Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Monday 25th November 2013 Lords Chamber

[Lord Greaves]

My Lords, I thought that I was going to get a rest; my noble friend did not tell me that she was not moving her amendment, or if she did, I have forgotten.

I will be interested to hear what the Government have to say about Amendment 53G. Amendment 53H is slightly more complicated. It applies yet again to the sort of area in which I live where there are county councils and district councils in a two-tier system. The district council will be responsible for making public spaces protection orders. The county council is the highways authority, which is responsible by law for maintaining public rights of way to an acceptable standard so as to ensure that people can walk on footpaths and ride horses along bridleways, for example. County councils do not always carry out those duties to a great extent, but nevertheless they are responsible in law for maintaining these rights of way. It seems wrong that the district council does not consult the county. The Minister has already said that the Government will look favourably at making sure that county councils, as highways authorities, are consulted. The question is this: what if the highways authority objects to closing one of its highways? Does it have a veto or not? I am suggesting that it should, but I shall be interested to hear the Minister’s response. I beg to move.

[Baroness Smith of Basildon]

My Lords, I have a couple of quick questions on this issue. We tabled a clause stand part debate and I was slightly taken aback when the noble Baroness, Lady Hamwee, withdrew her two amendments because they touch on the issue that I wish to raise.

First, it seems to me that there has to be a very good reason to restrict a public right of way over a highway. Will it be in guidance, as there is nothing here to say that it should be a matter of last resort and that all other options should be considered before taking that step? It would be useful to have the Minister’s comments on that. Secondly, I have clearly been dreaming about this Bill—I am affected so greatly by it. I have just checked with the noble Lord’s officials as I was absolutely convinced that I had read in a letter from the Minister that he would make the amendment anyway, but I am told he has not. Clearly it is a very good amendment and he should make it. Will he enlighten me on Clause 60(3) which states:

“Before a local authority makes a public spaces protection order restricting the public right of way over a highway that is also within the area of another local authority, it must consult that other authority if it thinks it appropriate to do so”?

Why would it not think it appropriate to do so? Why would it not consult the other authority in whose area the highway on which it wishes to restrict public access or the right of way belongs? In my dreams I thought that this had already been done, but I am told by the Minister’s officials that it has not. Can he comment on that and explain why the authority must consult the other authority in whose area the highway is only if it thinks it appropriate to do so, rather than seeking the permission of the other authority as a matter of course? I hope that the Minister will clarify this as I am puzzled by the subsection.

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

I hope I can appear in the noble Baroness’s dreams in a good light. Do not have nightmares; that is all I say.

The decision to restrict activity on or access to public rights of way should not be taken lightly. Where anti-social behaviour, crime or disorder is present, local authorities will need to weigh up the impact of restricting access against the needs of the community. There are, as we have already discussed, additional consultation requirements associated with public rights of way above and beyond those expected more generally for a public spaces protection order. Those affected by the order must be notified of the proposal and be given details of how to see a copy of the restrictions. The local authority must also notify those persons of how they can make representations, and these representations must be considered before the order can be made.

Amendment 53G, proposed by my noble friend Lord Greaves, aims to protect private rights of way. I assure my noble friend that I agree with his sentiment. I am happy to confirm that the definition of public spaces included in Clause 60 will not allow for the order to be used for private rights of way. The principal access route to homes cannot be closed with a public spaces protection order. As such, I do not believe the amendment needs to be made.

On Amendment 53H, I understand the issue here relates to areas where there is a district council and a county council. Indeed, just as the noble Lord lives in such an area, so do I. In the situation described in the amendment, while the district council has the ability to make an order, the county council is likely to act as the highway authority. Therefore, in line with the consultation requirements I have just described, before restricting access the district council should consult the county council about the terms. However, I do not believe that this should come with a right of veto. In the majority of cases the evidence presented will be sufficient for both bodies, acting in the interests of the communities they serve, to agree. However, where this is not the case it should not prolong the misery for victims and communities, and so the district council should be free to make the order. On the basis of what I have said, I hope my noble friend will withdraw the amendment and I beg to move that the clause should stand part of the Bill.

On the specific question asked by the noble Baroness about the phrase in the clause,

“it must consult that other authority if it thinks it appropriate to do so”,

I can hardly see how, in the case of a public highway, it would be possible for a local authority to do other than consult those people. I have a note here which has come to my rescue. As to why it states in Clause 60(3),

“only if it is appropriate to do so”,

it is hard to imagine a situation where a council would not do so. However, it adds flexibility. Clause 60(3) was added to the Bill on Report in the Commons in response to a point raised by Gloria de Piero, the honourable Member leading on the Bill for the Opposition. It may be that the letter the noble Baroness is thinking of is the one from Damian Green to David Hanson of 7 October dealing with the Government’s amendments on Report in the Commons. I cannot remember ever discussing this issue before. However, it was added to the Bill on Report in the Commons, presumably with agreement.

I should say that it is only as a last resort. We have made it clear that the added flexibility means it is less likely that a right of way will be closed. This is covered in the guidance and we do not believe it needs to be in the Bill. It is also worth making clear that highways of strategic value cannot be restricted.

[Baroness Smith of Basildon]

My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.

[Baroness Hamwee (LD)]

I wonder whether I should come in on the same issue to allow time for reflection. As I said to the Minister through his officials, I did not move my amendment because I assumed that there must be legislation which would require both authorities to agree. I read “consult” in this clause as meaning consult not around the outcome of actual closure but about the things surrounding it. I thought that, rather than taking the Committee’s time, I would simply not move it. Perhaps it would have been better if I had.

[Lord Taylor of Holbeach]

My Lords, it may be that I have been misreading this particular clause. I assumed that it was evidence of the phenomenon where you have both a district council and a county council, which my noble friend Lord Greaves referred to. It may be, of course, that the highway lies in two local authority areas, and that by restricting it to one local authority, an adjacent local authority that shares the highway might be affected. In that case it clearly would be appropriate for there to be consultation between the authorities. In effect, there would be a joint highway, shared with other authorities.

However, I am hazarding a guess and seeking to inform the House on the basis of guess-work. My best position is to say to noble Lords that there is clearly some uncertainty about the meaning of this and that I am quite prepared to write to noble Lords with all the detail. This is based on current gating order legislation, which has been used for many years by councils to deal with anti-social behaviour, so we might see a similar clause there. Clause 60 needs to be read with Clause 61, in particular subsection (1), which describes which public highways cannot be restricted. It excludes strategic highways, so it is non-strategic highways that are being considered here. I will write to noble Lords explaining how these two clauses operate together, as clearly they are both of a part.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for his very helpful suggestion for trying to get to the bottom of what it means. When he writes, perhaps he could focus on giving us an answer about when he thinks it would not be appropriate to consult the other authority. The other points he made are relevant and helpful.

[Lord Harris of Haringey]

Perhaps in that letter the noble Lord could also give some examples of circumstances in which he thinks the power would be used. It seems that it may be a wider power than simply gating regulations in the past and might be used over and beyond them. We are back to the whole issue of why we should change something just for the sake of it, which might add increased ambiguity as a consequence.

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Debate on whether Clause 67 should stand part of the Bill.

[Baroness Smith of Basildon]

My Lords, I have two brief questions for the Minister on interpretation. One is an issue that I raised with him previously. He will know that the naturists have written to a number of noble Lords about their concern that the definition of “public place” in the Bill is drawn very widely and that it will unnecessarily restrain—perhaps “contain” would be a better word—their activities. It would be helpful to have an explanation of that. I raised it previously but did not get an answer. However, if there is an answer for them on that, that would be helpful.

Unitary authorities are not referred to under the interpretation of “local authority”. Do I take it that a county council, when there is no district council, includes a unitary authority, even though the unitary may not be the county council? I can see no other way in which a unitary authority would be referred to in the legislation.

[Lord Brooke of Sutton Mandeville]

Perhaps I may make a very brief intervention. Clause 67(2) seems to contain a drafting mistake because the subsection opens with the words “This section”, but it is in fact a reference to paragraph (b) immediately before it in subsection (1), referring to “public place”. I am not seeking to press this in any way but some attention might be drawn to it between now and Report to make sure that, if I am right, it is corrected.

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[Baroness Smith of Basildon]

My Lords, again, the reason for moving a clause stand part debate is that it is a more satisfactory way of addressing a number of different questions than tabling lots of individual amendments. Noble Lords will recall that I raised this matter briefly under the issue of corporate ASBOs, which is one of the things that strikes me about closure notices. We support the need to close premises, particularly if they are likely to be a nuisance to members of the public or there could be disorder, but this goes straight to closure. The point of the corporate ASBO proposal that I put forward in our previous sitting was that prevention would be better than cure, and it would be good to have a stage prior to closure to try to get organisations, companies or premises facing disorder to get their act together and prevent a nuisance taking place.

I have a few questions to raise with the Minister. Is it possible to have some further clarification on what the “reasonable grounds” would be? We do not want any confusion over the slightly vague wording. I know that there are examples in other legislation of reasonable grounds, but it would be helpful to have more explanation of what the Government consider to be reasonable grounds here. Another issue concerns the consultation in subsection (7). As the Bill stands, a police officer or a local authority can issue closure proceedings but they do not have to consult each other on this. There is no requirement for the police to talk to the local authority or for the local authority to talk to the police. In Committee in the other place, Damian Green said that he thought the police and local authorities would probably consult each other before issuing orders. It does not seem a very satisfactory way to legislate to say that they probably will. If it is appropriate that they do so, it should be formalised in the legislation. The other question is: who should they consult? The way in which the clause is drafted at present, a police officer or local authority can consult who they think appropriate, but that might not be each other. I cannot think of anyone more appropriate to consult than the police and the local authority.

It would also be helpful to have the Government’s view on whether they think it would be appropriate to publish the names of those who have been consulted. Those who have been aggrieved by a closure perhaps would understand the reasons more easily and be less likely to appeal or try to stop the proposal if they understood who had been consulted and the process was more transparent. If there had been widespread consultation in an area, it would be understood that there was a serious problem, but they might be more aggrieved if they found that only one or perhaps two organisations had been consulted. That might in turn give grounds for challenges to the closure. Subsection (7) states:

“Before issuing a closure notice the police officer or local authority must ensure that any body or individual the officer or authority thinks appropriate has been consulted”.

Could they consider it appropriate not to consult anybody at all, and would that be grounds for a challenge?

There are two issues: one, whether it is appropriate and whether there is enough information about who should be consulted; and two, if it is not necessary to consult anybody, or to consult very few people—or the most appropriate or useful people to consult—would that give reasons for the decision to be overturned or challenged? I hope that the Minister can address these points, which would be helpful.

[Lord Taylor of Holbeach]

My Lords, we know that in another place the Opposition stated their support for closure notices. I accept what the noble Baroness, Lady Smith, means when she says that she wants to clarify some of the detail in this, and I agree that a clause stand part debate is a good method to use. Clause 69 gives the police and local authorities a simple and easy-to-use power to close temporary premises that are the focus of public nuisance or disorder. There are a number of existing powers that could be used to close such premises, but they are similar.

[Baroness Smith of Basildon]

Did the noble Lord say, “to close temporary premises”? I am slightly confused by what he means by temporary premises.

[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.

Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Wednesday 20th November 2013 Lords Chamber

[Earl Attlee]

That the House do again resolve itself into a Committee on the Bill.

[Baroness Smith of Basildon (Lab)]

My Lords, may I raise a point about the further consideration of the Bill today? At 6.03 pm yesterday, we received quite a lengthy letter from the Minister with amendments that I am told are to be debated today. Is it appropriate to receive amendments at such late notice for debate the following day?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as with the Opposition, we have also seen all the amendments and have been working through them. They have been tabled and agreed for debate; that is the programme that is scheduled for today. I know that the noble Baroness appreciates the challenges of the number of amendments we have on this Bill, and we wish to make progress.

[Baroness Smith of Basildon]

I am sorry. I understand the need to make progress. The Minister will know from the amendments we have tabled and our contributions to this debate that we agree with him in seeking to make progress. I am, however, questioning whether it is right to table amendments and notify some Members of your Lordships’ House—not all—at 6.03 pm for debate on the following day. That seems completely inappropriate. As we are speaking, I am trying to go through all the amendments to ensure that we have a response and can fully consider them. This House prides itself on scrutiny, but this does not leave us the opportunity to scrutinise adequately these amendments tabled by the Government.

[Lord Ahmad of Wimbledon]

Again, I say to the noble Baroness that anyone who has been in the previous days of this Committee would not doubt for a moment that the House has been very careful in its scrutiny of the Bill. That is reflected in where we currently are in the progress of the Bill. As I said, these amendments have been tabled and we, as the Government, have looked at them. We look forward to the debate and the scrutiny that will take place of them.

