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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Monday 25th November 2013 Lords Chamber

[Lord Greaves (LD)]

My Lords, I have three amendments in this group, which have to some extent been covered already by my noble friend Lady Hamwee. Clause 50 states that authorised persons who may issue a community protection notice or a fixed penalty notice are “a constable” or “the relevant local authority”—a lower-tier district or unitary authority in this case—or,

“a person designated by the relevant local authority”.

These amendments largely probe the intentions of the Government as to which persons might be designated by the relevant authority.

Subsection (4) states:

“Only a person of a description specified in an order made by the Secretary of State … may be designated”.

Along with my noble friend, I wonder why the Secretary of State requires this power in this instance. By and large, all the anti-social behaviour parts of the Bill are remarkably free of powers under which the Secretary of State can issue orders and regulations. Those of us who ploughed through Bills such as the Localism Bill and the Growth and Infrastructure Bill, now Acts of Parliament, felt that they were plagued with powers under which the Secretary of State could tell local authorities in great detail what to do through statutory instruments. This Bill is mercifully free of such provisions, except here and there. Yet here, for some reason, one such provision crops up, and it is not clear why it should be required in this instance.

I therefore tabled Amendment 22QY only to probe the Government’s intention regarding what class of people ought to be involved. However, we want to take out the ability of the Government to instruct local authorities. Specifically, Amendment 22QX probes the question of whether a parish council—or perhaps a larger parish or town council—could be designated by the relevant local authority, the district council, to carry out some of these functions. I should make it clear that if the amendment were agreed it would be entirely permissive and would require the agreement of both the district and the town or parish council. However, town councils and some parish councils already do a huge amount of work on tackling local issues such as litter. It seems sensible, at least in a restricted way when dealing with appropriate issues, for those councils to have powers to serve community protection notices.

My question is: as the Bill stands, would parish councils, or perhaps a specified person on or employed by a parish council, be eligible for designation? Is it the Government’s intention that if they are going to designate such people, parish councils would be available to be designated if they wished to do this work? Clearly, there would be no question of compulsion.

[The Earl of Lytton (CB)]

My Lords, as this is the first occasion on which I have spoken at this stage of the Bill, I ought to reiterate my declaration of interests as a vice-president of the Local Government Association and president of the National Association of Local Councils, the parent body of parish and town councils.

I will direct my attention to Amendment 22QX in the name of the noble Lord, Lord Greaves. I am extremely grateful to him for raising this point because it is perfectly true that many parish and town councils across England and Wales have aspirations to take on addition roles. He will be aware from a note that I sent him and copied to the Minister that I was a bit doubtful as to whether a generic provision for parish councils to be designated in this way was necessarily wise or appropriate, because it will be clear to Members of this Committee that parish councils, by their very nature, come in all shapes and sizes and with all manner of abilities and resources available to them—from next to nothing to those that would put some principal authorities in the shade. Therefore, it is very important to understand the criteria whereby such a designation could be made. Otherwise, were a parish or town council to be so designated in a situation where ultimately it could not manage this particular obligation, it would potentially be a hostage to the fortunes of circumstance.

I should add that I inquired of a number of other bodies, such as the Ramblers and the Open Spaces Society, what they felt about the business of parish and town councils having this sort of power. I did not refer specifically to this type of power but to more general powers, but they were doubtful that it would be appropriate. They may have had their own reasons for being doubtful, and of course noble Lords will have their own take on this; none the less, it should be clear—and I hope that the Minister will clarify—that what is intended here is that designation will occur when there is clearly the desire and the capacity—in other words, a two-way street of designation, as the noble Lord, Lord Greaves, outlined. I hope that this is essentially understood on all sides of the Committee that that is a necessary ingredient.

--- Later in debate ---

[Lord Greaves]

Does the noble Earl agree that the concerns about the Bill from the Open Spaces Society, the Ramblers and such organisations really refer to the next chapter of the Bill on public spaces protection orders rather than CPNs? He may be interested to know that only this morning I discussed this matter in some detail with the National Association of Local Councils. On the basis that it will be a two-way voluntary agreement, the association can see a great deal of justification for parish and town councils taking part in this.

