Anti-social Behaviour, Crime and Policing Bill

Lord Elton Excerpts

Wednesday 8th January 2014 Lords Chamber

[Lord Faulks]

It is a marginally lower hurdle, but as I understand it—and the Minister will confirm—the choice of words was not an arbitrary matter but the result of a very wide consultation among the professionals concerned in order to reach a test that was sufficient to establish gravity but not so high that the scourge of anti-social behaviour could not be prevented.

In its briefing on this part of the Bill, the Law Society made the point that if injunctions are used in the case of noise nuisance, as an alternative to possession proceedings, they can result in the person or family staying in their home but with restrictions on their conduct, rather than the much more drastic step of eviction. Although an IPNA can be obtained on the balance of probabilities, with or without the amendment, the criminal standard must be satisfied before any breach can be established: that is, beyond reasonable doubt. I respectfully suggest that this provides an extra safeguard, so that this will not result in people being deprived of their liberty inappropriately.

I am also concerned about how coherent Amendment 1 is. It requires “harassment, alarm or distress”—a quasi-criminal test—with the exception, which was not in the original amendment in Committee, of a housing provider or local authority in a similar housing management position. In the case of social housing, the hurdle to be surmounted appears to be lower, so there is a two-tier test for anti-social behaviour, depending on whether you are a private tenant or are in social housing, where an injunction is much more easily obtained. That is hardly a satisfactory distinction, and I wonder how enthusiastic the party is about such a classification.

I do not know, of course, how the party opposite—or at least its Front Bench—regards this amendment. It will be borne in mind that MPs on all sides in the House of Commons were at pains to stress what a scourge anti-social behaviour is to their constituents, and that there ought to be substantial and sensible powers to prevent it. Indeed, the shadow Home Secretary said generally of the powers in the Bill that she thought they were too weak.

We are all passionately in favour of freedom of speech, freedom of association—

[Lord Elton (Con)]

Will my noble friend forgive me? He has just said that he cannot understand why there should be a lower test in social housing. Surely the answer is that if you are in social housing you cannot move out of the way, people are free to do what they like to you and you are trapped. Therefore, a lower standard of unsociability has a much greater effect on the person affected. It is exactly the right proportion.

[Lord Faulks]

Of course I entirely accept the noble Lord’s point that those in social housing may not have options and therefore certainly need the protection at a lower level. My point was that it is rather inelegant to have a different test where there might theoretically be greater room for manoeuvre if there is a private tenant. The test ought to be the same.

I was repeating the fact that I sympathise with all those who have spoken in favour of the various freedoms that we value so much in this country. If we vote in favour of the amendment—if it is put to a vote—we will of course be able to congratulate ourselves and say that we have acted in the finest traditions of freedom. I will have the good fortune of going back to my house where, at least at the moment, there is no great history of anti-social behaviour in the area. Other noble Lords will perhaps be in a similar position. But let us not forget those who are in less fortunate circumstances, who do not have room for manoeuvre and whose lives are made totally miserable by this anti-social behaviour. I fear that if we accede to this argument, we will fail to take them sufficiently into consideration and will make bad law.

--- Later in debate ---

I hope that noble Lords will accept that that is clearly not the Government’s purpose. It is my belief that those concerns are misplaced. I want to make it clear that the purpose of our reforms is not to prevent people from exercising their rights to protest and free speech. We all suffer from annoyance in our daily lives, and there is, rightly, no place for the criminal or civil law to regulate behaviour just because it is annoying.

[Lord Elton (Con)]

Will the Minister take on board the fact that our concern is not with the Government’s purpose but with the effects of the legislation?

[Lord Taylor of Holbeach]

I shall be coming on to that, but I felt I had to place what I was going to say in some context—and I am grateful for the discipline of the House in allowing me to do just that. Our aim is to allow decent law-abiding people to go about their daily lives, engage in normal behaviour and enjoy public and private spaces without having their own freedoms constrained by anti-social individuals.

