Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Monday 25th November 2013 Lords Chamber

Moved by

[Lord Greaves]

23: Clause 55, page 32, line 8, leave out “two” and insert “three”

[Lord Greaves]

My Lords, your Lordships may be satisfied that we are moving back to stuff that is in the Bill as opposed to perfectly legitimate discussions about things that noble Lords have taken the opportunity to raise. In moving Amendment 23, I will speak also to the other 12 amendments in the group. In fact, I will speak to the first eight or nine amendments on the basis that my noble friend the Minister has kindly agreed to write to me about the others—unless other noble Lords raise them.

We move on to Part 4, Chapter 2 of the Bill, which is about public spaces protection orders—a new form of order that district or unitary councils will be able to make to tackle anti-social behaviour in their area. Rather than speaking in detail to each of these amendments, it would help at this stage if I made a few general comments to introduce public spaces protection orders.

Clause 55 is the defining clause. It says that the local authority—the district council—can make a public spaces protection order in response to circumstances in which,

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

“Public place” is defined quite widely. It does not have to be owned by the public sector. The test here, of a

“detrimental effect on the quality of life of those in the locality”,

is essentially the same test as for community protection notices.

There is one fundamental distinction between this order, the PSPO, and the other measures we have been discussing so far, such as IPNAs, criminal behaviour orders and community protection notices, which are all about the control of individuals, of people acting either individually or in a group. Public spaces protection orders are different because they are about public spaces and controls over those spaces—in other words, controls on land and what people can do on that land—so they affect everyone, or everyone in a category of persons. That has civil liberties implications, because clearly they will capture innocent people who may then be penalised and, if they breach the order, could end up facing criminal charges.

I should say that I am not against public spaces protection orders. I think that they will be extremely useful devices for local authorities, as long as they are used sensibly and proportionately. The amendments in this group and some of my other amendments are not, therefore, against PSPOs; they are probing how they will work, what safeguards are already in the Bill and what further safeguards may be needed.

There are three main concerns about PSPOs. The first is the one that I have already raised: they may remove liberties of the citizen in public spaces from the vast majority of people who have done nothing wrong and do not intend to do anything wrong, or at least nothing significant. The Bill states that the orders can be levied for up to three years—the assumption is that that will be standard—and then prolonged for another three years ad infinitum. In effect, they could become permanent restrictions on what people can do in public places and, in extremis, whether they can go there or not.

The second concern relates to the possibility that public spaces protection orders could be used to keep people out of an area, not just to control what they can and cannot do within that area. For some types of land designated precisely for access and informal recreation, public spaces protection orders will in effect nullify and negate the very purpose of the designation of that land. That part of the proposals has caused considerable alarm among organisations such as the Ramblers and the Open Spaces Society, to which the noble Earl, Lord Lytton, referred. The threat, as it is seen, is that some or all the rights under existing legislation specifically for those types of land could be removed, and that when proposals are made to remove them under the new legislation, all the existing safeguards to ensure that such rights are not removed unless absolutely necessary will be swept away in a pretty easy, arbitrary manner.

The third concern, which I think we can deal with now, is that as the Bill has gone through its parliamentary process, PSPOs have not been much scrutinised—certainly not adequately, in my view. The pre-legislative consideration of the Bill by the Home Affairs Committee dealt with PSPOs in a fairly cursory way; they got some discussion, but not a lot, as the Bill went through the House of Commons. We must scrutinise this part of the Bill carefully to see whether we can persuade the Government to make changes to prevent some local authorities taking the provision to the limit so that it goes further than is reasonable.

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[Lord Taylor of Holbeach]

My Lords, this is a large group of amendments which essentially comes down to the purpose of these orders. Perhaps I may take the last point first as that is often easier. The conditions that have to be considered include that the effect of the activities, in the second limb,

“justifies the restrictions imposed by the notice”.

I am looking at Clause 55(3)(c), so there is a requirement for balance in the creation of a public spaces protection order within the Bill. It is certainly not the case that, in introducing these public spaces protection orders, we are seeking to give local authorities an undiluted right to close off areas without proper consideration of the legal and proper activity being conducted in those areas.

The problem with my noble friend’s amendments is that he is suggesting that the lives of people in the locality would already have to have been affected for some time before the council could act. We are anticipating that there will be circumstances in which, because of other activities, the council may wish to create a public spaces protection order in advance of, let us say, a new development. For example, if a council wanted to open a new children’s play area, it may wish to place restrictions on that area either to prohibit dogs from entering or to allow them only if they are kept on a lead. If my noble friend’s amendments were accepted, the council would have to wait until irresponsible dog ownership turned up as a feature before it could address that. We dealt in a previous debate with the problems that can come through displaced activities, so I hope that my noble friend will understand that we see it as being for a council to exercise judgment on these matters.

Only those behaviours that are linked to a detrimental activity can be applied. Any additions to that list would be treated as a variation under Clause 57 and be subject to the same tests and consultation. Having got a public spaces protection order, it can be varied only by starting the consultative process again. I hope that my noble friend is reassured by that; if he is not, I can tell him that any variation of an order could be challenged in the High Court. Where orders are deemed to be unnecessary or disproportionate, there is still the ability for those affected to challenge it in court. The council will be mindful of this when judging whether the test has been met.

I fully understand why my noble friend is making these points. In the draft guidance published last month we have included guidelines on the aspects and impacts that should be considered before an order is used. We will, of course, continue to develop the guidance to try and cover the point raised by my noble friend, but I fear that including it in the Bill would make it hard for a council to act quickly and deal effectively with anti-social behaviour.

