Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

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

[Lord Ahmad of Wimbledon (Con)]

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

[Baroness Smith of Basildon]

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

[Lord Ahmad of Wimbledon]

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

Motion agreed.

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[Lord Rosser (Lab)]

My Lords, we have tabled amendments 21E and 21F to seek to clarify the effect of changes made to Clause 12 on Report in the House of Commons. As I understand it, the effect of those changes is that the ability to exclude a person who is the subject of an injunction under Clause 1 from the place where he or she normally lives in cases of violence or risk of harm can now apply across all tenures, including owner-occupiers, and not just the social housing sector, as I think was originally proposed. Will the Minister confirm whether that is now the case?

If Clause 12 now applies across all tenures equally, what powers are now given under Clause 13 that apply only to someone with a tenancy agreement but do not apply to someone normally living in owner-occupied property who is also the subject of an injunction under Clause 1? One would have assumed that all tenures were now being treated equally but I take it that Clause 13, by its very wording, does not apply to a person in owner -occupied property. If there is still a difference in the powers available under Clauses 12 and 13, depending on the form of tenure, will the Minster say what those differences are and why they are necessary? Will he also say whether Clause 13 applies to the private rented housing sector or to just the social housing sector? Presumably the private rented housing sector is now covered by the changes made to Clause 12, so if a private sector housing tenant is not covered by Clause 13, in which ways does it mean that someone in social housing accommodation is being treated differently from someone who is a private sector housing tenant and who is also the subject of an injunction under Clause 1?

Amendment 21F would give local authorities extra flexibility in tackling anti-social behaviour in the private rented housing sector when private landlords refuse or are unwilling to act. It would be helpful to have the Minister’s comments.

Finally, under Clause 12, the injunction may exclude the respondent from the place where he or she normally lives. Under Clause 13, the tenancy injunction may include a provision prohibiting the person against whom it is granted from entering or being in any premises or any area specified in the injunction. What is the reason for the difference in wording apparently based on form of tenure?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I totally understand the noble Lord’s concern that anti-social behaviour powers in this Bill should be, as far as possible, tenure-neutral. He is quite correct that this came up during the debate in the other place and Clause 12, which provides for exclusion, is now tenure-neutral following amendments made on Report in the Commons. Of course, it is of no consequence to the victims of such behaviour that the perpetrator is a tenant of social housing, in the private rented sector, or is indeed an owner-occupier. What matters is that action can be taken.

Clause 13 makes special provision for tenancy injunctions so as to preserve the powers in housing legislation. For the most part, the housing injunction can be used in the same way as an injunction to prevent nuisance and annoyance. However, it makes the express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person and this constitutes a breach of the tenancy agreement. Such behaviour could be committed by a visitor or lodger, for example. Front-line professionals have demonstrated through discussions held that they value this power and that is why we have retained it.

I assure the noble Lord that we are satisfied that Part 1 already enables the police, a housing provider or a local authority to apply for an IPNA to prevent a person allowing, inciting or encouraging someone else to engage in anti-social behaviour. It can be used in this way not only against tenants in the social and private rental sectors, which are the sectors that these amendments are concerned with, but against owner-occupiers. Given that, we do not need to extend the tenancy injunction provisions to cover a wider category of persons, as these amendments seek to do.

I also assure the noble Lord that Clause 13 applies to anyone who has a tenancy agreement with a local authority or a social landlord, so it does not cover the private rental sector.

Based on the assurances that I have given in terms of the extension and the provisions that were discussed in the other place, I hope that the noble Lord is content to withdraw his amendment.

[Lord Rosser]

I am still not entirely clear what the position is in the light of what the noble Lord has said. As I understood it, he seemed to be at some pains to say that the content of Clause 13 is also covered by Clause 12 because the police, or somebody making the application, would have the powers to make that application in respect of somebody in the private rented sector, or presumably even an owner-occupier, who was,

“allowing, inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”.

I think that that is what the noble Lord was seeking to tell me. That wording appears in Clause 13 in relation to tenancy injunctions but it does not appear in Clause 12, although the Minister is seeking to say that that is what Clause 12 actually means. Therefore, if owner-occupiers and the private rented sector are covered by Clause 12, why do we need Clause 13 to put in different wording for a tenancy injunction when the noble Lord is apparently seeking to say that that is already covered in Clause 12?

In my contribution, I drew attention to Clause 13(3), which says:

“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,

so it clearly covers premises other than where the person normally lives, but the subsection goes on to say that it could also apply to,

“any area specified in the injunction”.

Do the terms of Clause 13(3) apply also to owner-occupiers and the private rented housing sector or are we treating differently people in the social housing sector who may have one of these injunctions and who it is proposed should be excluded? Are the people concerned in the three different types of tenure all being treated equally or is there something different in this for the tenant of social housing accommodation? If there is no difference and it is all covered by Clause 12, why do we need a separate Clause 13?