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[Baroness Linklater of Butterstone (LD)]

My Lords, I endorse that and remind the House that when ASBOs were first considered under previous legislation, that worry was aired at some length in this Chamber. Things could go either way. Either you could have it as a badge of honour or it could be a mark that affected a young person or child’s life considerably. Either way, publicity had little to offer that was positive or helpful.

[Baroness Smith of Basildon]

My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.

The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.

It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.

[Lord Taylor of Holbeach]

I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.

As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.

My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.

There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.

Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.

However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.

It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.

My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.

I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:

“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”

[Baroness Smith of Basildon]

Those are wise words indeed, but will the Minister confirm that my noble friend Lord Bassam was speaking about anti-social behaviour in terms of harassment, distress and alarm, and not an IPNA, which is to cause nuisance and annoyance?

[Lord Taylor of Holbeach]

The noble Baroness will know that an IPNA can be applied also in cases where there may have been harassment, alarm and distress, so although nuisance and annoyance is the test for an IPNA, it is not the absolute or exclusive text.

[Baroness Smith of Basildon]

This clause would apply to those who have committed a breach of an IPNA by causing nuisance and annoyance. Would that be correct?

[Lord Taylor of Holbeach]

The noble Baroness is quite right, but what we are seeking to do is to enable the IPNA-based process—at the discretion of the court, which I must emphasise to noble Lords, and in conjunction with the advice of the youth offending team—to determine whether this is the best way of dealing with this young person.

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[Lord True (Con)]

My Lords, this is the first time that I have intervened on the Bill. I should declare an interest as leader of a London borough council; indeed, it is the council that I now learn is the world’s centre of mooning. I should apologise to Lady James of Blackheath for the offence that was caused. I will try to avert my eyes when I next go to Twickenham.

I express my immense support for my noble friend Lord Goschen and his amendment. He is exactly correct to point out the scourge of fly-tipping and I hope that the Government will be supportive. Equally, I am extremely supportive in principle and in practice of my noble friend Lord Marlesford’s amendment. I am going to anticipate what I fear the Minister might say about it, in the hope of averting the risk that he will push it aside. There are issues of policing that local authorities would have to face with this. It is not as easy to identify a car from which a piece of paper has been thrown as it is to find a parked car of which you can take a photograph and stick it on the web, so that the person who has parked the car can see the offence that they have committed. The proposed process imitates the process for dealing with a parking offence, and will still have issues of proof and so on attached to it. I am sure that the Minister may well be tempted to say that. None the less, I am sure that there are ways in which, with a will, these kinds of problems could be overcome. I hope that my noble friend on the Front Bench will take it forward in a positive spirit.

I should add to what my noble friend Lord Crickhowell said about motorways, where the situation is appalling. Last time I went up the M1, I saw the astonishing investment by the Highways Agency in having ridiculously exaggerated numbers of cameras at the first few junctions. Millions must have been spent on them, the side notices and so on. Yet along the side of the road, totally neglected, were piles of litter. Something ought to be done by the Highways Agency to prioritise investment and deal with this problem, which is a terrible advertisement for our country along its main highways and which a small local authority is not by itself competent to deal with.

[Baroness Smith of Basildon]

My Lords, I find myself in complete agreement with the noble Lord, Lord Marlesford, and the noble Viscount, Lord Goschen, on this issue. It should not have been a surprise to your Lordships’ House that when we debated the Private Member’s Bill of the noble Lord, Lord Marlesford, there was enthusiastic—indeed, passionate—support for the objectives he put forward. If one talks to the public at large, they regularly raise the state of the streets and pavements, and the impact that has on their community. That is why both these amendments are so relevant to this Bill.

Noble Lords may be aware of the “Panorama” programme that my noble friend Lady Bakewell presented a few weeks ago, in which she was able to show the cumulative impact of litter on anti-social behaviour in a local community, and the pride otherwise taken by that community in how it looked and about whether that litter was cleared. At Second Reading, we were very pleased to support the Private Member’s Bill. I am not going to suggest, nor is the noble Lord, Lord Marlesford, suggesting, that every word in it was perfect; we would have welcomed the opportunity to debate it further in Committee. But if the Minister were able to take it away and look at the objectives that it is seeking to achieve, that would be very welcome.

On the issue of fly-tipping, one of the problems has been that so many local authorities have been forced into the position of cancelling their door-to-door collections of larger and bulkier items. While some people have tried to make alternative arrangements, some think it is easier to dump it in the car, drive somewhere and tip it out. Local farmers—and local authorities, as the noble Lord, Lord True, said—speak about the increasing costs that they incur in having to deal with fly-tipping and litter.

I have never been subject to mooning on the motorway—I am not quite sure whether that is within the scope of the amendment—but if an area looks bad then behaviour becomes bad as well, which is of great concern to many people on private and public housing estates across the board. I hope that the noble Lord can take away the serious sentiment that, by dealing with litter and fly-tipping, we would improve our communities and make them better places to live.

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Moved by

[Baroness Smith of Basildon]

22A: After Clause 20, insert the following new Clause—
“Corporate anti-social behaviour order
(1) It is an offence for a corporate body to act in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons.
(2) In this section “corporate body” has the same meaning as in Part 12 of the Corporation Tax Act 2009 (see section 1005 of that Act).
(3) The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed under subsection (1).”

[Baroness Smith of Basildon]

My Lords, this is a probing amendment on a subject not too dissimilar from the issue raised by the noble Lord, Lord Marlesford. Our new clause is about corporate anti-social behaviour. Other than the community protection order, which includes the power to close premises that cause severe problems associated with anti-social behaviour, the Bill’s emphasis is not on the corporate but on the individual.

Too often the public feel, sometimes justifiably, that although they as individuals have to obey the law or be taken to task, companies seem not to be targeted until things get very serious and action is taken that could lead to their closure. A corporate anti-social behaviour order would be targeted at actions by a corporation or company that are deliberately socially harmful, and cause harassment, alarm or distress at a local rather than a national level. It would not target legitimate businesses or business activities—even businesses that some might regard as unpalatable. For example, there is a lot of talk about payday loans, and some people do not like gambling. The order would not focus on business activity, and there is no intention to comment on business activities that may cause distress at a national level; it would be used only where local disregard for the public and for the environment could cause harassment, alarm or distress.

The purpose of such an anti-social behaviour order would be preventive. It could identify low-level behaviour and seek to prevent it increasing in frequency or becoming more serious, as is often the case. Some of the examples I shall give tie in with the comments about litter in the previous debate—examples such as takeaways and other businesses that fail to deal with rubbish outside their premises, or premises that are unnecessarily noisy. I remember, when I was a Member of Parliament in the other place, dealing with a business in a residential neighbourhood. It had to have delivery vehicles coming and going—but at 5 am, did those vehicles really need to leave their engines running, causing considerable distress to those who could not sleep, or were woken first thing in the morning?

There could also be a pre-sanction stage, with an acceptable behaviour contract, to deal with problems. I think that such a provision would be welcomed by businesses that do their best to deal with such problems, but find themselves up against other companies that cut corners and do not fulfil their obligations to local communities. An anti-social behaviour order for local businesses would complement the community protection order by offering sanctions targeted at businesses, which might be used before more serious action that could lead to closure of the business was taken.

A corporate anti-social behaviour order would be business-friendly, because it would nip the problem in the bud and give the business the opportunity to deal with it before it faced far more serious action. It also gives the opportunity for preventive measures; I am thinking particularly about littering and noise pollution. At the moment the legislation focuses on individual behaviour—that is where the community protection order comes in—rather than on the actions of companies. It is a preventive measure, designed to be more effective, more helpful and more friendly towards business. It could also lead to better engagement between businesses and the local authority, which would have a reason to hold early discussions about problems that could arise and how it would deal with them, and also to better relations with local residents, by nipping any such problems in the bud before they get too serious. I beg to move.

[Baroness Hamwee]

The noble Baroness raises an interesting point. I have been wondering about other examples, and the one that immediately came to mind was the noise of aircraft coming into Heathrow in the middle of the night, which is a big issue in my area—but perhaps the order is not intended to be as extensive as that.

I have a serious question for the noble Baroness, which is whether it is appropriate for criminal offences to be created by regulations. That is in effect what subsection (3) of the proposed new clause would do, as it states:

“The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed”.

I appreciate that this is a probing amendment, so I do not want to be too tedious about it, but that struck me as a point of principle that one might want to consider.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

I believe that the clause as drafted could apply to an individual or an organisation. When we discuss that wording, it will be clarified. This applies to an individual or an organisation—which incorporates the issue raised by the noble Lord. In addition, where the use of business premises has resulted, or is likely to result, in nuisance to members of the public or disorder nearby, the new closure powers that we are introducing, to which the noble Baroness referred, will be able to close a premises immediately. The police and/or local authorities can act quickly where a business acts anti-socially. Again, breach is a criminal offence with the potential for a significant fine.

It is also worth saying that sometimes it may be a particular individual who is the root cause of the anti-social behaviour—for instance, the business owner or a store manager—and not the business as a whole. In those circumstances, the police, council or others listed in Clause 4 could apply to the court for an injunction against the individual on the test of nuisance or annoyance. Hopefully that would deal with the issue and, while breach in this case may not be a criminal offence, it could still result in a large fine or even a custodial sentence.

In putting forward this amendment, the noble Baroness said that it was a probing amendment to seek clarification. I hope that on the basis of the example I have given, by drawing the attention of noble Lords to the fact that we will be discussing this issue under Part 4 and with my explanation, she will feel able to withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Lord for his explanation. I am not sure whether it will be helpful to probe the matter further when we get to community protection notices, because they deal with individuals. If there is a persistent litter problem in certain premises, it would not be possible to have a community protection notice against every individual. My worry with his other proposal, the closure of premises, is that it would deal with the problem by closing the business. Often, it might be better to take preventive action with the corporate body, the business, to prevent closure and to deal with the problem, rather than to act against individuals and then, if that does not work, close the business. I am trying to find a pre-emptive way to prevent the problem rather than deal with it once it had happened. However, I am grateful to the noble Lord for taking the point seriously. Perhaps we can return to it and discuss it further when we consider community protection. I beg leave to withdraw the amendment.

Amendment 22A withdrawn.

--- Later in debate ---

We keep being reminded that while we are looking at what we do with young people, whom we perceive to be such a problem, we are always thinking about the victim. There are ways and means of making a far more positive outcome for those who have been affected by crime if they can go through a restorative process. We should be looking at and developing this. This amendment proposes that, instead of incarceration, a youth rehabilitation order would be the constructive way forward. I urge my noble friend the Minister to look at these kinds of option very seriously.

[Baroness Smith of Basildon]

My Lords, the noble Earl, Lord Listowel, made some interesting and useful points. We sympathise with the comments that he made and with these amendments. As the noble Baroness, Lady Hamwee, said, I do not want to repeat the comments made in the earlier debate on the amendments of the noble Lord, Lord Ramsbotham. However, I asked questions in that debate that the Minister did not answer, and similar questions apply in this debate.

The Minister will recall that I asked about the evidence base for the proposals brought forth by the Government. In that case, it was about what assessment had been undertaken to evaluate the safeguarding of the risk to children. He was not able to reply then and I am happy for him to write to me. The same questions apply here. They concern the evidence base on which the Government are bringing forward these clauses. A number of children’s and young people’s charities have contacted Members of your Lordships’ House with concerns about whether, in the clauses we are debating and in our previous debate, the breach of civil orders is against the rights of children and whether it would do more harm than good.

As I said then, I hoped that the Government have an evidence base on which they are bringing forward these amendments, but the Minister was not able to answer. I hope that he can on this occasion. One part of my question is about consultation around these proposals and the previous provisions. The second part of it is on the assessment that is undertaken to evaluate, in the previous case, the risk and, in this case, the effect of the Government’s proposals. Are the Government prepared to have a review period in both cases to see whether they have been effective and what changes should be made?

[Lord Taylor of Holbeach]

My Lords, I thank the noble Earl, Lord Listowel, for picking up the amendments of the noble Lord, Lord Ramsbotham, and presenting them in the way that he has. In replying, I am very happy to have a meeting with those Peers who are interested in the impact of the Bill and its provisions in general on young people. That would be useful. We have had some productive debates on the issue here in Committee. I hope that I have been and am able today to show that we see our role in seeking to prevent anti-social behaviour as one that tackles the difficulties that some young people have, and in rehabilitating and supporting them.

This brings us back to whether it is right for young people to face the full range of criminal sanctions when they act in a way that is seriously anti-social: I emphasise “seriously”. I understand the points that have been made by all noble Lords who have spoken: the noble Earl, Lord Listowel, my noble friends Lady Hamwee and Lady Linklater, and the noble Baroness, Lady Smith of Basildon. They have all expressed the importance of rehabilitation, especially in cases concerning young people. That is why it is so important that the injunction under Part 1 and the criminal behaviour order that we are discussing here can include positive requirements to help them turn their lives around.

