Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I should probably start by saying, “as I was saying”. I apologise again to the Committee for some confusion about an earlier amendment. Members of the Committee were either excessively polite, in the manner of your Lordships’ House, or completely unengaged with what I was saying, and did not interrupt me for some time. I am grateful to the noble Lord, Lord Ahmad, for eventually doing so.

I do not want to repeat what I have already said, but refer the avid reader of Hansard back to the report of earlier this evening. I will repeat my requests that we discuss before Report the relationship between how statutory nuisance and nuisance under the Bill are dealt with. Community protection notices, particularly noise abatement notices, address very similar problems. I am aware that guidance will have a role to play here, and I hope to contribute to it.

Amendment 22NA, which provides that the detriment under Clause 40(1) should be significant, speaks for itself. It should be more than a de minimis matter. Amendment 22ND deals with the possible clash of the use of CPNs and existing statutory powers, as does Amendment 22NE. Amendment 22NF, unlike the earlier amendments, seemed desirable to me—I do not mean that the others are not desirable but that this is my drafting, not someone else’s. I suggest that the community protection notice should explain not only the points set out in Clause 40 but the remedial action proposed given the powers to be provided under Clause 44, which will essentially allow the local authority to go in, carry out work and charge.

Amendments 22QD and 22QE take us into Clause 43, which is about appeals against community protection notices, and are probing in the hope that the Minister will be able to confirm that modification of a notice which the magistrates’ court may make on appeal can be only in favour of the applicant and that modification can include variation by reducing the requirements—in other words, that the appellant will not be in danger of finding himself with harsher restrictions or provisions. I beg to move.

[Lord Greaves (LD)]

My Lords, I have tabled Amendment 22QC in this group, which I will comment on in a minute or two. Since this is the first group about community protection notices, I thought that it might be helpful to say a few things on the back of that about them generally. Of all the new measures to deal with anti-social behaviour that are being put forward by the Government in their new battery of weapons, I am most enthusiastic about community protection notices if they are done in an appropriate way.

My first question to the Government is about those notices, which may be issued on reasonable grounds that,

“the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and … the conduct is unreasonable”.

In what ways does this differ from the criteria and the test in Clause 1 for serving an IPNA? These require that a person,

“has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person”.

What is the difference between “nuisance” and “annoyance” on the one hand, and on the other conduct that,

“is having a detrimental effect … on the quality of life”,

of people in the locality? I am not entirely sure what the difference in meaning is but perhaps the Minister can tell me.

Secondly, what kind of things are community protection notices intended to deal with? Clearly, they are intended to deal with different things from injunctions to prevent nuisance and annoyance. There is a hint in Clause 54, which talks of repeals and transitional provisions of litter abatement notices and two other litter notices under the Environmental Protection Act 1990, and of defacement removal notices under the Anti-social Behaviour Act 2003, which refer to graffiti really. What else is there? Is this just about litter and graffiti? I am sure that it is not, but for what other things do the Government envisage that this potentially wide-ranging power could be used?

For example, could it be used to deal with accumulations of rubbish in the back yards of empty houses, or of houses where tenants do not care too much about such things? Could it be used to deal with odour, if someone was making regular bonfires and causing lots of smoke in the area? Could it be used for animal nuisances, such as dog dirt? Could it be used for somebody who insisted on hanging out their washing across the front street rather than in other appropriate places at the back? Could it be used against gatherings in the street—for example, if people wished to use it, in the complaints being made at the moment about Roma people in Sheffield? Would this be an appropriate way of dealing with that or, whether or not it is appropriate, could it be used for that? It would be very helpful if, after this debate, the Minister could list 10 useful things it could be used for. Then we will have a fairly good idea of whether those of us who are local councillors and so on might consider that this is a power which we can use.

There are some concerns that a number of these powers and the existing ASBOs criminalise anti-social behaviour if notices are not complied with, although things such as litter already involve the criminal law. If this is an exciting new power that can be used for all sorts of things in a proportionate manner, there are concerns about the lack of resources, and of new resources, for local authorities to use it. As I keep saying in debates in this Committee: tackling anti-social behaviour and nuisances, and helping to make our residential streets more civilised places at local level, is resource-intensive. It means lots of different agencies co-operating.