[Lord Ahmad of Wimbledon]

I repeat that as far as the first clause is concerned, the intention is to be tenure-neutral. As I said, we have considered the discussions that took place on Report in the House of Commons and have made appropriate amendments. I also repeat that the specific purpose of a tenancy injunction is to capture behaviour where a tenant has breached, or it is anticipated that they will breach, their tenancy agreement by engaging, or threatening to engage, in anti-social behaviour. We have tried to cover all elements in both clauses. As I have said before, it does not matter to the victim whether the perpetrator is a tenant of social housing or in the private rented sector. What matters is that action can be taken, and Clause 12 covers that.

[Lord Rosser]

With great respect to the Minister, I do not think that he has explained why Clause 13 is necessary. He keeps saying that Clause 12 is tenure neutral. If it is tenure-neutral, it covers social housing tenants as well as those in the private rented sector and owner-occupiers. Therefore, why do we need Clause 13? He refers to Clause 13 relating to anti-social behaviour, but Clause 12(1)(b)(i) also refers to anti-social behaviour. It also refers, in subsection (1)(b)(ii), to,

“a significant risk of harm to other persons from the respondent”.

The Minister has not addressed another question that I asked. Clause 12 refers to,

“excluding the respondent from the place where he or she normally lives”,

but in Clause 13, which covers tenancy injunctions, a prohibition can apply to,

“any premises specified in the injunction (including the premises where the person normally lives)”.

I therefore repeat that the provision envisages that the scope can extend beyond the premises where the person lives. There is also a phrase about preventing a person,

“from entering or being in … any area specified in the injunction”.

Is the Minister saying that the terms of Clause 13(3) are also included in Clause 12? He cannot have it both ways. He cannot say that Clause 12 covers all forms of tenure and then say that he still needs Clause 13.

[Lord Ahmad of Wimbledon]

I can only repeat what I have already said: Clause 13 makes special provision for tenancy injunctions so as to preserve specific powers in housing legislation. In this case, it also makes an express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person. This constitutes a breach of their tenancy agreement. As I said earlier, such behaviour could be committed by a visitor or a lodger. The reason for Clause 13 is that front-line professionals value this power. That is why we seek to retain it.

[Lord Rosser]

Why is it not equally important that the provision about,

“inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”

should apply to the private rented housing sector, and to owner-occupiers? Is the Minister saying that only somebody in social housing might incite or encourage others to engage or threaten to engage in anti-social behaviour, and that that would not apply to the private rented sector or to owner-occupiers? Of course it applies there, too. This is not tenure neutral. If it were, Clause 13 would not be needed.

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[Lord Ahmad of Wimbledon]

My Lords, either I am failing to comprehend totally what the noble Lord is saying, or vice versa. I am listening very carefully to what he is saying, but, rather than repeating myself, I think it would be in the best interests of making progress if I wrote to him about this. I hope that he has been reassured by some of what I have said, and by the commitments and assurances given by the Government. On that basis, I again ask him to withdraw his amendment.

[Lord Rosser]

Obviously, I accept that the Minister will, without any commitment, have another look at this and write to me—which presumably will require him to reflect on everything that has been said before his reply is signed and sent. On that basis I will withdraw the amendment. However, I put to him again this simple question: if he is arguing that Clause 12 is tenure neutral, why does he need Clause 13? I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.

We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,

“the local authority for the area where the respondent resides”,

meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord and my noble friend for their amendments. This group again relates to the balance that needs to be struck in ensuring that the appropriate consultation takes place, but relates specifically to cases involving young people under the age of 18.

Amendment 21H is concerned with the duty on applicants for injunctions under Part 1 to consult with the local youth offending teams in the case of under-18s. Crucially, that consultation must take place before the application is made to the court. That is an important change to the process where young people are concerned. Therefore, youth offending teams will help to ensure that the prohibitions in the order are appropriate and understood by the young person, and that any positive requirements are tailored to meet his or her needs. As we all recognise, as do I from my time in local government, youth offending teams are an important and established part of the youth justice system. They are well used to working with young people in these sorts of circumstances.

The noble Lord raised the issue of consultation. This would be an ongoing process and I would expect the consultation with the youth offending team to take place swiftly for the benefit both of the victims and of the communities that require protection. One of our primary objectives in reforming the response to anti-social behaviour is to speed up that response and I would not expect this consultation requirement to prevent that.

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[Baroness Hamwee]

My Lords, is my noble friend aware of whether the Local Government Association has been consulted—sorry to use the term again—on this provision? It seems to me that the Government should have been talking to it about whether it would want a statutory role. I take his point about occasional urgency but it is always open to a local authority to say, “This is urgent. You had better get on with it”, or, at the other end of the spectrum, to say, “We have no comment”. If he is not aware of what talks underlay the provision as we see it now, perhaps he could let me know after today’s sitting.

