Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Tuesday 14th January 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 71, 72, 73, 74 and 75. These amendments are concerned with people who are affected, and how they are affected, by closure notices and closure orders. Amendment 62 addresses those who “habitually”—that is the term in the Bill—live on the premises and their entitlement to access. The subsequent amendments deal with the clauses relating to temporary orders and their extension and discharge, and appeals, as well as the extent of the building which may be the subject of an appeal.

I am concerned about the employees who live on site. Pubs, hotels and other leisure establishments often include accommodation for junior staff and not just for the managers. When I raised this at the previous stage, the noble Lord, Lord Ahmad of Wimbledon, said that closure notices could be,

“tailored to the appropriate circumstances”.—[Official Report, 2/12/13; col. 14.]—

we were talking about security and safety—but that the Government considered that the exception should be limited to residents who are habitually resident and, in the case of an appeal, to those who have an interest in the premises, meaning a financial or legal interest.

The draft guidance, which we have seen, seems to consider these issues only to the extent of the police or the local authority, allowing discretion for the retrieval of items left on the premises. My concern goes wider than that. A young person employed in the sort of situation to which I have referred may well be living a long way from home and quite suddenly lose the place where they are living, if not habitually at that point. I am not suggesting that this may be a widespread situation but, for those affected, it will be very significant and I wonder whether my noble friend on the Front Bench can give me any more assurances. I am simply not confident that the legislation allows for enough to go into the guidance to cover the points that I am making. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, as my noble friend Lady Hamwee has explained, these amendments relate to the closure powers in Chapter 3 of Part 4 of the Bill. She has also indicated that her particular concern is to protect the interests of employees—such as caretakers, for example—who may live on premises subject to a closure notice or order. Amendment 62 relates to the use of the term “habitually” in the context of Clause 69(4). That subsection provides that a closure notice cannot prohibit access by a person who habitually lives on the premises. The term “habitually” in this context means those who routinely or regularly live at those premises. It could, for example, cover students who live away from the family home for part of the year but routinely return to the family home as their main residence or those who spend the majority of the week living at the pub in which they work.

The term is commonly used in legislation setting out entitlement to social security benefits, such as the Income Support (General) Regulations 1987. It is also used in the family law context when a court decides cases under the Child Abduction and Custody Act 1985, where it is often relevant to decide in which country a child habitually resides. When approaching this test in each context in which it has arisen, the courts have said that it is essentially a question of fact to be determined by reference to all the circumstances of a particular case. We expect the police and local authorities to follow the same approach in this context and assess each circumstance on a case-by-case basis. However, it is important to retain this word so that we exclude persons who may only occasionally live on the premises: for example, a friend of one of the residents who may just be spending time there over a weekend or at a sleepover.

Amendments 71, 72, 73 and 75 all seek to extend certain rights—for example, the right of appeal against a closure order—to persons who live on the premises concerned. Such rights already apply to persons on whom a closure notice has been served and on persons who have an interest in the premises. The Government are satisfied that these existing provisions are wide enough to protect the position of employees who may reside on the premises.

In Committee, I explained that the reference in the Bill to a person having an “interest” in the premises covers those who have a financial or legal interest. I would fully expect that any employee who has been furnished with accommodation as part of his or her employment would have their entitlements to such accommodation set out in either their contract of employment or an associated tenancy agreement. That being the case, I am satisfied that in any such formal relationship between an employee and the owner or occupier of any such premises subject to an application for a closure order, the employee will be a person with an interest in the premises and therefore already covered by the provisions provided in Clauses 74 to 77.

Finally, Amendment 74 seeks to clarify the circumstances in which an appeal against a decision to make or extend a closure order may be made. Of course, I understand that my noble friend has in mind the situation where an appellant may wish to challenge the extent of a closure order in terms of those parts of a building or structure which are covered by the order. Again, I can assure my noble friend that the provisions in the Bill as drafted allow for this. Clause 77(6) enables the court hearing an appeal to make whatever order it thinks appropriate. This would include varying the terms of a closure order so that it applies to a more limited part of the building or structure in question. Therefore, an employee living on-site could use the appeal to argue that a closure order should not include his or her living area. I hope that, in the light of the explanation that I have given, my noble friend is reassured and will be content to withdraw her amendment.

