Queen’s Speech

Earl of Lytton Excerpts

Tuesday 2nd June 2015 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I welcome the opportunity to participate in this debate and thank the noble Baroness, Lady Williams, for introducing it. I look forward to the two maiden speeches and the valedictory speech of the noble Lord, Lord Eden of Winton.

No contribution from a practising chartered surveyor would be complete without a comment on housing and development, and I declare my interests. If, as we are told, there is a significant deficit in housing completions, there are one or two things to bear in mind. First, there is a shortage of skills in both the construction worker and backroom technician sectors which cannot be remedied overnight. Then, if one is going to build a lot of housing in growth areas, some greenfield land will need to be used. However, many local planning authorities perceive that their electorates will not support that. Terms such as “sustainability” and “localism” are used as weapons, just as “environment” used to be in times past.

Rapid increases in house prices are fuelled by a relative shortage but many would profit from these rapid rises, including existing owners, mortgage lenders and foreign investors to mention but three. The marginal cost of taxation, regulatory compliance, the community infrastructure levy, affordable housing, community benefits and so on in a quite risky financial model of development economics can have a material effect on the cost base. This needs to be monitored constantly. I well remember the late 1970s when the development land tax caused the effective failure of the land supply.

When we build, we need decent standards. I still see serious shortcomings in the quality control under some of the self-assessing construction warranty schemes where normal local authority building control supervision is perfectly legally bypassed. We are also building properties that are too complex for normal occupiers to use effectively. They are too cramped in living space and have too little communal amenity space. This is cheapening the product for first-time buyers. Talking of cheap, I observe that if one offers affordable housing and the option to purchase at a discount later on, a long queue will form and demand is not necessarily the same as need. Staying on that, I hope that the proceeds of any housing association right to buy will indeed be reinvested in the sector and not appropriated for other things as the council house proceeds were in 2000.

We have a common desire for a fairer, more just society and my second theme relates to this. In the Queen’s Speech debate last year, I drew attention to the shortcomings of the police—an institution that should be one of our most trusted, cherished and honourable public services. There still remains much to be done and I welcome the commitment in the gracious Speech and the remarks of the noble Baroness, Lady Williams, in that respect. However, if the police lack accountability, so do some other sectors. I am constantly told that local authorities—I declare an interest as a vice-president of the LGA—are among the greatest snoopers and eavesdroppers into the affairs of the citizen. What are we doing about that?

Our institutions are in many ways no better than the standards of society at large, where individual gain and lack of responsibility seem to have supplanted collective care and conscience. My father used to quote Aristotle. For example, “that which is owned in common belongs to nobody” was one of his favourite quotes. In relation to some legal advice he once received, he quoted Aristotle’s words, “where there is muddle and confusion, dishonesty stalks close behind”. How true. Throw away the rulebook and anything becomes possible. In complex situations moral depravity may even become undetectable.

My recent experiences in the planning field as a professional have been unedifying. Obtaining listed building consent to replace a gutter on a client’s building included 10 months of official delay, muddle and incompetence. I will stop short of naming the authority in question. HMRC itself appears to be a player and gamer of the system, to the point where it is impossible to know whether one is dealing with the objective administrator of a tax code or an aggressive commercial undertaking that is like some of the utility companies. That should stop.

Then we have areas of what seem to me to be complete lawlessness. I refer to situations where the elderly and vulnerable are fleeced of their assets, of their financial freedom and dignity, with apparent impunity. I have had recent direct experience of this, where the normal safeguards appear to have been dispensed with and family beneficiaries have been largely cut out of a will that favoured some friendly neighbour. On further inquiry, it became clear that this is a growing phenomenon, perpetrated by a range of people, from avaricious kinfolk to opportunistic neighbours and unrelated conmen. If adverse influence does not work, it is frighteningly easy to forge a signature, impersonate an old person, make a bogus will or obtain by deception a power of attorney, which one can do online via a government website. What is it about, “Thou shalt not steal or bear false witness or covet” that is misunderstood in modern society? The fact is, there is a better defence against money laundering than there is against abuse of the elderly or the young, and the problem, as I see it, is growing. Because of privacy and other repercussions, nobody dares mention their suspicions so we have a society in which these things are everyone’s concern but apparently none of one’s individual business.

Perhaps this problem is just a matter of little public interest that can readily be dealt with by those affected through civil action—I wish. The courts are clogged to the point of dysfunction, with delays, huge costs and some mismanagement. The very pillar of the 1940s reforms to the welfare state, which included fair access to justice, has crumbled. There is no such access now. There is clear injustice where there is inadequate access to these things. All these things have consequences for public confidence and trust, ultimately, in the rule of law. In a fair society, these issues and others like them need to be addressed, not by wholesale new regulation so much as by streamlining what we already have. That is the message I wish to give to the House today.

Queen’s Speech

Earl of Lytton Excerpts

Monday 9th June 2014 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, the gracious Speech refers to a fairer society. The Minister mentioned the Criminal Justice and Courts Bill, and rightly referred to the importance of the rule of law. However, I start with the Home Secretary’s address to the Police Federation on 21 May. She made a welcome promise of better protection for whistleblowers in the police. People such as James Patrick have put their entire careers on the line for the truth. However, the proposed new offence of police corruption is otiose. We already have laws enough on our statute books, although of course police co-operation in investigating themselves may be in doubt.

The Home Secretary suggested that leaving police operations unfettered would resist political pressures but that, to me, means inadequate oversight despite the beefing up of Her Majesty’s Inspectorate of Constabulary. Operations at the front line will always trump policy. We still have many questions but few answers to the points raised about police culture and operations. A senior judge has recently questioned the objectivity of that other safeguard, the IPCC, as mentioned by the noble Baroness, Lady Smith of Basildon.

Under anti-social behaviour legislation, the police have virtually untrammelled and incontestable powers. They decide ab initio who they think is the guilty party. The rampantly one-sided exercise of these in a case involving a Sussex MP has been corroborated by cases in south Wales, Devon and Cornwall, Thames Valley and, in the most recent, from Hampshire, police evidence seems to have been total fiction. I have been shown custody records altered post hoc to refer falsely to a more serious offence of violence. I have seen manifestly concocted properties for legal photographs used to procure convictions in magistrates’ courts. This I now find is very easy to do, and applies also to CCTV and audio files. This material is increasingly used as evidence in court proceedings. All that is required is slackness by witnesses and prosecution, and the guidance of ACPO on digital evidence to be ignored, and you have a recipe for misleading the court.

