European Union: Justice and Home Affairs

Lord Faulks Excerpts

Thursday 8th May 2014 Lords Chamber

Moved by

[Lord Faulks]

That this House takes note of the United Kingdom’s 2014 justice and home affairs opt-out decision.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, 2014 is a critical year for Europe. Within weeks, we will have a new European Parliament and, within months, a new EU Commission. There can be no doubt that the face of Europe is changing, just as it has changed dramatically over the past 25 years.

One of the changes we want to see is the EU becoming more flexible. The Dutch express this as: “Europe where necessary, national where possible”. This is our approach when it comes to justice and home affairs. In some cases, there are clear benefits from working at a European level. In others, it makes sense to operate at national level. Noble Lords will be aware that, under Protocol 21 to the treaties, the UK enjoys the right to choose whether to opt in to new justice and home affairs measures brought forward by the European Commission.

The previous Government made a commitment to table a report every year on the operation of the opt-in. Because of this Government’s strong commitment to parliamentary scrutiny, we have maintained that pledge. We have published reports every year since 2011 on the matter and we have also included in those reports figures on the so-called Schengen opt-out under Protocol 19 to the treaties. This provision allows the UK to decide whether to opt out of Schengen-building measures. The latest report was published on 23 January this year. Part of the Government’s scrutiny commitment is that the report will be made available for debate—which is precisely what noble Lords are invited to do today.

Noble Lords will have observed that there are two Motions on the Order Paper. This Motion relates to the UK’s 2014 decision to opt out of all police and criminal justice measures agreed before the entry into force of the Lisbon treaty. This matter will be familiar to many noble Lords, for it has been subject to much debate in this House and the other place.

On 23 January this year, my noble friend Lord Taylor, who will respond to this debate, closed what was a most impressive debate in this House on the matter. Of course, the matter was debated at length last year when this House endorsed the Government’s decision to exercise the opt-out and seek to rejoin the 35 measures set out in Command Paper 8671.

The Government have also committed to returning to Parliament for a further vote before formally seeking to rejoin any measures. That vote will be held well ahead of 1 December this year. Before that, it is appropriate that Parliament is given every opportunity to scrutinise this important issue. That is why today we are providing noble Lords with additional time to look at the matter, as the Government recently did in the other place, and there will be additional time to debate the matter later this year.

I turn first to the annual opt-in report. The bare facts are these: in the period covered by the report— 1 December 2012 to 30 November 2013—the UK opted in to 13 proposals under the JHA protocol, and decided not to opt in to a further eight. Decisions on whether to opt in to a proposal are taken on a case-by-case basis, but some basic criteria are applied. For each measure, they are: what will be the impact on our security, on our civil liberties, on the integrity of our criminal justice system or on the ability for us to control our borders? How might our system of common law, shared by only a small, select group of other member states, be affected? Over and above everything else, what is in our national interest?

The report shows that last year, for example, we opted in to a Council decision relating to an agreement between the EU and Canada on the transfer of passenger name record data. Such data, known as PNR data, have real value in the tracking down of people suspected of the most serious crimes, and are already used by the UK in our border systems programme. Indeed, the provisions outlined in the Council decision are already in place, so here was a practical agreement, in the public interest, that the UK could support and be part of.

Other examples included proposals to improve insolvency proceedings, and a welcome and important clarification to the rules governing jurisdiction—as set out in the Brussels 1 regulation—which will make way for the creation of the unified patent court in January next year.

Noble Lords will also be aware that in August last year the Commission published a proposal for a European Public Prosecutor’s Office. The coalition agreement made it clear that the Government would not take part in the European Public Prosecutor’s Office, so we did not opt in. A centralised European prosecutor with harmonised powers to initiate investigations and order investigative measures is incompatible with the division of responsibilities in the UK between law enforcement and prosecutors and the role of the independent judiciary. The idea of a single legal area is an unwelcome move towards harmonisation. That is not to say that we do not wish to co-operate at all with our European partners in ensuring the prosecution of crime and the detection of offenders.

In addition, we do not believe that the EPPO is an appropriate or proportionate response to tackling fraud against the EU’s budget. A body working at EU level would, at best, duplicate the efforts of dedicated organisations working at a national level; at worst, it could hamper efforts to prevent fraud at national level. Reflecting that view, this House and the House of Commons shared the view that this was not something that was best tackled at EU level. Both Houses issued reasoned opinions that the proposal breached the subsidiarity principle. Simply put, that is the principle that, in areas of shared competence between the EU and member states where action can be taken at member-state level, it should be so taken. EU-level action should be reserved for those areas where it can genuinely add value.

I offer the European Public Prosecutor’s Office as an example—perhaps the most high-profile one—of where the Government have taken the view that it is not in the national interest to opt in to a measure. Others are set out in the report, but I know that many noble Lords will wish to bring their considerable expertise to bear on these issues so I will not detain the House any longer on the annual opt-in report.

I shall return briefly to the 2014 decision. I first express my thanks to the EU Committee of this House for its ongoing work in scrutinising this matter. It is an issue in which I know a number of noble Lords have taken a keen interest, and the Government are grateful to them for their work in this area and for the considerable expertise that is brought to bear on the consideration of relevant issues. We are grateful not least to the noble Lords, Lord Hannay and Lord Boswell, and the noble Baroness, Lady Corston, for their ongoing analysis of an extremely complex issue. Their committees have produced two extremely thorough and valuable reports on this subject and I want to express my thanks on behalf of the Government for their chairmanship.

I turn to the progress on negotiations to seek to rejoin measures. I pause at this stage gratefully to acknowledge that the noble Lord, Lord Hannay, was good enough to provide an advance indication of the remarks that he proposes to make in this debate. I know that one area that he—and, I am sure, other Members of the House—will raise is the possibility, to put it crudely, of the Government dropping the ball during the negotiations. I will endeavour to say what I can about that in my following remarks.

The process for rejoining measures depends on whether they are classified as Schengen or non-Schengen measures. On the Schengen side, a Friends of the Presidency working group has been established in Brussels to discuss all the issues for member states, linked to the end of the five-year transitional period set out in Article 10 of Protocol 36. This working group will also allow us to discuss the Schengen measures which we are seeking to rejoin and agree the decision which will allow us to do so formally.

The House will doubtless be anxious for me to address the question of what other member states have said about our package of measures. They have been broadly supportive of the UK’s position. There are of course many technical matters that are subject to discussion. These include whether measures are now obsolete or whether, and to what extent, new measures will replace old ones. That is precisely what this working group has been set up to do. At the appropriate time, when a conclusion has been reached, we will update Parliament on these matters—but, as I am sure the House will understand, it would not be appropriate to do so now when there are still discussions to be had.

Discussions with the Commission on the non-Schengen side are also ongoing. As we are sure noble Lords will also appreciate, this is a particularly complex matter and a great many process and technical matters have to be discussed. We must be mindful that this is a negotiation and, as such, we do not wish in any way to prejudice our position in these negotiations. To do so would not be in anyone’s interest. However, I can say that these discussions have been very constructive and our aim remains to reach an in-principle deal well ahead of 1 December, and return to Parliament for a further vote before formally seeking to rejoin measures. We want to ensure that there are no operational gaps, and our European partners appreciate this. That is perhaps reflected in the fact that we exercised the opt-out in July 2013—although the deadline was May of this year—to give us enough time to undertake these negotiations.

The Government have been clear throughout this process that Parliament will be given a vote on the final list of measures that the Government apply to rejoin, and I am happy to repeat that commitment today. Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why we will debate the matter at length again later in the year and why we have committed to producing a full impact assessment on the measures we seek to rejoin in good time, before a second vote. It is important that Parliament is given the opportunity to scrutinise the matter fully. I look forward to hearing the contributions of noble Lords when we return to Parliament later in the year.

Perhaps I may return to the main business of the day, the annual opt-in report. I commend this report to the House and look forward hearing your Lordships’ views on its content.

[Lord Hannay of Chiswick (CB)]

My Lords—

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 27th January 2014 Lords Chamber

[Lord Pannick (CB)]

I add my thanks to the Minister, the whole ministerial team and the Bill team for the remarkably constructive way in which they have addressed all the many issues that have arisen under this complex Bill. I ask the Minister one question. Will the welcome sense of harmony that has been displayed today extend to the amendment that the House carried last week on the definition of when compensation will be paid for a miscarriage of justice? Is the Minister able to tell the House whether the Government will commend that amendment to the other place?

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this gives me an unexpected opportunity to come to the Dispatch Box. On behalf of the Ministry of Justice, I would welcome a conversation with the noble Lord, but I can go no further than that.