The test for an injunction, when taken as a whole, coupled with the wider legal duty on public authorities, including the courts, to act compatibly with convention rights, would ensure that the injunction cannot be used inappropriately or disproportionately. As I have explained, government Amendment 2 is designed to strengthen the first limb of the test so that the conduct must be such that it could reasonably be expected to cause nuisance or annoyance. This limb on its own is likely to preclude an injunction being sought or granted under this Bill to deal with bell ringers, carol singers or children playing in the street. However, there is a second part to the test.

Electoral Registration and Administration Bill

Lord Elton Excerpts

Monday 14th January 2013 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords—

[Lord Elton]

My Lords, I really was up first and I merely want to ask the noble Lord this question. He has made a very moving and appealing speech. Before he sits down—

[Baroness Anelay of St Johns]

My Lords, I appreciate that this is of great interest to many noble Lords in the House. I remind noble Lords that we are in Committee and therefore the device of saying, “Before the noble Lord sits down” is not necessary. Of course Peers may ask the noble Lord who moved the amendment—the noble Lord, Lord Hart of Chilton—questions. He is at liberty either to answer them as part of an exchange in Committee or to answer them later. Therefore my noble friends Lords Elton and Lord Forsyth will be in order when they next ask the question. They were out of order when they tried to prevent the Lord Speaker from putting the Motion.

[Lord Elton]

My Lords, the noble Lord has made a moving, interesting and in some ways compelling speech, but he omitted the prior question. He has not answered any of the points made by my noble friend the Leader of the House and has given no reason for riding roughshod for the first time for decades, if not centuries, over the advice of the Clerk, upon which the smooth running of the House depends. I do think he ought to give us his reasons for so doing.

[A noble Lord]

The noble Lord does not have to reply.

Police and Crime Commissioners

Lord Elton Excerpts

Thursday 13th December 2012 Lords Chamber

[Lord Taylor of Holbeach]

This is something that all elected politicians have to come to terms with and I see no conflict here. For the first time, we have direct democratic accountability through the role of the PCCs and I see the next PCC elections bearing witness as to how effective this will be, in the sense that people will be making choices, some for someone they think represents their political point of view, while others will be looking for other characteristics. Above all, however, they will be judging on how well the PCCs have performed. That is the challenge that faces those who have taken on this office.

[Lord Elton]

My Lords, surely the high level of abstention to which the noble Lord, Lord Blair, referred, arose from the fact that most of the voters had not a clue who the candidates were. Must not something be done to remedy that before the next round?

[Lord Taylor of Holbeach]

I think we have discussed this before. There have been a series of Questions on the arrangements for the elections. The Electoral Commission will be producing a report on these elections and the Home Office will take note of it.

Protection of Freedoms Bill

Lord Elton Excerpts

Tuesday 24th April 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I strongly agree with the noble Lord, Lord Neill. With this very convenient amendment at this late stage, it seems to me that the time has come for the Government, if necessary, to come forward with a sensible amendment that could be produced extremely quickly. They absolutely do not need two or four years, as the noble Lord, Lord Neill of Bladen, said, to come up with a situation that is obviously not sensible.

I have come from a meeting of the Select Committee on the Merits of Statutory Instruments where we discussed an order on green bananas, which has a provision to deal with the rights of entry. As it happens, it does not deal with the criminal part of that but Regulation 6 says that there may be an application to a magistrate for a warrant. It does not refer to the circumstances but I assume that they are those in which force is required. At the moment, I cannot see why you have to have a right of entry for green bananas when you can perfectly well get a magistrate’s warrant if it is absolutely necessary. What I am telling your Lordships’ House is that it is going on now and that it is time to stop it.

[Lord Elton]

My noble friend is probably old enough —I certainly am—to remember the days when an Englishman’s home was always referred to as his castle. Castles are besieged by mice. What worries me about this is that the officers who will have powers to enter my castle and your Lordships’ castles—mine is a very small place—vastly outnumber the number of mice who are able to do so. The mice are undercontrolled and so, in present legislation, are very large numbers of these officials. I do not think that they should be and noble Lords probably do not think that they should be either.