I learn of serious failure of prosecution to disclose documents as required, and of failure of defence teams and judges to ensure compliance. The Attorney-General’s recent guidance identifies this as a threat to a fair trial. I hear of documents that are unsigned or undated, possibly even forged, being accepted by the courts, and a failure to safeguard the interests of people under rulings from the Court of Protection.

Much of this is ongoing, with frequent accounts of files lost, court records deleted or unavailable, police notes absent or officer amnesia in the witness box. A solicitor categorised this for me as “gaming” the provisions of Section 117 of the Criminal Justice Act 2003, because a police witness cannot be cross-examined on something he has forgotten, and if the only other evidence is documentary or electronic, however faulty, then that must stand unless the defence can have the evidence struck out: effectively a reversal of the burden of proof. It would also appear from a recent BBC “File on 4” programme that these and allied manipulation of rules of evidence and procedure continue at the highest administrative and professional levels.

Withdrawing most legal aid—a principle I applaud as a general concept—but without rendering the system of justice accessible and affordable to normal folk, as mentioned by the noble Baroness, Lady Deech, seems to be a flawed policy. I question why two legal experts are required to represent a criminal defendant. However, if undeserving types were gaming the legal aid budget beforehand, we now appear to have police and prosecution gaming the procedures to the detriment of fair trials. Add these together and we have a situation once described to my father by his lawyer as follows: “Where there is muddle and confusion, dishonesty follows close behind”. I try to remember that.

Once an offence, police notification or occasion of arrest is established, the details go into a police computer system. The citizen does not have rights, or certainly has no adequate rights, to gain access to or check that for accuracy, yet may find material regurgitated at some future date in proceedings, shared with other agencies or disclosed in a CRB check. Necessary protections before the law remain inadequate, open to abuse, and are being manipulated to the unfair disadvantage for defendants in criminal proceedings in particular. This erodes trust in a vital sector of public administration. That imperils the rule of law and ultimately, the stability of society. Oversight must be restored. Senior law officers within the Government have long been aware of the situation, so why no action?

We should not be complacent or wag our finger at other jurisdictions, while all the while corrupt practices infect our own affairs. The Government need to act now—or if not this one, now, then a new one in 2015.

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, my noble friend Lord Harris of Haringey raised this issue in Committee, when he said that his amendment was to try to get clarity as to why the Government were seeking to make this change and to do something which was potentially so retrograde. My noble friends Lord Harris of Haringey and Lady Smith of Basildon both gave specific figures on the savings and reductions in burglary offences that had accrued, or were expected to accrue, when appropriate security devices are installed where new developments have been informed by, or have adopted, the principles of Secured by Design. My noble friend Lord Harris repeated some of those statistics today.

In his response, the Minister said that a consultation under the auspices of the Department for Communities and Local Government had taken place, which concluded, if memory serves me right, on 27 October last year, and that the Government were considering their response. The consultation document from the DCLG suggested a two-tier standard of security: a basic minimum level that would be generally required and a so-called enhanced standard. However, as has already been said, even the “enhanced” standard would be lower than the existing Secured by Design standards, and even then it could be required by local authorities only where what is described as a “compelling” case exists for the higher standard to be the norm.

In Committee—perhaps it will be different today—the Minister was unable to say whether we would know the outcome of the consultation by the time the Bill reached Report or Third Reading. Neither was he able to say why local authorities would not even be able to go to the higher, so-called enhanced standard or give an assurance that local authorities would be able to choose their standard, and not be obliged to follow either the basic or “enhanced” standard. Nor was he able to say that the Government would provide an opportunity for Parliament to intervene before any changes in the standards are made.

As my noble friend Lord Harris has said, the Secured by Design initiative is about reducing the incidence of crime. The Government’s proposals, which have been the subject of consultation, appear to go in the opposite direction. We have heard no convincing arguments from the Minister as to why there should be a change and nothing from him to indicate that the Government’s proposals are in any way evidence-based, particularly when it comes to the impact on the level of burglaries. We will certainly support this amendment if it is put to a vote.

[The Earl of Lytton (CB)]

My Lords, before the noble Lord sits down, would he not agree with me that the amendment would confer a particular status on Secured by Design or whatever body or organisation is in its lieu and that to do so in this particular context would create a quite curious structure? It is almost like an organisation that is operating on a statutory basis.

Secondly, would the noble Lord not agree with me that the police, knowledgeable though they are, are not the sole providers of intelligence on designing out criminal activity? There are many other bodies and professions which might legitimately be considered for this—the British Standards Institution would be one.

Thirdly, would the noble Lord not agree with me that the fact that there may be shortcomings in the specification of security, equipment and methodologies is not necessarily a reason for conferring a monopoly of this sort on this particular body?

[Lord Rosser]

I simply ask the noble Earl if he would agree with me that what is being proposed appears to put in jeopardy an arrangement, guidelines, and standards—Secured by Design—that on the basis of the figures we have heard, have had a considerable positive impact on the level of burglaries. It appears to me that the noble Earl is prepared to go along with a change that appears to put in jeopardy real progress that has been made through this initiative in bringing down the level of burglaries. That is a question that he should be asking himself rather than the questions that he has chosen to ask me.

[The Earl of Lytton]

My Lords, I am a victim of burglary myself, so I understand what it is about. It seems to me odd that the noble Lord feels that the proposals in the amendment are the unique and sole means of achieving what is required. With all the product availability and consultancy that there is, I do not believe that it is necessarily the case. I am particularly not sure that it is right that such an organisation should be given a statutory status and elevated position. It is, after all, a commercial operation. Would the noble Lord not agree with that?

[Lord Rosser]

I am not sure that the noble Earl and I should be having too lengthy a dialogue on this matter. I am not sure whether I got a very clear answer from him as to whether he accepted that what the Government are proposing may well put in jeopardy a very successful initiative, which over a period of years has had a very positive impact on the level of burglaries.

--- Later in debate ---

[Lord Harris of Haringey]

In that case, the points about the College of Policing were clearly rather academic.

The purpose of this amendment is to give local authorities the flexibility to set higher design standards, if that is what they want to do. The Minister has said that nothing the Government are doing is intended to weaken the security standards and that the housing standards review was not intended to bring about the lowest common denominator, but that is what it is doing, in practice. He talked about supporting the police in advising on a layout of a development, but this is not just about the layout of a development—it is about the security measures physically built into the development, which I do not believe can be part of a planning approval at present.