[Baroness Smith of Basildon]

My Lords, as we get to the end of the Anti-social Behaviour, Crime and Policing Bill we have, given the amendments today, a sense of achievement. However, if I am honest—and I think the Minister would agree—there is a sense of some relief. I entirely concur with his comments about the support from around the House and his civil servants in the Box. The Bill has had a long and sometimes tortuous journey. There were times when I thought perhaps we needed injunctions for nuisance and annoyance and for these to be employed in your Lordships’ House. There were a number of scheduling changes which, fortunately, did not interrupt the Minister’s birthday party. However, they did cause some anxiety in ensuring that we were properly prepared for each stage of the Bill. We coped with all those and I am grateful to him and to his Front Bench colleagues, the noble Lords, Lord Ahmad and Lord Faulks, for their support.

When the noble Lord, Lord Faulks, was speaking from the Back Benches he was very much in favour of an amendment relating to an eviction power in England for those found guilty of rioting offences. Unfortunately, when he moved to the Front Bench we lost the powerful and persuasive speech he would have made on Report. We look forward to hearing other contributions.

We are grateful for the constructive way in which the Minister approached our amendments, particularly the two tabled today and that tabled by the noble Lord, Lord Dear, which significantly improve the Bill. I am grateful to my colleagues on the Opposition Front Bench, my noble friends Lord Beecham and Lord Rosser, my noble friend Lady Thornton, and our Whip, my noble friend Lord Tunnicliffe, who did an excellent job. I am also grateful for the expertise of our Back-Benchers. I am thinking, in particular, of my noble friend Lord Ponsonby, my noble friend Lady Henig, and my noble friend Lord Harris—although he was described as mischievous by the Minister—whose expertise was useful and wise.

I concur with the noble Lord, Lord Pannick, on the one outstanding issue on miscarriage of justice. All other issues have been resolved today, so I hope we can reach agreement on that, as your Lordships’ House made its view very plain. I hope we can proceed with the next Bill, on immigration, with the same constructive dialogue as the Minister has been willing to undertake on this one.

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Wednesday 8th January 2014 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Lord, Lord Dear. Like him, for as long as I can remember the Home Office has been bringing forward ill thought-out proposals with little regard for the consequences. Parliament scrutinises them, and they are from time to time defeated. I, like the noble Lord, thought that some lessons would have been learnt from our debate on “insulting”. I fear that from time to time the Home Office does not fulfil its purpose as the guardian of our liberties and a watchtower against the infringement of those liberties. I can go back a long time. Over the decades, Parliament has been concerned with loads of proposals of this kind which have not been thought out because they emerge from the fortress mentality of the Home Office, which imprisons so many Home Secretaries of all parties.

We have heard many objections, which I shall not repeat, to these proposals to lower the threshold and inevitably catch a much larger number of people than Parliament would want. As a lifelong criminal law practitioner, I, like the noble Lord, Lord Dear, give the highest of values to the importance of certainty, and the European Convention on Human Rights affirms the common law. When she agreed to the removal of the word “insulting” from Section 5 of the Public Order Act, the Home Secretary, informed Parliament that:

“There is always a careful balance to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offence with their actions”.—[Official Report, Commons, 14/1/13; col. 642.]

I agree wholeheartedly with the need for a careful balance. This proposal, including the Government’s amendment, is the wrong side of that balance. “Harassment, alarm or distress” is well tested by the courts and in its application. “Nuisance or annoyance” is such an elastic term that it could, if it were applied widely, be used as open-ended machinery to catch all sorts of people who really should not be before the courts. Somebody with a placard saying that the end of the world is nigh, a preacher or maybe a politician on the street during an election may well be caught because they will certainly cause annoyance to someone. Are those the kinds of people that we want to haul before the courts?

The Government say that their formula is hallowed and supported by 15 years of case law and is readily understood. The reality is that it has been tested only within the narrow confines of housing-related cases, and there are limitations on who can bring such actions. Like all former constituency Members, I have experience of dealing with housing problems. I can affirm that there is sometimes a need for strong action to be taken in cases where people are stable and cannot move. You have to do something to try to remedy that situation. There may be strong arguments for a lower threshold there, but to extend that lower threshold in a situation which has been tested only in the housing section is a bridge too far.

I fear that the Government’s amendment does not help us; it merely underlines the situation and may indeed make it worse. The test to be satisfied is the balance of probabilities. I heartily disapprove of such a test, which can ultimately lead to a loss of liberty for the individual for disobedience. The court must consider and decide whether it is,

“just and convenient to grant an injunction”.

What on earth does that mean? Convenient for whom? Just is perhaps a slightly easier concept, but I wonder how far it has been tested. We are familiar with the concept of the interests of justice, but “just and convenient”? One is horrified that this kind of clause, these kinds of words, are put in a statute at all.

For the existing ASBOs, the test is, of course, the criminal one of proof beyond reasonable doubt. The alleged burden is well known and well established, and when it is suggested here that the order must be shown to be necessary, why do we have to depart from the long-hallowed practice, which has been tested?

I support, and pray in aid, what the noble Baroness, Lady Mallalieu, said when she quoted Lord Justice Sedley. I shall not repeat the words, which are still ringing in our ears; I shall merely say that, as the noble Baroness told us, he finished by saying:

“Freedom to speak … inoffensively is not worth having”.

We do not want to catch people who merely annoy, or merely cause a nuisance. There must be a higher threshold.

It was my duty, as Attorney-General, to consider prosecutions when anti-Semitic material was published. Even that legislation could be said to be an infringement of free speech, but over the decades there was material so unacceptable that it had to be dealt with firmly. Where my discretion had to be exercised, I tried to approach the decision with the greatest care. Deciding not to prosecute was probably more difficult than deciding to prosecute. There have been other limitations on free speech over the years, and when Parliament attempts to limit free speech, each and every one of those limitations must be considered with the utmost care. We must be ever vigilant not to breach the fundamental concept of free speech.

[Lord Faulks (Con)]

My Lords, I fear that I am about to break the consensus. I hope that in doing so I do not cause too much nuisance or annoyance. The amendment in the name of the noble Lord, Lord Dear, and others is rather different from the one that was before your Lordships in Committee. The amendment there sought to include a requirement that anti-social behaviour had to be established beyond reasonable doubt before an injunction was obtained. Given the evidential problems that this would have created, the amendment has sensibly been altered so that it no longer requires a criminal standard of proof before a judge can order an injunction.

I tabled an amendment that reflected the views of the Joint Committee on Human Rights, of which I was a member. We had proposed that a reasonableness requirement should be imported into the definition of anti-social behaviour. In other words, there should be an objective element, to deal with the argument that the whole concept of anti-social behaviour was too subjective. The Government’s Amendments 2 and 3, particularly Amendment 2, seemed to me entirely to meet our concerns, and in this regard I am specifically authorised by my noble friend Lord Lester, who is unable to be here today, to say that he supports the Government’s position and would oppose Amendment 1.

It is clear from the speeches that we have already heard that there is concern that the obtaining of an injunction would be too easy, and that there would be a risk of freedom of speech, freedom of association, and the freedom to indulge in activities that some people might regard as annoying, being inhibited. Is this a realistic fear? First, it must be remembered that under Clause 4 the applications can be made only by an agency—for example a local authority, a housing provider or some other such body. That is a defence against inappropriate use. It means that a victim of anti-social behaviour has to go through the filter of a hard-working agency in order to establish the fact that there is sufficient basis to seek an anti-social behaviour order—or, in this case, an IPNA. If it were to be done on the say-so of one individual deciding, perhaps unreasonably or capriciously, that someone else had been guilty of anti-social behaviour, that indeed might be objectionable. But the use of an agency provides an important filter.

At Committee stage, and even at Second Reading, the Minister referred to the guidance. The guidance is given to the front-line professionals—not, with great respect to my noble and learned friend, the courts—to make sure that they do their job correctly. That guidance, which was then in draft, is now, according to an amendment, to be made a specific statutory provision. Page 24 of the advice says that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.

--- Later in debate ---

[Lord Forsyth of Drumlean (Con)]

I am following my noble friend’s argument closely, but could he give an example of the kind of thing for which he thinks this provision might provide a remedy?

[Lord Faulks]

It would provide a remedy for myriad different circumstances—perhaps the sort of behaviour where youths gather specifically under a particular person’s window and regularly play noisy music, are aggressive and perhaps smoke cannabis, providing day by day harassment of individuals.

[Lord Forsyth of Drumlean]

Surely that would be covered by the present law.

