Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Monday 25th November 2013 Lords Chamber

Moved by

[Lord Greaves]

53A: Clause 58, page 35, line 2, at end insert—
“(5) The meaning of “local authority” in this section includes a parish council and a Welsh community council.”

[Lord Greaves (LD)]

My Lords, I shall speak also to Amendment 53C. This small group contains two completely unrelated amendments. The first simply asks why premises owned by parish and town councils are not treated in exactly the same way as premises owned by district or other principal councils in terms of exemptions from alcohol bans. District councils are treated in a slightly less strict way compared with other premises, but I do not understand why town councils are not treated in the same way, as they very often own what people think are council-owned facilities in small and medium-sized towns.

Amendment 53C is a more important amendment, and it reads fairly cryptically. It proposes inserting at the end of line 41 on page 35,

“notify such other persons as may be specified in regulations made by the Secretary of State”.

It relates to Clause 60, which concerns orders restricting a public right of way over a highway. Therefore, we are back to that subject.

The existing legislation in a number of different areas relating to access contains designated or specified organisations. There is a list of those organisations and they usually appear in secondary legislation rather than in an Act. I remember arguing a long time ago during the passage of the Countryside and Rights of Way Bill, as well as the Commons Bill in 2006 and some others, that they ought to be in an Act, but they ended up in regulations.

In the CROW Act, proposals relating to access concern restrictions on access land; in the case of the Wildlife and Countryside Act, they concern closures and diversions of rights of way; and in the Marine and Coastal Access Act, they are to do with the designation of access land and the coastal route. In all these cases there is a designated or, in the more recent legislation, specified list of organisations which are notified of proposals. The list includes access organisations such as the Ramblers, the British Mountaineering Council and the Open Spaces Society. It also includes representatives of landowners. For example, the Country Land and Business Association, formerly known as the Country Landowners Association, is on a specified list, as are other organisations. It is a balanced list and it is a matter of automatic notification.

The purpose of this slightly cryptic amendment is to ensure that such a list—really it is the same list as in the other legislation—applies in the case of proposals to restrict, and particularly to stop access to, rights of way so that those organisations have the opportunity to make representations just as they have in other cases. Particularly on the rights of way we are talking about here, if what was being proposed was a closure or diversion under the Highways Act, as amended by the Wildlife and Countryside Act, that right would exist.

I shall say what I said before we had our dinner break: nowadays such notifications are far easier than they used to be. Once a system has been set up, it is just a question of pressing two or three keys on a computer keyboard. If I can set up that sort of system easily enough, I am sure that local authorities would have no difficulty doing so. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I am grateful to my noble friend for tabling his amendments. On Amendment 53A, I appreciate and understand the important role that parish and town councils and community councils in Wales play in delivering key services in their area and, importantly, in creating a feeling of community; for instance, through the organisation of social events and so on and so forth.

The Bill provides some level of protection for council-operated licensed premises so that they can organise the kind of social events I have referred to but, as my noble friend has suggested, the narrower definition of local authority in this part of the Bill may mean that protection is not afforded to the types of council covered in the amendment. As such, it could result in the parish council not being able to sell alcohol at its annual fête because of a wider controlled drinking zone implemented by the district council. I have listened very carefully to my noble friend’s comments and have reflected on the amendment. If he will agree to withdraw it, we will certainly consider any further and wider implications of the change suggested and return to this on Report.

Amendment 53C would give the Secretary of State the ability to add, by regulation, to the list of persons who should be consulted before access is restricted. We believe that, as currently drafted, the Bill covers all those who should be consulted in each case. I am happy to provide further examples in the guidance but we do not believe there is a need to provide the Secretary of State with the ability to prescribe additions to the list. As my noble friend knows, it would, of course, be open to a local authority to consult more widely, if it so chose. On the basis that I accept in spirit his first amendment and with the explanation I have given on his second amendment, I hope that he will be minded not to press his amendments.

[Lord Greaves]

My Lords, having just had a splendid dinner, I am tempted to put the first amendment in this group to a vote and see what the Government do, but I shall not. I shall be a good boy. I thank the Minister for his very constructive response.

On Amendment 53C, I do not understand why organisations which are consulted at the moment on all similar proposals should not be consulted on these proposals. There is a suggestion that these national organisations ought to keep out of these local decisions, but we are talking about rights of way networks which have national or regional importance as public footpaths for many people who do not live locally. There is an issue of principle here which I would like to discuss further with the Government. In the mean time, I beg leave to withdraw the amendment.

Amendment 53A withdrawn.

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Moved by

[Lord Greaves]

53G: Clause 60, page 36, line 17, at end insert—
“(6A) A public spaces protection order may not restrict the rights of any person in relation to a private right of way.”

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[Lord Greaves]

My Lords, I thought that I was going to get a rest; my noble friend did not tell me that she was not moving her amendment, or if she did, I have forgotten.