The Minister told us at length about the importance of tidying up the policing landscape, but that, frankly, is irrelevant. There will still be chief officers of police, unless there is some hidden agenda for the Government.

[The Earl of Lytton]

I apologise to the noble Lord for interrupting his flow. The Minister pointed out the difference in approach between planning and building regulations. We have heard, for instance, that certain things may not apply to social housing providers of one sort or another. Building regulations do not necessarily fall automatically within the purview of a local authority; they can be outsourced. Therefore, you can have any number of commercial companies who can provide the building control facility. The NHBC, for instance, is actually a certification process set up by—

[Lord Ahmad of Wimbledon (Con)]

I remind the noble Earl that we are at Report, and it is normal convention after the Minister just to hear from the mover of the amendment, unless there was a specific point of elucidation or clarification to be made. I feel that the noble Earl may be going into a more detailed exposition.

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Tuesday 14th January 2014 Lords Chamber

[Lord Hylton (CB)]

My Lords, I am sure that nobody wishes to condone rioting or the serious damage and intimidation that it can cause. Most of us are grateful to the Government for bringing forward their amendments. Nevertheless, they do not deal with the discrimination against, for example, owner-occupiers, because they touch only on secure and assured tenants. There is the further point that the Bill, even as amended, is very likely to punish the innocent. Unless the Government can come back with a very much better defence of the clause, I shall certainly support the noble Baroness and my noble friend if they wish to press the amendment to a Division.

[The Earl of Lytton (CB)]

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

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

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

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

[Baroness Hamwee]

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

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

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

--- Later in debate ---

[The Duke of Montrose (Con)]

I do not envy my noble friend the Minister having to deal with this issue. The points that the noble Baroness, Lady Smith of Basildon, have brought up are very much ingrained in the minds of anybody who comes from my part of the world, in Scotland. It was the very same thing with a certain Mr Hamilton, who had been found guilty of sexually assaulting children and then went on to carry out the Dunblane massacre of primary school children. The net effect of that was the passing of the Act banning handguns, which does not address the issue of whether the police will bring charges when they see the seriousness of a situation, or understand that there is a risk in issuing a licence to someone who might appeal and cost them a lot of money. Of course, the banning of handguns has been counterproductive because nowadays, if you go around anywhere in the UK, the only people who have handguns are criminals, who know very well that, if they go into any situation, they will not be in danger of meeting someone with a handgun.

[The Earl of Lytton]

My Lords, I have an interest to declare as the holder of a firearms licence. I understand very well what the noble Baroness was saying in introducing her amendment, but we must be clear about what is already happening. The amendment refers to the necessity of performing background checks, but I believe they already are being performed. I speak with some experience of dealing with firearms officers in different parts of the country, which I hasten to admit is by no means necessarily a representative sample. None the less, these checks are being dealt with with a good deal of thoroughness. They have access to the police national computer, and the National Firearms Licensing Management System, the domestic violence unit and others are all sources of information. In addition to that, every applicant for a firearms licence must have a sponsor, who has to make a positive statement that they know of no reason, under a whole list of criteria, why that person should not hold a licence.

Furthermore, there is another element: the applicant must have permission from a landowner on whose land they are going to shoot, or be associated with a club where they are shooting and have the countersignature of the person who is the secretary of the club. So there are a considerable number of safeguards here. However, I am bound to admit that in the Atherton case, as in the Dunblane case and the Hungerford case that went before it, licences were given by the police for weapons, which, in the more historic cases, it was totally inappropriate for any private citizen to have possession of. The result of that was that these awful offences occurred.

With regard to the substantiated evidence of violence, there is already a duty on a police officer not to grant a licence to anyone who is a danger to public safety or the police, or to those of intemperate habits. As I say, there are safeguards. I double-checked with the British Association for Shooting and Conservation, which very kindly responded to my inquiry for this afternoon. I am not a member of BASC, but it provides the secretarial back-up for the All-Party Parliamentary Group on Shooting and Conservation, at whose meetings I am an occasional visitor. With regard to public safety, the chief officer must follow guidance issued by the Secretary of State. Guidance, of course, means just what it says; each case has to be considered to a degree on its merits. I do not really see how it can be any other way. As I see it, firearms officers in the various police forces are taking their responsibilities extremely seriously.

On the question of full cost recovery, which the noble Baroness has raised before, the difficulty with any cost is that it is potentially a blank cheque of some sort. It takes no cognisance of the police efficiency with which the matter is dealt, nor of wider public safety issues that may lie outside and beyond the specific application. The costs incurred could be very high if the system is not effective. The question then arises—I do not have an answer to this—of how much society should pay for the protection that licences afford, as opposed to costs being recovered from the individual. There are many different walks of life where similar situations apply, such as whether the cost of a driving licence or the grant of a passport covers the full cost of the scrutiny. There are certain things that are done in the name of society and for its protection when it is not considered appropriate to recover the full costs. I made the point in previous dealings on a similar amendment at an earlier stage, and I think that it is probably fair to say, that the present level of the firearms licence fee looks quite low. However, that is a different matter; it is a matter for making an order as to what the fees are, which is rather separate from the question of amending the legislation and the framework for how things are dealt with.

There are issues about the fact that, notwithstanding all the guidance that is in place, licences for firearms have been granted to people who were patently unfit to receive them. I do not know any way to ensure infallibly that that can never happen in future. It may be impossible to devise a means for the number of people in the country who could be affected by these things, whether they are people with firearms licences who are resident, on a visitor’s permit or whatever. It will be extremely difficult to legislate out all possibility of that sort of thing, although one must always be vigilant—and, of course, they are terrible things that we should strive to prevent happening. However, I am not sure that the amendment would advance things materially as the noble Baroness suggests.

[Lord Deben (Con)]

My Lords, although the amendment is entirely good hearted—I quite understand the reason for it, and the problem it seeks to address is a serious one—I fear that I follow the noble Earl, Lord Lytton, in thinking that the difficulty with which we are faced is a belief that, somehow or other, by passing laws we can solve every problem. That is the kernel of this issue.

The vast majority of people who hold any kind of firearms licence—I declare an interest, as I am one of them—are law abiding and go to huge trouble to ensure that the firearms do not get into the wrong hands, that they are properly locked up, and so on. Already, the very considerable time spent on checking people who have never given any reason for complaint is a source of irritation—although combined with some understanding—to large numbers of people. We must recognise that we already have a very significant amount of regulation in this area.