I think that I have covered the issue of the future impacts. Regarding Amendment 32, I would like to be clear that the aim behind this amendment is to allow councils to design solutions around local needs. Clause 55(6) will result in the closure of rights of way being less likely under a new regime. It will allow specific problems to be dealt with without the recourse to completely closing a public space, as I have said.

There is some flexibility in these orders that will suit both those who wish to go about exercising their legitimate rights and those who wish to make sure that anti-social behaviour can be tackled. I agree with my noble friend that these orders have to be used proportionately. The benefit to the community in tackling detrimental activities must be balanced against the impact of any prohibitions or requirements. I believe that local councils are capable of making such assessments and coming to the right decisions, having consulted the local community. If they get it wrong, or are perceived to have got it wrong, an order can be challenged in the courts. Given the safeguards that we have built into the legislation, which are reinforced by the draft guidance we have published, the Bill gets the balance right and I hope that my noble friend would be willing, on that basis, to withdraw his amendment.

[Lord Greaves]

My Lords, that takes us into some very useful discussion and I am grateful to my noble friend for his careful response. What he said about play areas and the ability of councils to put a public spaces protection order on a new play area to keep dogs out, for example, or perhaps because they wish to have areas under a PSPO where dogs would have to be kept on a lead, indicates that what is being proposed is not a minor thing. It is a very powerful new proposal with a strong power. Some might think that it is far-reaching and draconian but, if councils behave properly, it may be valuable.

As a local councillor, I have to say that I am very attracted by the idea of being able to make public spaces protection orders. I can think of all sorts of places where suitable orders might be introduced—so I am not against them at all. What I am concerned about is whether there are sufficient safeguards. My noble friend refers to the right of appeal to the High Court but, in terms of closing footpaths, the right of appeal on closing a right of way is to the magistrates’ court. Most people concerned about such a matter can undertake an appeal to the magistrates’ court. They would not want to go to the High Court to appeal against an order. There is a real concern here that the powers being given to local authorities are very strong, potentially very beneficial but also powers that could be misused. Being able to go only to the High Court is a problem.

Finally, the Minister referred to the draft guidance that has been produced, which is very helpful and useful. Like my noble friend Lady Hamwee on guidance, earlier today I said that it was a good thing that in this Bill that there was not much provision for the Secretary of State to make orders and regulations. In practice, what is going to happen is that the Secretary of State will issue guidance, which in effect will be instructions to local authorities. It will be a very brave local authority that does not follow the guidance. I am not sure that non-statutory guidance in that sense is any better than statutory orders and regulations, which at least potentially can have some parliamentary scrutiny. However, I am very grateful for my noble friend’s comments. There are further things to discuss here before we get to Report but, in the mean time, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

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Moved by

[Lord Greaves]

34A: Clause 55, page 32, line 36, at end insert—
“( ) A prohibition or requirement made under subsection (6) may not prevent the use of the public space by persons—
(a) bearing placards, offering to talk to people or providing literature or other material relating to political or other beliefs and campaigns;(b) assembling or parading for the purpose of promoting political or other beliefs and campaigns;(c) making speeches whether or not amplified in pursuit of such aims.”

[Lord Greaves]

My Lords, perhaps we should have discussed this amendment along with the last amendment but one about goings-on around this building. This amendment tests to what extent public spaces protection orders can remove rights of peaceful assembly in public places. In practice, public spaces protection orders are not a suitable way of limiting freedom of speech, assembly or campaigning. We have just discussed a very extreme example. There may be occasions when these rights have to be curtailed or regulated and controlled for the benefit of people in general, people in the locality and even people in your Lordships’ House. But in most cases, when public protest gets out of hand, it is possible to deal with it through existing public order legislation. In some cases, it requires local by-laws but, by and large, it is dealt with fairly well. People ask whether we should not be able to ban those such as the English Defence League from having a demonstration in the middle of Bradford, but there is legislation to deal with that. If existing legislation is insufficient, it is in the area of public order legislation or local legislation that people should look.

It would be wrong for these orders, which can be made quickly and easily by a local authority, with a minimum degree of consultation—even with the welcome amendments that the Government will propose in a minute or two—to be used to limit basic rights of assembly, protest and debates in public places and freedom of speech. Specific problems should be dealt with in a one-off manner on the basis of existing law. If there are very special places, such as outside this building, where people think that there ought to be more control, it should be dealt with on that basis. If there is a need to improve the law, it should not be done on the basis of orders that are easy to make and can last for three years—and in practice, by extending them, can last for ever. The rights of assembly, free speech and peaceful campaigning are too important to be dealt with in this rather arbitrary manner. I beg to move.

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[Lord Taylor of Holbeach]

The noble Baroness has only referred to one part of the second condition; there are three tests within the second condition alone. With the extra requirements set out in the second condition, I am satisfied that we have provided sufficient safeguards to ensure that these orders cannot be used to prevent peaceful protests or free speech. It is also worth mentioning that local authorities and the courts—I am sorry to come back to the courts, but we rely on them to make sure that legislation is properly used—must exercise their obligations compatibly with Articles 10 and 11 of the European Convention on Human Rights, which enshrine the rights to freedom of expression and association respectively. They are intrinsic in any matter concerning peaceful public protest or free speech.

That is not to say that public order legislation will not continue to apply; it can still apply. My remarks should therefore not be taken as licence to include threatening or abusive words on a placard, or the bearer of the placard containing that sort of wording could be liable to arrest. There is overriding public order legislation, but the test on a public spaces protection order has to satisfy the notion that it is a behaviour which is persistent and continuing, is or is likely to be such as to make activities unreasonable and justifies the restrictions imposed by the notice. All three of those have to be part of the second condition, let alone the first. I hope that, with that reassurance, my noble friend will withdraw his amendment.