Youth rehabilitation orders are often a fair and proportionate way to deal with a young person who has been convicted of an offence as an alternative to custody. Use of such orders is in line with the intentions of the Bill: that informal interventions and rehabilitative approaches should be used first and foremost, in particular, when dealing with young people. However, it is right that tough sanctions are available on breach.

Amendments 22KB and 22KC seek to restrict the sanctions on breach of a criminal behaviour order for under-18s so that a youth rehabilitation order must be made. Breach of a criminal behaviour order is an offence. There is no danger of this criminalising someone for the first time because an order can be made only once they have been convicted of a criminal offence. It is worth remembering that the criminal behaviour order is aimed at tackling the most serious offenders, and that by the time that it is breached an offender may already have failed to respond to positive requirements aimed at addressing the underlying cause of their anti-social behaviour. They may also already have had a youth rehabilitation order made in respect of their offending. We would expect the youth courts to do all they can to ensure their rehabilitation when considering the sanction for a breach. This may well be a rehabilitation order but it is right that they have the discretion to impose the most appropriate penalty in a given case, including a fine or, in the most serious cases, custody.

On the dispersal power, there needs to be an effective and serious consequence to breaching a dispersal order which is imposed by a police officer. Clause 37 provides the option to apply a fine or a prison sentence of up to three months. We expect the court to use these sentences appropriately and proportionately in accordance with sentencing guidelines. The three-month sentence is the maximum sentence available to the court and it may impose a lower sentence if appropriate, including a youth rehabilitation order if the offender is under 18. However, there may well be some young people for whom a fine or even detention is appropriate, and I would not wish to tie the hands of the youth courts which, after all, will have access to all the evidence and will be best placed to make a decision in individual cases.

I hope I have been able to reassure the noble Earl that the sanctions available on breach of the CBO and the dispersal power will help the courts. From the comments of the noble Baroness, Lady Smith, one could be forgiven for thinking that breach of an ASBO was not an offence subject to a maximum penalty of five years’ imprisonment, which is what the previous Government legislated for. This sanction applies to the ASBO and the sanction of imprisonment applies to young people as it does to adults. Like the previous Administration, we believe that tough remedies should be applied on breach where it is appropriate. It is for the courts to test what is appropriate, and the test for the CBO is analogous to that for the ASBO, as the noble Baroness would expect.

--- Later in debate ---

[Lord Harris of Haringey (Lab)]

My Lords, I rise to speak to Amendment 22M in the name of my noble friend Lady Smith of Basildon, which would insert into the Bill the words,

“and once the relevant local authority has been consulted”.

I do so on two main grounds. One is to revert to a topic that we discussed in Committee on Monday, which concerned the importance of the powers in the Bill being exercised as part of a wider pattern and a wider agreement with local government and other interested parties. That is a general principle that we should not move away from. However, the main issue is that this is clearly a power that relates to a specific locality. It might relate to, for example, aggressive begging in a particular park, square or precinct. Therefore, you would expect the local authority or the custodian of the public space concerned to have very clear responsibilities and interests. There may well be community implications. There may well be a need to listen to what the local authority may feel will be the community impact of such an action or, indeed, to consider the local authority’s view on whether the community benefits from such an action.

I understand that the local authority should be the custodian of those public spaces and that these are the circumstances in which this power may be used so it is appropriate that it be involved. I understand that the parallel of this power, the old anti-social behaviour order regime, did involve consultation with the local authorities concerned, yet the Government have specifically excluded it in this Bill. I would be interested to know a little more about the rationale behind why this has happened in this particular case as this seems to me an obvious area where you would expect there to be consultation with local authorities.

If the argument is that local authorities have been slow in responding to consultation and that this has led to a continued problem, I would be surprised because local authorities usually are well aware of concerns that are being expressed by local communities about a problem in a particular area. If that is the case, I suspect there are some faults on the side of the local authority. These could be remedied by some expectation of what the normal period is within which the local authority should respond when asked for its views on these matters. However, I think there is an extraordinary weakness in the way that these powers could be pursued. The way in which the legislation is framed, this is a quite a broad power. The authorisation could come from a police officer and would proceed solely on the basis of the authorisation of a police inspector. This is not something that would have necessarily gone to court, although obviously it relates to people about whom there are clearly concerns.

I would like to know why it is not felt to be appropriate in these circumstances for the local authority to be consulted. If the argument is that there have been unconscionable delays associated with that, can the Minister give us some examples of where they have occurred, and can the Minister say why it would not be possible to build in to the legislation something which required a specific time period for the local authority to respond when such a power is being considered?

[Baroness Smith of Basildon]

My Lords, I will speak to Amendment 22M and also comment on whether Clause 32 should stand part of the Bill. I will make a very similar point to that made by my noble friend Lord Harris. We do not have an issue with the principle of dispersal powers. In fact, we introduced such powers back in 2004, although I recognise that they were pretty controversial at that time. Our worry is that the new power now being proposed by the Government can be authorised much more easily than the existing one and also for longer. The issue we are raising is that of proper and effective democratic oversight. Local authorities must and should be consulted by the police before the issuing of dispersal orders. That is the process that currently exists.

What I find curious is that the Home Affairs Committee, in its pre-legislative scrutiny, recommended that there should be a duty to consult local authorities on applications for dispersal powers of more than six hours. The Government’s response to that comment by the Home Affairs Select Committee in the other place was that they would ensure that the legislation allowed for that. In fact, it does not. It would appear that the commitment that the Government gave in their response to the Home Affairs Select Committee has not been brought forward in the Bill—unless it is in the pile of amendments that were issued very late last night for debate today, but I do not see them grouped here at the moment. Unless an amendment is coming forward from the Government, can the Minister explain why a response was made to the Home Affairs Select Committee to do something that does not appear to be in the Bill now?

When evidence sessions were held during the Committee stage of the Bill in the other place, there was no suggestion that the existing power was not working properly. The police have also said that working with the local authority really helps them get community consensus and support when a dispersal order is needed. That is why we consider Amendment 22M to be so important. Why fix something that is not broken? If there is an issue, why try to change the process? If the Minister can tell me that he and the Government have received representations from organisations or individuals that suggest that the current provisions are inflexible and inadequate, that would help to explain why the Government have made such changes. If he can tell us who those organisations or individuals were, what changes they sought and for what reasons, that would perhaps help to explain why a power has now been proposed that is different from the existing one.

I was reading through the debate in Committee in the other place. Damian Green, as the Minister, said then that the powers were designed,

“to allow police officers to react to a dynamic situation”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 27/6/13; col. 240.]

Have there been complaints that there has not been a response, as the Minister would like? If that is the case, there is a concern that this could lead to the powers being used recklessly and in inappropriate circumstances if there is not that check. Can the Minister say on how many occasions there has been a situation where a community has been at threat or in danger because the local authority could not be consulted about a dispersal power over the week and the power then could not be used? Have there been such cases that have led the Government to bringing forward a very different kind of procedure now?

The noble Baroness, Lady Hamwee, and my noble friend Lord Harris raised the question of locality. There is concern that the meaning of “locality” is not quite clear or is wider than necessary. If the Minister can address that, it would be helpful.

[Lord Greaves (LD)]

The noble Baroness was not in the House when we dealt at some length with the question of what “locality” means, specifically in relation to town greens and village greens in the Countryside and Rights of Way Act when it went through this House rather a long time ago—about 13 years ago—and the Commons Act more recently. The courts had got themselves into terrible difficulties about the definition of “locality”, about whether localities and neighbourhoods are the same thing and about the question of neighbourhoods within localities. There was a lot of abstruse discussion and debate and I am not sure that we actually clarified the matter. The important thing is that locality is not the same as location. A location is a specific place on the surface of the Earth. A locality, however you define it, is wider in some respect or other.

[Baroness Smith of Basildon]

Having listened to the noble Lord, I am sorry that I missed that debate. However, I get his point about locality and location; I just seek further clarification on how that can be dealt with.

I have a couple of other points. The 48 hours that the Government propose for these dispersal orders are twice the period in the Anti-social Behaviour Act 2003. I understand that the only other legislation that permits dispersal powers in this way is the Violent Crime Reduction Act. I would understand why a longer timescale would be used in connection with violent crime. However, we are not talking about violent crime but about anti-social behaviour. There must be some evidence base for why the Government think that 48 hours rather than 24 hours is appropriate.

It would be helpful if the Minister could talk us through “Directions excluding a person from an area”. I have had conversations with those who could be practitioners in this area of legislation, and some of them seem to be slightly confused by how it will work. It is quite clear how the current process works, but how will such a direction to exclude an individual or group of individuals from an area work? If they are to be excluded from a locality for 48 hours, does somebody draw a handwritten map—“This is the area that you’re going to be excluded from”—to make clear where it is? Who else should be notified? Forty-eight hours is quite a long time. If there has been no local authority consultation and it has all been done very quickly, how do the person and other authorities know that they are to be excluded for 48 hours? If the direction is to be withdrawn or varied, how will they and others be notified? This lack of involvement and consultation with the local authority gives rise to a number of practical questions. I would be grateful if the noble Lord would on this occasion be able to answer my questions—which he has not, so far, been able to do on any other occasion, although I am getting used to it—and talk us through the process.

[Lord Taylor of Holbeach]

My Lords, I might have preferred to be participating in the passage of the CRoW Act, although it seems to have been a merciful release that I was not here to be involved in those debates. This is the first time we have had a chance to talk about dispersal orders, so it would be useful to give the background of what we want to achieve by them and try to answer the questions that noble Lords have asked me.

The new dispersal power will allow the police to deal quickly—I emphasise that word—with anti-social behaviour centred on a particular locality, nipping such behaviour in the bud before it escalates and providing immediate respite to the victims of the anti-social behaviour that is the cause of the difficulty. The new power combines the best elements of the current legislation into a single, more effective and less bureaucratic tool. When I come on to the business of liaison with local authorities, I think that the noble Baroness and the noble Lord, Lord Harris, will see what I mean by that.

The current process can be very slow, and as a result victims and communities can suffer for a number of months before the police can act. Part of the problem is that the existing dispersal power can be used only once a dispersal zone is in place, and a zone can be designated only following consultation with the local council. The new power will not require prior consultation, so it can be used more quickly. However, we recognise that there should be some supervision of the new power, and in this respect the provision has benefited from scrutiny by both the Home Affairs Select Committee and the Joint Committee on Human Rights. Responding to points made by the HASC, we have included the safeguard that the dispersal power must be authorised by an officer of at least the rank of inspector. The authorisation may be given if the officer is satisfied on reasonable grounds that use of the dispersal power may be necessary in a specified locality during the specified 48-hour period.

The requirement for the officer to be satisfied “on reasonable grounds” was included on the recommendation of the Joint Committee on Human Rights. We had intended it to be part of the test when the Bill was introduced, and we believed it to be implicit. However, in this instance we agreed with the committee that it would be clearer to have that explicit in the Bill. I am grateful to the committee for drawing this to our attention. The addition of “reasonable grounds” further emphasises that the test for authorising use of the power is objective.

On Amendment 22L, tabled by my noble friend Lady Hamwee, the two elements of the test will mean that officers consider whether use of the dispersal power is a proportionate response to the problem at the particular time and locality. As a public authority, the police must also exercise their powers proportionately under general public law principles and human rights obligations. It is not, therefore, necessary to include “proportionate” in the Bill. I am firmly of the view that the safeguards in the legislation will ensure that the dispersal power is used appropriately, based on local knowledge of the area and on intelligence that there are likely to be problems at a specific time.

I return to the question of locality. My noble friend has put forward Amendment 22N to ensure that an authorisation clearly identifies the locality where the dispersal power can be used. The authorisation for the use of the power must be given in writing, must be signed by the officer giving it, and must specify the grounds on which it is given. These grounds must include the specified locality and time period for which the authorisation applies. My noble friend’s amendment is therefore provided for in Clause 32(1), which states that the time and location for which the dispersal may be used are as specified in the authorisation. Perhaps I can elaborate on that.

Clause 32(1) and (2) are concerned with this authorisation process, so the intention is that the reference to locality in both subsections has the same meaning; i.e. they cover the same geographical area to be specified in the authorisation. As drafted, the Bill makes this clear. The new dispersal power will allow the police to respond swiftly and flexibly. For example, on a particular housing estate where there is likely to be anti-social behaviour at the weekend, an inspector could pre-approve use of the new power by his or her officers. Alternatively, if an incident occurred at a different time of the week when it had not been anticipated, a police officer could contact an inspector for authorisation to use the dispersal in that specific instance.

Amendment 22M, tabled by the noble Baroness, Lady Smith, and supported by the noble Lord, Lord Harris of Haringey, raises an important issue for the Local Government Association regarding consultation with local authorities. As noble Lords know, I have had meetings with the Local Government Association Safer Communities Board. The association has expressed some concern about the impact of these dispersal powers on community relations and has therefore argued for them to be subject to democratic oversight. I understand this point, but to require consultation would seriously undermine the flexibility and utility of the power and would reinstate precisely the difficulties we seek to remove from the current system.