[The Earl of Lytton]

My Lords, the noble Lord is well ahead of the curve on this. I tried to contact the National Association of Local Councils without success earlier today, so he has stolen a march on me. I am extremely glad about that, because one of the great merits of this House is the collaborative way in which these things are dealt with. I am particularly glad that he has made contact with the association and that he has that very common-sense steer on the matter.

With regard to the Open Spaces Society, the Ramblers and such organisations, I entirely take his point that the issue is probably more specific to the next chapter of the Bill. However, their concerns underline that there will be doubts about the capacity of parish and town councils to undertake certain things and about whether that is an appropriate level at which to deal with the issue. Whether the Minister feels that it is appropriate to accept this amendment or whether he will suggest that there is another way in which the Government’s thinking caters for it, I will leave to his response.

--- Later in debate ---

[Lord Taylor of Holbeach]

I am quoting from the information I have received, which is the interpretation of Section 7 of the Interpretation Act 1978. When I received it, it sounded slightly topsy-turvy, but nevertheless this has been in use for some time and I expect that there are precedents for the use of this Act. As I say, my noble friend can be reassured that the majority of notices of this type are served either by a visit or by recorded delivery. I shall seek to elaborate further on this and write to my noble friend.

[Lord Greaves]

My Lords, on behalf of parish and town councils I thank the Minister for his slightly helpful comments at the end of his remarks. Perhaps, before the Bill is implemented, the noble Earl, Lord Lytton, and I and the NALC might get together to see whether we can put forward a clear, evidence-based proposal to the Government which they might consider seriously.

I thank the Minister for his helpful reply to my Amendment 22QYA, which I had forgotten to speak to.

[Baroness Hamwee]

My Lords, last week I, too, had a long reply to an amendment to which I had not spoken. Perhaps that is the way to go.

On the last of my amendments on the power to issue CPOs, I asked whether everyone falling within the description of what will be the new paragraph 1ZB in the schedule to the Police Reform Act would have the power. I think that the Minister is saying that everyone who falls within that description will have the power and not only particular individuals who have received training. Am I right in understanding that?

Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Hamwee (LD)]

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

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

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

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

[Lord Greaves (LD)]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Harris of Haringey (Lab)]

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

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

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

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

--- Later in debate ---

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

[Lord Greaves]

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

[Lord Taylor of Holbeach]

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

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

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

--- Later in debate ---

Moved by

[Lord Greaves]

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

[Lord Greaves]

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

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

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

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

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

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

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

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

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

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

[Lord Greaves]

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

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

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

Amendment 22NC withdrawn.

--- Later in debate ---

Moved by

[Lord Greaves]

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

[Lord Greaves]

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

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

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

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

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

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

--- Later in debate ---

[Lord Taylor of Holbeach]

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

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

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

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

[Lord Greaves]

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

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

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

Amendment 22P withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Hamwee]

My noble friend is absolutely right. I apologise to the Committee. There is such enthusiasm to move on today that I was moving too fast. I must give my noble friend an opportunity to accept or possibly reject my Amendment 22E. It would provide in Clause 21 that the court must receive evidence about suitability. There must be a proportionality element in the requirements provided in the orders. I may be told that this yet again is something that is dealt with in guidance.

Amendment 22G takes us to the duration of the orders. We are presented in the case of under-18s with a fixed period of not less than two years or an indefinite period. I suggest that there should be a limit for everyone, as there is for under-18s. The criminal behaviour order can include a lot of requirements and restraints, which could, if they go on indefinitely, have a disproportionate impact. To have something hanging over one’s head indefinitely could be a disincentive—you could give up hope of ever getting it right.

Amendment 22H would provide that reviews are not confined to under-18s, which continues more of that thought. Amendments 22J and 22K are consequential on that. I beg to move.

[Lord Greaves]

My Lords, Amendment 22KA is a modest attempt to help the Government to get their legislation correct. It refers to the review of criminal behaviour orders which has to take place under Clause 27. Clause 28(2) states:

“The chief officer, in carrying out a review under section 27, must act in cooperation with the council for the local government area in which the offender lives or appears to be living; and the council must co-operate in the carrying out of the review”.

