Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Tuesday 27th March 2012 Lords Chamber

We have been asked to adjudicate on very different perceptions of what is fair. It is too late to remove what I believe is a very unfair clause but it is not too late to mitigate its impact. We have a responsibility to do so.

[Lord Elystan-Morgan]

My Lords, I wholeheartedly agree with what has been said by all speakers on this matter. For any new criminal offence to be created, or for any existing criminal offence to be extended, there is a heavy onus on the Government of the day to show that that is reasonably necessary. It is against that template that Clause 145 fails completely. There is a great deal of misunderstanding about the matter, which may very well have been deliberately fomented by the right-wing press. It is said to people, “What would you do if you were on holiday and came back to find that there were 20 people living in your house and having every intention of living there for ever?”. Of course, you would say it would be absurd for such a situation not to be visited by a criminal sanction—but it is already visited by a criminal sanction.

The civil law has catered for this situation—whether it be developed property or not—for a long time, since the early 1970s. Those of us who belong to the noble calling of the law will realise that Order 24 and Order 113 apply and provide a procedure that is swift, effective and cheap, provided it is competently carried out. There is no problem whatever so far as the civil law is concerned.

In 1977, with the Criminal Law Act that the noble Baroness has referred to, it was realised that there were situations where owner-occupiers were in fact trespassed upon in their own homes, normally when they were away for a day or two or where people were expecting to move into property but found that they could no longer occupy it. Section 7 of that Act said very clearly that it did not apply to non-residential property. A clear distinction was drawn and deliberately considered in detail by Parliament. That seems to have been a boundary of common sense, fairness and justice.

Why is that boundary being transgressed now? What is the case in favour of changing that boundary? It is my submission that there is no case whatever for doing it. The civil law amply provides for civil sanctions. If those are not obeyed, then of course the courts can always act on the basis of contempt of court. The punishments are severe, as we know. The criminal law deals with those cases when it is right, proper and inevitable that there should be a strict criminal sanction. It does not apply to non-residential property because it was never thought necessary that it should do so. The Government of course have issued a consultation paper on this matter, to which a substantial number of people responded—96 per cent of whom said there is no need to change the law at all. This is not a case of softness towards people who defy the law but a case of looking in a mature, fair, just and proper way at a problem. The conclusion of so many people in an excellent position to judge is that there is no need whatever to do anything. A letter in the press signed by 163 distinguished petitioners, jurists and academics, supported that view. The Criminal Bar Association, the Law Society and the Metropolitan Police supported that view. In relation to the consultation, the Metropolitan Police said:

“The Metropolitan Police, responding on behalf of the Association of Chief Police Officers, considered that the law was broadly in the right place and that the existing array of offences allowed them to tackle the worst cases of squatting (e.g. where squatters cause the rightful homeowner to be displaced) … They warned that new offences could have an impact on policing in terms of community relations, local policing objectives and cost”.

On the question of cost—and I have no doubt that other noble Lords will deal in some detail with this matter—it is abundantly clear that the Government’s own estimate of a cost of some £25 million to the public purse over a period of five years is woefully inadequate and entirely unrealistic. They have not taken into account the fact that tens of thousands of persons squatting do not apply for housing allowance. These cases, if people are ejected from their squats, will find their way into the courts. There will be massive expenses adherent to that situation. Again, there is little doubt that the figure of £25 million— I would not seek to try to set a specific figure—can probably be multiplied by 10 or 20, leading to a massive non-saving in a Bill that is dedicated to saving expense to the public purse.

I ask the House to consider one further matter. This is retrospective legislation. Clause 145(1) applies to a situation when a person, the defendant, has trespassed in the premises, knowing that he is trespassing. He may have entered 10 years before, when there was no such thing as a criminal sanction in relation to that type of trespass. That is retrospective legislation and that is what Parliament abhors and resorts to only in the most drastic of circumstances. It is the very thing that is condemned, as the House knows, by Article 7 of the European Convention on Human Rights.

All in all, this is a wholly unnecessary piece of legislation. It is utterly merciless, utterly unfeeling and utterly costly, and it is likely to be a heavy and unnecessary burden on the time and energies of the police. The next best thing to rejecting it would be to accept the amendments, which I support wholeheartedly.

[Baroness Hamwee]

My Lords, I congratulate my noble friend on her persistence in dealing with this matter and provoking some very powerful speeches from your Lordships, as well as making her own.

The issue is homelessness and housing supply. Whatever is being done now by the current Government, the stark fact is that at this moment the housing needed is just not there and cannot be created in an instant. Ordinary, decent, desperate people, whose motive is not envy, or to deprive others, or to make a political statement, are simply seeking a roof. Many of them would be regarded as vulnerable, in any normal sense of the word. Like my noble friend, I am interested in and concerned about the interface between these provisions and local authorities’ housing responsibilities —in particular, whether a conviction is needed for someone who has been squatting to be unintentionally homeless. How does all that fit together, and what guidance will be given to local authorities on this?

--- Later in debate ---

[Lord Campbell-Savours]

I wish to intervene briefly in this debate. I have come into the Chamber for the scrap metal debate but it seems to me that we may be overlooking a major flaw in the amendment. Clause 145 states:

“A person commits an offence if”,

and then lists various conditions. However, the amendment seeks to add to the statement in the Bill that,

“The offence is not committed by a person”,

the phrase,

“if the building has been empty twelve months or more and is not subject to a current planning application”.

So what happens if a building has been empty for marginally longer than 12 months and is being improved? Perhaps it is being improved to meet building regulations, or the person improving the property might be awaiting a mortgage payment to fund improvements, which might mean that they go over the 12-month period.

[Lord Elystan-Morgan]

I will be corrected if I am wrong but I believe that that matter is adequately dealt with by Section 7 of the Criminal Law Act 1977, which covers not only persons who are in occupation but persons who anticipate occupation. I think, therefore, that the category of persons listed by the noble Lord will be covered by that provision.

[Lord Campbell-Savours]

That is the noble Lord’s judgment, but perhaps I may finish my contribution. Perhaps the Government intend to comment on the interpretation that he has just given. They might also take into account my further point that a planned improvement which has not taken place over a 12-month period could be the subject of an argument with neighbours, who may well be preventing the completion of the improvement to the property. All I am saying, basically, is that to introduce a current planning application as a way of stopping it could lead to unfair treatment of those carrying out improvement programmes. Let us hear what the Minister has to say.