[Lord Ahmad of Wimbledon]

In direct response to that, I can say that representatives from the LGA and other organisations have attended meetings with my noble friend with regard to this Bill. I again reassure her that, as the guidelines are reviewed, I am sure that the LGA will be making representations and will be part of that process.

[Lord Rosser]

I certainly will withdraw my amendment but can the Minister respond to two of the questions I asked? Can the youth offending team oppose an application for an injunction under Section 1 for someone aged under 18 and can it oppose it in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?

[Lord Ahmad of Wimbledon]

The youth offending team cannot actually veto an application. If it objects to a particular application, we expect further dialogue to take place on what it has submitted, but that does not mean that the process should be dragged out unnecessarily.

[Lord Rosser]

I accept that the team cannot veto it, but my question was: if it does not agree with it, can it oppose it in court? When the thing goes to court, will it be necessary for the court to be told of the outcome of the consultation of the youth offending team and the view of the youth offending team?

[Lord Ahmad of Wimbledon]

This is a specific issue. As I said, I would expect that the court would consider all consultations that had taken place and advice that had been received in considering this element. Certainly, the intention in providing for these orders would be that the youth offending team had a central role. It would also be represented in court. If there were an occasion where the team felt strongly enough, yes, the short answer is that it would be represented at the court hearing if it thought that its issues were not being considered in the right way.

[Lord Rosser]

I thank the Minister for his response to the question and I beg leave to withdraw the amendment.

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[Baroness Hamwee]

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

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

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

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

[Lord Ahmad of Wimbledon]

My Lords, the Government are often accused of not listening. I listened with great interest to the previous debate, initiated by my noble friend Lord Marlesford, and as I went over to the Box I noticed a piece of litter on the floor. I acted promptly and handed it to the doorkeeper—so there is some hope of instant action on the part of the Government.

I am grateful to the noble Baroness, Lady Smith, for tabling her amendment with the proposed new clause and raising an important point. I agree with her that, where businesses act in a way that is likely to cause harm to others, they should be held to account. However, the Government feel that a corporate ASBO is unnecessary. We believe that we have drafted the new powers in such a way as to be flexible enough to deal with this eventuality.

For example, the new community protection notice, which we will discuss when we come to Part 4, can be issued against a corporate body. If that corporate body is persistently acting in an unreasonable manner and having a detrimental effect on the quality of life of those in the locality, it can be held to account through the new notice. While the community protection notice replaces litter and graffiti notices, it can be used for much more, including noise and other behaviours. What is more, breach is a criminal offence and, on conviction, a business could be fined up to £20,000. It is a power which provides real teeth.

[Lord Beecham (Lab)]

Will the Minister indicate whether unincorporated bodies will be caught by the provision, or would that require additional legislation?

[Lord Ahmad of Wimbledon]

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

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

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

[Baroness Smith of Basildon]

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

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[Baroness Hamwee]

My Lords, in moving this amendment I will also speak to Amendments 22H, 22J and 22K. My noble friend Lord Greaves has Amendment 22KA in this group.

On Monday, when we were discussing the relationship between provisions in the Bill and statutory nuisance, I explained that I had been asked to raise the matter by the Chartered Institute of Environmental Health, of which I am vice-president. I will speak briefly to my amendments today, but I also ask the Minister whether we can discuss the matter before Report. The institute is clearly concerned about remedies such as the community protection orders and noise abatement orders being too similar for comfort. The institute talked to me about the potential for confusion and conflict and twin-tracking by different authorities and different professions. However, I assure the Minister that we are willing to contribute to the guidance around all this. We take the point that the guidance is still in draft form. We are concerned to get the legislation right, not just to rely on guidance where the legislation may in itself not be as clear as it might be.

Amendment 22NA would provide for a significant detrimental effect to trigger a community protection notice. Where there is a civil process, the de minimis principle would apply. It has been put to me that the alternative to dealing with this in legislation is for it to come out over time in case law, which would obviously have a cost implication.

Amendment 22ND would require a person in authority to assure himself that the conduct is not already subject to any other statutory control. As drafted, that person may think it appropriate as a discretion. This seems to be quite a weak protection against different agencies wasting each others’ time chasing the same end. What is most important is to avoid obstructing or contradicting action that has already been taken, such as an indefinite prohibition in an abatement notice.

Amendment 22NE would provide that no notice was served where it would be controlled under any other statute, which is again about conflict. Where the problem is noise, apportioning responsibility and sorting out a fair and effective remedy can take a lot of technical—

[Lord Ahmad of Wimbledon]

I am responding to this debate, so I am listening with great attention, but for a moment I thought I had lost my place. I must point out that we are discussing group 9, which starts with Amendment 22E. I believe that my noble friend is speaking to group 13, which starts with Amendment 22NA. My apologies for not intervening sooner, but I thought that I had lost my place. Perhaps she would like to speak to the earlier group.

