Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Greaves

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.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Greaves

Monday 25th November 2013 Lords Chamber

[Lord Greaves]

I do not think it is as difficult as that. I think it is quite easy. There are plenty of parks nowadays with by-laws that say you cannot take your dog into the park or you have to have it on a lead or whatever. These proposals will make that kind of rule much easier.

It would be possible to look at the question of whether the access itself was fundamentally different from many other things. On the other hand, having thought about that, do you really want an annual or three-yearly review of ordinary gating orders in back streets which are completely non-controversial? I am sure it is possible to think of a way through this and to find a solution.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting debate. I have tabled a clause stand part debate because I feel it is a better way of probing the intentions and contradictions in this clause than individual amendments trying to make sense of it. In many ways, the debate we have had has identified some of the contradictions.

These public spaces protection orders will replace three other orders which were specific to certain circumstances—the designated public place order, the gating order and the dog control order. Noble Lords are right; these orders can last for a maximum of three years and can then be renewed and renewed ad infinitum. There is no time limit or renewal limit in the legislation. The debate has highlighted those contradictions and it would be helpful if the noble Lord could reassure us on some issues. I am not sure that he will be able to.

I am unclear why the Government are making changes in this way and whether all the implications of doing so have been considered. The debate we have had so far might indicate that they have not. The exchange between the noble Lords, Lord Harris and Lord Greaves, indicates that the Government are confused, possibly because they are talking about slightly different things. We are replacing different orders, which deal with different complaints, with a single order that is trying to deal with all the complaints. Those original orders were of necessity very specific about the remedy they were trying to bring forward, whereas we are now moving to a more general order. I think that the noble and learned Lord, Lord Hope, made the same point—that it is going to be very difficult to bring in one order to address all the different complaints.

The dog control order is being abolished and replaced with the public spaces protection order. We are yet to have the debate about whether that is adequate to deal with the problems of dangerous dogs, but Battersea Dogs and Cats Home is very concerned about this as it is worried that local authorities will have to extend the powers after three years. Not only will that create a kind of hiatus at some point but it could create an administrative burden at a crucial time when resources are being cut. The noble Lord, Lord Harris, and the noble and learned Lord, Lord Hope, made this very point and asked why, if something has been agreed and consulted on, it is necessary to have ongoing reviews and renewals. It could mean less protection if, for example, a local authority fails to renew or gets caught up in some bureaucracy and the renewal does not happen or is delayed.

I think I am correct in saying that there are no limits but it would be helpful if the noble Lord, Lord Ahmad, could give an indication of what the average number of renewals will be and how often the Government expect an order to be renewed. I wonder if the Minister understands the concerns that this could be a significant burden on local authorities, which will feel that they have to renew every three years. I looked through the impact assessment to try to find out whether that issue had been looked at, but it had not been specifically addressed. I thought it rather bizarre, given that orders can be renewed and renewed ad infinitum, that the impact assessment refers only to,

“providing councils with a flexible power to put in place local restrictions to address a range of ASB issues in public places, and prevent future problems. This would be different to the current situation as one order would be able to cover a number of issues, rather than needing to follow separate processes for each—reducing bureaucracy and cost for local authorities”.

Representations made to us, however, say that it will increase bureaucracy; that instead of having one order that lasts for the time required, it will have to be renewed beforehand.

There is also concern that in some cases a local authority may go for the maximum time, although it may not need it, because it would be overly burdensome and cumbersome to renew the order. It may think, “We need this to be in place for a year, but rather than having to renew it we will put it in place for three years and just let it lapse and not enforce it if it is not needed for the full three years”. Those are issues of concern. Then there is the other side of the coin. The Ramblers, for example, has other concerns, saying that a maximum of three years,

“is too long a period for the closure of any route of which everyday use is being made”.

I have read through the Explanatory Notes, the impact assessment and the Bill but cannot really understand why the period of three years was chosen. It is quite a lengthy maximum period to cover all the circumstances. What evidence did the Government use and what assessments were made that identified three years as the appropriate time for public spaces protection orders?

Similarly, there is a real danger in trying to address different problems in the same way. Gating orders, for example, are very clear—they do what they say on the tin. I am always very happy to admit that nothing is perfect and make changes to make something more effective, if things can be improved. However, I am not convinced that putting all three of these orders together into one less specific, and therefore weaker, general order is the right way forward.

The Minister and other noble Lords will have received letters about this from naturists who are concerned that it will impact on their activities. One of their concerns is the definition of what constitutes a public open space, which seems to rely on quite a wide description. Can the Minister offer any reassurance on that point?

I have already addressed the amendments in the name of the noble Baroness, Lady Hamwee, but it would be helpful if the Minister could identify how many times he thinks it would be appropriate for an order to be renewed. Has any assessment been made of the costs? The impact assessment says that, because they are not separate processes, it will reduce the cost to local authorities. On what evidence was that comment made? Can he say anything about enforcement? If something is in place in every instance for at least three years, and then renewed, will there be any checks and balances in terms of appropriateness and enforcement?

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Greaves

Wednesday 20th November 2013 Lords Chamber

[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.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Greaves

Monday 18th November 2013 Lords Chamber

[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.

--- 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.