However, the draft guidance states that the authorising officer may wish, where practical, to consult with the local council or community representatives before making the authorisation, in particular where there are concerns about community relations and the use of the dispersal in a particular area. Therefore, for example, when planning the policing of a football match, the police might decide to authorise use of the dispersal in the area surrounding the stadium. It is likely that the police already work with the local authority in planning this kind of event, and this would include a discussion on the use of powers in such a dispersal.

This issue was raised when I met with the Local Government Association recently. I agreed to include in the guidance that it is good practice for the police to inform the local authority after the dispersal authorisation is used. This will help the local authority work with the police to plan longer-term solutions in areas where there are persistent problems. I remind your Lordships that the Government have published this guidance in draft to assist with scrutiny of the provisions.

I agree that accountability is important, and Police and Crime Commissioners now have a vital role in holding forces to account on behalf of the public. Police forces will be required to keep records of the use of the dispersal power and, while there is no duty to do so, they may wish to publish data in the interests of transparency. Police forces can share data about the use of the dispersal power with councils to assist in their crime prevention planning, and plan longer-term solutions to hot-spot areas. The draft guidance that accompanies the legislation emphasises the importance of involving the community in taking a problem-solving approach in areas with persistent problems. Clearly, this would be a case in which we would expect police forces and local authorities to work closely together.

The current Section 30 dispersal power has worked well in some areas to deal with longer-term issues. Those powers are led by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the new public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems.

I will deal with some particular questions asked by the noble Baroness. On the question of dispersal orders, she thought that people might be confused about what is actually involved in being dispersed. Much of the new power is available to the police now, but guidance will share good practice on how the dispersal orders should be used. In most cases, the officer will provide this information in writing and, in many forces, officers actually provide a map for the person given the dispersal order to show them the area from which they are excluded.

[Baroness Smith of Basildon]

I do not want to disrupt the Minister as he answers other noble Lords’ questions, and I am grateful to him for answering one of the questions that I raised. I just wondered whether he is going to come to the other questions I asked, about the representations he received that the current process was inflexible, and what examples he had of those. I also asked why the Government have not abided by their response to the Home Affairs Select Committee, as they committed themselves to do.

[Lord Taylor of Holbeach]

I have given the noble Baroness the information I have on our response to the Home Affairs Select Committee. I can give her no more information than I have given her already on the representations that were made. However, if the noble Baroness will permit it, I will write to her on the subject. It might be useful that I exchange the information with her. Of course, I will include any other Peers who have spoken on this group of amendments.

Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I would comment briefly that having looked at these amendments, Amendment 22QA seems to be a particularly reasonable and sensible way forward. If you think of the local authority as being at the centre of its place—not just part of the local council but managing the area—it seems very reasonable and sensible. This is perhaps a case, as the noble Lord, Lord Greaves, and my noble friend Lord Harris said earlier, of wanting the parts of the Bill that are useful to work. This may well assist the Government in ensuring that the clause is effective.

[Lord Ahmad of Wimbledon (Con)]

My Lords, Amendments 22NC and 22QA are proposed by my noble friend to change the process at the point where a community protection notice is issued. Currently, when issuing a community protection notice, an authorised person—be that a police officer, an officer of a local authority or a person that the local authority has designated, such as a social landlord—would have to inform any body or individual that the person issuing the notice thinks appropriate. Amendment 22NC seeks to remove this requirement.

Amendment 22QA, in my noble friend’s name, then seeks to impose a requirement that an authorised person who is not the local authority must inform the relevant local authority of its issuing of a notice. I recognise that it is important that a local authority is aware that community protection notices are in operation in its area but, conversely, it is also important, as I am sure noble Lords will agree, that local authorities notify the police. The reality is that police and local authorities will be working together to tackle local anti-social behaviour and therefore it is not necessary to put into the Bill the requirement to inform the local authority. The existing provision in Clause 40(6) states that the authorising officer “must … inform” any appropriate individual or body of the issue of a community protection notice, and it is difficult to imagine any case where the relevant local authority would fall outside the definition of “appropriate”. I do not think it necessary to specify that the local authority must be informed.

However, there may well be others whom it would be appropriate to inform as well. As I have suggested, the police will often have an interest. I fear that the effect of my noble friend’s amendments would be to restrict the requirement to informing the local authority only.

Our guidance for front-line professionals states clearly that, where a community protection notice is being issued, there is clear merit,

“in involving the local council, which will have many years of experience in tackling environmental issues, when deciding whether or not to serve a CPN”.

As I and my noble friend have said on previous occasions, the guidance can be amended as we move through the parliamentary process. Of course, if there is a requirement, we can set a clearer expectation on the necessity of ensuring that the local authority is fully involved.

As an aside—I speak with some experience, although perhaps not with the same number of years’ experience as my noble friend—in my 10 years in local government, I served as both the cabinet member for the environment and then as the cabinet member for policing and community engagement. In that respect, my experience—albeit on a London council—showed that the local authority, the police and other local agencies work well on the ground, and we have faith that these agencies will continue to work well as we move forward.

Amendment 22QF concerns remedial works carried out by the local authority where there has been a breach of a community protection notice. Remedial works may be carried out if a person fails to comply with the terms of a notice served on them. The local authority may carry out the remedial work without the consent of the owner or the person who had defaulted on the notice on land “open to the air”, and Amendment 22QF would prevent this. The local authority cannot simply enter premises at will; I am sure that my noble friend knows that to be true. It must seek the “necessary consent” of the defaulter and the owner of the premises if that person is not the defaulter. However, there may be circumstances where the local authority has taken all reasonable efforts to find the owner but has not been able to do so. I do not believe that communities should continue to suffer in such circumstances, and that is why it is important that the authority is able to carry out remedial works.

I hope that my noble friend is reassured by the explanations I have given of what is behind the Government’s proposals here, and that he will be minded to withdraw his amendment.

Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Monday 18th November 2013 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, is not part of the problem that the Government are trying to sweep away a whole range of different responses to anti-social behaviour and replace them with what is essentially a single measure, at least as far as the individual is concerned, and that therefore there is no gradation? There is no way to modulate what is done or provide a specific response to individual circumstances. That seems to be what is causing this problem. If there were some gradation, there might well be measures that it would be appropriate to take against children of the age of 10 or 11, who have an understanding of when they are behaving outside societal norms. However, there would not be the same level of sanction implicit in breaching an injunction.

Part of the difficulty with all of the amendments which your Lordships will be considering today is that we are left, essentially, with one type of measure to deal with a multiplicity of problems. That is why trying to find the right balance as to how best to be effective against those problems is one difficulty. Because the Government have decided simply to do away with all the existing arrangements and replace them with one simple measure, we will face that difficulty.

[Baroness Smith of Basildon (Lab)]

My Lords, first, I welcome the fact that we are having this debate, because the injunctions were clearly the major issue raised at Second Reading. I think that most noble Lords who contributed to that debate raised this issue.

However, I start by saying that the late scheduling of today’s Committee sitting is rather unfortunate. There will be noble Lords who would have wished to table amendments to today’s debate but who, given that the sitting was scheduled only on the last sitting day before Recess last week, may not have had the opportunity to do so. The noble Lord, Lord Ramsbotham, made the point that we now have a clash with the Children and Families Bill, which is also in Committee as we speak. I suspect that, given the nature of the subject before us today, many noble Lords who are in that Committee would also wish to contribute here. My final plea is that this time yesterday I was in Argentina, and I arrived in the UK only a few hours ago. I promise not to do my Eva Peron impression on this issue—although perhaps in passion if not in length. The scheduling is unfortunate, and I hope that the Minister will take that message back. I would not want noble Lords who have a contribution to make to this debate to be unable to do so.

The noble Lord, Lord Greaves, has done us a service with his amendment, and I am also eager to probe the Government’s thinking on this issue as well. I am certainly not against children and young people being held responsible for their actions; we defined that principle in anti-social behaviour orders. We have had some debate today about the criminal age of responsibility for young people, but the amendment and the Bill are not really about that. They are about whether a young person aged 10 is likely, on the balance of probabilities, to cause annoyance or nuisance to anyone. I am not a parent, but my experience of 10 and 11 year-old children is that they inevitably cause nuisance and annoyance to somebody at some point. I do not know whether the Bill is an appropriate vehicle to make that kind of behaviour subject, on the balance of probabilities, to such an injunction. I find that somewhat strange and I would like the Minister to develop his thinking and explain why the Government think that it is appropriate.

I can think of numerous examples where 10 and 11 year-olds would cause nuisance and annoyance: persistently kicking a ball at a fence, breaking that fence or causing disruption in the neighbourhood. That is the very point that my noble friend Lord Harris made: the Government are trying to squeeze a range of interventions into one which, inevitably, will not be appropriate in every case.

I wonder, if a complaint is made about a young person aged 10 or 11 causing nuisance or annoyance, how the police are going to investigate to see whether it is appropriate that such an injunction be placed on that young person. The JCHR made the point that there is no requirement whatsoever in the Bill to judge what is in the best interests of the child before such an injunction is imposed. It would be helpful if the Government would explain their thinking why it would be appropriate to issue an injunction when a 10 or 11 year-old may cause nuisance or annoyance.

[Lord Faulks (Con)]

Perhaps the noble Baroness can help the House. Section 1 of the Crime and Disorder Act 1998, passed by the previous Government, permitted local authorities to apply for ASBOs in respect of persons aged 10 or over, subject to conditions. Does the party opposite have a changed view now, in view of the amendment?

[Baroness Smith of Basildon]

We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.

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

My Lords, I am grateful to my noble friend Lord Greaves for tabling this amendment, because it does seem to be a good place to start. The issue has certainly triggered a lot of arguments from colleagues, if I may say so. We have set this age of 10 because that is the age at which children are currently deemed capable of being responsible for their actions under the criminal law. My noble friend showed quite clearly that this is something that has been enshrined in legislation for some time, but I emphasise that the focus of the injunction is to nip issues and problems in the bud.

Many of us agree that the move away from automatic criminalisation of young people is a step in the right direction; noble Lords have backed the Government’s decision to move in that direction. Breach of an injunction does not result in a criminal conviction, giving the young person a chance of reform with a clean slate. This is not the case with anti-social behaviour orders, where breach is a criminal offence; this change has been widely welcomed by, among others, the Home Affairs Committee in another place. In addition to the injunction, positive requirements can be used to help address the causes of a young person’s anti-social behaviour, to help them to turn their life around before that behaviour escalates to something more serious.

We have also built in requirements for the local youth offending team to be involved at different stages in the process, to allow for the proper and thorough consideration of the needs of the young person. This goes far beyond what was required for the anti-social behaviour order. Furthermore, on the recommendation of the Home Affairs Committee, we have limited the maximum period of an injunction to 12 months where it is issued against someone under the age of 18, whereas the minimum duration of an ASBO is two years. Twelve months will provide agencies with sufficient time for them to work with other agencies to address any underlying issues driving anti-social behaviour. It strikes the right balance between providing victims with the respite they need and sending a strong message to young people that anti-social behaviour is not acceptable.

My noble friend Lady Hamwee emphasised the importance of the guidance. We have published draft guidance for front-line professionals and I hope that noble Lords will take time to have a look at it. I think they will find that it complements what the Bill seeks to do, and it is a very important document. It is available on the Home Office website, but if those who want a hard copy let me know, I will ensure that one is sent to them. It will be relevant to the youth offending teams and, in relation to Part 6 of the Bill, to police and crime commissioners; again, my noble friend mentioned how important the role of the PCCs could be. We are consulting on the draft guidance at the moment, and we would welcome comments from noble Lords on what it should include.

The noble Earl, Lord Listowel, asked about reporting restrictions. We are going to come to that issue; it is in this early part of the Bill and will be debated as we have amendments down to discuss it. Amendment 21A has been tabled by my noble friend Lady Hamwee. I hope that the noble Earl will be able to be involved in that debate.

The noble Lord, Lord Ramsbotham, mentioned that the House is of course considering the Age of Criminal Responsibility Bill, introduced by my noble friend Lord Dholakia. He also questioned the risk of a lack of co-ordination across government. I hope—indeed, I have had private conversations with the noble Lord about this—that all this legislation is of a piece. It is designed to address the failure of Government to get on a child-focused agenda. The IPNA in particular is part of our Home Office legislation to reinforce child focus, and victim focus, in the same legislation so that we successfully tackle anti-social behaviour.

The noble and learned Lord, Lord Hope of Craighead, mentioned the question of the guidance and whether courts could be included in it. In theory, court rules could cover this, provided that the relevant rule-making committees agreed. We will consider the utility of this, as well as whether guidance could play a useful role here. I look forward to hearing from the noble and learned Lord on this issue.

If I may say so to the noble Baroness, Lady Smith, the timing of this particular day’s business, which I think all noble Lords will have found themselves swotting up on a little more earnestly than they might otherwise have done, was agreed through the usual channels, and indeed I understand from my colleague that the proposal was welcomed by the opposition Chief Whip, although I was not in the Chamber at the time.