[Lord Greaves]

I am grateful for that discussion. I thank the noble Baroness, Lady Smith of Basildon, for her support. It is clearly a complicated matter. I will go away and look carefully at what the Minister has said. I suspect that I will not be completely satisfied but, nevertheless, perhaps looking forward to further discussions, I beg leave to withdraw the amendment.

Amendment 34A withdrawn.

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Moved by

[Lord Greaves]

35: Clause 55, page 32, line 38, at end insert—
“( ) the owner of any part of the public space that is not owned by the local authority;”

[Lord Greaves (LD)]

My Lords, in moving Amendment 35, I will speak to the other 14 amendments in this group as well. All but the last of these amendments, which was tagged on, are about the extent to which there should be consultation and advertising of public spaces protection orders before they are made and to what extent they should be publicised afterwards. What is in the Bill at the moment is pretty rudimentary.

The amendment made by the Government in the last group improved matters a little. However, Clause 55(7) states:

“A local authority making a public spaces protection order must before doing so consult the chief officer of police, and the local policing body, for the police area that includes the restricted area”.

That is fair enough. Paragraph (b) states that it must consult,

“whatever community representatives the local authority thinks it appropriate to consult”.

That is either very broad or very narrow, but we will hear what the Minister has to say.

In addition, the local authority has to publicise the proposal. The interesting question is, what does that now mean? Again, it could be done simply by putting a tiny advert in an obscure part of a not-very-widely-read newspaper, or by splashing it all over the place, on its website and everywhere else. The question is, will what local authorities are expected to do also be in the guidance? Would it not be better to have some basic proposals in the Bill—which is what my amendments try to ensure?

The first six amendments are about making public spaces protection orders. The remainder, apart from the last one, raise the same questions in relation to extensions, variations and removals of orders—what the legislation calls “discharges”. As far as consultations are concerned, Amendment 35 says that the owner of the land must be consulted. The Minister may tell us, “Of course the owner of the land will be told what is going on”, but it does not say so in the Bill. Whether the owner of a particular piece of land is a community representative may be a question of doubt. The owner may live in Wellington, New Zealand, in Vladivostok, or anywhere. However, if orders will be made that restrict the activities that members of the public can undertake on a particular piece of land, the owner of the land should be consulted about that before the order is made.

Amendment 36 probes what is meant by “community representatives”. Will the guidance tell us? The amendment would take that out, but only in order to probe what it means. Amendment 37 says that the county council—the highways authority in two-tier areas—should be consulted as one of the main local authorities. The county will think that it is the major local authority. The district may disagree, but nevertheless, the county council clearly should be consulted, particularly if the public spaces protection order affects a highway. The county is the highways authority—it is responsible for that highway—and it may well have a view as to whether activities should be restricted or whether people should be banned from going on that highway, if it is a right of way. The amendment also says that parish councils should be consulted.

I have put down amendment after amendment about parish councils and I sometimes think that the people who write legislation in central London—in Westminster and Whitehall—do not have much experience of them. I know that the Minister has huge experience of parish councils, because he lives in a part of the world in Lincolnshire that is rife with them, and quite rightly so. People may say, “Some parish councils are rubbish”, but some are brilliant. When it comes to dealing with things such as local environmental crime on a small but irritating level, or with anti-social behaviour, parish councils have an essential role to play. They are at the heart of communities and can help to stop it happening.

I propose simply that if a public spaces protection order is being made on land within a parish, surely that parish council should be consulted. The Minister may say, “Yes, the parish council is certainly the community representative, and will therefore be consulted”. I would like at the very least the assurance that that will be in the guidance. Unfortunately some district councils do not like parish councils, not even their own, and go out of their way to keep them out of things.

Amendment 38, which is quite complicated, sets out rules for advertising the proposal, making copies available, and considering representations and objections. It also says that the decision should be made in public, because some of those decisions will be very controversial, and they should not simply be made by a delegated authority to an officer or to a cabinet member who makes the decision without having to justify it to people who wish to support it or protest against it. Amendment 39 says that once a public spaces protection order has been made it has to be published and should be open to inspection. The Minister may tell me, “Of course that will happen—it will be in the guidance”. I look forward to that.

Finally, Amendment 56ZC covers a rather different area. It is an amendment which probes what the term “community representative” means, and whether it can mean a regional or national body that is perhaps called in by local people for some expertise. Again, I think, for example, of the Ramblers or the Open Spaces Society, which might be brought in if there is a proposal to close a right of way by a public spaces protection order. If the normal procedures for closing rights of way were to be carried through, through the highways legislation or the Wildlife and Countryside Act, that would happen automatically.

The danger is that this legislation may provide a shortcut that local authorities will find very attractive. I am not sure that “shortcut” is the right word; it should aim to close a shortcut which may be highly controversial. One ought to be able to bring in experts in the field. Nowadays, it is not difficult to consult organisations. In the old days, you had to print off another copy of a letter, put it in an envelope, put a stamp on it and post it off. Nowadays, you do not do that; you just have an easy distribution list on your computer and you send it off to everybody, so there is no excuse for limiting and restricting the number of people who should be consulted and should be able to make representations. I sit on a local committee which deals with rights of way questions. Usually, the people who make representations to us are local people. If it is the Ramblers Association, it is a local branch of that association. However, sometimes the issue is more controversial and difficult, and national organisations get involved. These national organisations may be heritage organisations or amenity organisations. All sorts of organisations get involved on behalf of local people who have asked them to do so. Excluding them, which is what this section of the Bill seems to do, is ridiculous. I look forward to the Minister’s response, as ever. I beg to move Amendment 35.