For example, in my ward, every month there is a local environmental audit. People from the local neighbourhood policing team, localities officers, councillors and people from the council’s anti-social behaviour unit and its refuse collection and litter sections go round with a little wagon. If there are any accumulations of rubbish, they do not bother serving notices on anybody; they just stick it in the wagon and take it away. That kind of thing is quite resource-intensive and, at a time when all local authorities are under real pressure, it is the kind of thing that will be found difficult to keep going. Yet these powers will be no good whatever unless there are people on the ground who can investigate reported problems, see problems for themselves and have the resources to serve the notices, follow them up and deal with the people.

Amendment 22QC probes what happens in a slightly interesting situation. If you serve a notice in relation to a nuisance that refers to a piece of land and the person who you are serving it on transfers its ownership from, for example, one company that they own to another that they own or are involved in, or to their wife or their husband, you have to start all over again because you are dealing with different people. The proposal I am putting down here does not work but is there to probe. Have the Government got any ideas about how to deal with this? A remarkably high proportion of anti-social behaviour problems are caused by a few individuals who just enjoy playing the system and opposing the council. They regard it all as a great game. How on earth we deal with these people, I do not know but if my noble friend the Minister has any ideas, I would certainly like to hear them.

[Lord Harris of Haringey (Lab)]

My Lords, at the risk of being mischievous, to some extent I am going to be. When the Minister responds to the noble Lord, Lord Greaves, with his list of 10 things that local authorities might use these powers for, he might tell us whether the powers would extend to a local authority issuing community protection notices in respect of, say, a string of shops down its high street that promote payday loans. That is conduct having a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality. Would it apply to the behaviour of a series of off-licences? In many high streets the only shops are betting shops, off-licences and payday loan companies. Would it be open to the local authority to serve community protection notices on those businesses setting a requirement that they should, effectively, cease to do business?

I am sure that that is not the intention of the legislation and I am not trying to belittle the important intention of the legislation in terms of the sorts of persistent nuisance that the noble Lord, Lord Greaves, is thinking of and that I, as a former local councillor, can certainly think of. These provisions require perhaps just a little clarification as I am sure that an inventive local authority lawyer could find all sorts of interesting ways in which you might argue that bodies are having,

“a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality”.

I could labour the point at some length with many more examples but I suspect that the Minister’s patience—already wearing thin—will not survive it.

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I turn to Amendment 22QC from my noble friend Lord Greaves. As I understand the issue, this would stop an individual appealing against a notice if they have transferred their interest in the issue to another person. I do not think that my noble friend was referring to transferring dogs but, if he were, I can give him an absolute assurance that, as currently drafted, it is not possible. A community protection notice would be issued to the person responsible for the dog and any conditions associated with the owner—for instance, attending a training course on how to look after the dog—would still apply. Ultimately, the notice would remain valid. I am happy to consider the issue further, but I would like to be clear that the notice should be framed in such a way as to deal with the current issue and, if possible, to prevent future anti-social behaviour.

[Lord Greaves]

I refer to a real case, which has been dealt with by serving planning notices, particularly Section 215 tidying-up notices, which are similar to the kind of notice that we are talking about now. The problem is associated with inappropriate use of land which is causing problems to people living adjacent to it. It is the use of the land that is the problem, but notices have to be served on the owner of the land, and the owner simply keeps transferring the ownership to somebody else, or to another company and then back again. The question that I am really asking is whether the Government could look at whether a community protection notice could be served on the land in some instances so that whoever owned that land would have to deal with the problems on it. If the problem is a dog, it is not associated directly with land—but, if it is a piece of land, could that possibly be considered?

[Lord Taylor of Holbeach]

I would certainly wish to consider the concept that my noble friend has presented to the Committee by tabling the amendment. It is well worth noting the illustration that he has given; we need to be certain that we have protected against that sort of situation. I shall no doubt be getting in touch with him and will try to consider this matter before Report. Meanwhile, I am grateful to him for raising this issue. Transferring the interest after a notice is issued may solve a problem, but it is not a ground for appeal, as he will understand.