--- Later in debate ---

[Lord Faulks]

It might be, but the problem is that the test for harassment is fraught with imprecision, as is any test that any Government might provide. Whether something gets over the hurdle of harassment will be somewhat uncertain. No doubt it will be argued in a particular case that it does not go far enough to constitute harassment, but it will nevertheless be anti-social behaviour by anybody’s definition.

[Lord Cormack (Con)]

So what is the objection to having harassment in the Bill?

[Lord Faulks]

The objection is that there is a risk that the hurdle will be too high and that the judge will say, “This is extremely anti-social behaviour and I profoundly sympathise with the individual but, looked at under the definition of harassment, it does not go quite that far”. That behaviour could be completely ruinous of an individual’s life, but perhaps not have that quasi-criminal description that the substitute definition has.

[Lord Berkeley of Knighton (CB)]

Would “distress” not cover that?

[Lord Faulks]

The greater test will always include the lesser, but areas that may or may not be considered by a court to get over that hurdle may be profoundly distressing in the non-technical sense to the individual but may not be regarded as sufficiently distressing to come within the definition. There is inevitably a degree of vagueness about any definition, whether you choose the one that the Government choose or the one proposed in the amendment. But I fear that the test is too low.

[Lord Thomas of Gresford (LD)]

Could my noble friend deal with a major objection? An order can be obtained on hearsay evidence, so the judge does not have to hear from somebody who says, “I’ve been distressed or annoyed”; it would be sufficient for someone to say, “I’ve heard someone else describe himself as annoyed because of the behaviour in question”.

[Lord Faulks]

The question of hearsay evidence is important, and I am glad that my noble friend raised it. One difficulty about the orders is that individuals are often terrified of those who are responsible for the anti-social behaviour. They are terrified of being identified as the source of the complaint. If they have to give evidence, they will not want to do so. They therefore provide their perfectly bona fide complaint to an agency. Hard-pressed agencies will have to assess whether this is de minimis or of sufficient gravity before deciding whether to proceed.

[Lord Thomas of Gresford]

Is my noble friend saying that the procedure can be based on an anonymous complaint?

[Lord Faulks]

It can be on the basis of an anonymous complaint, though a judge will need to be satisfied of its substantiality. There are individuals who simply would not seek an injunction if they thought that they could be clearly identified as the source of the procedure. Of course, judges are used to weighing up hearsay evidence, which has less weight than direct evidence. A judge is unlikely to make an order if they think that it is double-hearsay or comes from an unreliable source.

Before making an order, a judge also has to decide that it is proportionate and necessary, in accordance with the Human Rights Act. As I submitted, it is no light thing for the agencies to assemble the evidence necessary to satisfy a judge. The Law Society has carefully considered the arguments against Clause 1. Although more than happy to criticise government legislation—and even this Bill, in some respects—it remains absolutely firm in its support of the existence of the power described in Clause 1, fearing otherwise that the hurdle would be too high and that the power to prevent anti-social behaviour would be damaged.

[Lord Greaves (LD)]

My Lords, I am anxious to support the Government on Clause 1, because there is a great deal to be said for the replacement of ASBOs by IPNAs. However, the noble Lord seems to be arguing that the existing test for ASBOs—harassment et cetera—is too high. Is he arguing that, at the moment, people cannot get ASBOs because the test is too high and therefore that it must therefore be reduced for the new IPNAs? In my experience, the problem with ASBOs is that they are very often given for inappropriate things.

[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.

[Lord Cormack]

My Lords, we have just heard an interesting speech from my noble friend Lord Faulks. I am sure that I speak for every Member of your Lordships’ House in congratulating him on his forthcoming move to the Front Bench—because, as we all know, he is to be Minister very soon. It is therefore hardly surprising that he should have spoken with such passion in support of the Bill.

[Lord Faulks]

I am grateful to my noble friend for his kind congratulations, but I should say that I spoke on this issue in Committee before I was appointed, to very much the same effect.

[Lord Cormack]

One is tempted to call that “cause and effect”, but I will not.

This noble House concluded its contentious business somewhat earlier than we had expected last night. I went home and turned on BBC Four, on which there was a most remarkable programme on the Salvation Army in which various officers made some extremely sincere but perhaps contentious statements. One gentleman in particular made the point that anyone who did not believe in Jesus Christ, as many of us do, was in fact condemned to eternal damnation. Imagine that being said on a street corner or anywhere else. Do we really want to deny people with sincere and genuine beliefs the opportunity of expressing them? I have always felt—although I did not agree with many of the things ascribed to him—that Voltaire had it right when he said, “I detest what you say, but I will defend to the death your right to say it”. That really should be implicit in all our legislation.

I find it somewhat difficult to accept that a Conservative Government or—let me correct myself—a Conservative-led Government are prepared to introduce this lower threshold in the Bill. Although my noble friend Lord Faulks said that it was different from the debate that we had on insulting a little over a year ago, and of course in some senses it is, nevertheless it is similar. It is also very different from what was implicit in the Defamation Act that came into force just a week ago today, whereby we introduced legislation—quite rightly, in my view—that makes it more difficult to engage in frivolous and vexatious complaining.

In this particular provision, in this clause of the Bill —much of which I approve of—we are seeking to lower a threshold and in the process place many people in possible danger of having their civil liberties, including their right to speak as they would, taken away from them. Of course I accept, as my noble and learned friend Lord Mackay of Clashfern accepts, that it is right that social housing should be treated differently—of course it is. In his intervention a few moments ago, my noble friend Lord Elton put that point succinctly and correctly.

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Wednesday 11th December 2013 Lords Chamber

[Lord Faulks (Con)]

I, too, am a member of the Joint Committee on Human Rights. Discussion, as your Lordships will anticipate, ranged far and wide over this new Schedule 8 amending Schedule 7 to the Terrorism Act. Giving the perfectly proper right to stop and seize and, at the same time, preventing so far as possible any abuse of that power is a difficult balance to strike. However, it is worth recording that we concluded that the Government had made out a case for a without -suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism, the significance of international travel, the overall threat picture and the evidence seen by the independent reviewer demonstrating the utility of non-suspicion stops at ports in protecting national security. Therefore, we also concluded that the retention of this power under Schedule 7 was not inherently incompatible with Articles 5 and 8 of the European Convention on Human Rights.

We are in the slightly unfortunate position of still awaiting the report by the independent reviewer of terrorism legislation on the David Miranda case, which will perhaps shed some light on this power generally. The Government clearly pay considerable heed, quite rightly, to what the independent reviewer of terrorism recommends but, with great respect to my noble friend Lady Hamwee, simply subcontracting responsibility, as her Amendment 56YK would, from the Secretary of State to the independent reviewer would go rather too far.

This is a very difficult balance to strike. The Government have come some way towards a balance in favour of those who might become the victims of an abuse of power. The question is whether they have come far enough.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a useful debate. The issues that have been raised are around the difficult balance between civil liberties, national security and counterterrorism measures that the noble Lord, Lord Faulks, referred to. The points made today about those issues are extremely useful and I look forward to hearing the Minister’s comments on them.

We are greatly assisted today by the supplementary written evidence of David Anderson QC. We are indebted to him because, when giving evidence on 12 November, he was asked to spell out what changes he would recommend to the port powers in Schedule 7 and the Minister, Damian Green, had already said in the other place that he expected recommendations. At Second Reading in your Lordships’ House, I said that I thought it was optimistic of the noble Lord, Lord Avebury, to hope that we would be able to see any such recommendations from David Anderson while we were still debating the Bill. I thought he was being optimistic but that optimism was well founded. We are indebted and grateful to David Anderson for the efforts that he must have gone to in order to ensure that we had his recommendations before we had completed our deliberations—indeed, as we were having our Committee debates. I hope that the Minister will endorse that. That is very helpful and greatly welcomed.

I shall not comment on each individual amendment, but a number of the amendments before us today relate to his report. As I said, I will be interested to hear the Government’s response to them as there are areas to which the Government may want to give further consideration and on which they may want to bring forward amendments before the conclusion of proceedings on the Bill.

On Amendment 56YJ and the issue of privileged material, although David Anderson reflects that identifying the details of changes is difficult before we have the Miranda judgment, he identifies this as an area where there need to be safeguards and clarity around those safeguards. It is not an area where there should be any confusion or ambiguity. It would be helpful today if the Minister were to say on behalf of the Government whether they accept the principle of David Anderson’s recommendation in this regard. We are certainly sympathetic and would welcome the opportunity to consider further the kind of safeguards that could be introduced.