[Lord Redesdale (LD)]

My Lords, I support my noble friend, especially on Amendments 38 and 56ZC. I raise the vexed issue of dogs and am happy that my first interjection on the Bill concerns that issue—indeed, I have been looking forward to it—in the context of public spaces protection orders. I think that many local authorities will consider introducing such orders to ban bull breeds of dogs from green spaces. Many people may support such a measure but an animal welfare issue is involved. If local authorities decide to ban a specific breed of dog, who will enforce it and where will those dogs be walked? Making such orders would be popular and therefore many local communities may suggest that they be implemented across the whole of their area, which would cause an animal welfare issue, especially for those responsible dog owners who look after their pets. Indeed, evidence shows that Staffordshire bull terriers are safe dogs if handled properly. However, many of the problems associated with status dogs arise because people do not understand how to look after them and do not train them properly. Blanket orders banning such dogs from green spaces could be very popular but would cause many problems. Many animal welfare charities are overrun with bull breeds of dogs that have been abandoned and the measure we are discussing would exacerbate that problem. The amendment would ensure consultation around such enforcement. I think that enforcement of breed-specific measures would be a mistake. The Dangerous Dogs Act 1991 was drawn up in haste and tried to ban pit bull terriers. However, there are now more pit bull terriers in the country than when the Act was introduced, so it did not work. In addition, it is a very difficult law to enforce.

I understand that muzzling or keeping dogs on leads at certain times could be a solution to this problem in certain areas but a blanket ban would be a problem. Will this issue be dealt with in the guidance that will be brought forward? If that is not the case, who will make representations on behalf of these dog breeds? Amendment 38 refers to representations. I hope that national bodies will be consulted in areas where dog wardens do not exist following financial cuts. I very much hope that the Minister will advise that blanket bans cannot be imposed in this regard unless the animal welfare issues are fully discussed.

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[Lord Taylor of Holbeach]

My Lords, I thank my noble friend for his amendments in this group. I am happy to say that I believe there is merit in a number of his suggestions. I hope that he will be pleased by my response to his amendments.

Amendments 35, 45 and 50 would see the landowner consulted, if this is not the council—the council could, of course, be the landowner—before a public spaces protection order is made. I accept that it is entirely appropriate that the council should take reasonable steps to consult either the landowner or occupier of any land to be covered by a public spaces protection order. It is conceivable that this could be done through a relevant community representative under Clause 55(7)(b), but I acknowledge that the owner or occupier is in rather a different position and should be consulted directly where they can be identified. Likewise, Amendments 37, 47 and 52 would add parish councils, county councils and community councils to the list of bodies to be consulted where appropriate. Again, I accept that there is a case for having these bodies on the face of the legislation for the avoidance of doubt, and I would like to consider this matter further between now and Report. The viability of parish councils can vary enormously. I come from one of the largest parishes in England. Holbeach has a population of not far off 10,000 people and has its own resources, including a park and sports areas, so it is a considerable body in its own right.

Amendments 38, 49 and 53 would make provisions for prior public consultation where an authority wishes to issue, vary or extend an order. These go into more detail than the requirement to consult,

“whatever community representatives the local authority thinks … appropriate”.

As my noble friend Lord Ahmad said on the previous group of amendments, we have considered the points made by the Delegated Powers Committee about publicising orders and accept that such a requirement should be written into the Bill. Our amendments will require orders to be publicised before they are made, extended, varied or discharged. I hope my noble friend will accept that the government amendments achieve the substance of his Amendments 38, 49 and 53. It follows that having publicised its intention to make an order, a council is duty bound to consider any representations it receives in response to such a notification. We do not need to provide for this on the face of the Bill.

If I understand my noble friend’s scheme correctly, Amendments 36, 46 and 51 are consequential upon Amendments 38, 49 and 53. These amendments would remove the more generic reference to consulting “community representatives”. However, I still see merit in leaving reference to community representatives, which could include residents’ associations or other local, or indeed national, bodies.

This brings me on to Amendment 56ZC, which seeks to remove any doubt as to whether a national body falls within the category of community representative. While I believe that the Bill already covers the situations that my noble friend envisages, this additional clarity would be helpful and I would like to assure my noble friend that I will consider it.

I am also sympathetic to the sentiment behind Amendments 39 and 40, which relate to publicising an order once it has been made. Amendment 39 would specify that when an order is publicised this should include putting it on the local authority’s website. It was always our intention to keep the regulations light touch to ensure maximum flexibility at a local level. However, I suggest that in order to future-proof the legislation we avoid referencing websites specifically in the Bill so that if more appropriate media are developed in 10 years we do not require primary legislation. But we can certainly make clear in the regulations that the council should publish the order, at the very least, on its website.

Similarly, Amendment 40 seems to set a reasonable expectation that once an order is in place it will be available for inspection. Indeed, we would expect this to be best practice, although perhaps publishing the order on the website might make it more widely accessible than making it available at the council’s offices, as the amendment proposes. The point is well made but this matter is best addressed in guidance.