Clause 28(4) states:

“In this section ‘local government area’ means—

(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.

That definition is archaic and does not apply to the local government map of England as it now stands. It misses out large tracts where there are no districts and where there are unitary counties.

There are other parts of this legislation—under IPNAs and community protection notices, for example—that get it right and refer to counties where there are no districts. They clearly have to be added. My amendment adds this so that large parts of England are simply not missed out. Since the Bill refers at the moment to districts or London boroughs, I assume that the district or lowest level is meant. Where there is a unitary authority only—a county such as Cornwall, Northumberland or various others—that needs to be added. This is in the spirit of being as helpful as possible to the Government, as I always am.

[Lord Rosser]

I am very interested to hear the Minister’s response on all the issues that have been raised, particularly about the duration of a criminal behaviour order. This has already been stated. For those who reach the age of 18 there is a,

“fixed period of not less than 2 years, or … an indefinite period”—

then it says in brackets—

“(so that the order has effect until further order)”.

I am not quite sure what that means. What is the further order that is envisaged? It does not say, “until further notice” but “until further order”. Perhaps the Minister will clarify what that actually means.

As far as the order being allowed to go on for an indefinite period, the Minister has been quite eloquent during the passage of the Bill, telling us all about some of the existing provisions, how they are not working and how they are not having any effect. Bearing in mind that it says in the draft guidance that the criminal behaviour order,

“is aimed at tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court”,

then I suggest that if such an order has been in effect for five years but has not had any impact and has not managed to tackle the most serious and persistent offenders, it is unlikely that it will do so beyond five years.

On how long the order period should last, if the Minister is determined that the facility should be there for it to continue for longer than, say, a period of five years and to go on indefinitely, does he not think it appropriate that there is a proper review to justify the need for it to continue on the basis that one would have thought five years a reasonable time to show the effectiveness, or otherwise, of an order?

--- Later in debate ---

I turn to the modest, but always welcome, attempt by my noble friend Lord Greaves to help us along the way in some of the drafting of the Bill; when he speaks on issues of local government, it is with a great deal of experience and expertise. I assure my noble friend that he has raised yet again a very helpful and technical point on the definition of a “local government area” in Clause 28. We will of course return to this on Report, reflecting on his comments.

[Lord Greaves]

I am grateful for the Minister’s comments, but in order to save time on Report why does he not just accept the amendment now?

[Lord Ahmad of Wimbledon]

With all things legalistic and legislative, my noble friend will agree with me that it is important, as he himself stated, to get it right. Let me assure him that we will certainly take into account his insight and expertise in ensuring that in our drafting we correct any omission, if indeed that is the case.

I hope, based on the explanations I have given, that my noble friend will be minded to withdraw the amendment.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I will speak to Amendment 22M and also comment on whether Clause 32 should stand part of the Bill. I will make a very similar point to that made by my noble friend Lord Harris. We do not have an issue with the principle of dispersal powers. In fact, we introduced such powers back in 2004, although I recognise that they were pretty controversial at that time. Our worry is that the new power now being proposed by the Government can be authorised much more easily than the existing one and also for longer. The issue we are raising is that of proper and effective democratic oversight. Local authorities must and should be consulted by the police before the issuing of dispersal orders. That is the process that currently exists.

What I find curious is that the Home Affairs Committee, in its pre-legislative scrutiny, recommended that there should be a duty to consult local authorities on applications for dispersal powers of more than six hours. The Government’s response to that comment by the Home Affairs Select Committee in the other place was that they would ensure that the legislation allowed for that. In fact, it does not. It would appear that the commitment that the Government gave in their response to the Home Affairs Select Committee has not been brought forward in the Bill—unless it is in the pile of amendments that were issued very late last night for debate today, but I do not see them grouped here at the moment. Unless an amendment is coming forward from the Government, can the Minister explain why a response was made to the Home Affairs Select Committee to do something that does not appear to be in the Bill now?