We have to ask whether any further regulation of this kind, any further step taken in this direction, will do what is intended. I fear that I come to the conclusion that it will not. One of the difficulties is that those with bad intent seem to be much more able to acquire the means to put that intent into action than we would expect, if that is not our way of life. We rather naively sit here thinking that if we write the right legislation, somehow or other it will corral such people.

I have great sympathy with my noble friend who has to answer this debate, but I say to him that we have a long history of doing things because we feel that “something must be done”, even if what is done is not helpful but causes considerable expense and further aggravation. I ask him to be extremely careful and to make his response very balanced. We all have sympathy with the intentions of the noble Baroness, Lady Smith, but I suspect that this is not the answer to the problem.

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Wednesday 8th January 2014 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, in Committee, Clause 1(5)(a) was the subject of some debate. It and the related provision in Clause 21 have also been a subject between the Home Office and the Joint Committee on Human Rights. Essentially, this provision places a duty on the court to avoid, as far as practicable, imposing prohibitions or requirements in an injunction or a criminal behaviour order which would conflict with the respondent’s religious beliefs.

The Government have consistently maintained that this provision related to the manifestation of the respondent’s religious beliefs, rather than to the religious belief per se. However, for the avoidance of doubt, we have decided not to remove the provision from the Bill, on the basis that the courts would in any event, by virtue of the operation of the Human Rights Act, be bound to consider whether the proposed prohibitions or requirements were compatible with the respondent’s convention rights, including but not limited to the right to the freedom of religion. I beg to move.

[The Earl of Lytton (CB)]

My Lords, I can quite understand the reason why this particular safeguard or defence in injunctive procedures is to be removed. The noble Lord may rest assured that I am with him as far as the argument goes. I have written to his noble friend and had an answer this morning pointing out that, in normal civil injunctive proceedings, there are a significant number of available defences—depending on how one counts them, 15 or 20 or more. The Bill as it stands would have allowed for three; this will reduce it to two.

I still do not understand, because in his letter to me—which I thank him very much for, and for keeping me in the loop on correspondence generally to do with this Bill—the noble Lord, Lord Taylor, merely said that he did not agree with me. He did not explain why in one set of civil injunctive proceedings under this Bill there will remain two defences, but in any other injunctive proceedings there will be 15 or more. That seems a two-tier approach, so what is the direction of travel in that respect?

[Lord Ahmad of Wimbledon]

My Lords, perhaps I may come back to the noble Earl in advance of Third Reading on that to specifically clarify the issues that he has raised. In terms of what the Government have done thus far, our understanding and direction of travel is clear, responding directly to the concerns raised on this issue.

--- Later in debate ---

[Lord Taylor of Holbeach]

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

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

[The Earl of Lytton]

Do I understand from the Minister then that the normal range of civil defences would continue to apply in the normal way, in connection with matters under this Bill as everywhere else?

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Wednesday 4th December 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, we support the Government’s clauses on firearms but feel that more needs to be done, which is why we have tabled Amendment 56MD. Our proposed new clause calls for a broader range of better background checks to be included as part of the licensing process. It amends the Firearms Act 1968 so that a history of domestic violence, drug or alcohol abuse, or mental illness provides a presumption against the acquisition of a firearms licence, unless exceptional evidence can be provided to the contrary. It also introduces full cost recovery, to ensure that the cost of a licence reflects the cost to the police of processing it. In this amendment, firearms and shotgun applications are treated the same and the range of background checks is improved. Both the IPCC and the Home Affairs Select Committee in the other place called for this.

The Minister will recall that I raised this issue at Second Reading and gave a specific example, about which I know he will share my concerns. Susan McGoldrick was murdered, along with her niece and her sister, by her partner, who legally held a firearm. As many as one in three women killed by their partner in England and Wales is shot with a legally owned weapon; 64% of these murders involve shotguns. The Government have introduced new guidance, which is welcome, and I know that we cannot stop every crime by legislation alone, but we can do better.

In the past 12 months, 75% of female gun deaths occurred in domestic incidents; in 2009 the figure was 100%. The IPCC and the Home Affairs Select Committee have both proposed tougher rules to prevent people with a history of drug and alcohol abuse, mental illness or violence—particularly domestic violence—from acquiring firearms licences. The IPCC called for:

“Explicit guidance around domestic violence and seeking the views of partners/family members where domestic violence is a previous factor”.

We agree with the need for explicit and clear guidance on legislation but the issue of seeking the views of partners or ex-partners is somewhat difficult, and we would not support seeking the consent of a partner or former partner because that could lead to intimidation and place people at even greater risk. Perhaps there should be wider consultation on this with a range of people.

The present position is that just one home visit is required by law for an initial application. Good practice means that there can be additional visits or checks, but that is not in the legislation. I understand why there are concerns about the impact of part of this amendment on those who have a history of mental illness. I stress that mental illness at some point in a person’s life does not disqualify them for ever but they would have to provide evidence that would allow an exceptional case to be made for their suitability to possess a weapon. Of course, we are not saying that they cannot take part in shooting—there are registered clubs—they just cannot have weapons at home.

The Government have stated that the Home Office will issue guidance and that should alleviate the issue. But we are pretty sure that guidance alone is not enough to tackle tragic domestic violence-related deaths, which have been on the rise. It is not good enough, and that is why we have tabled Amendment 56MD.

The other part of the amendment concerns full cost recovery. In so many areas, the Government are seeking full cost recovery, but not in firearms. I am curious about the reasons for this anomaly. Our amendment would require the Home Secretary to consult with police officers before setting a fee level that would enable police forces to recoup all the costs they incur when conducting proper background checks.

Currently a firearms licence costs just £50 for five years and only £40 for renewal, but if an application is processed properly it takes up a considerable amount of time, including home checks and background checks, which is not reflected in the cost of the licence. The cost of administering a firearms licence is much higher. Therefore, at present the taxpayer is subsidising the firearms licensing system by an estimated £18 million a year. Given the level of police cuts across the country, that level of subsidy seems unfair. It is difficult to understand why, at £50 for five years, the annual cost of a firearms licence is barely a third of the cost of a fishing licence, which costs £27.50 a year, and roughly equivalent to the cost of a CRB check, which costs £44 and only requires a name to be checked against a database, which is much less onerous.