[Baroness Hamwee]

My noble friend is absolutely right. I apologise to the Committee. There is such enthusiasm to move on today that I was moving too fast. I must give my noble friend an opportunity to accept or possibly reject my Amendment 22E. It would provide in Clause 21 that the court must receive evidence about suitability. There must be a proportionality element in the requirements provided in the orders. I may be told that this yet again is something that is dealt with in guidance.

Amendment 22G takes us to the duration of the orders. We are presented in the case of under-18s with a fixed period of not less than two years or an indefinite period. I suggest that there should be a limit for everyone, as there is for under-18s. The criminal behaviour order can include a lot of requirements and restraints, which could, if they go on indefinitely, have a disproportionate impact. To have something hanging over one’s head indefinitely could be a disincentive—you could give up hope of ever getting it right.

Amendment 22H would provide that reviews are not confined to under-18s, which continues more of that thought. Amendments 22J and 22K are consequential on that. I beg to move.

[Lord Rosser]

I am very interested to hear the Minister’s response on all the issues that have been raised, particularly about the duration of a criminal behaviour order. This has already been stated. For those who reach the age of 18 there is a,

“fixed period of not less than 2 years, or … an indefinite period”—

then it says in brackets—

“(so that the order has effect until further order)”.

I am not quite sure what that means. What is the further order that is envisaged? It does not say, “until further notice” but “until further order”. Perhaps the Minister will clarify what that actually means.

As far as the order being allowed to go on for an indefinite period, the Minister has been quite eloquent during the passage of the Bill, telling us all about some of the existing provisions, how they are not working and how they are not having any effect. Bearing in mind that it says in the draft guidance that the criminal behaviour order,

“is aimed at tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court”,

then I suggest that if such an order has been in effect for five years but has not had any impact and has not managed to tackle the most serious and persistent offenders, it is unlikely that it will do so beyond five years.

On how long the order period should last, if the Minister is determined that the facility should be there for it to continue for longer than, say, a period of five years and to go on indefinitely, does he not think it appropriate that there is a proper review to justify the need for it to continue on the basis that one would have thought five years a reasonable time to show the effectiveness, or otherwise, of an order?

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lady Hamwee for her explanation of these amendments and for sharing her thoughts about a group yet to come. It gave those of us on the Front Bench advance notice of what she might be saying, so I thank her profusely for that.

Amendment 22E seeks to require a court to consider the proportionality, as my noble friend said, of positive requirements for including them in a criminal behaviour order. Positive requirements are of course an important element of both the criminal behaviour order and the injunction to prevent nuisance and annoyance. As currently drafted, the Bill states that the court must receive evidence about the suitability and enforceability from the person or organisation that will be supervising compliance with the requirement. Proportionality will therefore routinely be considered by a court as part of this decision.

The Bill sets out clear limitations on courts when determining whether to agree any positive requirement proposed in the application. The court must not impose any requirement that conflicts with, for example, an individual’s religious beliefs, or interferes with their work or education. Ultimately the court will have regard to an individual’s human rights—for example, Article 8 rights—when deciding to include positive elements. Such qualified rights can only be infringed where to do so is necessary and proportionate in pursuit of a legitimate aim. Proportionality, therefore, is a relevant legal consideration for the courts.

Amendment 22G, which the noble Lord, Lord Rosser, focused on as well, would remove the ability of the court to grant a criminal behaviour order that lasted longer than five years. Of course, I understand the reasoning behind this. However, where the courts are dealing with the most anti-social individuals, they should have the option of imposing an order for a longer period. The courts, as I am sure all noble Lords will agree, will always consider the reasonableness and proportionality of a longer order before granting it. They will have access to relevant information about a particular case. We believe they are best placed to make a judgment about the appropriate length of an order. What is more, the offender has the ability under Clause 26 to apply to the court to vary or discharge the order at any time.

The noble Lord, Lord Rosser, sought clarification about the words “further order”. This refers to a further order of the court, not a further CBO.

Finally, I understand that Amendments 22H, 22J and 22K are designed to ensure that all orders are reviewed annually. As your Lordships are aware, we have ensured that this is the case for under-18s. We recognise the importance of frequent monitoring as a young person matures during the duration of an order. However, in respect of adults we have left the decision open to the relevant police force as to whether there should be such a review. In such cases where an individual is behaving in a way that is seriously anti-social, it may not be appropriate to review the case after 12 months, as this would be too soon and would simply result in an unnecessary burden on the police and courts. Again, we wish to make sure that such decisions are made by those on the front line who are best placed to assess each individual case.