When evidence sessions were held during the Committee stage of the Bill in the other place, there was no suggestion that the existing power was not working properly. The police have also said that working with the local authority really helps them get community consensus and support when a dispersal order is needed. That is why we consider Amendment 22M to be so important. Why fix something that is not broken? If there is an issue, why try to change the process? If the Minister can tell me that he and the Government have received representations from organisations or individuals that suggest that the current provisions are inflexible and inadequate, that would help to explain why the Government have made such changes. If he can tell us who those organisations or individuals were, what changes they sought and for what reasons, that would perhaps help to explain why a power has now been proposed that is different from the existing one.

I was reading through the debate in Committee in the other place. Damian Green, as the Minister, said then that the powers were designed,

“to allow police officers to react to a dynamic situation”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 27/6/13; col. 240.]

Have there been complaints that there has not been a response, as the Minister would like? If that is the case, there is a concern that this could lead to the powers being used recklessly and in inappropriate circumstances if there is not that check. Can the Minister say on how many occasions there has been a situation where a community has been at threat or in danger because the local authority could not be consulted about a dispersal power over the week and the power then could not be used? Have there been such cases that have led the Government to bringing forward a very different kind of procedure now?

The noble Baroness, Lady Hamwee, and my noble friend Lord Harris raised the question of locality. There is concern that the meaning of “locality” is not quite clear or is wider than necessary. If the Minister can address that, it would be helpful.

[Lord Greaves (LD)]

The noble Baroness was not in the House when we dealt at some length with the question of what “locality” means, specifically in relation to town greens and village greens in the Countryside and Rights of Way Act when it went through this House rather a long time ago—about 13 years ago—and the Commons Act more recently. The courts had got themselves into terrible difficulties about the definition of “locality”, about whether localities and neighbourhoods are the same thing and about the question of neighbourhoods within localities. There was a lot of abstruse discussion and debate and I am not sure that we actually clarified the matter. The important thing is that locality is not the same as location. A location is a specific place on the surface of the Earth. A locality, however you define it, is wider in some respect or other.

Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Monday 18th November 2013 Lords Chamber

The estimate from some of the sources that we have been speaking to about this is that the legal services team could have a per case cost of pursuing a breach of about £800 to £1,500 per breach. Is that realistically going to happen? Will breaches be pursued at all when the costs are so high at a time of such limited resources?

[Lord Greaves (LD)]

The noble Baroness has made some extremely interesting points. I was with her for quite a long time. Will she tell us the equivalent cost for pursuing an ASBO? Why does she think that an IPNA that is breached and results in imprisonment is actually weaker than an ASBO?

[Baroness Smith of Basildon]

The reason why an IPNA is weaker is because it is not an automatic criminal matter if it is breached. That is what makes it weaker. It is quite right that there is a higher test for bringing in an ASBO in the first place. It is not just a case of annoyance or nuisance, but harassment, harm or distress and if an ASBO is breached then it is automatically a criminal matter. It is not with an IPNA. That is why it is a weaker remedy for those suffering from severe anti-social behaviour.

[Lord Greaves]

Does the noble Baroness have the answer to my question about the cost of an ASBO? My understanding is that it is comparable, but I may be wrong. If I were to breach an ASBO and ended up in prison, or if I were to breach an IPNA and ended up in prison, would my experience in prison be much different?

[Baroness Smith of Basildon]

I just hope that that never happens to the noble Lord. I am sure that he would never give this House any cause to accuse him of nuisance or annoyance and therefore breach his IPNA. Actually, it would make a difference. If somebody breaches their IPNA and it goes to the full conclusion of being taken to court and their receiving a custodial sentence, the level at which they have breached is very low. With an ASBO, there is a much higher threshold. In terms of costs, my information is from the police, who say that it is a more complex process to pursue breach of an IPNA than it is with the automatic breach of an ASBO. We also see the number of breaches of ASBOs, because of their seriousness, coming down. That is why the police indicate to us that they think that there are significantly greater costs in dealing with a breach of an IPNA.

I do not know if the noble Lord had the opportunity to read the reports in the other place of the evidence-taking sessions before the clauses were debated. Gavin Thomas, who is the vice-president of the Police Superintendents’ Association, said,

“there is a cost because we have to have people to pull together the case, take it to court and enforce it, so there is a cost”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill, 18/6/13; col. 9.]