My noble friend Lord Redesdale opened up a tricky issue in an almost pre-emptive strike on our debates on dogs, if I may say so. However, quite a number of aspects of this matter are covered in the draft Home Office guidance on controlling the presence of dogs. When deciding whether to make requirements or restrictions on dogs and their owners, local councils will need to consider whether there are suitable alternatives for dogs to be exercised without restrictions. Under the Animal Welfare Act 2006, dog owners are required to provide for the welfare needs of their animals. This includes providing the necessary amount of exercise each day. Councils should be aware of the publicly accessible parks and other public places in their area that dog walkers can use to exercise their dogs without restrictions. I therefore hope that my noble friend is reassured about that, although he should also understand that we need to keep the public safe from dogs that are out of control. We will no doubt be discussing that delicate balance when we reach the dog provisions in the Bill.

I hope that I have been able to reassure my noble friend Lord Greaves on at least a number of the points he has raised through these amendments. I hope he will accept that the government amendments to Clauses 55 to 57 go some considerable way to addressing his concerns. I have also said that I will take away Amendments 35, 37, 45, 47, 50, 52 and 56ZC and consider them further in advance of Report. I make no commitment to bringing forward government amendments at that stage but will certainly reflect very carefully on the points he has made. With that commitment, I ask my noble friend not to press his amendments.

[Lord Greaves]

My Lords, I am a little overwhelmed by this stream of ministerial reasonableness, having spent most of the past 13 years in your Lordships’ House moving amendments and being met by the stubbornness of, “We must defend our Bill at all costs”. Seriously, I am grateful for what the Minister has said and, in the hope that we will get a good mix of government amendments and assurances about what will clearly and firmly be in the guidance, I am delighted to beg leave to withdraw the amendment.

Amendment 35 withdrawn.

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Moved by

[Lord Greaves]

41: Clause 55, page 33, line 6, at end insert—
“( ) A public spaces protection order may not be made in respect of land which—
(a) appears on a register of commons and of town and village greens maintained by a Commons Registration Authority,(b) is access land under the Countryside and Rights of Way Act 2000, (c) is a footpath, bridleway, restricted byway or byway open to all traffic which appears on a definitive map of rights of way, or(d) is a cycle path or other way designed for pedestrians or vehicles used by disabled persons which is financed or maintained by a public authority, or which was authorised or required by a planning permission.”

[Lord Greaves]

My Lords, this is the last group of amendments that I shall move or speak to. After that there will be just a few bullet points and I therefore hope that the Committee will bear with me a little because this is a long and complex group, in which my noble friend Lady Hamwee also has an amendment.

All these amendments are about the types of land where rights of access are provided by legislation, often with an actual or implied right to take part in formal recreation while accessing the land. There are two kinds of such land. The first is areas of land that include commons, village and town greens, and access land under the Countryside and Rights of Way Act 2000, which includes the new coastal access routes and the spreading room between those routes and the sea. I remember that the person who led on the CROW Bill for the Liberal Democrats was my noble friend Lady Miller of Chilthorne Domer. Some of the amendments she moved attempted to place an obligation on councils to publicise areas of access land on their websites. We were told by the Government of the day that that was inappropriate because websites were new and unknown, most councils might not have them, and that they were therefore inappropriate. Now we are told by the current Minister that websites may not be around for very long and are therefore ephemeral. Such is the passage of time. The second type of land is highways, routes, rights of way and other important recreational routes. Some of the amendments in the group cover both types of land but, rather than going through the amendments in detail, I shall take each type in turn.

The first two paragraphs of Amendment 41 state:

“A public spaces protection order may not be made in respect of land which—

(a) appears on a register of commons and of town and village greens”,

or,

“(b) is access land under the Countryside and Rights of Way Act 2000”.

Commons and greens are special places, the rights of access to which are contained in historic law, some of it common law, and in the CROW Act and the Commons Act 2006. The CROW Act provides a right to roam on all commons. Village greens and town greens are specifically designated as areas where informal recreation has taken place without permission or hindrance for at least 20 years, and in some cases for centuries. The right to informal recreation on greens is basic to their existence. Restricting such access and activities by the relatively easy administrative process under public spaces protection orders is, frankly, not acceptable. It is possible to have restrictions on greens but such restrictions are carefully worked out and laid down, and difficult to achieve. Commons are also historic and the right of public access is entrenched in the Acts. Often access to and the presence of a common are common law rights, by which I mean common law, not the Commons Act. Again, it is quite unacceptable that these ancient rights can be overturned and that there is only one difficult right of appeal to the High Court.

Amendment 41A concerns something quite different. It is about rights of common, although I do not want to go into great detail on those or we may be here all night. A common typically has an owner, which may be a public authority or a private owner. It also has commoners who are attached to the common, and they have rights of common. Nowadays, it is mainly a grazing right, but there may be ancient rights such as pannage and turbary, which noble Lords can look up in the dictionary. These rights of common belong to the commoners and are quite separate from the rights of ownership of the owner of the common. It would be absurd if these rights, which are laid down, could be overturned by the relatively straightforward administrative procedure of setting up a public spaces protection order, and that ought to be made quite clear.

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In conclusion, we will look at how we can take account in our guidance of a number of the points that have been raised in these amendments. In preparing the final guidance, we will continue to work with interested parties such as the Open Spaces Society. With those assurances, I hope that my noble friend will withdraw his amendment.