My noble friend also asked about the difference between nuisance and annoyance and detrimental effect and how come the definitions are different. We have taken elements from existing powers; nuisance and annoyance has worked well, as we have said, in housing law, while detrimental effect is used in current environmental powers. It is also well understood. That is why we have transferred that language to this notice.

I turn to the amendments tabled by the noble Lord, Lord Rosser. On Amendment 22NB, the provision specifically allows for a requirement to be attached to a community protection notice that includes reasonable steps to achieve specified results. This preventive limb of the new notice is integral to the process and I am surprised the noble Lord wishes to see it removed. Under this provision, authorised officers could, for example, include a requirement for a dog owner to attend dog training classes to ensure they are better able to control their dog in future. If there was any doubt as to why the provision is necessary, I hope I have clarified the issue.

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Moved by

[Lord Greaves]

22NC: Clause 40, page 23, line 16, leave out subsection (6)

[Lord Greaves]

My Lords, my noble friend Lady Hamwee and I had a meeting with the Minister yesterday, which was extremely helpful regarding various parts of this and for which we thank him very much. One of the things we talked about was our mutual wish to speed up this Bill a little and move into a gallop. The slightly languid, if not sleepy, feeling in this Committee means that it will not happen this evening. I apologise to the Minister, as these are two amendments that I intended to amalgamate with the previous group and I forgot to do so.

Amendment 22NC is to probe the meaning of Clause 40(6), which reads:

“A person issuing a community protection notice must before doing so inform any body or individual the person thinks appropriate”.

This is very vague. Who do the Government think that that should mean, by what means should this take place and, in particular, how will the Government ensure that this happens without actually stating in the Bill a little more about who should be consulted or notified?

Amendment 22QA makes this a bit more definite in relation to the local authority. It reads:

“Where a community protection notice is issued by an authorised person who is not the relevant local authority, the person must notify the relevant local authority of the issue of the notice”.

The reason is that it is absolutely essential that the district council or unitary council, which is at the centre of the community protection notice regime, should know what is going on. It is about the role of the district council—as I call it—or the unitary council in dealing with these kinds of things. If constables are to go off and issue them on their own, or indeed if other people designated by the local authority are to do this, there is a risk of duplication of effort—and a risk of confusion for the people subject to the problems that the activities are causing, particularly if more than two or three agencies are trying to deal with it. There is also the essential co-ordinating role of the local authority.

Under Clause 44, it is the role of the relevant local authority to take any remedial action. Whoever serves the notice, the local authority ends up with that role. So if you are a person who can issue one and you are not that local authority, simply having to notify the local authority seems like common sense. It would help if it were in the Bill. I beg to move.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, Amendments 22NC and 22QA are proposed by my noble friend to change the process at the point where a community protection notice is issued. Currently, when issuing a community protection notice, an authorised person—be that a police officer, an officer of a local authority or a person that the local authority has designated, such as a social landlord—would have to inform any body or individual that the person issuing the notice thinks appropriate. Amendment 22NC seeks to remove this requirement.

Amendment 22QA, in my noble friend’s name, then seeks to impose a requirement that an authorised person who is not the local authority must inform the relevant local authority of its issuing of a notice. I recognise that it is important that a local authority is aware that community protection notices are in operation in its area but, conversely, it is also important, as I am sure noble Lords will agree, that local authorities notify the police. The reality is that police and local authorities will be working together to tackle local anti-social behaviour and therefore it is not necessary to put into the Bill the requirement to inform the local authority. The existing provision in Clause 40(6) states that the authorising officer “must … inform” any appropriate individual or body of the issue of a community protection notice, and it is difficult to imagine any case where the relevant local authority would fall outside the definition of “appropriate”. I do not think it necessary to specify that the local authority must be informed.

However, there may well be others whom it would be appropriate to inform as well. As I have suggested, the police will often have an interest. I fear that the effect of my noble friend’s amendments would be to restrict the requirement to informing the local authority only.