[Baroness Hamwee]

My Lords, in the Minister’s explanation of “habitually”, which I understood from the previous stage, the example he used of a student whose real home—if I can put it that way—was somewhere else actually confirmed exactly what I was worried about. That part therefore did not reassure me, but I am helped by his more extended explanation of the term “interest”. I know when I am beaten, so I beg leave to withdraw the amendment.

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[Lord Berkeley of Knighton (CB)]

My Lords, if I may make one small point—

[Lord Ahmad of Wimbledon]

I remind the House that we are on Report and that, after the Minister has spoken, unless it is a point of clarification or elucidation, normal convention is that there are no further interventions.

[Lord Rosser]

I note what the Minister has said about the situation in Scotland. I do not know whether that means he has had further information since we discussed it in Committee, but the Government said then:

“The Scottish Government, who we have talked to about this issue, say they do not currently hold any information about the numbers of convictions or, as yet, any evaluation of the effectiveness of the new offences”.—[Official Report, 4/12/13; col. 279.]

It appears from what the Minister has just said that, since 4 December, the Scottish Government have now said to the Westminster Government that the provision is not working. I do not know whether the Minister has had that information since we discussed it in Committee.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, much has been made of the change of Minister, but let me assure the noble Lord—perhaps this will disappoint him—that we represent the same Government and the same department. Whether my line is softer or harder I will leave him to determine—but it will be is consistent with that of my noble friend.

When we debated this issue in Committee, the noble Lord drew our attention to the problem of assaults on individuals who work with the public. He quoted extensively from research—research we also heard about tonight—from the Union of Shop, Distributive and Allied Workers about attacks on retail staff in particular that shows that such assaults are sadly all too common. We have heard further such evidence in the debate today. We all agree that assaults on people who come into contact with the public as part of their work are totally and utterly unacceptable. They are a matter which both Parliament and the Government take very seriously and on which we are all agreed. No one should be expected to face violence in the course of their work, particularly when they are serving the public.

I think that the noble Lord referred to the Asian community in particular when he talked about the staff of small shops. There has been consistency across the board in our cities: quite often, shops are run by particular members of the community, often 24 hours a day, seven days a week. By definition, that opens them up to greater levels of assault and crime, which do take place; when we look across the country, it is of course the case. Staff of small shops are particularly vulnerable in this respect because they may need to stay open longer hours to make the profit needed to keep their business going, often as a family business with minimal staff. In Committee, my noble friend Lord Bradshaw also drew our attention to the position of public transport workers—as did the noble Lord, Lord Foulkes, today.

It is paramount that the criminal justice system should treat violence against these essential members of society adequately, but the Government do not agree that a new offence is the right way to address the problems that the noble Lord highlighted. The noble Lord, Lord Condon, is not in his place today, but, as my noble friend Lady Hamwee pointed out, when we debated this issue in Committee, he said:

“Apart from the important symbolism of saying, ‘Here is a new offence’, I fear it would not add practically to improving the situation overall”.—[Official Report, 4/12/13; col. 256.]

I agree with him. As my noble friend Lord Taylor explained in Committee, there is already a range of offences that criminalise violent behaviour and these are supported by guidance that ensures that any assault against workers in public-facing roles is regarded as serious and is dealt with appropriately. This view is shared by the Director of Public Prosecutions.

All cases referred to the Crown Prosecution Service by the police are considered under the code for Crown prosecutors. Under the code, prosecutors must first be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. In every case where there is sufficient evidence to justify a prosecution, prosecutors must then consider whether a prosecution is required in the public interest. The section of the code giving guidance on this public interest test states:

“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.

If the evidence is there and the code is satisfied, the CPS will prosecute.