I emphasise to the noble Baroness that the IPNA is not the only means of addressing anti-social behaviour by children. We have made it clear in the draft guidance that the police, local authorities and others should consider a non-interventionist basis in the first instance if they can do so. The Bill also provides for more serious cases at the other end with the criminal behaviour order, so there is a flexible response to the phenomenon. As I said earlier, the youth offending teams—

--- Later in debate ---

[Lord Taylor of Holbeach]

The penalties, set out in Schedule 2, include up to two years’ detention for children of 14 or over, but only in exceptional cases. The noble Lord has invited me to write to him on this issue and I am very happy to do so. I hope he also has the opportunity to read the guidance because that will help in his understanding of how the IPNA is meant to operate on the ground, in particular cases, and will help inform him just as much as my letter will do.

[Baroness Smith of Basildon]

I am sorry to intervene on the noble Lord, but I asked a question about Article 3 of the UN Convention on the Rights of the Child and the comment made by the Joint Committee on Human Rights that this Bill has no requirement to consider a child’s best interests, their specific needs or learning difficulties. Why does the Bill have no reference to that?

[Lord Taylor of Holbeach]

That will be the subject of a later amendment, but I can reassure the noble Baroness that, as a legal process is involved, the courts have to take into account the human rights of anybody who is before them. It is not for the Bill to make that explicit: it is a matter of practice within the courts.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, in principle I am very keen on the idea that Governments should lay down what should happen and leave the how up to local areas to decide, because there will obviously be different local conditions. I remember that fairly soon after the ASBO was introduced, there was considerable concern about what great differences there were in how it was being introduced in different parts of the country. It was shown that there was something of a postcode lottery in it. I suspect that we have heard less and less of that over time because people have got used to the ASBO.

One reason for that is because the ASBO was quite tightly defined; the definition of what amounted to an ASBO was there. What concerns me about the injunction is that I agree with the Joint Committee on Human Rights that,

“conduct capable of causing nuisance or annoyance to any person”,

is insufficiently precise. I fear that if there is no more precision in this initially, we shall have exactly the same as we had with the introduction of the ASBO: there will be a postcode lottery. If the injunction is to be enforced properly—I support the idea of it not being a criminal activity—there is a need to sharpen up the precision to prevent that and to give better guidance to the local authorities who will have to enforce it.

[Baroness Smith of Basildon]

My Lords, this has been an interesting debate. All speakers have sought to be helpful to the Minister, perhaps seeking to protect the Government from themselves by this amendment—they were certainly not trying to be a nuisance or annoyance in identifying so many difficult issues that arise here. So I do not expect to have an IPNA taken out against us but, on the balance of the judgment that is in the legislation before us, I suppose we should wait and see. This debate strikes at the very heart of the issue, and the contributions that we have heard today reflect the balance of opinion at Second Reading.

The noble Baroness, Lady Mallalieu, made a very powerful case and addressed a number of the concerns that were raised, including the concerns of those who have argued against the amendment. Like the noble and learned Lord, Lord Morris of Aberavon, I spent a number of years as an MP, although not as many as he did. Anti-social behaviour was then and remains a very serious issue. I recall that many of those dealing with the problem welcomed ASBOs, despite some of the failings and problems we have heard about, and I think that ASBOs have improved with time and experience. The test of “harassment, alarm and distress” was rightly a higher bar than we see before us today, because it recognises the seriousness of the issue, but it also recognises the penalties for breaches of the order. That is an important point to make in the context of this debate.

I find it very interesting that, in the Second Reading debate and again today, the anti-social behaviour orders gained support from distinguished Members of your Lordships’ House with expertise in law, policing and the magistracy. There were criticisms, and I still have some criticisms about the implementation of anti-social behaviour orders and measures. There are those who do not understand how seriously and dreadfully victims of anti-social behaviour are affected. Unless you have suffered yourself or have spoken to people who have been through that totally debilitating experience, it can be hard to understand how that constant, unrelenting pressure of harassment, intimidating behaviour or excessive noise can leave people terrified of living in their own homes and very distressed. I remember one lady who I spoke to at great length on many occasions. She was so distressed by what some might regard as kids mucking around, but very seriously so, that she was terrified to live in her own home. We are now seeing ASBOs being more appropriately used and we have seen a reduction, as we have heard, in their breaches.

We have also heard that there can be injunctions for anti-social behaviour under housing legislation and that the test of causing nuisance and annoyance already exists, but that is in very limited and specific circumstances. The noble Baroness, Lady Mallalieu, made that very clear in her comments. Anti-social behaviour injunctions were brought in in 2003 and have been used sensibly and wisely since then. Today, we have all had correspondence from housing associations—in many cases, very similar letters—explaining why they want to retain the power they have and explaining the benefits they have been able to bring to their tenants, in many cases, very vulnerable tenants, because of those powers. Their letters highlight a problem referred to by the noble Lord, Lord Harris, a few moments ago, and by others; a problem which the Government have created by trying to rationalise the number of orders, procedures and interventions that can be taken against anti-social behaviour. Clearly, housing associations with very vulnerable tenants welcome the powers they have, but these are not appropriate for every single case of anti-social behaviour. We are not against all forms of injunctions but we are against making this test—on the balance of probability, for nuisance and annoyance—the test that should be applied in all cases where somebody complains about something that they consider to be anti-social behaviour.

In some cases there has been a misunderstanding that only small areas are covered; perhaps only social housing estates or council estates. In fact, anti-social behaviour, and certainly the test that the Government wish to apply, of nuisance or annoyance, is much wider spread than that. In many cases, injunctions to prevent nuisance and annoyance can involve similar and indeed wider matters than those raised in current ASBO applications. They can address relatively minor issues involving nuisance neighbours and minor disorder. Because as an order an ASBO can represent a serious slight upon the reputation of a respondent, as well as carrying serious consequences for breach, it is completely inappropriate for something of that seriousness to have a lower standard of proof to apply.

Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I think that I can be very brief at this point. I have sat in the noble Lord’s place, albeit in the other place, and one thing he will have in his file is a note on the amendment saying, “Resist”. May I tempt him not to on some occasions? Amendment 20 in the name of the noble Lord, Lord Faulks, seems eminently sensible and reasonable. It actually seeks to put some necessary clarification in the Bill. The Minister said he would look very sympathetically, and I hope he will, at Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins. There is a serious issue about people with learning disabilities. It does not mean that they are not capable of causing distress through anti-social behaviour, but the measures by which it can be addressed and dealt with have to take into account any special measures and any learning disabilities that an individual may have. I hope that the Minister can look favourably on both those amendments.

[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.

Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Monday 18th November 2013 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, the Minister and I have just made a fleeting appearance at the reception and dinner for the Police Service Parliamentary Scheme. It was a cameo appearance, at least as far as the Minister was concerned, as he had a speaking role. In his remarks he pointed out—I would not say with glee—that we had now completed our consideration of Clause 1 of this Bill. No doubt he is looking forward to the other 160 clauses. He did suggest that we might try to pick up speed. That was no doubt aimed at me as I was sitting directly in front of him.

This amendment, the first on Clause 2, relates to the section of the Bill that says that requirements under these injunctions “must”—I stress the word—

“specify the person who is to be responsible for supervising compliance with the requirement. The person may be an individual or an organisation”.

The purpose of this amendment is to try to flesh out what needs to be done and what the court should be satisfied about before it designates a person, either an individual or an organisation, to be responsible for the compliance with the requirements of the injunction.

Obviously the first thing is to specify the persons concerned. It would be useful for the Minister to give us a little bit more insight into the range of persons he thinks this provision will apply to. There is obviously a world of difference between that person being, for example, the parent or guardian of a young person who is accused of being responsible for anti-social behaviour and the responsible person being the local police force, the local authority or the local probation service. It would be useful to understand what the balance is expected to be between those sorts of requirements as far as the Bill is concerned.

The substance of the amendment is that before the court requires somebody to be responsible for compliance, it must be satisfied that the requirement itself is suitable and capable of being enforced, and it is reasonable for the person charged with the responsibility of ensuring that the requirements are met to take on that responsibility. But if we consider the circumstances of a parent—an individual charged with this responsibility—that may be onerous. If they are a parent, they may feel obligated to take it on, but it may be impractical. If the underlying problem is that the parent cannot control their near-adult children, what is the point of this? Is it in fact suitable, appropriate, and reasonable for that person to take on that responsibility?

If it is a local authority, probation service, housing authority or the local police service, how reasonable is it? Is the court going to hear evidence as to whether or not they will be able to enforce the requirement? Do they have the resources to enforce the requirement?

Earlier today, I was talking to someone who has been advising me on the Bill. As it happens, they witnessed a crime a few days ago. They went along to the station with another witness to report the crime. When they got to the police station they were told that, unfortunately, the police service does not have the capacity to take two witness statements at once because of the number of officers on duty at the time. If that is the situation, how confident can we be in the current financial situation that the police service will have the resources to be responsible for enforcing some of these requirements? If it is not the police service it could be local authorities, which are facing reductions in their budgets of 30% or 40%. Where will they find the resources to manage this? These issues need to be addressed.

The purpose of the amendment is to say that the court needs to be satisfied about these things. One of the great concerns about the ASBO regime was the number of breaches, but it would be very silly if we created a new system that would result in a series of breaches simply because the people charged with ensuring compliance do not have the resources, the ability or the facilities to make sure that enforcement is achieved.

I am sure that the Minister will be able to help me with something else. I have searched through the Bill and cannot find what is intended to be the consequence for the person designated under Clause 2 if they fail to ensure compliance with the requirements of the injunction. Will they themselves be in contempt of court? Does that mean that chief officers of police will be subject to two years’ imprisonment because they have failed to achieve compliance? What is the requirement? If there are no penalties for failing to achieve compliance, what is the point of this? Again, I would be grateful for the Minister to enlighten us as to precisely what will happen in the event of the person who the court “must designate”, in the words of the Bill, to ensure compliance if they fail to do so either through wilful neglect, because they do not have the resources to do so or perhaps because it is impossible to enforce compliance because the individual is beyond those sorts of controls. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, I wish to speak to Amendments 20J, 22F and 96 in my name and that of my noble friend Lord Rosser. It is a slightly strange grouping. They do not hang together that well, but I hope I can help my noble friend Lord Harris on the points that we are seeking to address.

In principle we welcome the addition of positive requirements. There is no question about that. We introduced the concept, partly through individual support orders. The submissions that were made in the other place in the committee’s evidence sessions and the correspondence that we have received from local authorities and the police show that the point is not dissimilar to that made by my noble friend Lord Harris. It provides some clarification on how the requirements will be funded.

I took the opportunity, in the huge avalanche of a rainforest of paper that we have on the Bill, to see what the impact assessment said on the costs. Basically, every cost is caveated; the impact assessment is unable to make an estimate. Not all costs could be quantified and no benefits from reduced anti-social behaviour could be quantified. The costs took no account of the gains and losses. The Local Government Association is concerned that,

“given that use of positive requirements is predicted to impose an additional financial burden on councils, the overall estimates that the injunctions will be cheaper to use than ASBOs may not be right, and councils may be placed under an additional financial burden”.

The Association of Chief Police Officers gave evidence to the Home Affairs Committee; it stated its concerns about agencies’ capacity and capability to deliver this support in difficult economic times, and said that that had to be considered. I was taken aback by the remarks in Committee in the other place of the Minister, Jeremy Browne. He said that it was important to establish how possible clients would be funded at the point of injunction being issued in the court. He did not agree that individual organisations should be responsible for supervising the compliance should be liable for the costs. He said,

“to take it literally momentarily, where the local authority, for example, applied for an injunction that was to include attendance at a drug rehabilitation course, the teacher delivering that course could be put forward to supervise compliance. Although the teacher would be best placed to monitor attendance and engagement with the course, it would not be right for the teacher, or school or college, to cover the costs of the course. Instead, we could expect the local authority, as the applicant, to cover those costs”.

But he added:

“That is because the downstream benefits of changing the perpetrator’s behaviour fall to them and other agencies, such as the police”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 25/6/13; col. 172.]

Is the Minister saying that if we can change the behaviour of somebody who is involved in drugs and crime in some way, and the interventions for positive requirements reduce that offending behaviour, the police or the local authority saves money? It was as if they incurred the costs. We know that early intervention reaps rewards further down the line, but that does not help those bodies pay for the costs at a time when the Minister is imposing positive requirements on the authority.

I am interested to know what assessment the Government have made on the savings that have been made. I understand from the impact assessment that they are unable to quantify the costs, but the Minister in the other place is saying that they will save money, so they should spend the money in the first place. That does not seem to be a sensible way to pursue legislation such as this.