Also on Amendment 56YJ, I think it was in the Beghal v DPP decision that the court supported the introduction of a statutory bar to Schedule 7 admissions in a subsequent criminal trial, although it also recognised that this would have to be given detailed consideration. David Anderson has now added his support to that of the court and that also forms part of his recommendations. Again, we would be very sympathetic to that and would be interested to know whether the Government intend to support that recommendation, which this amendment reflects.

Amendments 56YK and 100A refer to a process by which effect could be given, almost automatically, to the recommendations of the independent reviewer of terrorism legislation. There is some merit in looking at how recommendations could be acted on more quickly but we would welcome the opportunity to see more detailed proposals. It would be helpful to have a mechanism to take action more quickly than always having to wait for the next legislative slot for primary legislation in the Government’s timetable. However, whether secondary legislation, even with the affirmative procedure, would give adequate opportunity for effective scrutiny by Parliament, which should be making the decisions, has to be looked at in some detail.

On Amendment 62A, in the names of the noble Lords, Lord Lester and Lord Avebury, we would certainly be supportive of removing the restrictions if the interview takes place in a police station. Amendments 57A, 61A and 61B would establish limits on the duty to give information and documents that are held electronically. We have concerns about how this law is currently being applied. I note that David Anderson has also called for appropriate safeguards regarding the use and retention of such data. It would be helpful to hear from the Minister whether the Government consider that the problem is a lack of clarity in the existing law or whether further action needs to be taken.

We would also be sympathetic to Amendment 64ZA on the periodic review of an individual’s detention. I would welcome the Government’s comments on David Anderson’s recommendation that the intervals for review should be specified in the schedule, as outlined in the amendment, and not just in guidance. There can sometimes be a lack of clarity around the purpose of guidance. The importance of it being in the schedule and not just in guidance was also included in the JCHR report. The Government have indicated that they may support this, so I am optimistic about a positive response on that one.

This is quite a difficult area in which to find the appropriate balance. The House has heard about the attention to detail that has been given to this range of issues. It would be helpful if the Minister could clarify in his response the Government’s views on these issues, particularly in the light of the amendments which reflect so much of what is in David Anderson’s recommendations.

--- Later in debate ---

To conclude, the Government’s proposed amendment of Section 11 of the Extradition Act by referring to a “prosecution decision” in Clause 137(1) has moved the game on, and I am grateful for that. But for the reasons explained, I do not think it goes far enough. In this very critical area, the decision to try must surely be the gold standard and these amendments will ensure this. I beg to move.

[Lord Faulks]

My Lords, I will add just a few comments to the excellent and clear introduction of these amendments by my noble friend Lord Hodgson. He stressed the importance of the matter being trial-ready before extradition takes place, and quite rightly drew a distinction between the adversarial system, which prevails here, and systems elsewhere of a more inquisitorial nature.

Of course, if somebody is awaiting trial here, the question of bail becomes highly relevant before a judge. Indeed, a judge will be able to exercise some pressure on prosecuting authorities to get on with it, in order to ensure that somebody is not kept in custody for too long. That becomes impossible once somebody has been extradited. The matter is then in the control of the local court, and there may be just the sort of delay described by my noble friend in the case of Symeou; not only was he in Greece for a very long time but when he was granted bail it was so-called local bail, which is not the same as being granted bail in your own country, because of all the compromises that have to be made in terms of work and family life.

As my noble friend acknowledged, the Government have responded to the Baker review but there is still anxiety, as he has so skilfully pointed out.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, I will speak also to Amendment 78. These amendments expand the issues a judge can consider in testing the proportionality of a European arrest warrant. Amendment 76 deletes the words,

“but the judge must not take any other matters into account”.

Amendment 78 extends judicial discretion as regards proportionality by a list of factors, including the cost of extradition, the consequences of extradition for the suspect and the public interest aspect.

Under the Bill, the judge must have regard to the specified matters relating to proportionality so far as he or she thinks it appropriate to do so, but must not take other matters into account. Thus, the judge is limited to the three specified matters but has discretion to ignore them. As a starting point, I would like the Government to justify why a judge should be able to ignore factors that will always be germane to the issue of proportionality. If an offence is serious, extradition is more likely to be proportionate but that does not mean that the proportionality test has no place in serious crimes. Amendment 76 therefore removes the discretion to ignore relevant factors.

Under the proposed test, the judge can take into account just three factors but it is unclear how they are supposed to relate to each other. In any case, the current list of specified matters does not allow a useful proportionality analysis. As drafted, the judge would be able to take into account the seriousness of the offence and the anticipated sentence, but since regard cannot be had to any other matter, the judge cannot balance these against the relevant considerations. For example, it is difficult to see how the judge can decide whether a less serious offence would make extradition disproportionate if the judge cannot also take into account the implication of extradition in terms of the human impact or, indeed, the costs for the UK taxpayer. The financial costs of extradition are high. The Government estimate that the execution of each EAW costs on average £20,000. In addition, the human impact of extradition can extremely severe. Recent cases under Article 8 of the ECHR have shown that the extradition of single parents can drastically disrupt the development of their children. There was the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic in 2012.

Recognising the need for proportionality checks on the operation of the EAW, the European Commission recognised that the issue was with,

“very minor offences which do not justify the measures and cooperation which execution of an EAW involves”,

and that there is a,

“disproportionate effect on the liberty and freedom of requested persons”,

when the EAW is used in such cases.

The point of a proportionality test should be to determine whether, on a case-by-case basis, the human and material costs are justified. Indeed, the Council of the European Union’s handbook on how to issue an EAW is 125 pages long and explains that,

“considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence”.

The Bill excludes a balancing exercise that takes into account all these relevant factors.

These amendments therefore provide the judge with sufficient discretion to consider these key factors and others, including the passage of time, since prolonged delays in prosecuting an offence and issuing an EAW may provide evidence of its very low level of seriousness, and the public interest in extradition, since this will vary in line with the seriousness of the offence. Other factors might include, for instance, the person’s conduct, in particular, whether they absconded in order to evade prosecution or left the issuing state unaware that they were being pursued.

I recognise that this will call for a case-by-case test and a fact-sensitive assessment. However, this need not affect the length or complexity of EAW proceedings. An issue raised in relation to human impact would in any event have to be considered under Article 8 of the ECHR. Under the operation envisaged by these amendments, the factors considered under Article 8 of the ECHR will be considered as part of the statutory proportionality test but alongside the cost of extradition to the United Kingdom and having greater regard to the seriousness of the extradition offence. Indeed, under the Government’s proposal, it can be argued that there will often have to be two separate proportionality analyses—one under the statutory test, excluding anything to do with family life, and another under Article 8 of the ECHR, potentially resulting in confusion and complication. Unifying the two tests, as would be achieved by these amendments, would, if anything, simplifying proceedings. I beg to move.

[Lord Faulks]

My Lords, Clause 138, “Proportionality”, will not be an easy one for a judge to interpret, as my noble friend has outlined. The question of proportionality under the Human Rights Act 1998 is one matter and then there is the statutory proportionality, which apparently is to be restricted to certain specific matters mentioned in subsections (2) and (3) of the new Section 21A that Clause 138 inserts into the Extradition Act 2003. I respectfully ask the Minister to explain why it is so necessary to distinguish between the two types of proportionality. Proportionality is a fundamental principle in EU law and, in particular, under the Human Rights Act. I suggest there is scope for confusion and therefore possible litigation if a judge misdirects himself or herself in applying proportionality in one sense and not in another.

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 2nd December 2013 Lords Chamber

This particular part of the Bill will be received with considerable support by those most concerned about the most vulnerable—people who cannot defend themselves and are subject to years of abuse by neighbours who seem unable to take account of all the legislation that we have had. ASBOs and the like, as the noble Baroness said, are very often ignored, and we have no other way in which to deal with this. So I hope that we recognise that we have to be tougher than we would normally like to be. I say that as someone who does not have a reputation in this House for being overly tough. If you have not seen the state to which some people’s lives are driven by these sorts of neighbours, you really do not understand why this measure is so terribly important.

[Lord Faulks (Con)]

I endorse what my noble friend said about the need to protect those who are the victims of anti-social behaviour. Very often they are just the sort of people who are held up as being vulnerable to the effects of the provisions in the Bill. From my experience of a barrister practising for public authorities, I add the observation that it has become quite a regular feature of litigation that public authorities are sued for failing to take sufficient steps to protect those who are the victims of anti-social behaviour. The Bill will at least provide some form of additional power to give an answer to those sorts of claims.

[Lord Rosser (Lab)]

My Lords, the amendments with which we are associated relate to Clauses 86 and 89 and whether they should remain in the Bill in their present form. We also wait with considerable interest to hear the Government’s response to the different points that have already been made in the debate on this group of amendments.