My noble friend has suggested a simple and elegant way to control the situation. The noble Lord, Lord Borrie, who shakes his head, happens to be a fellow honorary vice-president of the Trading Standards Institute. I was hearted by what he said, although he may not have intended that. He said that the removal of the powers suggested by the noble Lord, Lord Marlesford, does not go far enough. I join others who think that the provision could be further improved with consideration by the other place. Some of us have been Ministers and have had legislation that we wanted passed. It is ludicrous to leave this legislation as it and to entrust the matter to a departmental inquiry, of all things, in the expectation that it will sort it out within a time limit or achieve something worth while.

[Baroness Crawley]

My Lords, perhaps I may make a brief and slightly croaky intervention—I go one up on my noble friend Lord Borrie—as president of the Trading Standards Institute. I thank the noble Lord, Lord Marlesford, for engaging so closely with trading standards over the past number of months since first introducing his amendment in February. Indeed, trading standards officers would rather have been included in his amendment than not and therefore I do not decry them for their enthusiasm. However, after much discussion with partners in the intervening months, I should inform the noble Lord that, on behalf of trading standards, I shall not be able to follow him into the Lobby on his amendment.

My reasons are twofold. First, following on from the point made by my noble friend Lord Borrie, the provision made to include trading standards in the list of exceptions does not give enough scope to ensure consumer protection from rogue traders, money launderers and scammers of all types across all sectors. In difficult economic times—and we certainly live in difficult economic times—consumers are more and more vulnerable to these crooks and opportunists. Therefore, the legislation we bring forward to protect consumers must be very carefully enacted and leave no gaps in that protection.

Secondly, Motion A1 allows for an exemption only if provided for by the Secretary of State through regulation. Trading standards officers are extremely concerned that if the Motion is carried they would lose their existing powers of entry—they have been protecting us, as consumers, for over 100 years—until such time as they may be reinstated by statutory instrument. That uncertainty is not in the best interests of today’s vulnerable consumers.

--- Later in debate ---

[Lord Henley]

My noble friend is a great expert on the Human Rights Act and the House always defers to him when we discuss such matters. If there was a case of the sort that he implies, I am sure the courts would look at it in a manner that he thinks appropriate.

I am trying to make clear that we want to conduct a review over two years. I accept that there has been criticism from a number of colleagues, including my noble friend Lady Hamwee, who asked whether we could do it more quickly. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lawson also implied that we should do it more quickly. We will try to do it as quickly as possible but, as my honourable friend said in another place, we will also update Parliament on a six-monthly basis about how we are getting on. We think that this approach is the better one—to go through all the powers one by one, from department to department. Obviously, some departments will have a bigger workload than others. I understand that my old department, Defra, has rather a lot of powers. No doubt we will encourage them to work harder, and I and my colleagues in the Home Office will encourage them to do that. I think that is the better approach, and my noble friend’s approach—to bring in a blanket approach, accept that it is wrong and then bring in blanket exemptions—is not the right way forward.

[Lord Elton]

Will there be an opportunity in both Houses to debate the combined report when it is laid before Parliament before decisions are taken on legislation?

[Lord Henley]

I would hope that, as and when each power of entry is looked at, we will remove it as appropriate. I can assure my noble friend that we have already moved about 30 or so as part of the review. Most of those will require only secondary legislation to do that. It will be an ongoing process. As I made clear earlier, we will give a six-monthly update to Parliament on how we are doing this. At the end of that process I cannot give a commitment as to exactly what we will do. Certainly I am sure that my noble friend and others will hold us to account if we do not keep to that two-year programme. As I said, we want to do it more quickly if we can.

“Honour-related” Violence

Lord Elton Excerpts

Tuesday 14th February 2012 Lords Chamber

[Lord Henley]

My Lords, again, I and the whole House are grateful for what the noble Baroness has said about the challenges we face, particularly about the idea of the autocratic father. Dare I say it, but autocratic fathers can exist in all societies and all cultures. I am not sure I had an autocratic father, but it is something that should be taken very seriously, particularly in respect of autocratic fathers’ relation to their daughters. I speak as a father with one daughter.