I am also curious to know whether any assessment has been made of the impact that having to meet those costs will have on the imposition of requirements. If a local authority or the police say that we cannot afford to do X, Y or Z, or, if we could, we cannot afford to monitor it, there is little point in imposing those requirements if there is no funding to pay for them.

It is highly likely that one of the drivers for positive requirements will be the costs involved. It is a bit of a Catch-22 situation if the usefulness of the positive measures is limited by the available funding and quality services to meet those needs. That could create a postcode lottery, because the position could differ across areas of the country. We all know that there are some vagaries in the criminal justice system, but the position for somebody in Manchester could be completely different from that for somebody in Basingstoke or Basildon, for example. That causes enormous concern. If the needs of the person on whom the requirement is being put are being met, that is fine, but the danger is that those needs will not be met because the funding is not available.

--- Later in debate ---

[Lord Greaves (LD)]

The noble Baroness has made some extremely interesting points. I was with her for quite a long time. Will she tell us the equivalent cost for pursuing an ASBO? Why does she think that an IPNA that is breached and results in imprisonment is actually weaker than an ASBO?

[Baroness Smith of Basildon]

The reason why an IPNA is weaker is because it is not an automatic criminal matter if it is breached. That is what makes it weaker. It is quite right that there is a higher test for bringing in an ASBO in the first place. It is not just a case of annoyance or nuisance, but harassment, harm or distress and if an ASBO is breached then it is automatically a criminal matter. It is not with an IPNA. That is why it is a weaker remedy for those suffering from severe anti-social behaviour.

[Lord Greaves]

Does the noble Baroness have the answer to my question about the cost of an ASBO? My understanding is that it is comparable, but I may be wrong. If I were to breach an ASBO and ended up in prison, or if I were to breach an IPNA and ended up in prison, would my experience in prison be much different?

[Baroness Smith of Basildon]

I just hope that that never happens to the noble Lord. I am sure that he would never give this House any cause to accuse him of nuisance or annoyance and therefore breach his IPNA. Actually, it would make a difference. If somebody breaches their IPNA and it goes to the full conclusion of being taken to court and their receiving a custodial sentence, the level at which they have breached is very low. With an ASBO, there is a much higher threshold. In terms of costs, my information is from the police, who say that it is a more complex process to pursue breach of an IPNA than it is with the automatic breach of an ASBO. We also see the number of breaches of ASBOs, because of their seriousness, coming down. That is why the police indicate to us that they think that there are significantly greater costs in dealing with a breach of an IPNA.

I do not know if the noble Lord had the opportunity to read the reports in the other place of the evidence-taking sessions before the clauses were debated. Gavin Thomas, who is the vice-president of the Police Superintendents’ Association, said,

“there is a cost because we have to have people to pull together the case, take it to court and enforce it, so there is a cost”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill, 18/6/13; col. 9.]

In written evidence to the Committee, the noble Baroness, Lady Newlove, who spoke eloquently at Second Reading, said that she was concerned,

“that the injunction to prevent nuisance and annoyance could potentially add to the workload of front line officers because of their lack of knowledge of civil law”.

That is a matter that has been raised by the police as well.

We hear quite horrific tales of anti-social behaviour. We should be under no illusion that it is just nuisance and annoyance on the odd occasion; there are some serious cases. As a former Member of the other place, I dealt with constituents. In one case, a man could no longer sleep in his home, another would sleep on the kitchen floor; somebody else was too frightened to go to sleep. Those were ongoing cases.

In some cases, enforcement was the problem, but we need to have the right tools. The Government are seeking in the legislation to reduce the number of tools available to those taking action and then to put in place additional costs, which will make action difficult to enforce. I am asking the Minister for an explanation of why, when ASBOs are becoming more effective, are working and have a value, they are being reduced.

The Minister is shaking his head at me, but there is a great deal of difference between somebody causing nuisance and annoyance and somebody causing harm, distress and harassment. They are very different and there are times when different measures are appropriate. So far, I do not think that the noble Lord has satisfied people in your Lordships’ House, on amendments to other clauses or on this one, as to why the Government are seeking to deal with just annoyance and nuisance while losing the measure of an ASBO, which has served us well. It is not perfect, and we are happy to see changes to it, but the changes which the Government propose do not address the problem.

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

My Lords, I should begin by refuting the suggestion of the noble Baroness, Lady Smith, about our focus on IPNAs at the expense of other measures. She has admitted that there are six measures involved in anti-social behaviour prevention and control, so the IPNA is one part of a suite of measures in the Bill. She makes no mention of the criminal behaviour order, which clearly provides much of the cover which was given by the ASBO.

[Baroness Smith of Basildon]

The noble Lord is wrong. My second amendment refers to criminal behaviour orders and I spoke to those in the course of my speech. I am surprised that he says I did not mention criminal behaviour orders when I tabled a whole amendment on them.

--- Later in debate ---

Injunctions can also be used to help perpetrators; the positive requirements allow agencies to help those who commit anti-social behaviour to change their behaviour and turn their lives around. Amendments 20HA, 20J and 22F relate to the details of these positive requirements. As such, arrangements for positive requirements will need to be made and funded locally. It is therefore not appropriate or indeed possible for the Secretary of State to set out in guidance how the positive requirements will be funded. This will depend on the type of requirements identified as necessary and where the provision of such requirements can come from. That will be decided at local level, and I make no apology for decisions being made locally. In a tough financial climate we would expect councils and others to use their resources more effectively but, as we set out in the published impact assessment, we would expect that the majority of positive requirements would typically be a service that was provided in any case. That being the case, the additional costs of providing the actual requirement should not be significant. We would also expect use to be made locally of the voluntary sector, which is often best equipped to deal with specific and tailored information. Hard-to-reach groups such as young people, who are likely to be engaging in such anti-social behaviour, may also respond better to a non-statutory organisation.

[Baroness Smith of Basildon]

I apologise for intervening on the Minister, but I wonder if he thinks he has answered the question that I asked about costs. If he does, his response was completely inadequate. I asked what assessment had been made of the costs and quoted the impact assessment, and I asked whether the Government had considered whether or not the imposition of positive requirements would be related to the funds available. The Minister has said that these will be made and funded locally, and that he makes no apologies for local government deciding how they are funded. If there are additional costs on local government, surely the Minister and the Government should have some understanding of what those costs are going to be. He may be coming to the point about what guidance will be issued, but I think that he said that there would be no guidance on what measures could be introduced.

[Lord Taylor of Holbeach]

I was coming to that point, but I shall just deal with the cost element. The impact assessment, as the noble Baroness rightly says, did not hazard a guesstimate of that figure; in many ways it would have been a meaningless guess because we cannot know all the facts. We cannot know the extent to which local organisations, local authorities and voluntary organisations are already participating in much of that activity which is designed to help young people, or indeed older people, who are in difficulties. Much of the voluntary sector is dealing with this work. The whole point of the framework of the IPNA is that it provides a framework in which groups such as this can operate effectively. We are certain that there will be savings as well as additional costs in the reduction of anti-social behaviour that is going to follow from these measures. I will continue, if I may, because the noble Baroness wanted to know about the guidance.

The emphasis on empowering front-line professionals and giving them the flexibility to respond to individual needs is the reason why we have not provided detailed guidance on this point. That said, we have published draft guidance for front-line practitioners where we have included a steer on positive requirements and issues that local practitioners might like to consider. Pages 25 and 32 of the draft guidance provide examples of the sort of positive requirements that might be possible. We have deliberately not set out to provide an exhaustive list, as we do not want to produce a limited menu. Instead, we want to allow local practitioners, who are best placed to judge what positive requirements are likely to have the greatest positive impact on an individual, to remain unfettered in their use of positive requirements and allow for new and innovative interventions to be developed.

As I said, this is a draft document and if further, more detailed guidance would help front-line practitioners we can look at this again as we work to produce a final version. If noble Lords feel they can contribute to producing the final document, they are, as I said earlier, most welcome to do so. It is a testament to our commitment that we have published draft guidance. I have stood at the Dispatch Box and had to talk about guidance which is to come, which may be part and parcel of the implementation of legislation, without having the document in front of me. In this Bill, we are fortunate: we have the draft guidance on which we can base our discussions. We intend to publish this on a non-statutory basis, but I am quite prepared to acknowledge that we are ready to consider whether our commitment to produce such guidance should be reflected in the Bill.

[Baroness Smith of Basildon]

I apologise to the noble Lord for intervening, but I want to clarify, to make sure that I have not misunderstood what he said. Is he saying that, because they cannot quantify the costs at the moment, the Government do not know what those costs will be? Will he give an assurance that the Government will meet those costs or is he saying there will be no contribution from the Government to any additional costs incurred by local authorities in IPNAs or criminal behaviour orders?

[Lord Taylor of Holbeach]

I can give the noble Baroness some sort of figures on the comparative costs. It has been suggested that it will cost £1,500 to pursue proceedings for breach of an IPNA and that was quoted. However, the National Audit Office reported in 2006 that the average cost of prosecution for breach of an ASBO was around £1,500. So, if the figure for pursuing a breach of Part 1 is correct, it will be no more expensive. In addition, the new injunction will be quicker to obtain than a stand-alone ASBO. The National Audit Office found the average cost of obtaining a stand-alone ASBO was about £3,100, compared with a cost of £1,600 for one of the existing injunctions which, like the new injunction, uses the civil standard of proof. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions and enable—

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords—

[Lord Taylor of Holbeach]

I will finish what I am saying, if I may. I will not sit down before the noble Baroness has a chance to intervene. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions, enabling agencies to act more speedily in stopping further harm to victims.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for allowing me to come back on him, because he misunderstood. I was asking about the costs and the funding of positive requirements. Although I mentioned the cost of proceeding with the breach of an IPNA, that was not the point I raised when I intervened on the noble Lord. He must have had an earlier note. I am asking if I had understood his point about the cost of positive requirements and whether the Government would make any contribution, bearing in mind the additional burdens doctrine. Was he saying that there will be no additional costs in pursuing positive requirements?

[Lord Taylor of Holbeach]

The Bill makes no provision for the funding of costs.

--- Later in debate ---

[Lord Flight]

I would like to respond to that. Yes, there are problems; persistent begging is a very hard thing to deal with. I think that the Westminster argument is that its present tools include a tool which has had some success; it is concerned that the new arrangements, because of the double doing, would be less useful.

[Baroness Smith of Basildon]

My Lords, I listened carefully to what the noble Lord, Lord Flight, had to say in this debate. I noticed at the beginning that he was not 100% convinced that he had the right words in the amendment. That is less important in Committee than the intent of what he is seeking to do. Likewise, I was sorry not to get to the briefing last week with Councillor Aiken, but she also wrote to me. I was very struck by the comments she made in her letter. I do not think it is the point that the noble Baroness, Lady Hamwee, made that everything is perfect now. Her concern is that there are serious problems and she would be quite happy to see improvements in the legislation to help the council address the issues it is facing. The fear is that the new legislation will weaken its ability. The noble Lord is indicating that I am correct in my understanding of her views.

Councillor Aiken, who, I understand, is the cabinet member for community protection, is probably at the sharp end of this more than any of us in your Lordships’ House are in dealing with these matters. She says:

“While I recognise that the current legislation to deal with anti-social behaviour may require review”;

I think that all of us would accept that improvements can always be made. She goes on to say:

“It is therefore worrying that a Government committed to ensuring people feel safe in their homes and communities and are intent upon freeing up crime fighting capacity, is instead seeking to pass legislation which will weaken local power to protect communities and increase bureaucratic process around enforcement”.

It takes a lot for a councillor to be writing to Ministers and Members of your Lordships’ House with those kinds of comments, when all they are seeking to do is improve their position.

My impression from her letter, as well as information which I have looked for myself, is that the council is being pretty effective in tackling this very serious problem, and there may be a case that more tools are needed to assist them in doing so. They have some suggestions. The noble Lord, Lord Flight, suggested meeting councillors to listen to their concerns. I think that they would be very pleased to know whether their approach and their tackling of this issue would be improved by the Government’s proposals and whether their fears could be allayed. Clearly, there cannot be a situation whereby a council dealing with a serious problem affecting our capital city, and, presumably, a number of other cities, is worried that it is going to lose the capacity to deal with something that has to be addressed and which causes great concern to local residents.

I hope that the Minister or his colleagues can undertake to have a meeting with the council. That would be a sensible way forward and perhaps the noble Lord, Lord Flight, would report back on Report. He mentioned aggressive begging, and there are other kinds of aggressive behaviour, including harassment, that cause great distress to residents and visitors. I hope that the noble Lord will accommodate the comments made by the noble Lord, Lord Flight.

--- Later in debate ---

[Lord Greaves]

My Lords, this is a brief amendment to probe why the Environment Agency and its Welsh equivalent, the Natural Resources Body for Wales, are on the list in Clause 4(1). I will talk about the Environment Agency, which is the one I know most about. Surely the whole question of anti-social behaviour is essentially local while the Environment Agency is a national body, organised regionally. If, within the purpose of the new injunction system, guidance will be given to people to regard injunctions as the last resort and start with local preventive measures such as teams on the ground, working directly with adults and children who are engaging in anti-social behaviour, I do not understand what resources the Environment Agency will have for that work.