[Lord Greaves]

My Lords, I am grateful for some of that, I think. I am less overwhelmed than I was on the previous group of amendments, but there are some issues there to latch on to and have further discussions and debates about. The Minister has several times today made the point that public spaces protection orders are more flexible than, for example, gating orders or some of the other things they may replace, and it is a good point. Local authorities will find useful the ability to place sensible rules on the use of a right of way that might, for example, go near houses. From that point of view, the flexibility in the orders is a good thing. The problem is that the bottom line is that access can be stopped by quick, quite easy administrative procedures which can be appealed in the High Court only. That drives a coach and horses—that is the wrong image for footpaths—through the existing Highways Act legislation, which provides the opportunity to close a public footpath, but makes it much more difficult. There are many more hoops to go through. Those hoops are there for very good reasons. Perhaps the Minister might consider a two-stage process for public protection orders, making it clear to local authorities that they cannot just go straight to closing access if they have not tried these other more flexible means instead.

In practice, once you have banned people from going on a village green, you have lost. Whoever is doing it, they have lost. If there is anti-social behaviour on a village green, it must be tackled as anti-social behaviour to stop it. It is not a sensible answer to it to say that nobody can go on to a village or town green or access land because a minority are ruining it by “careless and irresponsible activity”, to quote the Minister. We all agree that careless and irresponsible activity has to be stopped when it is causing a nuisance, but the problem is the knock-on effect of preventing everybody else using historic facilities. They are not being careless but are being perfectly responsible. Keeping them off because a minority are hooligans is the wrong approach. If there is a minority of hooligans, we have to tackle that minority.

[Lord Taylor of Holbeach]

It would pay my noble friend to read Clause 55 to see that it is targeted at behaviour, not space. I recognise exactly his concerns—the anti-social activity is targeted in the order. Subsection (8) states that the order must,

“identify the activities … explain the effect … specify the period for which the order has effect”.

I hope that my noble friend will study this because a lot of his anxieties are taken care of not just in guidance but in the Bill.

[Lord Greaves]

My Lords, that is true, but I shall finish where I started on public spaces protection orders. They are different from the other orders because, although they are based on people’s behaviour, the order goes not on the people but on the land. Because it goes on the land it affects everybody. That is the difference and why we have to be very careful.

I was going to read out some of the draft guidance that has been produced so far but I thought that your Lordships would probably not want to hear. It is pretty weak—it is considering, thinking about and then getting on with it. The guidance—if that is what we are to rely on—will have to beefed up very considerably. On that basis, however, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

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[Baroness Hamwee]

In moving Amendment 41B, I will speak to Amendments 44A, 44B, 49A and 55A. The amendments take us to Clause 56, dealing with the duration of public spaces protection orders. I entirely take the point that Clause 55 is targeted at activities, but I also take my noble friend’s point that such an order affects everyone. After all, the title of the order is about protecting space, even though the language of the Bill is about the quality of life of the people who may be affected.

The orders may last for up to three years with, I understand, an unlimited number of extensions. The Minister said that he shares the view that public space should be for everyone to enjoy. I take a more urban view than that of my noble friend Lord Greaves. Where space is very scarce in an urban environment it is important not to restrict it. I am aware that one can argue this both ways: one can also say that it is important to ensure that activities do not take place that mean that it is not enjoyable for everyone. It is not just an urban or even suburban or rural issue.

My amendments would provide for the duration to be no more than a year with a single extension, and for there to be no new order dealing with substantially the same space until the expiry of a year—a sort of anti-avoidance provision. For all the reasons already discussed, I would be very concerned about having something that becomes permanent or semi-permanent, but I have a more practical concern as well—it is in part philosophical. My practical concern is: if the order is to stop undesirable activities, whatever they may be, taking place on a particular space, how does one assess that the threat has passed? If the order goes on and on, the culture, local habits and so on of the area may have changed necessarily, and we will never know whether we have been successful, as we should have been in that we have prohibited an activity, or whether we have actually changed behaviour.

Also, if an order goes on and on, it is difficult to see how it can be challenged in the wide, democratic sense. Clause 62 is about challenging validity, but that is different. However, I have Amendment 55A—a pretty ropey amendment, I am afraid, but it would allow some sort of challenge. It is not a good amendment because the clause is about validity, but it will enable me to raise the issue with the Minister on how one challenges such orders. I beg to move.

[Lord Greaves]

My Lords, I have one amendment in this group, which covers very much the same ground as covered by my noble friend Lady Hamwee, so I shall not pursue it further. I merely support everything my noble friend said.

[Lord Harris of Haringey]

My Lords, I understand the nature of the amendments tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, in terms of restricting the length of time of a public spaces protection order, but I believe that the proposals go in the wrong direction. I wonder why there is an automatic process of the orders essentially expiring after a period of three years. The power to make orders sets a whole series of conditions for how the process is to be done. It requires extensive consultation, the nature of which we have discussed already. I am assuming that the orders are made in the context of consensus having been reached in a community that that is the way forward. If such a consensus has been reached, why do we have to go through this process regularly? It would be on an annual basis if the amendment moved by the noble Baroness is passed. Surely the point of the Government’s proposal is that a local authority will apply for the orders on the basis of having consulted widely, including with the chief officer of police and all the others specified in the order. That would include consultation with the local community. If the noble Lord, Lord Greaves, had his way, there would be explicit reference to the importance of parish councils, and I would certainly not object to that. So there we have a community consensus around the protection of public spaces in the area, and then it is said that the order should not have effect for a period of more than three years.

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[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.

[Lord Harris of Haringey]

My Lords, I can see the distinction the noble Lord, Lord Greaves, draws between disruption of an historic right of way and preventing dogs fouling a children’s play area, but I am not sure how you would get around the problem that, essentially, you are saying to a dog owner, “You do not have access to this area”, or, “You do not have access to the area if you are with your dog”. That is also a restriction on rights of access to a particular area—in that case, a children’s playground. I can see what the noble Lord is trying to get at but the solution he is now proposing—admittedly it is not in an amendment before us—would be very difficult.

