistency fundamentally changes the way the plan-led system is designed to operate. At local level, this is unnecessary and deeply centralising. Section 19(2) of the Planning and Compulsory Purchase Act 2004 means that local plans should be prepared having regard to national policy, which will include the new NPPF. The Planning Act 2008 requires decisions on major infrastructure projects to be taken in accordance with any relevant national policy statement. There is a national need for a new infrastructure, and it is essential for growth. That is why the Government are establishing what is needed and how planning decisions should be taken for those national-level schemes that will have impacts and benefits beyond the local area. Each infrastructure sector is different, which is why we are urgently pressing ahead with sector-specific national policy statements rather than a single national policy statement to cover all sectors.

--- Later in debate ---

[Lord Taylor of Holbeach]

I may not be addressing the immediate point of the debate; I was trying to put the Government’s position in the context of their wanting to set the drivers for local authorities to address this issue and set about these reviews as quickly as possible. We did not want to leave the regional spatial strategies in place as a backstop, because the drivers for change must come from local authorities undertaking the review themselves.

We recommend that any reviews be undertaken as quickly as possible. That will enable councils to move away from an inflexible, top-down approach, which I think the noble Baroness will admit was the effect of the regional strategies, and take a lead in planning to meet the aspirations of their local communities.

Councils are perfectly capable of addressing strategic issues locally, working with adjoining authorities—we will talk about the duty to co-operate when we meet again—and other bodies as needed. The duty to co-operate will help them to work together. We know that some councils are already forging ahead and developing strategic policies in their local plans.

Reviews should be proportionate, focusing on relevant key issues. Councils do not need to undertake wholesale reviews as a result of the change. Plans must be based on robust evidence and be deliverable, otherwise they will not have the confidence of communities or investors and may not pass the tests of soundness at independent examination. I reassure noble Lords that the same evidence that informed the preparation of regional strategies can be used to support local plan policies.

Amendment 147FH would ensure that policies in existing local plans which were originally drafted in conformity with saved structure plan policies, or regional strategies, were not undermined by the revocation of these policies. As with the Government’s intention to revoke regional strategies, the commitment to revoke the saved structure planning policy has been known for some time and, for the reasons I have already given, we do not think that the amendment is necessary. Councils will be free to incorporate elements of saved structure plans and revoked regional strategies into their local plans when they review them. It will be for them to decide how much of these policies they wish to retain for their areas.

Revoking regional strategies is an important part of our proposals—I think the Committee recognises that—to decentralise decisions on housing and planning to local councils and communities. It will make local plans drawn up in conformity with national policy the basis for local planning decisions and put greater power in the hands of local councils and communities. If councils intend to review their local plans once regional strategies are revoked, they should do so quickly and in a proportionate way. There is no necessity for transitional arrangements.

With these assurances, I hope the noble Lord is willing to withdraw the amendment.

[Baroness Hamwee]

The Minister referred to the inclusion in the coalition agreement of the abolition of the regional spatial strategies, and all noble Lords understand that. I am sure that the Government would not say that local authorities should work on the basis that regional change had happened as a result of an announcement, as distinct from within legislation. If I am right about that, can the Minister give the Committee any news about when the Government intend to bring what will be Section 94 into force? Its commencement might answer some of the points about transition. It strikes me that there is a relationship there.