If injunctions are to have positive requirements attached to them then, as the noble Baroness, Lady Smith, has been explaining, that will require resources: having people on the ground and systems to support, monitor and manage people. I do not understand what resources the Environment Agency has for that. Bodies such as the Environment Agency may well have a role to play in working with other authorities but I do not understand why it requires the ability to apply for injunctions itself, when it seems that it will not have the ability to manage those injunctions or follow them up.

[Baroness Smith of Basildon]

I am sorry to intervene on the noble Lord but he referred to the Natural Resources Body for Wales. I wonder whether he has spoken to the Welsh Government, because they have made it clear that they object to this Bill. For any part of the Bill to be enacted in Wales, there would need to be a legislative consent Motion in the Welsh Assembly, which seems very unlikely at this stage.

[Lord Greaves]

I am sorry, but I did not quite get that. Is the noble Baroness saying that the Welsh Assembly is in favour of this or not?

[Baroness Smith of Basildon]

No. The Welsh Assembly is not in favour of the Bill and it would need a legislative consent Motion to be passed for it to be in force in Wales.

[Lord Greaves]

I am very grateful for that additional information, which is entirely different from anything that was within my ken or understanding. That is an interesting point but I only included the Welsh body since it made up the set. However, I would be very interested to hear the Minister’s explanation of why he thinks that the Environment Agency not just needs these powers, since other bodies can work with it and do the work, but why it is capable—why it has the resources and competence—to manage injunctions and the people whom they will be served upon. I beg to move.

--- Later in debate ---

Moved by

[Baroness Smith of Basildon]

21B: Clause 9, page 6, line 23, at end insert—
“( ) Before this section comes into force, the Secretary of State shall provide guidance on the length of time that relevant courts will take to reach decisions on whether or not to issue warrants under this section.”

[Baroness Smith of Basildon]

My Lords, I think I can move this amendment fairly briefly. It concerns applications made for the issue of an arrest warrant for the breach of an IPNA. One of the things that strike us when we look through the clauses is that there is no timescale from the time when the application is made for an arrest warrant to when it would be issued or the application rejected—the Bill is completely silent on that issue. My attention was drawn to this by the report of the Home Affairs Select Committee, when it reported on delays in county courts, saying:

“We heard that this was likely to severely slow down the process for dealing with ASB”,

and the committee said how concerned it was. Local authorities have also expressed concern about delays in the county court system. In Clause 9(2), it seems that most of the applications would be to a county court; the only time it would go to a magistrates’ court would be if it was a youth court that had granted the IPNA. In other cases it would be a county court, and in some cases the High Court. If there were delays in the county court system, that would be a serious blow to the idea of moving swiftly—one of the major reasons that the Minister has given for having IPNAs rather than anti-social behaviour orders—in the introduction of these new injunctions.

There is another point that is not covered by the amendment but is also relevant to this. All the legislation should be subject to post-legislative review after five years. That seems quite a lengthy time on an issue like this where, if there is a problem, it will have to be dealt with much more quickly than waiting five years to see if there is in fact a problem. With issues of anti-social behaviour rising so high in public concern—and indeed in the Government’s concern, given the Bill before us—it would not be reasonable if we passed legislation but were then not able to enact it because of the delays that are currently being seen in the county courts.

The proposal to the Minister is that we look at this issue first and the Government make an assessment of, and issue guidance on, how long it should take for a county court from the moment it gets an application for an arrest warrant for a breach of an IPNA to when that court has to make a decision. If the Government could issue that beforehand, that obviously would speed up justice, which I understand is the purpose of this measure. That fairly briefly sums up and describes why we are putting the amendment forward. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendment 21C in this group. It is extraordinarily inelegantly drafted, but I hope that the Minister is aware of my concerns that lie behind it. Where a respondent has certain requirements imposed on him as part of the IPNA and these have rehabilitative or therapeutic aspects—indeed, in many cases one would hope that they did—the further proceedings should not be taken in such a way as to prejudice the benefit of those requirements. My straightforward question—I was going to say “simple” question, but it might not be quite that simple—is to ask for some assurance from the Minister that will help to allay that concern.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, the noble Lord has asked me a number of detailed questions. If he does not mind, I will look at the record and write to him, as I do not have the briefing here to be able to reply in detail to all that he wishes to know.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. He did not fully address a couple of questions in the points that I made. One of the issues was about delays in county courts. I did not say that county courts were facing delays—that came from local government, the police and the Home Affairs Select Committee in the other place. The other point I raised was that, if he is not prepared to consider guidance prior to this being introduced to ensure that county courts are able to deal with these matters in a timely way, will he agree to consider and bring back to your Lordships’ House at Report a statement on whether, rather than having guidance beforehand, it is possible to truncate the normal five-year review period to see whether it is working? This issue should be reviewed after one year to see whether there are delays in the county court system which slow down the process of justice, or whether, as the Minister said, everything is working fine and there is no problem.

The delays at the moment are occurring for a number of reasons—they are under pressure to reduce staffing in county courts, and my noble friend Lord Beecham also raised some of the issues. I also understand that there are more litigants in person because of the reduction of eligibility for civil legal aid. Both those issues add to the delays in the system. We do not need to have a process whereby people suffer anti-social behaviour when someone has breached their IPNA and then there is a lengthy delay while they wait for the courts to assess whether an arrest warrant can be issued. Therefore, if the Minister rejects out of hand the issue of guidance beforehand, will he agree to look at truncating the review period and review how it is working after a year rather than five years?

[Lord Taylor of Holbeach]

I will take a look at the record and if I feel that it will be productive and I can add to the position they have stated I will write to the noble Lord, Lord Beecham, and the noble Baroness. I cannot commit to a particular timeframe, but if there is evidence of a problem to which the noble Baroness is able to draw my attention, I will deal with it.

--- Later in debate ---

[Lord Beecham]

The noble Lord has just reminded me that I really ought to have declared an interest. I am still a solicitor, not so much practising but an unpaid consultant in the firm for which I used to act. I am only sorry that a particular noble Baroness is not in the Chamber because I used to appear before her father in the county court when he was sitting as a district registrar—an experience not to be recommended, I have to say, to those who followed me.

[Baroness Smith of Basildon]

My Lords, I beg leave to withdraw. I understand the noble Lord is going to write to me about the issue we raised.

Amendment 21B withdrawn.

EU: Free Movement of Labour

Baroness Smith of Basildon Excerpts

Tuesday 5th November 2013 Lords Chamber

[Lord Taylor of Holbeach]

I accept that the noble Lord is quite right in saying that free movement was one of the founding principles of the European Union, and we in this Government support it. Although the vast majority of individuals coming to the UK reside here lawfully and make a positive contribution to our society, a small minority abuse these rights by either becoming a burden on their local communities or turning to crime.

[Baroness Smith of Basildon (Lab)]

My Lords, in each answer the Minister has spoken of abuse of the system. Does he accept that enforcement of the national minimum wage helps to prevent bad employers undercutting the wage of local workers by not allowing them to exploit foreign workers on lower wages? We know that that is a real problem but only two prosecutions have been brought since this Government took office. To help tackle this issue, will the Minister and the Government support us by giving local councils the power to enforce the national minimum wage and bring their own prosecutions?

[Lord Taylor of Holbeach]

The noble Baroness has expanded the Question somewhat into Labour policy and that is not necessarily something on which I can support her. However, I reaffirm the Government’s support for the national minimum wage. Indeed, it has never been part of our policy to do other than to maintain a national minimum wage, and we do so regularly.

Anti-social Behaviour, Crime and Policing Bill

Baroness Smith of Basildon Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I was almost too keen to respond to the Minister on that point.

I am grateful to the Minister for outlining the measures in the Bill in such detail. It is a long, detailed Bill of 14 parts. A Home Office Bill often seems to me to be a bit like the old-fashioned Sunday afternoon drive. You head off in one direction, take various twists and turns, never knowing quite where you are going to end up, but inevitably at some point it is down a cul-de-sac. In that regard, the Bill does not disappoint.

It was introduced into the other place with 142 clauses and seven schedules, amounting to 148 pages. It has already grown to 161 clauses and nine schedules covering 200 pages. After reading through the Commons Official Report on the Bill, I believe it is a credit to your Lordships’ House that the other place puts such great value on our scrutiny role. From all sides of the other place there were genuine concerns that debates had been curtailed by the Government and that inadequate consideration had been given to a number of issues, especially when new government amendments and clauses were tabled during the passage of the Bill but were not fully considered. By Report stage, there were 89 pages of new amendments, and clearly not enough time was allowed for full debates on each of them.

There are parts of the Bill we welcome but there are also parts which raise great concerns, sometimes because we feel that they do not go far enough in addressing the issues or they weaken existing measures. There are also omissions, but we will be backing new clauses to tackle the problems that affect public safety and security. For example, it seems strange that such a wide-ranging Bill has no measures to tackle the issue of drugs and so-called legal highs when clearly existing measures are not working. There is nothing in the Bill to prevent attacks on those working in public-facing roles.

Parts 1 to 6 on anti-social behaviour are the only parts of the Bill that received pre-legislative scrutiny, with first a White Paper and then a draft Bill scrutinised by the Home Affairs Select Committee in the other place. I should perhaps confess at this point that my response to anti-social behaviour is influenced by my 13 years as a constituency Member of Parliament. There are relatively few cases of very serious anti-social behaviour but it cannot be seen as just low-level incidents involving noisy neighbours or naughty kids. At its worst, it is the ongoing aggravating, at times terrorising, behaviour that grinds individuals down to the point of despair and fear of even being in their own homes. That has to continue to be tackled and prevented. Action must be proportionate and effective and we must do our best to ensure that any measures have a preventive element.

The Government have often said that they oppose the one-size-fits-all approach and yet they are reducing the measures available to tackle anti-social behaviour. I am not necessarily against streamlining but I feel uncomfortable with the position of having to squeeze a number of different kinds of problems into fewer solutions. I am sure the Minister will hear from other noble Lords of their concerns about the IPNA—an injunction to prevent nuisance and annoyance—which replaces a number of measures with a civil injunction. As such, it has a weaker threshold and does not have an automatic criminal sanction.

For an ASBO to be issued it had to be considered necessary to protect members of the public from harassment, alarm or distress. The new IPNA can be issued where behaviour is,

“capable of causing nuisance or annoyance to any person”.

The court has only to be convinced that this would be just and convenient on the balance of probabilities. That is a low-level test.

There are also concerns about the criminal behaviour order, which can be issued on conviction of a relevant offence, as the Minister said, and a breach of that order is in itself a criminal offence punishable by up to five years’ imprisonment. I do not know whether noble Lords heard this week, as I did, an interview on Radio 4 with a member of a police force. I do not know whether he was from ACPO—I think he was—but he was speaking about the level of proof required for IPNAs and CBOs and whether it was appropriate. His comment was that the judge would still have to apply the test of reasonableness. That is one of the issues that worry me in a number of places in the Bill. If we do not have clarity it becomes a matter for the courts to resolve. If already the backstop is that we will have to rely on a judge or magistrate to test the reasonableness of new legislation, then your Lordships’ House must consider whether the legislation is appropriate. Surely, as the Joint Committee on Human Rights reported,

“the Government should make the appropriate standard of proof clear on the face of the Bill”.

I have two further concerns that we will probe further in Committee. The Government have long argued against ASBOs as being ineffective. I am not particularly wedded to any specific tool in tackling this problem—I would have been happy to have had meaningful discussions on effectiveness—but we could find ourselves in the position of having more IPNAs because of the weaker test, with less impact because of the weaker sanctions.

Owing to the time constraints I will not have time in my opening comments to address all the issues we will wish to pursue in Parts 1 to 6 on anti-social behaviour, but we will wish to probe further, including on the issues of tenancies and evictions, dispersal and other powers.

We welcome action on dangerous dogs and appreciate that the Government will be tabling new amendments relating to increased penalties, as promised in the later stages of consideration in the other place. However, I am not convinced that these measures fully address all the concerns that have been raised or would have prevented or dealt appropriately with some of the more serious cases we have all read and heard about.

On firearms, I am very disappointed with the inadequacy of the Government’s proposals, which do not address the serious problems. No one has the right to own a gun—it is a privilege—and those who do so have a duty to behave responsibly, and the vast majority do. However, noble Lords will know of cases. I refer specifically to the murder of Susan McGoldrick. Ms McGoldrick, her sister, Alison Turnbull, and her niece, Tanya, were murdered by Susan McGoldrick’s partner, Michael Atherton. Mr Atherton had the gun legally and yet he had a history of domestic violence and abuse.