As the government documentation on the Bill indicates, the existing grounds for possession for anti-social behaviour are discretionary and require the county court, on application from the landlord for possession on an anti-social behaviour ground, to decide that the ground is made out and that it is reasonable to grant possession. The Government say that it takes on average seven months to get an outcome from the courts in anti-social behaviour possession cases, and that the existing discretionary grounds apply only to anti-social behaviour and criminality in, or in the locality of, the property. Indeed, in the light of the riots two and a half years ago, the Government are also proposing later in the Bill to extend the scope of the discretionary ground so that landlords can seek to evict a tenant who adversely affects the lives of those in neighbouring communities through rioting and looting, or who attacks or threatens landlords’ staff away from their homes.

The purpose of the new absolute ground for possession, say the Government, is to speed up the possession process in cases where anti-social behaviour or criminality has already been proven by another court. The Government’s draft guidance states that the court must grant possession subject to any available human rights defence, provided that set procedures have been followed. In addition, the court’s discretion to suspend possession will be limited to no later than 14 days, or six weeks in exceptional circumstances.

It is worth reflecting on the conditions that have to be met for a grant of possession; at least one of them has to be met. The first is that a tenant, a member of the tenant’s household or a person visiting the property, has been convicted of a serious offence. The second is that the tenant, a member of the tenant’s household or a person visiting the property has been found by a court to have breached an injunction to prevent nuisance and annoyance—in other words, an IPNA. The third is that the tenant, a member of the tenant’s household or a person visiting the property has been convicted of breaching a criminal behaviour order. The fourth is that a tenant’s property has been closed for more than 48 hours under a closure order for anti-social behaviour. The last is that a tenant, a member of the tenant’s household or a person visiting the property has been convicted of breaching a noise abatement notice order.

These powers have potentially significant effects. Will the Minister say—this question has already been asked—whether the number of evictions is expected to increase as a result of these provisions, particularly in the light of the Government’s implied comments about the deterrent effect of the current length of eviction proceedings on landlords taking action? These would seem to imply that an increase in evictions is likely if the length of time to complete court proceedings is reduced.

Will the Minister confirm what will happen to those families who are evicted, including any children or elderly or disabled people? Who, or which body if any, will have responsibility for finding accommodation for such families who become homeless as a result? Alternatively, will such families simply be left to their own devices, even if that means being on the streets, on the basis that they will be deemed to have made themselves—including any women, children, elderly or disabled people—intentionally homeless?

As I understand it, the power to evict under Part 5 relates to those in social housing and to those in assured tenancies in the private sector. Will the Minister confirm that that is the case? The power to evict does not appear to apply to owner occupiers, including those living in a mortgaged house who might well have secured their mortgage under a state-backed scheme that is ultimately supported by all taxpayers, including by those in rented accommodation. To that extent, it does not appear that there is equality of treatment for victims irrespective of tenure. It would appear that under the Government’s Bill, which is intended to put victims first, a victim who lives in social housing and has had their life made a misery by a person or persons in a nearby owner-occupied property does not have eviction available as a possible solution—unlike a victim who lives in their own home and has had their life made a misery by a person or persons living in social housing or an assured tenancy.

If the Government’s intention is to put the victim first, why are there apparently two classes of victim, one for whom eviction of the perpetrator and their family is a possible solution, and another for whom it is not a possible solution and for whom there is no alternative additional sanction available? Will the Minister address this point? If I am right, will he confirm that the Government nevertheless regard this as totally fair and just, when there do appear to be two classes of victim?

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 2nd December 2013 Lords Chamber

[Lord Faulks (Con)]

My Lords, I would like to address the House on this clause. As the Minister will be aware, I am very much in favour of the architecture of this Bill and very sympathetic to its aims. However, as in life, not everything is perfect, and I fear that I cannot give my endorsement to this clause, which gives the court additional powers to order possession in relation to secure and assured tenancies in the event that the,

“tenant or a person residing in the dwelling-house has been convicted of an offence which took place during, and at the scene of, a riot in the United Kingdom”.

That distinguishes it from other parts of Part 5, which are concerned with matters that take place in the locality—or the vicinity, as the noble Lord, Lord Greaves, would have it.

I understand that the additional ground for possession has been included in the Bill to reflect the seriousness with which the Government view participation in riots, particularly those on a scale seen in this country during the summer before last. Those who committed offences during the riot on that occasion were dealt with speedily and firmly. Sentences of imprisonment were the norm, and some were lengthy. To some extent, one could say that they were deprived of the right to remain in a dwelling house by that very process. The courts have sufficient powers to deal firmly with offenders caught up in a riot and appeals against sentences were, for the most part, unsuccessful. The criminal justice system—some would say “for once”—in general responded very well to what occurred.

I am concerned that this measure is a step too far. While a court would still have to be satisfied that it was reasonable to grant possession, the fact that the relevant offence can be committed not only by the tenant but by someone residing in the dwelling house means that a tenant wholly innocent of involvement in a riot could potentially lose their home. I do not think that this is a necessary or appropriate provision, given all the other powers that exist elsewhere in the Bill. I am also concerned that what is essentially a procedure by way of civil remedy should carry with it a criminal offence of this sort connected with the civil recovery of possession. Although I share the Government’s concern that those involved with riots should be dealt with in a way that sends out a message to any potential rioters, I take the view, as did the Joint Committee on Human Rights, of which I am a member, that this clause is a step too far.

[Baroness Berridge (Con)]

My Lords, I, too, am a member of the Joint Committee on Human Rights and wish to speak to Clause 91. I sympathise with the Government’s reasoning and motivation for this additional ground for possession being included in the Bill and appreciate the strong signals that are needed for people involved in rioting. I was in London in the summer of 2011 so I can directly share the concern of the Government and the general public about the serious nature of the offences of those who participate in riots, especially on that scale. However, as my noble friend Lord Faulks outlined, the criminal courts have sufficient powers to deal with those matters. If I recall correctly, some courts even sat through the night, and many offenders were clearly extremely shocked to be sentenced to a period of imprisonment. The criminal courts were not found wanting and sentences reflected the gravity with which the judiciary viewed this behaviour.

It is important to note the distinctive nature of the power in Clause 91. Unlike the powers in Clauses 86 to 90, this power is exercised in relation to behaviour that is not necessarily either of any impact on the landlord or in relation to the premises themselves or connected to the dwelling house. I also share the concern of the noble and learned Lord, Lord Lloyd. When speaking of the old ASBO regime, he stated that we are,

“using the civil law to do the work of the criminal law”.—[Official Report, 18/11/13; col. 750.]

Repossessing premises is a civil law matter, but this provision is akin to bringing criminal penalties for riot into our civil courts. As my noble friend Lord Faulks has outlined, the courts have to be satisfied that it is reasonable to grant possession. However, the fact that the offence can be committed not only by the tenant but by someone residing in the dwelling house means that a tenant wholly innocent of involvement in rioting could lose their home. That is unjust.

Such a tenant could argue that Article 8 of the European Convention on Human Rights protects their right to a family life and home. However, such arguments can often be lengthy and expensive. Many of these arguments will end up being funded by the taxpayer. Although I share the Government’s concern that rioting should have potentially serious consequences, I am left wondering why if rioting is a ground for repossessing premises, other serious offences, such as paedophilia, are not. I maintain the view recorded in the report of the Joint Committee on Human Rights. This clause will be an unhelpful precedent.

--- Later in debate ---

[Lord Taylor of Holbeach]

An owner-occupier with a mortgage might well find his home taken from him as a result of a term of imprisonment. I say to the noble Lord that trying to compare bottles with cans is not a particularly helpful thing to do. Either he is in favour of retribution—

[Lord Faulks]

I am very grateful to the Minister for giving way. He has been asked this question a number of times. Of course, there are differences. One significant difference, of which he will no doubt be aware, is that if you are a tenant of a public authority, you have additional protection by virtue of the Human Rights Act, whereas those who are not protected by a public authority—private tenants—do not have any such protection.

[Lord Taylor of Holbeach]

I am grateful to my noble friend for his intervention, which points to a difference. There is a difference in the treatment; there is not a difference in the way in which the victims are dealt with.

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 25th November 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I share the puzzlement of the noble Lord, Lord Harris, about the provision in Clause 56, particularly as all the flexibility needed is covered in Clause 57. There is a power to discharge, which would no doubt be exercised when the local community is satisfied that the order is no longer needed, and there is a valuable power to vary the order so that it could be extended to more people or its scope reduced if that is shown to be necessary. Flexibility is key and I would have thought that one could get by perfectly well with Clause 57 without having Clause 56 there at all.