In written evidence to the Committee, the noble Baroness, Lady Newlove, who spoke eloquently at Second Reading, said that she was concerned,

“that the injunction to prevent nuisance and annoyance could potentially add to the workload of front line officers because of their lack of knowledge of civil law”.

That is a matter that has been raised by the police as well.

We hear quite horrific tales of anti-social behaviour. We should be under no illusion that it is just nuisance and annoyance on the odd occasion; there are some serious cases. As a former Member of the other place, I dealt with constituents. In one case, a man could no longer sleep in his home, another would sleep on the kitchen floor; somebody else was too frightened to go to sleep. Those were ongoing cases.

In some cases, enforcement was the problem, but we need to have the right tools. The Government are seeking in the legislation to reduce the number of tools available to those taking action and then to put in place additional costs, which will make action difficult to enforce. I am asking the Minister for an explanation of why, when ASBOs are becoming more effective, are working and have a value, they are being reduced.

The Minister is shaking his head at me, but there is a great deal of difference between somebody causing nuisance and annoyance and somebody causing harm, distress and harassment. They are very different and there are times when different measures are appropriate. So far, I do not think that the noble Lord has satisfied people in your Lordships’ House, on amendments to other clauses or on this one, as to why the Government are seeking to deal with just annoyance and nuisance while losing the measure of an ASBO, which has served us well. It is not perfect, and we are happy to see changes to it, but the changes which the Government propose do not address the problem.

--- Later in debate ---

[Lord Greaves]

I am trying to match what the noble Lord is talking about to my experience in Lancashire. It is a large, far-flung county from the Fylde coast to the Pennines, from Morecambe and Lancaster south to Skelmersdale and places like that—if there are any places like that. Perhaps the noble Lord can help me. I cannot understand what a new strategy document for the whole county, taking lots of resources in drawing it up, will add to anything in a place like Lancashire. Surely what is required is the allocation of resources and priorities at the county force level—which is Lancashire County Council, plus Blackburn and Blackpool—then local action plans and strategies at perhaps the borough level, tackling the problems on the ground.

Surely the answers, as the noble Lord said, will be different everywhere. The answers in old textile towns in Pendle and Burnley will be very different from Skelmersdale, which is a Liverpool new town suburb, or the rural areas of west Lancashire, or indeed the seaside towns of Blackpool and Morecambe, for example. What is surely needed is a series of local action plans involving the district councils and councillors and the bodies on the ground which are doing the work, as well as the police, not just another county-wide strategy which will get put on shelves and forgotten.

[Lord Harris of Haringey]

I am sure that the noble Lord, Lord Greaves, will forgive me if I do not join him in his encyclopaedic tour of the townships of Lancashire. In fact, this amendment does not necessarily suggest that there is a single county-wide strategy, because I, like him, would accept that what works in one area would not be appropriate in another. It talks about,

“the area in which the court sits”,

and there will be different courts in different parts of the county. The relevance of this is that each of the local authorities in the area should contribute to the preparation of the plan, because this must be something which is agreed at local level. It is the absence of that agreed joint strategy, working together at local level, which is the omission in this Bill.

This could be a subsidiary part of the police and crime plan, or it could be built from the crime and disorder partnerships which exist at local authority level, but what is missing is any cross-reference to those two different processes. If we are to be serious about anti-social behaviour, if we are to make things happen at local level and have the different agencies operating in concert, working together to try to deal with anti-social behaviour, there needs to be some linkage between the existing planning structures.

While I am quite prepared to accept that this amendment does not necessarily deal with the issue precisely, if the Minister does not bring back proposals on Report, then I might well bring proposals to try to link what is being done in this Bill with both the police and crime plan, which commissioners are asked to draw up, and the local crime and disorder arrangements, which exist between the local senior police officer in an area and the chief executive of each local authority area. On that basis of looking forward to the Minister coming forward with some further suggestions about how to integrate these documents, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Greaves]

21ZB: Clause 4, page 3, line 34, leave out paragraphs (f) and (g)

[Lord Greaves]

My Lords, this is a brief amendment to probe why the Environment Agency and its Welsh equivalent, the Natural Resources Body for Wales, are on the list in Clause 4(1). I will talk about the Environment Agency, which is the one I know most about. Surely the whole question of anti-social behaviour is essentially local while the Environment Agency is a national body, organised regionally. If, within the purpose of the new injunction system, guidance will be given to people to regard injunctions as the last resort and start with local preventive measures such as teams on the ground, working directly with adults and children who are engaging in anti-social behaviour, I do not understand what resources the Environment Agency will have for that work.