The Government’s new guidance is welcome and I readily accept that, even with the most watertight legislation, not every abuse or tragedy can be prevented. However, we have a duty to do our best to strengthen the law and to do all we reasonably can to prevent further such tragedies. We will want to examine the presumption of refusal of licences in circumstances where there is evidence of a history of mental illness, domestic violence or drug abuse. We will also want to examine with the Minister whether the police are adequately resourced to undertake the checks and assessments required. This may also be an opportunity to examine the case put forward by the Home Affairs Select Committee nearly three years ago to bring together all the 34 difference pieces of legislation relating to firearms.

My noble friend Lady Thornton will be speaking to Parts 9 and 10 of the Bill on protection from sexual harm and forced marriage. We welcome the measures to tackle this issue. Action to improve the protection of vulnerable children at risk of sexual harm is crucial and we shall seek clarity about how these measures will apply to under 18s and probe further how they will be supported.

Forced marriage is a terrible violation and can destroy people’s lives. Effective support for victims and prevention through education and work in the communities concerned are essential. We will ask the Minister whether he considers that the level of the resources available is adequate for the work. We have concerns about such support, particularly in the light of cuts to legal aid. We believe it is right to have a discussion to make clear the case for criminalisation and to listen to all the different views expressed.

Part 11 deals with what the Government call “Policing etc”. I am always slightly nervous about the “etc” as it can allow anything that is almost relevant to be dumped in. I hope we see no more amendments under the heading of “etc”.

We support a College of Policing, although there is a discussion to be had around police standards and the management and accountability of covert operations. We accept that in many cases undercover police operations are vital in the fight against serious and organised crime and terrorism. We recognise the bravery and dedication of the police officers involved. But—and this is a serious “but”—such operations must be subject to the highest ethical and operational standards. We are all aware of those cases where, in the reasonable judgment of most of us in your Lordships’ House and outside, such standards have not been met. That has caused enormous and justified distress to those affected. Those who have been inappropriately and wrongly targeted by such operations have really suffered, including my noble friend Lady Lawrence in the shocking case that showed an appalling lack of judgment on the part of the authorities responsible. There are also alarming cases where undercover officers have instigated sexual relationships, fathered children, and then abandoned and discarded their new families along with their undercover identity. That is wrong. Our view is that any such operations need greater oversight and better accountability. They must be carried out only when they are deemed necessary, and their use must be proportionate and sensitive. The Minister in the other place said that enhanced oversight would be undertaken by secondary legislation. However, the noble Lord will know the limits that places on your Lordships’ House and further discussion on this issue is essential.

It is welcome that the Government have agreed with us that the IPCC should also cover private companies. We look forward to further discussions on the range of policing issues in the Bill. This part of the Bill also proposes changes to the Terrorism Act, about which the Joint Committee on Human Rights has expressed reservations. It said that,

“the legal framework should distinguish between powers which can be exercised without reasonable suspicion, such as the power to stop, question, request documentation … and more intrusive powers such as detention, strip searching”,

and,

“the taking of biometric samples”.

Clearly, on these issues, it would be right for the Government to explain fully why they consider such proposals justified.

Extradition is a sensitive issue and the amendments now in Part 12 were tabled late in the day at the end of Committee stage in the Commons. I look forward to further debate and the expertise of your Lordships’ House on this issue.

I know that the Joint Committee welcomes the proportionality test. However, we remain concerned that the Government are seeking to remove the automatic right of appeal for people being extradited from the UK. It would mean that an individual could appeal only with the permission of the High Court.

My noble friend Lord Beecham will speak to the issues in Part 13, but it might be helpful if I briefly outline our position. We are very concerned about the proposals in which the Government seek to redefine the compensation test, when an individual has been convicted of an offence but has then been deemed in law to have been wrongly convicted. The Government’s proposals would limit this to,

“if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.

I am not a lawyer, but we seem to have moved a long way from being found not guilty to having to prove innocence. We have heard the Government's explanations for this and are not convinced. We will therefore seek to amend this clause.

I regret that this is a long speech, but I hope that I have conveyed to your Lordships’ House something of the way in which we will be approaching this Bill. The issues are all serious and, in many cases, difficult, and I know that the Bill will benefit from your Lordships’ scrutiny. That was recognised in the other place by Members on all sides of the House. The Government have to accept that they cannot simply legislate to try to cut crime and anti-social behaviour when they take other decisions that make it harder to tackle these problems. There is great inconsistency in the Government bringing in new legislation that they say will tackle crime and then taking other actions that do the opposite. The issues of the numbers of police and PCSOs and the huge 60% cuts to community safety budgets come to mind. Although we have seen crime reduced, we are also seeing convictions coming down and anti-social behaviour reports increasing.

There are other examples of such actions. In my local authority area in Essex, cuts to its budget mean that it is going to switch off all the street lights every night, apart from those on some main routes. Clearly, that will have an effect on people’s attitudes and fear of crime. Local communities value CCTV as a crime prevention measure, but the Government tie up those cameras with so much red tape that it will cost between £14 million and £30 million to comply, which I suspect will lead to a reduction in CCTV. My noble friend Lord Harris has written about the same concerns regarding the DCLG’s approach to the crime prevention measures in Secured by Design.

Everyone has a right to feel safe in their home and in their community. Despite including measures that we welcome, this Bill is a missed opportunity. However, over the coming weeks, we will do our best to make it a Bill that can really make a difference.

European Public Prosecutor’s Office: EUC Report

Baroness Smith of Basildon Excerpts

Monday 28th October 2013 Lords Chamber

[Lord Dykes (LD)]

Since my noble friend described himself as a Euro-agnostic, I do not think I would offend my friend—not noble friend—on the Labour side if I called him a Euro-realist or sometimes a Euro-hesitator about a number of aspects which he analyses with great precision. I am an unashamed Euro-enthusiast and yet, none the less, I think there is agreement about this particular document and report as was seen in the way in which we couched our recommendations having studied this matter carefully.

The European Union is evolving after the Lisbon treaty in what I hope will be a gradually accelerated fashion. It is inevitably slowed down by the realities of economic austerity and slowed down in the national economies of all the member states, not just the leading ones. That is a reality that we see, as well as the constant difficulty of blending different national cultures in all sorts of areas. Perhaps one of the most difficult areas is the law and the legal sector, because of the noticeable difference of the Anglo-Saxon legal system, mainly in the UK and Ireland, the Roman legal systems of the other member states, mixed with some of the new member states since 2004.

That is just the reality; it is not to be hostile to the evolution of Europe by annunciating those realities that we are facing in all sorts of complicated sectors. This one is particularly complicated, and I think that this is an occasion where the member states expressed a general support for the notion and the concept, but maybe for the future, as the noble Lords, Lord Rowlands and Lord Hodgson, mentioned without going into the details. Subsdiarity must be a real element of the Lisbon treaty in order to provide reassurance to the national publics of each member state, particularly the one in this country, which is particularly fragile in its Euro-hesitation; this disturbs me greatly because I think it is unnecessary, but it is because of the fight between the political parties and the rise of UKIP. It is necessary to balance all those things and not to rule out this concept for the future.

There is every prospect that the EPPO concept itself will gain confidence if it goes slowly forward but the national legal systems demand that the national prosecutorial authorities have the upper hand in the initial stages of that timeframe, which may be quite long, over a number of years, to gain reassurance. We have the co-operative tradition anyway between the forces of law and order in the European cockpit. Europol is proving to be a great success—under a UK executive head, I am glad to say—and is developing apace, and so are the other instruments that were mentioned by the two previous speakers in this debate.

If that is the way to do it, it may be that in future the EPPO will have a pragmatic construct, a special piece of instrumentation by way of a regulation agreed between the Council and the European Parliament that would include the national prosecutorial authorities inside the EPPO system to reassure the public, who will feel that subsdiarity will have therefore been satisfied. Our need for subsidiarity in a number of areas needs to be expressed. People should not be nervous about doing that. This is a classic example. I am very glad to be on the same committee as the noble Lord, Lord Hodgson, and to support enthusiastically this recommendation.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank my noble friend Lord Rowlands for his explanation of the committee’s report. There seems to be a remarkable degree of agreement between us all this evening. I am pretty sure that the Minister is not going to demur from that.

This is a very detailed technical issue and it is quite clear from the speeches we have heard that not only does it deserve detailed scrutiny, it has received that scrutiny. This is not a new proposal. It has been raised on a number of occasions. The negative response from the Government is not new either.

Even before the 2001 Green Paper from the Commission first proposed a European public prosecutor, the idea had been discussed, particularly in discussions on the Nice treaty, when an outline proposal was put forward but then dropped through lack of member state support. In response to the Green Paper, the European Scrutiny Committee in the other place reported in 2002, saying that it was,

“unnecessary, particularly given the existence of Eurojust”.

At that time, the committee identified a number of concerns. Those concerns remain, for example: the combination of prosecution and investigative functions; the power of the EPPO to commit a person for trial and determine the location of the trial; the creation of differing standards of criminal responsibility for fraud depending on whether or not it related to fraud on the community’s financial interests; the lack of democratic accountability for the prosecution function; and, of course, the breach of the subsidiary principle and dilution of member state responsibility for prosecution of fraud.

Since then, the creation of a specialist EU prosecution authority has been raised again but still has not gained the support it would need to proceed. The 2011 European Scrutiny Committee echoed the concerns of the 2002 committee when, in recommending the 2011 communication for debate in the European Committee, it cautioned against the “inappropriate and unacceptable” use of national criminal justice systems in acting against crimes against EU finances.

However, as my noble friend Lord Rowlands made clear, it is fair to say that this proposal has not been thought up in a vacuum. It seeks to address a genuine problem and we recognise the seriousness of that problem, which is that there needs to be greater protection of the EU’s financial interests and we need to see further improvements in how the EU deals with fraud. The level of suspected fraud against the EU budget is obviously and rightly a source of concern. The report refers to the Commission’s estimate that it stands at around €500 million, or £425 million, in each of the last five years. British taxpayers bear part of the cost of that fraud, which is totally unacceptable. We must seek new and better ways of tackling this fraud, preventing it and bringing those responsible to justice.

The question that the European Union Committee was looking at was: is the EPPO the best way of achieving this? We again concur with the committee’s conclusion that it is not. We made our position clear when in government, and that has not changed. Our position remains, as my noble friend Lord Rowlands outlined very clearly, that the proposal for an EPPO breaches the subsidiarity principle. It is clear that the national-level approach, supported by existing EU mechanisms, is more appropriate.

When we signed the Lisbon treaty, we made it clear that although the treaty could allow for such an office, we were strongly against it, as the noble Lord will recall. We insisted on a “double lock” to ensure that it could not be established. Indeed, your Lordships’ House was, as always, very diligent in its scrutiny of this measure and, following debate, supported the position made very clear by my noble friend Lady Ashton of Upholland in 2008, when she said:

“We have secured legally watertight safeguards in the treaty against any move towards a European public prosecutor or subsequently, and just as important, towards extending that prosecutor’s role. It is what we would call a double lock”.—[Official Report, 9/6/08; col. 454.]

We were not just opting out at that point but securing essential safeguards for the future, which we are able to use today.

That double lock meant that, in order to proceed, the UK would first have to opt in and then, even if a future Government decided that they wanted to opt in, there would still need to be unanimity, and that would be retained for any decision to establish a prosecutor or extend the powers of any such prosecutor. Therefore, we concur with the comments made by the noble Lord, Lord Rowlands, on behalf of the EU committee, that the creation of the EPPO was not the appropriate response to tackling fraud.

Democratic Republic of Congo

Baroness Smith of Basildon Excerpts

Thursday 24th October 2013 Lords Chamber

[Lord Taylor of Holbeach]

I thank my noble friend for making sure that I had seen a copy of Catherine Ramos’ report; in fact I had been briefed on the report, and the Home Office is taking it seriously. This report is being considered in detail, just as we considered the first one in the series. It was published at the beginning of this month. The initial view, considered against other evidence, including the information that we have from other European countries, is that it will not warrant a change in our returns policy.

[Baroness Smith of Basildon (Lab)]

My Lords, does the Minister understand the concerns about the quality of decision-making? Some 30% of appeals against initial asylum decisions were allowed, meaning that nearly one-third were wrong. In more than one in 10 cases reviewed by inspectors, selective information from the country of origin reports had been used to deny claims. We have to get this right because asylum should be granted only when it is genuinely needed, but there is now a serious fear that those at great risk of violence are being denied a safe haven.

[Lord Taylor of Holbeach]

I hope that the noble Baroness was impressed by the figures that I gave earlier and that she understands that this process is undertaken with proper deliberation. The current country case law from the immigration and asylum Upper Tribunal concludes that there is no evidence that failed asylum seekers involuntarily returned to the DRC face a real risk of persecution or ill treatment merely because of an unsuccessful asylum claim in the UK. This was a conclusion upheld by the Court of Appeal in 2008. In 2012 the Court of Appeal found that country guidance remains the law until it is set aside or superseded.