I will be interested to hear what the Government have to say about Amendment 53G. Amendment 53H is slightly more complicated. It applies yet again to the sort of area in which I live where there are county councils and district councils in a two-tier system. The district council will be responsible for making public spaces protection orders. The county council is the highways authority, which is responsible by law for maintaining public rights of way to an acceptable standard so as to ensure that people can walk on footpaths and ride horses along bridleways, for example. County councils do not always carry out those duties to a great extent, but nevertheless they are responsible in law for maintaining these rights of way. It seems wrong that the district council does not consult the county. The Minister has already said that the Government will look favourably at making sure that county councils, as highways authorities, are consulted. The question is this: what if the highways authority objects to closing one of its highways? Does it have a veto or not? I am suggesting that it should, but I shall be interested to hear the Minister’s response. I beg to move.

[Baroness Smith of Basildon]

My Lords, I have a couple of quick questions on this issue. We tabled a clause stand part debate and I was slightly taken aback when the noble Baroness, Lady Hamwee, withdrew her two amendments because they touch on the issue that I wish to raise.

First, it seems to me that there has to be a very good reason to restrict a public right of way over a highway. Will it be in guidance, as there is nothing here to say that it should be a matter of last resort and that all other options should be considered before taking that step? It would be useful to have the Minister’s comments on that. Secondly, I have clearly been dreaming about this Bill—I am affected so greatly by it. I have just checked with the noble Lord’s officials as I was absolutely convinced that I had read in a letter from the Minister that he would make the amendment anyway, but I am told he has not. Clearly it is a very good amendment and he should make it. Will he enlighten me on Clause 60(3) which states:

“Before a local authority makes a public spaces protection order restricting the public right of way over a highway that is also within the area of another local authority, it must consult that other authority if it thinks it appropriate to do so”?

Why would it not think it appropriate to do so? Why would it not consult the other authority in whose area the highway on which it wishes to restrict public access or the right of way belongs? In my dreams I thought that this had already been done, but I am told by the Minister’s officials that it has not. Can he comment on that and explain why the authority must consult the other authority in whose area the highway is only if it thinks it appropriate to do so, rather than seeking the permission of the other authority as a matter of course? I hope that the Minister will clarify this as I am puzzled by the subsection.

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[Lord Greaves]

My Lords, that is very interesting. The discussion went beyond where I thought it might go. I was talking really about footpaths and bridleways but we now find that this power may apply to a majority of the road network in this country—no?

[Lord Taylor of Holbeach]

I point my noble friend to Clause 61(1), in which he will find a list of the highways to which it cannot apply.

[Lord Greaves]

My Lords, I think the Minister is relying on Clause 61(1)(e), which refers to,

“a highway in England of a description prescribed by regulations made by the Secretary of State”,

because the rest of them are,

“a special road … a trunk road … a classified or principal road … a strategic road”.

I am not sure that in terms of sheer mileage, they cover more than half the roads in the country. Unclassified roads are legion. No doubt they will appear in the prescribed description of roads made by the Secretary of State. To add to the questions asked by the noble Baroness, Lady Smith, we really want to know what roads will be prescribed under that subsection so that we can work out what is left and what might become public space.

As I say, that is all very interesting. On the first amendment, on private rights of way, I hesitate to get into the intricacies of private rights of way because there has been quite a lot of case law and it is all very complicated. I ask the Minister to have another look at it because it is quite possible for private rights of way to cross public land that will be designated as public space. This needs a bit more attention. Having said that, I withdraw the amendment.

Amendment 53G withdrawn.

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Moved by

[Lord Greaves]

55: Clause 62, page 37, line 7, leave out “An interested” and insert “A”

[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 Rosser (Lab)]

My Lords—

[Lord Greaves]

Perhaps I could speak before the noble Lord, and then he could speak last before the Minister. I am grateful to my noble friend Lord Faulks and the noble Lord, Lord Harris of Haringey, for clarifying my thoughts on this. I must admit that my thoughts were muddled after reading this. I think that they are clarified now but perhaps the Minister will muddle them again—I do not know. I ask him one question. If this process is indeed one of judicial review of the process as opposed to a normal appeal on the merits of the case, will the judicial-reviewable process include the guidance as well as what is set out in the Bill?

[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?

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[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?

[Lord Taylor of Holbeach]

I am certainly quite prepared to make my correspondence as broad as anybody would wish. I have certainly noted the people who have taken an interest in this matter and will try to make sure that everybody is included in the correspondence.

[Lord Greaves]

I am most grateful, as I am sure other noble Lords are. I have two quick points. For all this talk of whether it is the High Court or judicial review, they are both way above the abilities of ordinary people. If I go on a local footpath anywhere in this country and I find that it is blocked and complain to the highways authority, and the highways authority does nothing about it, I can go to the court to make the highways authority do something about it. That court is the magistrates’ court. However, if I then find signs up saying that the local authority has just issued a public spaces protection order to stop me walking on it, there is no way on God’s earth that I will go to the High Court, because ordinary folk do not do that kind of thing. There may well be Members of this Committee and your Lordships’ House who spend half their time in the High Court, but most of us do not; and after the one or two occasions on which we have ever been there, we may never want to go back again.