[Lord Faulks (Con)]

My Lords, I respectfully agree with what the noble and learned Lord has just said. The only way in which Clause 56 might be amended to satisfy the anxiety is to make it a relatively simple procedure. At the moment, subsection (5) requires that the local authority must consult various people. If the local authority was given an opportunity so that it “may” consult rather than “must” consult, it would make the extension a relatively informal procedure. Otherwise, I entirely accept what the noble and learned Lord says: Clause 56 is over elaborate in view of the existence of Clause 57.

[Lord Greaves]

My Lords, there are two problems here. The noble Lord, Lord Harris, is partly right and partly wrong because it depends on what kind of public spaces protection order is being made. If the public spaces protection order is made to prevent dogs going into a children’s play area—the example given earlier by the Minister—there is no reason why that should require a formal procedure to consult and so on every three years because once dogs are banned from a children’s area they will be banned for ever. It may be controversial at first but, once it has been done, no one will complain about it afterwards. If, on the other hand, you are using it as a quick, easy procedure to close a right of way instead of going through the proper closure procedure under the Highways Act, it certainly should be reviewed. My noble friend and I are saying that it should be reviewed within a year or within six months if it concerns a right of way.

This is because of the nature of the right that you are taking away from people who are not guilty of any offences. You are reducing the liberties of perfectly innocent citizens, and the nature of that reduction ought to be subject to reconsideration. How can you differentiate in the Bill between the routine orders that no one is going to complain about—orders that would otherwise be in the local playground by-laws or other rules and regulations—and serious orders that take away people’s historic rights of access to particular areas? I would be happy with a provision that the prevention of access would have to be reviewed if the public spaces protection order involved the removal of people’s rights to access land that they would otherwise have access to. This would apply to any access, whether or not it was to a common or a green or whatever. That is fairly fundamental and would have to be reviewed.

As to the lesser protections that the Minister and the noble Lord, Lord Harris, referred to as not having to be reviewed, there is a way through that if it can be written into the Bill.

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 25th November 2013 Lords Chamber

[Lord Greaves]

My Lords, this amendment is about who can appeal to the High Court if they are dissatisfied with the council’s decision to declare a public spaces protection order. At the moment Clause 62 says that it has to be an “interested person”, and that they can question the validity of either the order or a variation of the order. It then says:

“‘Interested person’ means an individual who lives in the restricted area or who regularly works in or visits that area”.

I am suggesting that it should be just “a person”—anybody can do it.

There are two reasons for this. One is that the current definition is wide open to vague interpretation. It is fairly clear if you live or work in the area, but whether a person who regularly visits the area is an interested person is open to interpretation. In any case, why should a person who wishes to visit the area, or who intends to visit it, or who occasionally or intermittently visits it, not have the right? If they go only once a year and walk on a particular path, why should they not be able to challenge a decision to close that path?

The second reason is that the definition as set out in the Bill appears to exclude national and regional organisations that regularly represent people who use rights of way, people who walk on access land, or people who may visit town and village greens. We are talking about the same group of organisations: perhaps the Ramblers, the British Mountaineering Council and the Open Spaces Society and others. Why should they not be able to bring a case to the High Court on behalf of their members or of people who have appealed to them? Let us remember that the Ramblers have rather more members than all the political parties put together and is a representative organisation which is used to taking such cases from time to time. Why is it excluded in this case? Why is the right suddenly being closed down so that it can be exercised only by people with a much more local connection? This seems mean-hearted. There seems to be no obvious, sensible reason for it. I would be interested to hear the Minister’s excuses for it—because I think they will be excuses—and I will listen carefully to what he has to say.

It is possible for the Ramblers nationally to take an issue to judicial review under the Highways Act, the CROW Act or the Marine and Coastal Access Act, or any other Act that involves village greens, town greens or access to land, on behalf of people who may not have either the resources to go to the High Court—perhaps they would have the resources—or the know-how. Efficient review through the courts of things like this depends on the people taking those reviews being experts, so that they know what they are talking about on both sides. This is an unnecessary and mean-minded provision. I beg to move.

[Lord Faulks (Con)]

My Lords, this clause comes under the heading “validity of orders”. From the way in which it is framed it seems very much as though it is in the form of a judicial review of an administrative order. What is interesting about the way in which the whole scheme of the legislation is formed is that there is the power to make, vary or discharge orders under Clause 57, so that local people who are affected by the orders and are discontent with them can vary or discharge them relatively simply. Yet here we have this clause, which provides for a high-level challenge by way of judicial review.

The provision is described in the Explanatory Notes as an appeal route for either an order or variation of an order, but it contains the sort of restrictions that you would expect in judicial review, in particular subsection (1), which is to do with what used to be referred to as locus standi—in other words, have you got the standing to challenge this? I respectfully disagree with my noble friend that there should be no restriction at all on who should be able to challenge the orders. There is always a restriction; there has to be a proper connection with the subject matter. Where we are concerned with a local order covering a specific area, it seems only appropriate that those given the opportunity to review it should be those with a close connection with it, rather than somebody who simply has a general view about the orders.

However, I am slightly concerned about Clause 62(7), which appears to say that this is the only way in which such an order can be challenged, thereby ousting the jurisdiction of the court to carry out judicial review. That is quite a radical step for a Government to take. If there was no Clause 62, it seems to me that it would be perfectly open to somebody affected and who had the appropriate standing to challenge this order by way of judicial review on the grounds that it was unlawful, just in the way that is set out within the body of Clause 62. I wonder how necessary Clause 62 is at all. There is judicial review, which I would suggest is very much a last resort, and then there are the powers to vary or discharge it. Do we really need this rather curiously described appeal that is really a judicial review?

[Lord Harris of Haringey]

My Lords, I echo the remarks made by the noble Lord, Lord Faulks, because I do not understand what this clause is about. Maybe it is my failure to read it properly, but this seems to be about a mechanism for challenging process. It is not an appeals process so it does not do what is says on the tin or in the Explanatory Notes. This is solely about the validity of orders. The noble Lord, Lord Greaves, is concerned about the Ramblers’ Association acting on behalf of ramblers who use a path. The association would only be able to challenge an order on the basis that the local authority did not have the power to make that order, or the particular variations, or that it had not complied with the process described elsewhere in this clause. I rather assumed that an appeal would be for somebody to look again at the principles going into that decision, not whether the process was followed correctly. This is not the clause described in the Explanatory Notes. It is something very different.

If it is the Government’s intention to create an appeal mechanism of some sort, this is not it. However, if the Government’s intention, irrespective of what is said in the Explanatory Notes, is to provide a mechanism for challenging the validity of the process, I do not understand why we have this one, given that all those cases would be amenable—as I understand it—to judicial review. It would be helpful if the Minister told us if this clause is meant to reflect what is said in the Explanatory Notes or what it says in the clause heading “Challenging the validity of orders”. If it is the latter, what is the point of having nicely bound Explanatory Notes that do not tell us the Government’s intentions?

--- Later in debate ---

[Lord Rosser]

My comments will be much in line with those already expressed. It is worth recalling the very considerable powers given to a local authority with a public spaces protection order. It has the power to impose such an order for a period of up to three years without, apparently, any requirement to secure the approval or agreement of any other individual groups, bodies or organisations, including the courts.

There are just two conditions that a local authority must satisfy. First is that,

“activities carried on in a public place … have had a detrimental effect on the quality of life of those in the locality”,

or that,

“it is likely that activities will be carried on in a public place … that … will have such an effect … The second condition is that the effect, or likely effect, of the activities … is, or is likely to be, of a persistent or continuing nature … is, or is likely to be, such as to make the activities unreasonable, and … justifies the restrictions imposed by the”,

public spaces protection order.

The only check on that local authority power is that:

“An interested person may apply to the High Court to question the validity of … a public spaces protection order”,

on the grounds,

“that the local authority did not have the power to make the order … or to include in particular provisions or requirements imposed by the order”,

or,

“that a requirement under this chapter was not complied with in relation to the order or variation”.

Bearing in mind the potentially significant but apparently unchallenged powers that a local authority will have to make a public spaces protection order, it is important that the Minister places clearly on record how weak or strong are the proposed provisions to challenge the validity of such orders and how, in practice, they are expected to operate.