We come back to the quality of the consultation in the first place. If there has been a proper consultation and there is a general community view that this restriction on people’s access to a particular area is appropriate, surely that is what you go with rather than this constant process of renewal for what may be very limited sets of circumstances.

[Lord Greaves]

I do not think it is as difficult as that. I think it is quite easy. There are plenty of parks nowadays with by-laws that say you cannot take your dog into the park or you have to have it on a lead or whatever. These proposals will make that kind of rule much easier.

It would be possible to look at the question of whether the access itself was fundamentally different from many other things. On the other hand, having thought about that, do you really want an annual or three-yearly review of ordinary gating orders in back streets which are completely non-controversial? I am sure it is possible to think of a way through this and to find a solution.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting debate. I have tabled a clause stand part debate because I feel it is a better way of probing the intentions and contradictions in this clause than individual amendments trying to make sense of it. In many ways, the debate we have had has identified some of the contradictions.

These public spaces protection orders will replace three other orders which were specific to certain circumstances—the designated public place order, the gating order and the dog control order. Noble Lords are right; these orders can last for a maximum of three years and can then be renewed and renewed ad infinitum. There is no time limit or renewal limit in the legislation. The debate has highlighted those contradictions and it would be helpful if the noble Lord could reassure us on some issues. I am not sure that he will be able to.

I am unclear why the Government are making changes in this way and whether all the implications of doing so have been considered. The debate we have had so far might indicate that they have not. The exchange between the noble Lords, Lord Harris and Lord Greaves, indicates that the Government are confused, possibly because they are talking about slightly different things. We are replacing different orders, which deal with different complaints, with a single order that is trying to deal with all the complaints. Those original orders were of necessity very specific about the remedy they were trying to bring forward, whereas we are now moving to a more general order. I think that the noble and learned Lord, Lord Hope, made the same point—that it is going to be very difficult to bring in one order to address all the different complaints.

The dog control order is being abolished and replaced with the public spaces protection order. We are yet to have the debate about whether that is adequate to deal with the problems of dangerous dogs, but Battersea Dogs and Cats Home is very concerned about this as it is worried that local authorities will have to extend the powers after three years. Not only will that create a kind of hiatus at some point but it could create an administrative burden at a crucial time when resources are being cut. The noble Lord, Lord Harris, and the noble and learned Lord, Lord Hope, made this very point and asked why, if something has been agreed and consulted on, it is necessary to have ongoing reviews and renewals. It could mean less protection if, for example, a local authority fails to renew or gets caught up in some bureaucracy and the renewal does not happen or is delayed.

I think I am correct in saying that there are no limits but it would be helpful if the noble Lord, Lord Ahmad, could give an indication of what the average number of renewals will be and how often the Government expect an order to be renewed. I wonder if the Minister understands the concerns that this could be a significant burden on local authorities, which will feel that they have to renew every three years. I looked through the impact assessment to try to find out whether that issue had been looked at, but it had not been specifically addressed. I thought it rather bizarre, given that orders can be renewed and renewed ad infinitum, that the impact assessment refers only to,

“providing councils with a flexible power to put in place local restrictions to address a range of ASB issues in public places, and prevent future problems. This would be different to the current situation as one order would be able to cover a number of issues, rather than needing to follow separate processes for each—reducing bureaucracy and cost for local authorities”.

Representations made to us, however, say that it will increase bureaucracy; that instead of having one order that lasts for the time required, it will have to be renewed beforehand.

There is also concern that in some cases a local authority may go for the maximum time, although it may not need it, because it would be overly burdensome and cumbersome to renew the order. It may think, “We need this to be in place for a year, but rather than having to renew it we will put it in place for three years and just let it lapse and not enforce it if it is not needed for the full three years”. Those are issues of concern. Then there is the other side of the coin. The Ramblers, for example, has other concerns, saying that a maximum of three years,

“is too long a period for the closure of any route of which everyday use is being made”.

I have read through the Explanatory Notes, the impact assessment and the Bill but cannot really understand why the period of three years was chosen. It is quite a lengthy maximum period to cover all the circumstances. What evidence did the Government use and what assessments were made that identified three years as the appropriate time for public spaces protection orders?

Similarly, there is a real danger in trying to address different problems in the same way. Gating orders, for example, are very clear—they do what they say on the tin. I am always very happy to admit that nothing is perfect and make changes to make something more effective, if things can be improved. However, I am not convinced that putting all three of these orders together into one less specific, and therefore weaker, general order is the right way forward.

The Minister and other noble Lords will have received letters about this from naturists who are concerned that it will impact on their activities. One of their concerns is the definition of what constitutes a public open space, which seems to rely on quite a wide description. Can the Minister offer any reassurance on that point?

I have already addressed the amendments in the name of the noble Baroness, Lady Hamwee, but it would be helpful if the Minister could identify how many times he thinks it would be appropriate for an order to be renewed. Has any assessment been made of the costs? The impact assessment says that, because they are not separate processes, it will reduce the cost to local authorities. On what evidence was that comment made? Can he say anything about enforcement? If something is in place in every instance for at least three years, and then renewed, will there be any checks and balances in terms of appropriateness and enforcement?

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, first, I thank all noble Lords who have participated in this debate. In doing so I make the general point that sometimes in debates such as this you hear some noble Lords saying that the period is too long and others saying that it is too short, and so going down the middle is normally the solution. The noble Baroness talked about perfection. Dare I say that, perhaps on this clause, we are as near to that as we can be? I will address the amendments and the questions as far as I can but I hope, as I always do with the noble Baroness opposite, that she will gain some reassurance from what I say, if not from my words then at least from my tone.