If injunctions are to have positive requirements attached to them then, as the noble Baroness, Lady Smith, has been explaining, that will require resources: having people on the ground and systems to support, monitor and manage people. I do not understand what resources the Environment Agency has for that. Bodies such as the Environment Agency may well have a role to play in working with other authorities but I do not understand why it requires the ability to apply for injunctions itself, when it seems that it will not have the ability to manage those injunctions or follow them up.

[Baroness Smith of Basildon]

I am sorry to intervene on the noble Lord but he referred to the Natural Resources Body for Wales. I wonder whether he has spoken to the Welsh Government, because they have made it clear that they object to this Bill. For any part of the Bill to be enacted in Wales, there would need to be a legislative consent Motion in the Welsh Assembly, which seems very unlikely at this stage.

[Lord Greaves]

I am sorry, but I did not quite get that. Is the noble Baroness saying that the Welsh Assembly is in favour of this or not?

[Baroness Smith of Basildon]

No. The Welsh Assembly is not in favour of the Bill and it would need a legislative consent Motion to be passed for it to be in force in Wales.

[Lord Greaves]

I am very grateful for that additional information, which is entirely different from anything that was within my ken or understanding. That is an interesting point but I only included the Welsh body since it made up the set. However, I would be very interested to hear the Minister’s explanation of why he thinks that the Environment Agency not just needs these powers, since other bodies can work with it and do the work, but why it is capable—why it has the resources and competence—to manage injunctions and the people whom they will be served upon. I beg to move.

[Lord Taylor of Holbeach]

My Lords, we will come to the Welsh relationship with the Bill later on in our consideration of it, if not with this particular amendment. However, I will speak to my noble friend’s amendment, which would see the Environment Agency and its Welsh equivalent removed from the list of bodies that can apply for the new injunction. As my noble friend may or may not know, the Environment Agency has been able to apply for anti-social behaviour orders since 2006. Alongside Transport for London, this was done by an order under Section 1A of the Crime and Disorder Act 1998. Noble Lords might not be aware of that provision, as it does not appear on the face of that legislation but was done under an order.

The Environment Agency has not used the anti-social behaviour order often but we believe that it should retain access to its replacement so that, as a national body, it can take fast and effective action to tackle serious environmental anti-social behaviour, rather than relying on the police or council. On Report in the House of Commons the list was extended to include the Natural Resources Body for Wales, to give the Environment Agency’s sister body similar access to the injunction. The Natural Resources Body for Wales manages some 6% of Wales’s land area, including many woodland visitor attractions and nature reserves. As such, it should be able to apply for an injunction when someone decides to act anti-socially on that land.

I understand the concerns over too many agencies having access to such an important tool, but I believe that the list included in Clause 4 represents those agencies best placed to protect communities from anti-social behaviour. Both the Environment Agency and the Natural Resources Body for Wales play an important role in ensuring that our environment is welcoming to everybody and they should, I believe, be able to lead court action when that enjoyment is put at risk by anti-social individuals. We will continue to work with bodies such as the Environment Agency to ensure they are prepared for the new power and on that basis I ask my noble friend to withdraw his amendment.

[Lord Greaves]

My Lords, I still do not understand the logic of having the Environment Agency: why not Network Rail, for example? I can think of a lot of national organisations for which it would be possible to make the same argument. The noble Lord said that the Environment Agency had not used this power very frequently. Will he write to tell me how many times it has used it since it got the power? That would be interesting and helpful.

The specific point I was trying to make is that if injunctions are a weapon of first resort then I can understand why the Environment Agency might want to use it against somebody who does something nasty on a bit of land that it owns, or jumps in a river when they should not. However, I thought that the whole basis of the Bill was that injunctions are not to be a weapon of first resort but a weapon of last resort. I asked what resources the Environment Agency would have to carry out preventive work and management of potential injunctees, if that is what they are called—potential respondents. I did not get an answer. I asked what resources the Environment Agency might have to manage the process of positive requirements. Again, I do not think that there is an answer. I think that the Government are making assertions rather than giving explanations on this.