[Lord Elton]

My Lords, the noble Baroness, Lady Afshar, has drawn our attention to the effects of ignorance facilitating crime. Is my noble friend aware of the extent of the existence of so-called Sharia courts, which are believed by their local communities to have the full authority of the British judicial system but have none whatever? They also impose on people various decisions that result in violence and crime.

[Lord Henley]

Again, my Lords, my noble friend is absolutely right. Ignorance is something that we need to tackle, which is why I wanted to stress the importance of education. Education is probably the first and most important point to get over, a point that was made very strongly by the noble Baroness, Lady Corston.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Lord Elton Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Lester of Herne Hill]

I shall briefly say a few extra things. I am very conscious of time, and I am tempted to do what a former judge of the High Court used to do. He was famous for saying only “I agree”, and that was his judgment. I promise that I am going to make only a few extra points.

The first extra point that I must make is about the Merits Committee and the Joint Committee on Human Rights. The Joint Committee on Human Rights, on which I serve, is meant to scrutinise mainly primary legislation, not delegated legislation. We have an arrangement with the Merits Committee that if it spots a human rights issue that it thinks should be dealt with by the Joint Committee, it should be alerted to that so that it can consider it. Unfortunately, for whatever reason, that broke down in this case. I am going to ask the Joint Committee on Human Rights to ask the Lord Chancellor, when it sees him next week, whether government departments can take more responsibility and, where they spot issues of human rights in delegated legislation, to help the committee by identifying them. That means that noble Lords do not have the benefit of an opinion from the Joint Committee on Human Rights about compatibility with Article 9 and Article 14 of the convention.

Speaking for myself, I agree with my noble friend Lord Pannick that there is not the faintest chance of any violation of Article 9 or Article 14 by virtue of the Equality Act read with these regulations. On the contrary, I believe that the right view is that these regulations promote religious freedom and do so without discrimination.

Quite apart from the arguments that the noble and learned Lord, Lord Falconer of Thoroton, has fully deployed, with which I wholly agree, the point raised by my noble friend Lady Williams of Crosby was about the discrimination provisions of the Equality Act and whether, leaving aside the declaratory provision, there could conceivably be a discrimination case. In my view, the answer to that is totally correct. During the passage of the Equality Bill, I had responsibility for over a year for dealing with these issues from the Liberal Democrat Front Bench. My view is the same as that of the Church of England legal advisers, which is the further matter that I would like your Lordships to consider.

In the opinion that the Church of England was given, this was dealt with very shortly and very clearly in this way. It said:

“The question has been raised in Parliament and elsewhere of whether a religious denomination, or a local church, which declined to seek to have its premises approved for the registration of civil partnerships could be held to be discriminating in a way which is unlawful under the Equality Act 2010. The clear view of the Legal Office is that it could not. This is also the declared view of the Government’s lawyers. The clear view of the Legal Office is that it could not. This is also the declared view of the Government's lawyers. A key relevant provision is section 29 of the Equality Act which makes it unlawful for ‘a person (a “service-provider”) concerned with the provision of a service to the public or a section of the public’ to discriminate on various grounds, including sexual orientation, ‘against a person requiring the service by not providing the person with the service’. A Church which provides couples with the opportunity to marry (but not to register civil partnerships) is ‘concerned with’ the provision of marriage only; it is simply not ‘concerned with’ the provision of facilities to register civil partnerships. That would be a different ‘service’, marriage and civil partnership being legally distinct concepts. If Parliament were in due course to legislate for same sex marriage, as recently suggested by the Prime Minister, we would of course be in new territory. But that is a separate issue which would have to be addressed in the course of that new legislation”.