Our guidance for front-line professionals states clearly that, where a community protection notice is being issued, there is clear merit,

“in involving the local council, which will have many years of experience in tackling environmental issues, when deciding whether or not to serve a CPN”.

As I and my noble friend have said on previous occasions, the guidance can be amended as we move through the parliamentary process. Of course, if there is a requirement, we can set a clearer expectation on the necessity of ensuring that the local authority is fully involved.

As an aside—I speak with some experience, although perhaps not with the same number of years’ experience as my noble friend—in my 10 years in local government, I served as both the cabinet member for the environment and then as the cabinet member for policing and community engagement. In that respect, my experience—albeit on a London council—showed that the local authority, the police and other local agencies work well on the ground, and we have faith that these agencies will continue to work well as we move forward.

Amendment 22QF concerns remedial works carried out by the local authority where there has been a breach of a community protection notice. Remedial works may be carried out if a person fails to comply with the terms of a notice served on them. The local authority may carry out the remedial work without the consent of the owner or the person who had defaulted on the notice on land “open to the air”, and Amendment 22QF would prevent this. The local authority cannot simply enter premises at will; I am sure that my noble friend knows that to be true. It must seek the “necessary consent” of the defaulter and the owner of the premises if that person is not the defaulter. However, there may be circumstances where the local authority has taken all reasonable efforts to find the owner but has not been able to do so. I do not believe that communities should continue to suffer in such circumstances, and that is why it is important that the authority is able to carry out remedial works.

I hope that my noble friend is reassured by the explanations I have given of what is behind the Government’s proposals here, and that he will be minded to withdraw his amendment.

[Lord Greaves]

My Lords, I thank the Minister for that reply, although I was a bit peeved by the first part of his response. If I have not made it absolutely clear that the first amendment is a probing amendment in order to find out what this subsection means, then I apologise. I shall try to be clearer in future. It is quite normal in Committee to table amendments that take out subsections, not because you want to take them out but because you want the Government to explain what they mean. They are called probing amendments and that is fairly normal procedure, but I am sorry that I did not make that clear in this case. Clearly, I do not want to take out the subsection; I want a clear explanation from the Government of exactly what it means, and I shall read Hansard before I decide whether I have had a clear explanation.

The Minister said that the reason why councils will have to be notified is that they have many years of experience. That is true but it is not why they have to be notified. They have to be notified because, as I understand it, they are the most important central body as far as community protection notices are concerned. I am not suggesting that the police are not important—they clearly are very important indeed—but the council is the body that has the staff and the ability to go on to the ground and do something about these problems, and remedy them if that is required. The Minister said that the Government have faith that these agencies will continue to work well on the ground as we move forward. I have no doubt that where this is working well already on the ground it will continue to do so, and I hope that it will be brought in where it is not yet working—so long as the people are still there on the ground.

I am sorry to hammer on about this, but in many parts of the country it is precisely those council staff and the local neighbourhood policing teams, who are so vital to this operation, whose employers are wondering how long they can continue to pay them, because of the cuts that are taking place. That is just a fact. I am not making a political point. If I were on the Labour Benches I would be making a horrible political point and attacking the Government over this, but I am not doing that now; I am just stating that this is the fact that we have to live with. Many of us are fighting hard to ensure that in our own patches the mechanisms, the structure and the networks continue, but with every year that passes that gets more difficult. It is one thing to pass legislation like this that puts forward exciting new ideas and measures to deal with the problems, but if we cannot do it on the ground because there are no staff left, it is very difficult. Having moaned in that way, I beg leave to withdraw the amendment.

Amendment 22NC withdrawn.

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Moved by

[Lord Greaves]

22P: Clause 40, page 23, line 22, at end insert—
“(9) A community protection notice may require the control or removal from premises occupied by a body or individual of a plant of the following description—
(a) Japanese Knotweed (Fallopia japonica),(b) Himalayan Balsam (Impatiens glandulifera), or(c) a plant specified in an order made by the Secretary of State.”

[Lord Greaves]

My Lords, we have reached the high point of the evening: an amendment about Japanese knotweed. It is actually an amendment about weeds, alien and invasive. I have listed Japanese knotweed and Himalayan Balsam, which I think are now the two biggest nuisances of the invasive alien weeds in this country—and, indeed, from my observation, in much of Europe as well—but this is really an amendment about Japanese knotweed.