Sentencing guidelines specify that where an assault is committed against someone providing a service to the public, be that in the public or the private sector, it is an aggravating factor and should result in a higher sentence within the current maximum. The Sentencing Council has also made clear in its guidance that that includes those who work in shops and in the wider retail business—a point well made by my noble friend Lady Hamwee.

I do not accept that a new offence would have additional deterrent value. The law already provides for what this amendment is intended to achieve. Fundamentally, we all know that assaulting anyone, regardless of their profession or circumstances, is wrong.

I listened very carefully, as I often do—always do.

[Noble Lords]

Oh!

[Lord Ahmad of Wimbledon]

A Freudian slip there perhaps. Maybe I was honest in my first assessment. Nevertheless, I listened very carefully to the noble Lord, Lord Rosser, when he talked about victims. In my own life serving the public in local government, quite often I came across a victim of crime—we are not talking about someone who serves the public, but any victim of crime. The noble Lord painted a scenario about that person having to return to their place of work. If someone has been assaulted in their own house, on the way to work, catching a train, at a bus stop or a station, there is equally a sense of great trepidation when the person has to return. It is important when we look at these issues that we put them into context. Ask any victim of crime, particularly serious crime, and the trepidation and fear that they feel in overcoming those challenges are intense.

Of course I acknowledge what the noble Lord is saying. When we face public life where does it stretch? The noble and learned Lord, Lord Hope of Craighead, contributed with his experience of the judiciary. Often, the judiciary are in the front line when they have to sentence people. There is an issue to be tackled there. Here, we sit in the Lords and many have served in representative office. Politicians put themselves in the front line when they face the public and indeed there have been instances where they have been assaulted in their own offices.

We argue that the degree of seriousness depends on the particular facts of the case. Why should it be worse, for example, or more traumatic for someone to be assaulted at work rather than on the bus going to work, or for that matter when locking the front door when leaving for work, or as a result of an intrusion into the home? The simple truth is that every case is unique and may have aggravating and mitigating circumstances that should be taken into account. That is where the judiciary comes in. We rely on the judiciary, guided by sentencing guidelines, to do just that.

Specific issues and questions were raised by the noble Lord, Lord Foulkes, and others on issues vis-à-vis the police. First, assaults against people whose work brings them into contact with the public should receive the same sentence as an assault on a constable. That is already the case. With regard to the offence of an assault on a constable, we accept, as my noble friend Lord Taylor said previously, that the police do occupy an important role in society and a slightly different one by virtue of the role that they have to perform. But that does not mean that an assault on someone else, while being a distinct offence, carries a different maximum penalty. Both offences, be it on the police constable or anyone else, carry a maximum penalty of six months’ imprisonment or a fine not exceeding level 5 on the standard scale currently set at £5,000.

The noble Lord, Lord Davies of Coity, also raised the issue of young women. Again, I would say, as the noble Lord, Lord Foulkes, said about the Asian community, that there are particular circumstances that have to be looked at. We maintain that the current law provides protection. He mentioned the case of Kim and I listened very carefully. It is a great concern that there are harrowing experiences of victims of assault and noble Lords have shared those with the House today and in Committee. As I have already said, there are lasting consequences from these attacks. It is down to the individual and how they deal with it. It is the role of government, community and society to provide the support and protection they need. It concerns me greatly that individuals are not reporting serious crimes because they believe that nothing will be done. But we believe that having a new offence will not make a difference to that issue.

The noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead, pointed to the experience in Scotland. I take the point on board about the higher number of people being charged. It may well be that offences are currently being prosecuted under the legislation protecting emergency workers as an alternative to common assault. But I will certainly take their comments back, make inquiries with the Scottish Government and write to them in that regard if I may.