The Government’s current position is that they will aim to introduce a fee regime in 2015 under which just 50% of the cost—not the full cost—is recovered by the police. I ask the Minister: why only 50% and why not until 2015? Why are fishing licences so much more expensive? Why are the Government not going for full cost recovery when they are committed to that general principle across the public sector, for example, with passports and driving licences? Why is that not extended to gun licences? At Second Reading we discussed full cost recovery on tribunal fees; that will come up again. The Government claim that they want to improve the system of background checks associated with firearms licences but will not commit to putting that in legislation. On full cost recovery, they say that they will introduce a fee regime in 2015.That is too late; it can be done sooner than that.

These issues need to be addressed now. We want to save lives and reduce the number of gun-related domestic violence deaths as soon as possible. Amendment 56MD seeks to do this and is a much more direct and effective solution than the Government’s alternative of vague guidance and promises for 2015. I beg to move.

[The Earl of Lytton (CB)]

My Lords, I start by declaring an interest. I have interests in shooting and I am a firearms and shotgun licence holder. I have also been a referee for others who are such licence holders.

After the tragedy of Dunblane, it was one of my party tricks to ask chief officers of police whom I ran into how we were getting on with the police national firearms computer, which was promised in the wake of that tragedy. It took a very long time for anything that even approached that to become a reality.

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Monday 2nd December 2013 Lords Chamber

[Baroness Hamwee (LD)]

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

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

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

[The Earl of Lytton (CB)]

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

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

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

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

[Baroness Newlove (Con)]

My Lords, I shall speak to Amendment 56K. For far too long we have allowed concerns about the rights of perpetrators to inhibit communities from addressing this important issue at the expense of the majority of law-abiding citizens, who are simply trying to get on with life, raise a family, work and study. What has to happen before we actually face that what is termed anti-social behaviour is so wide that we cannot sit in the ivory tower of Parliament and honestly tie it down for today and tomorrow? We need to allow flexibility for these powers to be meaningful.

I must congratulate and thank the noble Lord and the noble Baroness for proposing one of very few amendments that think of the victims. I have seen so many provisions and amendments about protecting the perpetrators’ ethical and religious beliefs and considering their disabilities, but for me, this is the first about the victim. I cannot tell your Lordships’ about the number of times that I have been contacted by victims who are ill, elderly, suffer disabilities—or all three. They have to deal with anti-social behaviour and are scared to leave their home. These people need immediate action and cannot wait for the numerical thresholds to be met. So I, for one, fully support this amendment.

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Monday 2nd December 2013 Lords Chamber

[Lord Deben (Con)]

My Lords, I apologise for missing the first moment or two of debate on this amendment. As one of the Ministers who went round the countryside talking about the importance of Secured by Design, I merely say quietly to the Minister that there is a great deal to be said for any actions which mean that you get started right. So much of what we do is retro-fit. It is being faced with a difficult situation and saying: “What the blazes do we do; how do we actually sort this out?”.

The point about this concept is that you start off right, and say from the very beginning: “Would we not do better if we organised things so that it was more difficult for people to find themselves in a vulnerable position, and more difficult for those who wish to be criminals actually to be criminals?”. My reason for speaking is this: I look round the House and it is probably true that there is a high proportion of us who were lucky enough to have been brought up in circumstances where our environments encouraged us to behave properly. That may not be true of everybody, but of an awful lot of us. The older I get, the clearer I become that the environmental effects upon children and young people are really important.

This is just one aspect of it—a tiny, but very important one. I hope that the Government will think carefully about this. I will not indulge in the discussion about interns writing lists of things, but it is not true that this is a burden. It is what any sensible developer ought to do without any question. It is the natural way of developing today. I say that and declare an interest because I advise a number of developers, trying to make them do these things in any case, so I know perfectly well that this is what they would normally do. I hope that the Government will think very hard before this is removed from what ought to be the natural way of things.

[The Earl of Lytton (CB)]

My Lords, I feel slightly like the meat in the middle of a robust sandwich, because I am afraid that I shall voice a slightly different view. In addition to my declared interests in connection with the Local Government Association and the National Association of Local Councils, I am also a chartered surveyor in private practice. To some extent I become involved with issues of design, and although I am not any sort of specialist security consultant, security becomes a necessary part of that.

I re-read with some interest what the noble Lord, Lord Harris, said on Second Reading. I hope that I listened with sufficient care to what he has just said, but while not actually disagreeing with any of the ingredients that he set out, I would voice a word of caution about his conclusions. First, it must be said that this is about a commercial initiative of the Association of Chief Police Officers, or rather a subsidiary company of ACPO. It is an accreditation-based approach in which, as I understand it, Secured by Design would become the accreditation body and would set the standards. As I see it, this amendment paves the way to giving this statutory backing. The question is: do the Committee think that that is appropriate or that it is proof against later mission creep?

Secondly, I asked a building control officer of my acquaintance, quite a senior man who goes around lecturing on these matters, what he thought about Secured by Design as a necessary ingredient in building control and planning matters. He did not think that security should be singled out as a category for statutory treatment, or that the regulatory burdens should in some way be increased thereby. That said, I feel sure that, where it is necessary and desirable to do so, developers and others will be pleased to adopt Secured by Design standards on a voluntary basis and as a marketing tool. That is entirely fair.

Residents also need in the context of their built environment, whether it is Secured by Design or not, themselves to be vigilant and to take reasonable steps to ensure that the opportunities for criminal activity against their homes and belongings in a residential setting are minimised. That is inevitably a movable feast. There might be a perverse incentive here. If people feel that Secured by Design somehow gives a warranty or guarantee or underpins a relatively crime-free environment, they may tend to forget those things. I think that getting people better in tune with the real risks, bearing in mind that this is a movable feast and that criminal activity is always changing and evolving, might be a better incentive. I will listen with interest to what the Minister has to say.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lord, Lord Harris, who first raised this issue at Second Reading. It can sometimes be difficult across government to see how the actions of one department impact on another. I say to the noble Earl, Lord Lytton, that the reason that the amendment is before us today is that Secured by Design is in great danger of being totally undermined by the action of the Department for Communities and Local Government. There seems to be a holy grail of deregulation, to see what we can pull out of regulation, without making a proper assessment of where regulation is good or bad, of what is its impact.

Secured by Design is there to protect people in their homes. One of the non-violent crimes that causes the most distress to anybody is the intrusion into and burglary of one's home. It is not necessarily about theft of items, although they may be things of great personal, sentimental or monetary value; it is the intrusion into one’s home, the place where we expect to be the most safe, but where we suddenly feel the least safe and the most insecure. That is what Secured by Design sought to address.