What do the Government believe that Clause 62(2) means in practice? That is the clause referring to the grounds on which an application can be made to the High Court, to which I referred a few moments ago. In an early debate this evening, the Minister said that the fact that activities carried on in a public place had to be,

“of a persistent or continuing nature”,

and “unreasonable” was adequate protection, but each local authority will interpret those words as it sees fit. How regularly does an activity have to be carried out to be persistent or continuing? Can that issue be taken to the High Court in challenging the validity of an order? On what basis might it be deemed that a local authority did not have the power to make a public spaces protection order or to include particular prohibitions or requirements imposed by the order? Would that include a challenge that the two conditions referred to in Clause 55(1) and (2) had not been met? If so, why does the Bill not set that out clearly in Clause 62(2), or does a local authority not having the power simply mean that the challenge can be only on the basis that the area to which the order relates is not a public place?

Perhaps the Minister could give some examples of what might be deemed a prohibition or requirement that the local authority had imposed on the order which it would not have the power to impose under the Bill. Clause 62(2) also refers to a challenge on the basis that a requirement under this chapter was not complied with in relation to the order. Does that ground relate purely to process, or would it include other issues? If so, can the Minister give some examples?

How quickly do the Government think that an application under subsection (2) would be heard in the High Court? If a local authority has made a public spaces protection order preventing use of, let us say, a public footpath in the light of objections from landowners and nearby residents—or, alternatively, a local authority has made a public spaces protection order preventing the use of a large public square in a major city which is regularly used for the purpose of rallies or public protest meetings, in the light of opposition from local residents or businesses—the question of how quickly access to the High Court can be made is not unimportant.

As an individual can apply to the High Court, how much is it likely to cost to make such an application and will the use of professional lawyers be mandatory or optional? Will legal aid be available? If so, to which categories of interested people will it be available? Does the reference to an interested person making an application to the High Court mean that a business or other organisation cannot make an application to question the validity of a public spaces protection order? If that is the case, what is the Government’s argument for taking that stance?

Clause 62(5) states that,

“the Court may quash the order … or any of the prohibitions or requirements imposed by the order”.

Does that include the length of time of up to three years for which the order has been imposed by the local authority?

The Government say that the Bill is about victims, but people on the wrong end of an unjustified local authority public spaces protection order will also be victims, so what provisions in the Bill will enable support to be provided to such individuals, including support in taking a challenge to the High Court? On the face of it, one might conclude that the proposals for public spaces protection orders are fair and reasonable. If they are applied by reasonable people acting in a reasonable manner, they almost certainly will be. However, the question is: what are the safeguards in the Bill to prevent abuse of this power? What or who is there to stop a local authority from acting unreasonably in making an order in the first place? Is there in reality nothing?

[Lord Faulks]

Is the answer to the noble Lord’s question not that if an authority acts unlawfully its acts are amenable to judicial review, just as any other administrative acts are?

[Lord Rosser]

I am waiting to see what answer the Minister gives me. The noble Lord himself raised a particular reference to Clause 62, so perhaps he is also waiting for an answer to his point.

I ask the question again. Is there in reality nothing, with the only redress being an application to the High Court by an interested party? If the answer is that you go to the court on some other issue of judicial review, it comes back to the point about what this clause is doing in the Bill. If that is the case on the question I have raised about the specific grounds on which the validity of the order can be challenged in the High Court and how restrictive or otherwise those grounds are, I suggest that that is very relevant—as is the speed with which an individual can get a hearing at the High Court, along with the cost of doing so and the support that will be given to them.

There is obviously some confusion about what Clause 62 means; that is clear from the contributions made by a number of noble Lords. I hope that the Minister will be able to provide detailed answers to these questions and thus resolve any confusion there may be about what this clause is meant to mean, and in what circumstances and on what basis it will be applied.

--- Later in debate ---

[Lord Taylor of Holbeach]

This clause is of course specific to the Bill, and so lays down the procedure of the considerations which apply in the Bill. Judicial review is a much broader process through which individuals can challenge legal conduct of the implementation of a PSPO. I have made it quite clear that the intention is not to close the door on judicial reviews, but I will reflect on the points that have been made by the noble Lords, Lord Rosser and Lord Harris of Haringey. I will be writing to all those who have participated in the debate.

[Lord Faulks]

Further to a point that I made a little earlier, which the noble Lord, Lord Harris, also made, of course the Minister is absolutely right: judicial review cannot be ousted by any provision. That is why I am a little perplexed about subsection (7), where it is provided:

“The validity of a public spaces protection order, or of a variation of a public spaces protection order, may not be challenged in any legal proceedings, either before or after it is made, except under this section”.

It looks, on the face of it, as though it is precluding challenge. I am sure that there is an explanation, but I look forward to it being included.

[Lord Greaves]

My Lords, I thought that I would be getting my views on this clause clarified. I am even more muddled, having heard this debate, than I was before. That is no fault of those taking part; lots of valid questions have been asked, which will need answering. I assume that my noble friend the Minister will copy any letters he sends to people around the Committee so that we can all see his answers. Is that the case?

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Wednesday 20th November 2013 Lords Chamber

[Lord Rosser]

In Clause 40(3)(a) there is,

“a requirement to stop doing specified things”.

In Clause 40(3)(b) there is,

“a requirement to do specified things.”

In Clause 40(3)(c) there is,

“a requirement to take reasonable steps to achieve specified results”.

I should have thought that what the Minister has just described is a requirement to do specified things and is covered by Clause 40(3)(b). What kind of things does Clause 40(3)(c) cover? Why is it, in relation to Clause 40(3)(c), a requirement to take reasonable steps to achieve specified results, whereas in Clause 40(3)(b), which is a requirement to do specified things, there is no reference to taking reasonable steps?

It is clear that, in the eyes of the Government, there is some significance in putting the requirement to take reasonable steps in Clause 40(3)(c), but not in Clause 40(3)(a) or Clause 40(3)(b). I should be grateful if the Minister could explain what that is and what the distinction is between a requirement to do specified things and a requirement to achieve specified results. I asked whether it was intended that the person or body issued with a community protection notice will be told, by the person issuing it, what will be deemed to constitute,

“reasonable steps to achieve specified results”.

[Lord Faulks (Con)]

Before the noble Lord answers, I wonder if I might add to his burden and suggest that the difference between paragraphs (a), (b) and (c) is really pretty obvious. In paragraphs (a) and (b), somebody has direct control over specified things that can or cannot be done, whereas in paragraph (c) we are talking about third parties, over whom the best that can be ordered is that reasonable steps are taken to achieve specified results. It is a classic example, frequently found in legislation.

[Lord Rosser]

I hope the noble Lord will accept that the definitions the Minister was giving seemed to come under the requirement to do specified things, not achieve specified results, which is what I had asked about.

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, first, I welcome the fact that we are having this debate, because the injunctions were clearly the major issue raised at Second Reading. I think that most noble Lords who contributed to that debate raised this issue.

However, I start by saying that the late scheduling of today’s Committee sitting is rather unfortunate. There will be noble Lords who would have wished to table amendments to today’s debate but who, given that the sitting was scheduled only on the last sitting day before Recess last week, may not have had the opportunity to do so. The noble Lord, Lord Ramsbotham, made the point that we now have a clash with the Children and Families Bill, which is also in Committee as we speak. I suspect that, given the nature of the subject before us today, many noble Lords who are in that Committee would also wish to contribute here. My final plea is that this time yesterday I was in Argentina, and I arrived in the UK only a few hours ago. I promise not to do my Eva Peron impression on this issue—although perhaps in passion if not in length. The scheduling is unfortunate, and I hope that the Minister will take that message back. I would not want noble Lords who have a contribution to make to this debate to be unable to do so.

The noble Lord, Lord Greaves, has done us a service with his amendment, and I am also eager to probe the Government’s thinking on this issue as well. I am certainly not against children and young people being held responsible for their actions; we defined that principle in anti-social behaviour orders. We have had some debate today about the criminal age of responsibility for young people, but the amendment and the Bill are not really about that. They are about whether a young person aged 10 is likely, on the balance of probabilities, to cause annoyance or nuisance to anyone. I am not a parent, but my experience of 10 and 11 year-old children is that they inevitably cause nuisance and annoyance to somebody at some point. I do not know whether the Bill is an appropriate vehicle to make that kind of behaviour subject, on the balance of probabilities, to such an injunction. I find that somewhat strange and I would like the Minister to develop his thinking and explain why the Government think that it is appropriate.

I can think of numerous examples where 10 and 11 year-olds would cause nuisance and annoyance: persistently kicking a ball at a fence, breaking that fence or causing disruption in the neighbourhood. That is the very point that my noble friend Lord Harris made: the Government are trying to squeeze a range of interventions into one which, inevitably, will not be appropriate in every case.