I could wax lyrical for hours about Japanese knotweed and the problems that it causes, if you want—but I am sure that you do not, so I shall not do that. I shall merely say that as a weed that has,

“a detrimental effect … on the quality of life of those in the locality”—

to quote the Bill on the subject of community protection notices—it is top of the list.

The Environment Agency has described Japanese knotweed as the most invasive species of plant in Britain. The problems are well known: on river banks, on pieces of land, invading people’s gardens, on building sites and on built sites, it is dreadful. It is an incredibly strong weed, which can grow up through concrete and split it, and cause the foundations of buildings to require attention. It can do all sorts of things, and it spreads very easily. It does not spread in the normal way, by sexual reproduction—not in this country, anyway. In this country the whole thing is apparently one huge female clone: it is all the same plant. It spreads vegetatively, and if you take a small part of the stem, the root or the leaf and just drop it, the odds are that you will have an infestation in that location before long.

Japanese knotweed causes huge problems. Local authorities attempt to deal with it on their own land—certainly my local authority does, perhaps because I nag it all the time—but it is much more difficult when the weed is on somebody else’s land. What is the law that applies to it? Because of its invasive nature, Japanese knotweed is listed in Schedule 9 and subject to Section 14 of the Wildlife and Countryside Act 1981. All that does is make it an offence to plant Japanese knotweed and cause it to grow in the wild. That is all very well if it is in the wild and growing as a weed on waysides or wherever. It does not apply to Japanese knotweed which you have not planted but which is growing on your property and you are not dealing with it. Under cross-compliance rules, if a farmer receives the single farm payment, he is required to take reasonable steps to prevent its spread. Those are the old rules and no doubt they will be rolled forward.

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[Lord Taylor of Holbeach]

My Lords, I will be brief: I am sure the Committee would want me to be so. I can be very reassuring to my noble friend. He presents what is a very serious issue. Japanese knotweed is not the only invasive and destructive plant, as indeed he mentioned.

In reforming the anti-social behaviour powers, we have deliberately created flexible powers that can be used to stop or prevent any behaviour that meets the legal test. We have streamlined the powers, and introducing a specific use for the community protection notice would be to reinvent the behaviour-specific powers we are trying to repeal.

However, as currently drafted, the CPN can be used to require someone to control or prevent the growth of these plants, or any others capable of causing the havoc that they do. It is non-specific in terms of the nature of the plant and in the sense that it does not necessarily refer to invasive plants in the legislation. But the test is that the conduct of the individual or body is having a detrimental effect of a persistent or continuing nature on the quality of life of those in the locality, and that the conduct is unreasonable. Those are the tests. In this case, the conduct can just as easily be interpreted to mean inaction, so not taking action to remove it can come under a CPN.

I hope that I can reassure my noble friend that the amendment does not add to the powers currently available in the Bill and elsewhere, and I ask him to withdraw it.

[Lord Greaves]

My Lords, I am very pleased with that response. It is the most positive thing that I have heard a government Minister say about Japanese knotweed in the 10 years that I have been banging on about it in your Lordships’ House, along with other noble Lords. I am very grateful for that.

What I would really like to see when this legislation is passed, as it no doubt will be, is joint advice. I realise that the legislation will not refer to specific problems, whether Japanese knotweed, littering or anything else because the whole purpose of the CPN is to be general. But it would be very helpful if the Home Office and Defra could issue joint advice—together with CLG or anyone else—to councils and people about how to deal with this when the legislation is passed. There is a huge reluctance on behalf of many councils because they are frightened of the problem. They think that it is too expensive and that it cannot be solved. It is absolutely crucial that there is a war against Japanese knotweed throughout this country to get rid of it as far as possible.

I shall be badgering the Government to do that when this legislation is passed, but I am delighted by what the Minister said. I shall put it out, reprint it, pass it around and make him famous. In the mean time, I beg leave to withdraw the amendment.

Amendment 22P withdrawn.