I have to say: it works. The noble Lord, Lord Deben, mentioned his experience of it. I was looking at some of the case studies of what was done and how much difference it made. Secured by Design case studies are interesting because they show the situation before and after. Prior to the work being undertaken in Nottingham City Council area, a particular estate, Bells Lane and Broxtowe, suffered 227 burglaries. Following the work undertaken by Secured by Design, there was a 42% reduction in the number of burglaries, yet in the city as a whole there was a reduction of just 21%, so it was inevitable that Secured by Design had an impact there.

The Secured by Design estates in West Yorkshire outperformed the region as a whole on burglary of dwellings offences. Between August 2007 and 2008, there were 19,701 burglaries, but only two of those were in Secured by Design properties. Similar research in Glasgow demonstrated that total housebreaking crime fell by 26%, while attempted housebreaking decreased by 59% at properties with new Secured by Design doors and windows. So there is clearly a case that that is extremely effective.

That is what surprised me about the consultation by the Department for Communities and Local Government, which was introduced under housing standards, building regulations, and so on.

The noble Lord is chuntering away to me, but I cannot hear a word he is saying, so he should know that I cannot respond.

[Baroness Smith of Basildon]

It is a consultation but it was in August, and I recall that when we discussed it at Second Reading the Minister seemed to be unaware of the consultation and could not tell us then if the Home Office had responded to the DCLG. It would be helpful if he could say what response the DCLG has had now from the Home Office. I do not think that the noble Lord, Lord Harris, is overstating the issue when he says that the proposals being consulted on—some of us are a bit more sceptical about government consultations perhaps than others these days—undermine the standards currently being met by Secured by Design properties.

It was interesting to see the response from neighbourhood watch, in which the noble Lord, Lord Blair, said he was involved. Since neighbourhood watch arrived 30 years ago, the number of domestic burglaries has fallen sharply, due in no small part to the development of high security standards for locks, doors and windows and the design of open spaces. These kinds of issues have really made a difference.

The noble Lord, Lord Harris, asked who asked for these changes. The noble Lord even mentioned developers. My experience of dealing with developers when I was building regulations Minister was that many of them wanted to see the higher standards. Good developers feel that they will be undercut by bad developers if they want to meet the high standards, whether in security, building regs, the kind of materials they use or environmental works in the home. They find it very difficult to compete with what they would call the cowboys, who do not meet the same high standards. I would find it difficult if developers were asking for this change. I do not think there is a national union of housebreakers in existence yet, so I doubt if it was that. It would be great if the Minister was able to say to us again, “This has been taken off the table. We wish to continue with Secured by Design. We have spoken to the DCLG. It understands our concerns and the necessity for this”. Will he answer the questions raised at Second Reading and today about why this was ever considered, because it is clearly such a ridiculous move?

[The Earl of Lytton]

My Lords, perhaps I could seek some clarification from the noble Baroness. As I understood it, the noble Lord, Lord Harris of Haringey, moved this amendment in the context of new-build—that was certainly the sense I got. A number of the examples that the noble Baroness, Lady Smith, has outlined appear to relate to the retrofit of existing buildings. The two are not the same. We have 23 million to 24 million houses in the country, of which new-build is a tiny proportion at any given moment. If we are talking about the application of Secured by Design to existing buildings—in other words, retrofit—how is that going to be affected by this amendment?

[Lord Harris of Haringey]

Perhaps for the convenience of the Committee, I could respond very quickly. My amendment is couched in respect of planning permissions. If it is simply an alteration to an existing building that does not have a planning impact, obviously it does not apply. The purpose of this amendment—if I get really irritated by the Minister of course I will put it to a vote—is to try to get clarity as to why the Government are making this change and why they are doing something that is so potentially retrograde.

The point that the noble Earl has just made highlights why this is so dangerous. Most of the changes have happened in new buildings or major refurbishments. It is a slow burn. It has taken 20 years for the impact of these changes to be seen and felt. If you stop the higher standards, it will take another five, 10, 15 or 20 years before we see the consequences and the sorts of problems that used to exist in many estates and developments 20 or 30 years ago, which I am sure many of your Lordships will remember. That is why it is so important. Making the change now will not have an immediate effect in three months’, six months’ or 12 months’ time but it will have an effect over the next five, 10 or 20 years. That is why this change is so short-sighted.

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Monday 25th November 2013 Lords Chamber

[Lord Greaves (LD)]

My Lords, I have three amendments in this group, which have to some extent been covered already by my noble friend Lady Hamwee. Clause 50 states that authorised persons who may issue a community protection notice or a fixed penalty notice are “a constable” or “the relevant local authority”—a lower-tier district or unitary authority in this case—or,

“a person designated by the relevant local authority”.

These amendments largely probe the intentions of the Government as to which persons might be designated by the relevant authority.

Subsection (4) states:

“Only a person of a description specified in an order made by the Secretary of State … may be designated”.

Along with my noble friend, I wonder why the Secretary of State requires this power in this instance. By and large, all the anti-social behaviour parts of the Bill are remarkably free of powers under which the Secretary of State can issue orders and regulations. Those of us who ploughed through Bills such as the Localism Bill and the Growth and Infrastructure Bill, now Acts of Parliament, felt that they were plagued with powers under which the Secretary of State could tell local authorities in great detail what to do through statutory instruments. This Bill is mercifully free of such provisions, except here and there. Yet here, for some reason, one such provision crops up, and it is not clear why it should be required in this instance.

I therefore tabled Amendment 22QY only to probe the Government’s intention regarding what class of people ought to be involved. However, we want to take out the ability of the Government to instruct local authorities. Specifically, Amendment 22QX probes the question of whether a parish council—or perhaps a larger parish or town council—could be designated by the relevant local authority, the district council, to carry out some of these functions. I should make it clear that if the amendment were agreed it would be entirely permissive and would require the agreement of both the district and the town or parish council. However, town councils and some parish councils already do a huge amount of work on tackling local issues such as litter. It seems sensible, at least in a restricted way when dealing with appropriate issues, for those councils to have powers to serve community protection notices.

My question is: as the Bill stands, would parish councils, or perhaps a specified person on or employed by a parish council, be eligible for designation? Is it the Government’s intention that if they are going to designate such people, parish councils would be available to be designated if they wished to do this work? Clearly, there would be no question of compulsion.

[The Earl of Lytton (CB)]

My Lords, as this is the first occasion on which I have spoken at this stage of the Bill, I ought to reiterate my declaration of interests as a vice-president of the Local Government Association and president of the National Association of Local Councils, the parent body of parish and town councils.