[Lord Taylor of Holbeach]

Perhaps I may just explain. The agency currently has the power to issue ASBOs—that exists. If we were to take that power away, as ASBOs disappear, it would have no equivalent power, unless we replace them with a power which we consider to be most appropriate, the IPNA. I hope my noble friend will understand that we ask the Environment Agency, both in this country and in Wales, to do a lot on our behalf to protect the environment. This is a method whereby it can do just that. I would be very surprised if the noble Lord were not in favour of allowing the Environment Agency to have some successor power to its current power to issue ASBOs.

[Lord Greaves]

My Lords, I understand that very well. I understand that the Environment Agency has those powers, but we are told that it hardly uses them, which is why I am asking how widespread their use is, how many it has actually used since it got this power. That is what the argument is. I hope that I will get that information, but for the time being, I beg leave to withdraw the amendment.

Amendment 21ZB withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Monday 18th November 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will add a brief word to what has just been said in support of Amendment 20. The words “any person” at the end of Clause 1(2) are rather important; I would have thought that they make it all the more important that the words which the noble Lord, Lord Faulks, has suggested are put in. Without that, one would have the very difficult task as a judge of having to assess the evidence of one individual and deciding whether that individual is to be believed. If that individual says that he or she has been annoyed or suffered a nuisance, it would be quite difficult to say that the test was not satisfied. The reasonableness test is the one which would soften this and make it more realistic, and I would have thought that it was compatible with the general aim of the measure.

[Lord Greaves (LD)]

My Lords, if I sometimes tell my noble friend Lady Hamwee that she is being legalistic, that is a compliment since she is a lawyer and I am not, which means that she sees things that I do not. When it comes to the meaning of words, however, I take a straightforward, common-sense view. Words have meanings and we ought to try to stick to them, but sometimes words have different meanings. A word that may well have a respectable legal background in terms of its meaning may not necessarily mean what ordinary people in the street think it means. I think that that is why “annoyance” is causing a reasonable amount of difficulty in the Bill. It has caused many to ask, “Are we really going to have an injunction just because someone is being annoying?”. I take the view that it is a human right to be annoying to other people from time to time, because if it does not happen there will never be any progress. Perhaps that explains some things. The difficulty, however, is at what level annoyance becomes unacceptable. “Harassment, alarm and distress” are clearly degrees of annoyance but they go rather further than what people nowadays tend to think annoyance means.

In the representations that we have had on this there has been quite a concern among those who are used to ASBOs—civil liberties groups and so on—about the way in which the changes are being made, switching from ASBOs and apparently making it easier to obtain an injunction to prevent nuisance and annoyance, and about the possibility that the words “nuisance” and particularly “annoyance” are far too feeble. On the other hand, the housing associations which have been writing to us in the past two or three days are saying, “No, the existing ASBIs”—which are injunctions—“work very well and those are the words that they use”. They would be very concerned if the test was increased.

One reason for this is that you might live next door to somebody who says something foolish to you or wags their finger at you every time you go out in the morning. If it happens to you one time out in the street, and even if the person is going round doing it to lots of people, it really is no reason to serve an injunction on the person, however daft they may be behaving. But if it happens day after day or every time you go out of your house, it becomes a very serious matter. There is a considerable difference between repeated, annoying, low-level anti-social behaviour which irritates and harasses neighbours and is totally unacceptable in a residential context and the same behaviour out in the street. This is happening partly because, as the noble Lord, Lord Harris of Haringey, told us earlier, the Government are bringing lots of different things under the same umbrella.

However, what does “annoyance” mean? Being a fairly boring person and having it on the shelf, I looked in the Oxford English Dictionary, and I found four definitions. These are definitions of the verb “annoy”, but “annoyance” is clearly about annoying somebody. The first definition was “Be hateful to” or,

“Be a cause of trouble to”.