These amendments relate to the process of reviewing and extending public spaces protection orders, as we have heard. As noble Lords are aware, there is currently no statutory review point for the orders we are replacing and they can run indefinitely. The argument has been made about where we are today. Putting in a limit is a positive way forward, otherwise—to quote the noble Baroness’s words back at her—these orders run on and on. It is important to look at how they should be reviewed. I believe that there should be a formal review point, which we have decided to set at three years.

The effect of Amendments 41B and 44A, which stand in my noble friend’s name, would of course be to limit this to 12 months. I have listened to the arguments that she put forward. As we have made clear in the guidance, orders do not have to last for three years—a point just made by the noble and learned Lord. There is flexibility within this, according to the circumstance and the situation and at the discretion of the issuing authority, including the local authority, as to what is appropriate. If appropriate, these can be reviewed or discharged before three years have elapsed. My view is more qualified and endorsed after listening to the debate and I believe that three years is a proportionate balance between the needs of users and the protection of the community, especially given the everlasting orders that we are seeking to replace.

Amendments 44B and 49A—which I take to be an alternative to Amendments 41B and 44A—would ensure that orders could not be extended more than once. The noble Lord, Lord Harris, raised the specific point that the legislation allows only for renewal. I am sure that he has reflected on Clause 56; there are provisions specifically to allow for the recurrence of a renewal of an order. He is nodding so I am sure that he agrees with the point I am making.

Of course, there are situations in which longer-term restrictions could be necessary; for example, as I am sure my noble friend is aware, these orders will replace, among other things, dog control orders, as the noble Baroness, Lady Smith, said. This means that a public spaces protection order will be required, as a dog control order is now, to ensure that the fouling of public land is dealt with. I am sure that my noble friend will agree that this is not a problem that can be fixed in three or indeed six years and an ongoing restriction is therefore required. As such, preventing the further renewal of orders would mean communities having to put up with dog mess as well as other potentially anti-social behaviours, such as public drinking.

Turning to Amendment 48, my noble friend will be aware that the orders being replaced by the public spaces protection order do not include a formal review and, as such, can last indefinitely. In reforming the powers, we believed that it was only right that a statutory timeframe was built in, and I am sure that my noble friend will welcome that in principle. As the legislation states, the review should be conducted every three years.

Of course, I understand the concerns raised by my noble friend about the potential impact of a three-year restriction if applied to all orders but, as I have already said, the legislation is clear that councils can limit the duration of an order to a period of less than three years. Indeed, as the draft guidance suggests, in a situation where a public right of way is being closed for the first time to try to deal with a specific issue, the council may well prefer to review this after a shorter period of time.

To make this amendment would mean that all orders covering rights of way would have to be reviewed every six months. This would include, as I have already mentioned, welcome restrictions to deal with dog fouling and the consumption of alcohol. This would turn the new power into a bureaucratic nightmare that resulted in councils that decided to use it living in a loop of constant consultation and review. As I have said before, in my own experience as a local councillor for 10 years, consultations were regularly part and parcel of our decision-making, but if we had to issue an order and then immediately start another consultation, I fear that we would be constantly in consultation mode.

[Lord Greaves]

Does my noble friend accept that there could be a difference between the kinds of restrictions he is talking about, which in appropriate circumstances we would all find sensible to last for a long period of time, and actually banning access itself? It is when access itself is banned on a right of way that the real problems start to occur.

[Lord Ahmad of Wimbledon]

I take on board what my noble friend is saying. That is why I believe that, as the clauses are drafted, there is flexibility with regard to the circumstances, the situation and indeed the tenure appropriate to the offence that is being perceived. I have already flagged up that in this instance, if an issue arose for the first time, the local authority may well be minded to apply an order of smaller duration to allow for exactly the kind of review and assessment that my noble friend is suggesting. I understand the point my noble friend makes and, as I have said, it probably refers more to the restricting of access than anything else. I have listened and we will consider how to make the guidance more specific in this regard.

Finally, Amendment 55A relates to appeals against public spaces protection orders. My noble friend has asked for clarification of whether there is a right of appeal against the extension of an order. That is a fair point. The amendment would provide an additional opportunity to challenge an order every time it was extended. This could result in additional appeals, even if the circumstances had not otherwise changed. That said, my noble friend has raised an important point and I will take it away and reflect further on it.

The noble Baroness, Lady Smith, asked if I could predict the number of orders and renewals. Crystal balls are hard to come by and the important thing we are seeking to do here is to ensure that the orders are specific, time-limited and can be reviewed. Again, if the behaviour has been corrected, the order does not need to stay in place for ever. That is an important point to bear in mind. How often are we expecting the orders to be renewed? That is very much up to the local authorities to decide. One order can cover more than one behaviour with a shorter consultation process, so there is less paperwork, less bureaucracy and less delay. Reviews can be quite light-touch, so one review may be more intensive than another. It would be almost impossible to give a cost for each review.

We should not forget that there is an absolute need for democratic accountability for the continued operation of these orders. The Government feel that the balance has been struck. The noble Baroness talked about the Ramblers and Battersea Dogs and Cats Home. Perhaps she would like to respond and tell me whether she believes that what we are seeking to do in Clause 56 is appropriate, because the current situation means that there is no time limit. We are seeking to ensure three years, with the possibility to review, and a three-year period is allowed for only if the local authority chooses to persist with that; if it chooses to put one year down, that is its prerogative.