I will direct my attention to Amendment 22QX in the name of the noble Lord, Lord Greaves. I am extremely grateful to him for raising this point because it is perfectly true that many parish and town councils across England and Wales have aspirations to take on addition roles. He will be aware from a note that I sent him and copied to the Minister that I was a bit doubtful as to whether a generic provision for parish councils to be designated in this way was necessarily wise or appropriate, because it will be clear to Members of this Committee that parish councils, by their very nature, come in all shapes and sizes and with all manner of abilities and resources available to them—from next to nothing to those that would put some principal authorities in the shade. Therefore, it is very important to understand the criteria whereby such a designation could be made. Otherwise, were a parish or town council to be so designated in a situation where ultimately it could not manage this particular obligation, it would potentially be a hostage to the fortunes of circumstance.

I should add that I inquired of a number of other bodies, such as the Ramblers and the Open Spaces Society, what they felt about the business of parish and town councils having this sort of power. I did not refer specifically to this type of power but to more general powers, but they were doubtful that it would be appropriate. They may have had their own reasons for being doubtful, and of course noble Lords will have their own take on this; none the less, it should be clear—and I hope that the Minister will clarify—that what is intended here is that designation will occur when there is clearly the desire and the capacity—in other words, a two-way street of designation, as the noble Lord, Lord Greaves, outlined. I hope that this is essentially understood on all sides of the Committee that that is a necessary ingredient.

[Lord Greaves]

Does the noble Earl agree that the concerns about the Bill from the Open Spaces Society, the Ramblers and such organisations really refer to the next chapter of the Bill on public spaces protection orders rather than CPNs? He may be interested to know that only this morning I discussed this matter in some detail with the National Association of Local Councils. On the basis that it will be a two-way voluntary agreement, the association can see a great deal of justification for parish and town councils taking part in this.

[The Earl of Lytton]

My Lords, the noble Lord is well ahead of the curve on this. I tried to contact the National Association of Local Councils without success earlier today, so he has stolen a march on me. I am extremely glad about that, because one of the great merits of this House is the collaborative way in which these things are dealt with. I am particularly glad that he has made contact with the association and that he has that very common-sense steer on the matter.

With regard to the Open Spaces Society, the Ramblers and such organisations, I entirely take his point that the issue is probably more specific to the next chapter of the Bill. However, their concerns underline that there will be doubts about the capacity of parish and town councils to undertake certain things and about whether that is an appropriate level at which to deal with the issue. Whether the Minister feels that it is appropriate to accept this amendment or whether he will suggest that there is another way in which the Government’s thinking caters for it, I will leave to his response.

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

My Lords, these amendments raise a number of interesting points. Amendments 22QW and 22QY relate to the provisions in the Bill which would allow local authorities to designate others with the ability to use the new community protection notice. The aim behind this provision is to ensure that the burden of dealing with certain types of anti-social behaviour does not fall on just one agency.

However, it is important that we strike a balance between the new flexibility and the fact that this new notice incurs a criminal sanction on breach. While subsection (1)(c) allows for the local authority to designate the power, as a safeguard subsection (4) allows the Secretary of State to say who this may include. As we have made clear over the past few years, we believe that social landlords should have a role in dealing with this type of anti-social behaviour. At present, they are the only group that would be included in the order. With regard to who else is going to be on the Home Secretary’s list, at present social landlords are the only category of person but, over time, other groups or bodies may express an interest and we will consider them on a case-by-case basis.

The draft guidance makes clear the importance of partnership working, and ultimately the local authority will be able to set the ground rules if it decides to give a social landlord access to the new power. However, as many of those landlords are already dealing with these issues and making judgment calls daily on what is reasonable or not, it seems sensible to give them a formal role in their own communities. I hope that I have explained the need for other bodies to have access to the new notice and for the safeguards and reasoning behind those safeguards to have been included. I hope that my noble friend will not press the amendments.

Amendment 22QX would add parish councils and Welsh community councils to the list of bodies that can be designated by the relevant local authority to issue CPNs. CPNs are a powerful tool and, as such, there needs to be some control over the number of organisations that can issue them in order to maintain consistency. As I said, a breach of a CPN is a criminal offence and one needs experienced practitioners in their use. We believe that local authorities, as defined in Clause 53, are the right bodies to undertake this role. As with public spaces protection orders, we do not believe that parish councils should be able to hear them. However, I have been interested in the debate that has gone on between the noble Earl, Lord Lytton, and my noble friend Lord Greaves on this issue. If we are to extend the role to include parish councils, we need evidence to effect such a change, and we would need to be absolutely certain that it was in the best interests of making effective use of these new powers.

Amendment 22QYA would allow the local authority to restrict the use of community protection notices where it designates the power to another person or body. I am happy to reassure my noble friend that this is already possible as the provisions are drafted, and we shall seek further to clarify that in the guidance. We would expect that, in designating the power to social landlords, local authorities would use a memorandum of understanding to agree boundaries on the use of the notice and local guidelines on matters such as the enforcement of notices and the recording of data on their use.

I understand the point raised by my noble friend on Amendments 22QYB and 22QYC relating to the level of training that those issuing the notice will receive, including police community support officers. I have made it clear that this is a highly responsible activity and that training is important. I assure my noble friend that the kind of judgment calls being made here, and being made daily by social landlords, PCSOs, council staff and police officers, are a feature of current implementation of anti-social behaviour measures. What is unreasonable is how behaviour affects victims and communities and when it is right to go down the formal intervention route. However, we would expect there to be training on the new powers and the impact assessments that we have published include the cost of training. That covers the police, including all PCSOs, social landlords and local authority staff. It is not for Ministers in Whitehall—this is a theme going through the whole Bill—to mandate what levels of training are required to deal with local issues. As such I cannot guarantee exactly what training officers will receive, but I expect that police forces, social landlords and local authorities will see the benefits of the effective use of this new power and train their staff accordingly. I hope that I have given my noble friend the assurances she needs to withdraw her amendment.

I was interested in the contribution of the noble Lord, Lord Ramsbotham, who asked to be reassured that learning disabilities would be considered in the enforcement of this part of the Bill and indeed other parts, too, We can make that absolutely clear in guidance. It is good practice in any event, but I will look at ways of trying to make it clear in the guidance that we issue.