I wonder, if a complaint is made about a young person aged 10 or 11 causing nuisance or annoyance, how the police are going to investigate to see whether it is appropriate that such an injunction be placed on that young person. The JCHR made the point that there is no requirement whatsoever in the Bill to judge what is in the best interests of the child before such an injunction is imposed. It would be helpful if the Government would explain their thinking why it would be appropriate to issue an injunction when a 10 or 11 year-old may cause nuisance or annoyance.

[Lord Faulks (Con)]

Perhaps the noble Baroness can help the House. Section 1 of the Crime and Disorder Act 1998, passed by the previous Government, permitted local authorities to apply for ASBOs in respect of persons aged 10 or over, subject to conditions. Does the party opposite have a changed view now, in view of the amendment?

[Baroness Smith of Basildon]

We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.

--- Later in debate ---

[Lord Lloyd of Berwick (CB)]

My Lords, I had not intended to speak on this part of the Bill, so I am afraid that I have not done as much homework as I should. For many years, however, I have protested against using the civil law to do the work of the criminal law, because it leads to problems when you adopt that approach. For that reason I have always been uneasy about ASBOs. For example, it was years before it was decided—if it has now been decided—whether the standard of proof on ASBOs is the criminal standard or the civil standard but as near the criminal standard as makes no difference. So I shall not be sad to see the back of ASBOs.

Part 1 of the Bill deals with injunctions. Injunctions are a civil procedure. Therefore, on the face of it, one would expect to see the civil standard apply. When the question comes to whether the respondent is in breach of the injunction, the criminal standard applies under paragraph 1 of Schedule 2. That seems a sensible approach. With regret, therefore, I cannot support the noble Baroness’s Amendment 19C, but I am happy to support her other amendments.

[Lord Faulks]

My Lords, we are considering the powers to grant injunctions under Clause 1, but it is important to consider the other provisions in Part 1, particularly Clause 4, which specifies those who can apply for injunctions, including local authorities, housing providers, the local chief of police and various other agencies but excluding individuals.

The anxiety that has been generated by Clause 1 is understandable. This anxiety has been excellently analysed by the noble Baroness, Lady Mallalieu, but it needs to be closely examined to see whether it is justified. The Minister told the House at Second Reading that draft guidance had already been published for front-line professionals and referred to particular parts of that guidance. At page 24, it is specified that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.

The jurisdiction to grant an injunction is given to the High Court or the county court, or the youth court in the case of a respondent aged under 18. The court has to be satisfied first that the respondent is engaged in anti-social behaviour and secondly that it is just and convenient to grant an injunction for the purpose of preventing him or her from engaging in anti-social behaviour in the future.

We should not underestimate the inherent safeguards that are present in that procedure. The expression “nuisance or annoyance” is well established in the context of landlord and tenant law and it has been statutorily incorporated into various housing Acts. The expression was introduced with little controversy by the Anti-Social Behaviour Act 2003. There is now a wealth of case law applying this test, which is applied by judges up and down the country. The words by themselves might be thought of as attracting remedies where actions complained of are relatively trivial, but in fact, for “nuisance and annoyance” to pass the threshold, it has to be to be something pretty substantial.

By the same token, judges are not easily persuaded that it is “just and convenient” to grant an injunction unless the court is satisfied that it is equitable to do so. The expression “just and convenient” is well established in law and will mean that the courts hesitate before granting injunctions, unless the behaviour complained of is such that the court considers it fair to do so. If a court were to be too draconian—as to which there has been little evidence in the past—then successful appeals would follow.

The provisions of Part 1 allow for a range of requirements to be included in injunctions, including if necessary a power of arrest. The terms of an injunction will of course depend on the particular facts of a case. Similarly, a power of arrest will be attached only if the seriousness of the allegations merits the exercise of such a power. A point made cogently by the Law Society in its briefing on this part of the Bill is that injunctions are used in the case of noise nuisance as an alternative to possession proceedings. They result in the person or their family staying in their homes, but with restrictions as to their conduct rather than their having to be evicted.

With respect, there seems to be a number of difficulties about the proposed amendments as explained by the noble Baroness, Lady Mallalieu. They would essentially create a criminal regime—there is a criminal offence later in the Bill—for low-level anti-social behaviour, in that before an injunction could be granted there would have to be proof beyond reasonable doubt. This would mean that hearsay evidence could not realistically be used. Witnesses are often afraid of the perpetrators of anti-social behaviour and give their complaints to a housing officer who can then present evidence. One should not underestimate the misery that can be experienced by residents of, let us say, a block of flats where one of the occupants is determined to make the rest of the occupants’ lives a misery. The amendment would probably necessitate seriously frightened residents having to give evidence and be cross-examined. It is much more likely that they would simply refuse to do so.

In our anxiety to ensure that civil liberties are preserved we should neither lose sight of the victims of anti-social behaviour nor underestimate quite what a scourge it can be. I understand entirely what lies behind this amendment and the concern expressed by a number of noble Lords that essential freedoms could be at risk if the powers under Part 1 were used too enthusiastically. However, I feel that the really substantial amendments here will emasculate the right to obtain an injunction under Part 1 and result in a failure to protect those who are the victims of anti-social behaviour. Nevertheless, by way of acknowledging the very real and sincere concerns that a number of people or groups have about Clause 1, I propose in my amendment, which I will outline shortly and is supported by the Joint Committee on Human Rights, that a degree of objectivity be imported into the definition of conduct capable of causing nuisance and annoyance. That amendment, which I will be submitting, would help, but I am afraid that I am against these amendments.

[Lord Harris of Haringey]

My Lords, I find myself in the difficult position of agreeing with much of the excellent speech by my noble friend Lady Mallalieu and much of the speech just made by the noble Lord, Lord Faulks. The reason for that is the mess that this Bill is. The reality is that the original concept of anti-social behaviour orders was introduced because of a real, prevalent problem in many parts of this country. The problem outlined by the noble Lord, Lord Faulks, is that of people whose lives were being made a misery by the actions of others, but because they were often frightened, or did not think that it was appropriate or possible, they would never bring those matters in a formal complaint and would be very reluctant to give evidence. That is why the test was lowered from the criminal standard of proof.

Those in this House who have been elected members, whether at local council level or who have been Members of Parliament, will have had brought to them cases of inter-neighbour disputes that have gone on for years. You tell them, “Keep a diary, keep a list” and so on, and they come back two, four or six weeks later with a completed list, none of which would be sufficient if we were still operating under the old system of a criminal standard of proof. That is why the previous Government introduced anti-social behaviour orders. I do not think that anyone suggests that anti-social behaviour orders have all worked perfectly, but they made a real difference to the lives of very many people. The reason was that we were changing the way in which those actions could be brought and lowering the standard of proof.

The problem with what the Government are doing is not that they are trying to simplify the system or make it better but that they have swept away what has over time developed and then moved to this system of applying for an injunction, or IPNA. By changing the test to one of nuisance and annoyance, they have opened up the prospect of a lower standard of proof being applied in far broader areas. We can all add to the list of things that cause nuisance and annoyance. While it is true that Clause 4 limits the list of organisations which might apply for an IPNA, it does not deal with the circumstances in which there will be very powerful local lobbying about much lower levels of nuisance and annoyance. The regime will be applied to local authorities; it will be applied to local housing providers—and an interesting question is what a local housing provider is. Is it somebody who happens to rent out one room? In which case, can they apply willy-nilly for IPNAs against all and sundry in the local neighbourhood? I am sure that this issue has been addressed in the guidance but that I have just not read it yet. There will be all sorts of cases where people raise matters which at the moment would not qualify for the ASBO procedure.

The reason why we are debating this amendment is that the Bill has created these anomalies. It would be clearly obnoxious for injunctions to be issued in respect of trivial matters on the basis of this lower level of proof. Equally, we are in danger, for those very legitimate reasons, of throwing away all the progress that has been made in the past few years by reverting to the criminal standard of proof. I think of my time as a local councillor and my time on the London Assembly, where much of my constituency work related to anti-social behaviour issues. The difference that it made for the local authority or for the housing association to be able to pursue these matters as they were able to under anti-social behaviour legislation, provided relief for many people. That is not to say that there were not problems or that some places were not more reluctant and so on. I shall propose an amendment later which states that there should be some coherent planning locally as to what the arrangements should be for pursuing IPNAs in a particular area and that there should be an anti-social behaviour strategy in local areas, but we will come to that later. However, the important point is that, because the Government have made such wholesale changes and have then tried to force them into the single IPNA process, we are in danger of sacrificing the civil liberties or well-being of many people who were protected by the regime of anti-social behaviour orders.