If there are to be decisions like this, which affect basic, historic rights to walk on paths and land, there needs to be a proper appeals mechanism just as there is under the Highways Act. If a local authority closes a footpath under the Highways Act and you do not like it, you can appeal to the magistrates’ court. That is the sort of level at which ordinary people can function. Are the Government saying that ordinary people are not able to get help and support from organisations that can operate at a higher level, such as the Ramblers or perhaps the CLA, but are on their own? Sorry, but they are individuals, and it clearly states here that it is about an individual, not even a local business, as the noble Lord, Lord Harris, said.

I think that there is something wrong and we need to have further discussions about it, but not now. I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

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Moved by

[Lord Greaves]

56ZA: Clause 63, page 38, line 4, at end insert—
“(1A) Subsection (1) does not apply if the prohibition or restriction relates to—
(a) travel along a footpath, bridleway, restricted byway or byway open to all traffic in an appropriate manner in each case;(b) presence on a common, village green or town green or on land that is access land under the Countryside and Rights of Way Act 2000.”

[Lord Greaves]

My Lords, Clause 63(1) states that:

“It is an offence for a person without reasonable excuse”.

The words “without reasonable excuse” are part of the reason for putting these probing amendments down in order to find out what they mean. Subsection (1) continues,

“(a) to do anything that the person is prohibited from doing by a public spaces protection order, or,

(b) to fail to comply with a requirement to which the person is subject under a public spaces protection order”.

Again, my amendments refer to the kinds of access that are specifically enabled by legislation, historic practice and common law; that is, rights of way, commons, village greens and town greens. Amendment 56ZA is about those. It states:

“Subsection (1) does not apply if the prohibition or restriction relates to—

(a) travel along a footpath, bridleway, restricted byway or byway open to all traffic”,

or presence on access land. If I am walking along with an Ordnance Survey map in my hand, or if I am a bit more modern and I have a fancy phone or tablet, and I walk on to this land or on to footpaths where access has been prohibited from access by a public spaces protection order, why should I become a criminal for doing things which, on the face of it, I believe to be reasonable? This amendment probes to what extent that would be a criminal offence. The question is, would I be behaving in a reasonable way if I did that? If I met an owner, a resident or somebody else who told me to get off because some sort of spaces order had been made on the land, would I still be breaking the law if I said, “No. I’ve got this Ordnance Survey map which maps the access land and shows the rights of way, and I’m okay”?

Amendment 56ZB states:

“A person does not commit an offence unless the local authority has displayed information about the relevant restrictions and requirements on or adjacent to the land that is subject to the public spaces protection notice in such a way that it is reasonable for the person to have seen the notice”.

The possibility under public spaces protection orders for people to break the law but not know that they are breaking the law—in other words, breaking the order, which is an offence—simply because the local authority or other authorities have not provided adequate information on the site, is very great indeed. These are probing amendments to test what would happen under those circumstances. I beg to move.

[Lord Taylor of Holbeach]

My Lords, I understand that these are probing amendments relating to the circumstances in which someone may commit an offence when a public spaces protection order is breached. I can see the reasoning behind Amendment 56ZA. Clearly, it is hard to see how using a public right of way in an appropriate and responsible manner, or mere presence on common land, a town or village green, or on access land, could constitute an offence. However, in the extreme circumstances where the council, in consultation with the relevant bodies, has decided to place restrictions on access to the land that apply to everyone, there must be a penalty for breach.

Similarly, Amendment 56ZB seeks to provide that it is not an offence to breach the conditions of a public spaces protection order if the local authority has not publicised it in a certain way. As I have said before, I do not believe it is for primary legislation to state how restrictions will be publicised; not least there may be situations where it is not necessary or appropriate to do so in the entirely sensible way my noble friend suggests. The place for this is in regulations or guidance.

However, on the more important point of a defence of reasonable excuse, I would like to assure my noble friend that a person commits an offence only if they breach a condition without reasonable excuse. The courts carefully consider whether there is a “reasonable excuse” to breach an order if the local authority has not publicised it appropriately. As such, regardless of what is in the legislation, or indeed the guidance, it is in the best interests of the local authority to make sure that people using the public space know what is expected of them; otherwise, it becomes unenforceable. Earlier this evening we discussed unenforceable legislation in connection with a matter affecting this House.

I hope that, with this reassurance, my noble friend will feel able to withdraw his amendment.

[Lord Greaves]

My Lords, the real problem with this measure is that it criminalises trespass in certain circumstances where people not only think they are not trespassing but have evidence in their hand which shows that they are allowed to be there. This is the potential problem that could arise. I am not sure that the Minister’s answer has tackled that thoroughly and completely. This issue needs further discussion but, for the moment, I beg leave to withdraw the amendment.

Amendment 56ZA withdrawn.