Then, for good measure, the opinion deals with the public sector duty:

“The non-discrimination requirement imposed by the Equality Act on service-providers does not include a requirement to undertake the provision of other services that a service-provider is not already concerned with providing just because the services that it currently offers are of such a nature that they tend to benefit only persons of a particular age, sex, sexual orientation etc. Thus, for, example, a gentlemen's outfitter is not required to supply women's clothes. A children's book shop is not required to stock books that are intended for adults. And a Church that provides a facility to marry is not required to provide a facility to same-sex couples for registering civil partnerships. The “public sector equality duty” (contained in section 149 of the Equality Act) also has no implications for a Church’s decision whether to make its premises available for the registration of civil partnerships. A Church is not exercising public functions in making such a decision so the duty is not applicable. The public sector equality duty will not prejudice denominations who conduct marriages (and whose buildings, unlike those of the Church of England, need to be registered for that purpose) but who do not wish to host civil partnerships. The registration of buildings for marriages is a purely administrative act by the registration authorities and does not involve them exercising a discretion or taking a decision. The public sector duty is therefore immaterial to the registration process. The Equality Act contains various exceptions for religious organisations (see Schedule 23). But given what is said above, it is not considered that a Church which solemnized marriages but did not wish to provide facilities for the registration of civil partnerships would need to rely on any of these since it would not be doing anything that even prima facie amounted to unlawful discrimination”.

[Lord Elton]

The noble Lord is kind to give way. I just want to observe that, like many before him and no doubt several after, he is proceeding to tell us what the result of a case would be. Does he not agree that the function of Parliament is to try to see that the law is so clear that no case would be brought? That is what my noble and learned friend’s proposal would provide.

[Lord Lester of Herne Hill]

I agree. I am seeking, using the Church of England opinion as a short way of doing so, to refer to the actual provisions in the Act to show that they are quite clear and have no application to anything that could give rise to a possible legal challenge.

St Paul’s Cathedral

Lord Elton Excerpts

Wednesday 26th October 2011 Lords Chamber

[Lord Elton]

My Lords, is not an empty tent litter, whether it is on public property or private property, that can be removed without further legislation?

[Lord Henley]

My noble friend makes an interesting point. Whether an empty tent is litter is a matter that I am not going to argue now. I go back to the principle that this is something on private property and, therefore, is not something on which the Government currently have powers to intervene.

Public Disorder: Social Networking Sites

Lord Elton Excerpts

Tuesday 6th September 2011 Lords Chamber

[Baroness Browning]

My Lords, as always, the Prime Minister and the Deputy Prime Minister are as one. There is nothing incompatible in those statements. The Prime Minister did not say we wanted to close down networks; he said we would work with the police, industry and others to look at what would be right to do in order to prevent criminality. Anything that is a crime offline is also a crime online, and the companies that we have been consulting have made very clear their commitment to removing illegal content—something which I am sure the Deputy Prime Minister is very pleased to hear.

[Lord Elton]

Bearing in mind the advantage to our side in listening to radio transmissions by the enemy during the last war, what is the Government’s distinction between hacking, which is illegal, and listening in to subversive communications during riots?

[Baroness Browning]

I am a little young to remember exactly what happened during the last world war; I came in immediately after it, so I cannot comment exactly on the law that applied at that time. However, I can tell my noble friend that we in this country have clear legislation, with which both the police and the investigatory services are required to comply, that sets the important balance between the protection of the national interest and the protection of the public in terms of the way in which criminality may affect them and the right to a free society. It is for that reason that we are not seeking to close down networks.

Samantha Stobbart

Lord Elton Excerpts

Wednesday 7th July 2010 Lords Chamber

[Baroness Neville-Jones]

This individual was in for a short custodial sentence. Under the regime that prevails at the moment, half that sentence was served. As things stand, under legislation that was not passed by this Government, the governor has no discretion to do anything other than release the individual. He performed a duty in warning the police.

[Lord Elton]

My Lords, does the Minister understand the concern in this House about the release of potentially dangerous prisoners? Will she use this opportunity to revise, review, and preferably improve the method of screening prisoners before they are released in order to protect the public?

[Baroness Neville-Jones]

My Lords, my noble friend raises a very important issue. I understand that the IPCC will follow the investigation trail, so I think that we will get help in the form of its view about what happened immediately before the release. However, the issue that is raised is important and no doubt we will have to follow it.