I turn now to the service of documents by post. This is governed by Section 7 of the Interpretation Act 1978. Under this, service is deemed to have been effected when the letter is posted but actually effected at the time the letter would have been received in the ordinary course of post unless the contrary is proven. There is allowance for the time of delivery under normal events but, should that notice not be received within a reasonable time to enable the person to effect the action that is required, they are required to put forward evidence of not having received the notice. As my noble friend will know, many notices of this type are sent by tracker post or recorded delivery of some description so that the service of the notice can be noted by the issuing authority.

I hope that I have given assurances on these matters and that, on that basis, my noble friend will withdraw her amendment.

Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Tuesday 29th October 2013 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, speaking so late in the batting order enables me to cross out a large number of things that I would otherwise have said, which will be to the benefit of your Lordships.

I acknowledge that the Bill, so eloquently introduced by the Minister, contains many good and useful measures. As he knows, I am something of a crime statistic sceptic. I shall not dwell on that, although he introduced that point in his introduction to the Bill. Suffice to say that at least the matter is now being looked at by the Public Administration Select Committee, and it is fair to leave matters there for the time being.

Some of the proposals I particularly welcome—on the trade in illegal firearms, the question of sexual harm and violence, and forced marriage are commendable. I will not touch on extradition—that is well above my pay grade—and I shall steer clear of dogs for the time being. I acknowledge the issue and tragedy of appalling behaviour that blights lives and, in terms of my profession, affects property values and utility. It distresses people and persecutes them. More particularly, from the point of view of public resource, it causes disproportionate costs to social landlords, the police and others, and is a burden on the public purse. We have to deal with it, but the question is whether the means are proportionate. Bypassing the legal safeguards, as appears to be apparent in Part 1 of the Bill, is rarely the appropriate way forward. That has been mentioned by many other noble Lords.

As I say, I come to this from a property angle. I am often involved in neighbour disputes. One thing to realise is that it has nothing to do with the property; it has to do with lifestyle, dogs, noisy children, music, and maybe with race or colour, and things like that. These are the things that feed into some of the loose legislation that we already have, and in that context I think of the Protection from Harassment Act. I was recently sent some correspondence highlighting just how variable the approach to enforcing that Act is. Indeed, the test for what constitutes harassment is so loose and undemanding of proof that it almost seems to be a fibbers’ charter. That probably explains why it is so often the case that with the benefit of hindsight the person claiming to be harassed turns out to be the primary perpetrator. I cannot tell noble Lords the number of occasions when I have felt that that was the situation, so definitions are vital.

In this Bill we risk falling into the same trap. I acknowledge the huge problems caused by anti-social activity but we have to have plausible, possible and legally proper procedures. I am not a lawyer so all my information on this is totally second hand. The Bill has the potential to make a difficult situation worse. It has the novel invention of making what used to be, or certainly as I understood it, the last resort equitable civil remedy of an injunction the first resort coercive measure or tool of behavioural compliance, if you please. Forgetting for one moment the legal test for something that is also tied in with criminal sanctions ultimately and with criminal activities, under this Bill one has to consider the lower civil standard of legal proof. Putting to one side the legal practicality, precedent and social propriety of attaching an injunction to a minor, Part 1 of this Bill promises to do something that it cannot in practice achieve. I would have much preferred to see some alteration to the ASBO regime. If ASBOs are considered to be substantially inoperative, why should anyone imagine that what we have here will cut any more mustard with the typical offender? That escapes me.

Under this Bill an injunction can be obtained with no cross undertaking on costs or for damages, losing the greatest single safeguard against abuse. I wonder why we should suddenly make this a free bet for the enforcer against the person accused—accused, I might add, on some of the flimsiest evidence you could possibly come across. It will generate numerous appeals and be a burden on public expenditure.

Part 2 continues with this approach. Even those found guilty by the courts are entitled to fair dealings and due process. So how does a fair and objective assessment on what has,

“caused or was likely to cause harassment, alarm or distress”,

operate and what is the convicted person to deduce from the application of such an open-ended and loose definition? That society is going to treat him fairly? Hardly. Or that he should mend his ways? Maybe. The right reverend Prelate the Bishop of Lichfield touched on this point. I can recommend a solution: introduce proper triggers, tests and defences into this Bill, identifying the nature of the act based on fact and not hearsay, supposition or mere irrational fear and let us not try to muddle up the criminal and the civil evidential test.

I now turn to Part 3. Clause 32(2) seems equally lacking in substance on its trigger provision. The bottom line is that an officer needs only to be satisfied on reasonable grounds that there is likelihood of someone being alarmed or distressed. No wonder all sorts of fair-minded and sober types such as the Open Spaces Society and, dare I say it, the naturists, have been on to me, concerned that it might be used against them. In fact, it could be used against a wide variety of people engaged in quite straightforward activities. Part 4 is no better. It rests on a concept of undefined detrimental effect. The process seems to be based on strict liability and the authority implementing it seems to have complete non-recourse powers.

I will touch on Part 11 briefly. This is nearly my final point. In March I raised matters to do with crime figures, policing and the concept of police accountability. That is the pivotal point. It seems to be the nub of what has happened since, what has been through the press and what we have heard about evidence before the Home Affairs Select Committee and so on. That cannot go unuttered in the context of this Bill. Accountability rests on several key principles. First, there will be a completely independent referral body over which there is no police influence. The noble Baroness, Lady Doocey, mentioned aspects of that. Secondly, there will be a power to recommend and insist on adoption of recommendations. Thirdly, when there has been a failure, even without criminality or malfeasance—which are actionable anyway—there will be consequences and sanctions so that the public have confidence in what is being done in their name. At the moment, none of the checks and balances we have match that template.

As I see it, the current regime is weak, although to be fair to the Minister, it is a great deal better than it was three years ago and I acknowledge some of the great strides that have been taken and the courage with which they have been pursued. However, we cannot be at all complacent.

My final point is a question. Two weekends ago, one of the Sunday papers put forward the suggestion that many civil actions taken against the police for poor performance or injustice of one sort or another have been settled out of court with the details never divulged. Of course this cuts both ways: is it people taking a free-bet pop at the police or are the police at fault? We do not really know. I am sure some of them must be worked on a no-win, no-fee legal principle. Can the Minister inform the House, or perhaps write to me, of what the numbers are by category in the period since May 2010, and whether he has any view, or can obtain any figures, on what the cost is to the public purse? As I say, the police should not be subject to free pot-shots, but also the citizenry need to know where they stand. It is important that transparency informs what we do and what we debate in this House.