In closing, I assure the House that the Government are committed to improving things for victims of crime. Since 2011, the Ministry of Justice has provided—and continues to provide—more than £50 million in funding per year to diverse victims’ organisations, including a £38 million per year grant-in-aid agreement with Victim Support. My noble friend is not in her place, but I remind noble Lords of the appointment of my noble friend, Lady Newlove, as Victims’ Commissioner. As noble Lords know, she has personal experience that she brings to bear to protect and help others and ensure that we can tackle these issues with people who have tragic experience in this regard. I pay tribute to her work.

The new victims’ code recently came into force. It explains what victims should expect from the criminal justice system, who to request help from and how and where it should be provided. The code also holds those in the criminal justice system to account, makes victims their priority and gives victims a clearer means of redress if they are not given the support they deserve. We all believe that victims need to know that the criminal justice system will work as hard as possible to deliver justice for them and help them recover and move on with their lives. As I said, ask any victim of crime; that is exactly what they want to do. Indeed, often we hear that they do not want to be known as victims of crime: they want to know that they are survivors of crime because they have moved forward with their lives.

The noble Lord is a man whose contributions I am sometimes amused by and often entertained by. They often add to the spirit, detail and diversity of debate and discussion. Moreover, they add to the quality of debate we have in this House. I hope that, with the reassurances and explanations I have given, he will be minded to withdraw his amendment.

[Lord Rosser]

The Minister sought to argue when I said that staff working with the public and facing assault were to some extent different from others. He sought to say that that was not the case. Does that mean that it is the Government’s view that in offences committed against those working in the public sector or providing a service to the public that should not even be an aggravating factor?

[Lord Ahmad of Wimbledon]

The noble Lord is being somewhat disingenuous with the comments I made. The parallel I was drawing was with victims of crime. Of course, there are aggravating circumstances and the Government take them into account. But I was trying to highlight to the noble Lord and to the House that if you ask any victim of crime they will tell you that in the circumstances that he was painting about somebody having to go back to their place of work that the same is true of someone who has been assaulted in the street or at the bus stop. It is our belief that people should be treated according to the law in a fair and just system. I believe that the current law does just that.

[Lord Foulkes of Cumnock]

My Lords, I am genuinely grateful to the Minister for his eloquent and comprehensive reply. It was equally as good as that of the noble Lord, Lord Taylor, on the previous occasion—and very consistent, as the Minister said it would be. I am not questioning his sympathy or the sympathy of the noble Lord, Lord Taylor, in relation to this, but what I am questioning is his unwillingness to act. I suspect that it is because of the bureaucrats rather than because of Ministers. They do not want the bother of all the change that would be necessary.

Perhaps I may deal with the point raised previously by the noble Lord, Lord Condon, which the Minister mentioned. The police are treated separately when dealing with criminals. In education we use the phrase “in loco parentis”, but in this case teachers are acting “in loco custodia”; that is, in place of the police in that they are acting on behalf of the police, and so they should be treated in the same way. I would also say to the noble Baroness, Lady Hamwee, that the question of who is the worker is absolutely clear. The only point in relation to the single source is that the single source is needed to describe a worker. I do not think that we need corrobation in terms of who is a worker in these circumstances.

I have been really encouraged by the support that I have received from the Labour Front Bench. My noble friend Lord Rosser, who has tremendous experience in the transport field, knows and understands the kind of problems that transport workers face. My noble friend Lord Davies of Coity has huge experience as General Secretary of the Union of Shop, Distributive and Allied Workers, and he knows exactly what people face. I welcome particularly the support of the noble and learned Lord, Lord Hope of Craighead, who pointed out that the introduction in Scotland of a special offence in relation to workers in the emergency services has increased the prosecution rate and resulted in a decrease in such offences. Those are powerful arguments from people who have worked in the field and from a former judge in Scotland. I hope that if I have not convinced the Minister, I might have convinced other Members of this House and Members opposite.

The key and most important thing of all is that while of course the general public face dangers—that is incontrovertible—they do not have to return day in and day out to the scene of the crime. These workers do. They have to go back to where the offence took place. That is why they are a special case and it is why we as a House should give them special treatment. It is also why I am moving this amendment today.