That is a fairly high level of unpleasant behaviour. The second was to,

“be troubled, irked or wearied by”,

which is a much lower level. The third was to:

“Cause slight anger or mental distress to or irritate”,

which seems a very low level. There was another, which was to harm or attack repeatedly, or harass, but it said that that was archaic and the illustration of it was, “A gallant Saxon who annoyed this coast”. Well, I am all in favour of gallant Saxons annoying the Yorkshire coast in the past, otherwise I might not be here, but that is clearly not relevant now.

To bring it up to date, the Merriam-Webster internet dictionary defines it as,

“to cause (someone) to feel slightly angry”,

which is clearly something that we ought not to be legislating about;

“to disturb or irritate especially by repeated acts”,

which might be; and,

“to harass especially by quick brief attacks”,

which probably is anti-social behaviour. That dictionary then said that “annoyance” may be,

“slight anger : the feeling of being annoyed”.

I thought “I’m giving up” but I looked further and it then said it was,

“a source of vexation or irritation”,

and then it defined it as a nuisance, so I thought, “We are going around in circles here”.

Annoyance actually has lots of different meanings, and for most people in this country today it is very low level. If we want it to be higher, the Government ought to make a real effort to define it in the legislation. It is assumed that the words “nuisance” and “annoyance” are in the law already and that everybody knows what they mean. I do not think that they do if the Government mean that they are a sufficiently high level to warrant injunctions against people.

--- Later in debate ---

Moved by

[Lord Greaves]

20F: Clause 1, page 2, line 4, after “respondent’s” insert “ethical or”

[Lord Greaves]

My Lords, I shall speak also to three other amendments in this group. The amendments are small but useful. The first two refer to IPNAs and the second two to criminal behaviour orders; otherwise they match each other. Clause 1(5) says about IPNAs:

“Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid … any conflict with the respondent’s religious beliefs … any interference with the times, if any, at which the respondent normally works or attends school or any other educational establishment”.

I want to add “ethical or” to the religious bit and “or training” to the educational bit, so that it reads “educational or training establishment”. The wording in the criminal behaviour order is almost identical, so the amendments are identical.

It is right that people should not have to give up religious beliefs or practices in order to comply with an injunction. There are some people who have strong ethical humanist views that might involve regular attendance at events each week that they would say were equivalent to religious events—they are clearly not religious so do not come under that definition—and it seems reasonable to include those. It is also possible that there may be genuine objections by some people to requirements in an injunction that require them to take part in otherwise excellent facilities or proceedings that are organised by religious groups or particular religious groups. It therefore seems that the word “ethical” ought to be there as well to cater for probably the very small number of people with humanist beliefs who would have these views.

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

My Lords, in standing up and responding I feel like the Jedi knight next to the Jedi master. May the Force be with us all.

Amendments 20F and 22CA raise an important point in respect of the duty on the court to ensure, so far as is practicable, that any prohibitions or requirements attached to an injunction do not conflict with the manifestation—as my noble friend so eloquently put it—of the respondent’s religious beliefs. In line with the Equality Act 2010, reference to religious beliefs should go further than so-called “traditional” religious beliefs. I believe that this can be covered in guidance but I would like to go away and consider further the points made by my noble friend. We can return to the wording of this section if required. I hope my noble friend will accept my assurance that we will further consider this point and those made by the Joint Committee on Human Rights.

I turn to the amendment tabled by the noble Lord, Lord Harris. I support the words of my noble friend Lady Hamwee: he raised bold and challenging concepts. As I said, in response to an earlier amendment, what may be perceived as perfectly acceptable to one person may not be acceptable to another. The courts are used to considering a person’s religious beliefs and do not need to be told that they can reject beliefs if they are spurious. In addition, to try to second-guess what would, in the words of the amendment, constitute activities “that would normally arise” is very difficult given that two people of the same religion may have different ways of practising their faith. I am a Muslim and there are 73 different denominations within Islam. During Ramadan, the time of your fast can differ depending on where you are. One obviously prefers to be at a place where the fast closes as the sun sets rather than when the sun is set totally. That is a practical illustration from a faith which is widely recognised.

The crucial point here is that, in considering an injunction, the court must avoid, so far as is practicable, any conflict with the manifestation of a respondent’s religious beliefs. If that is not practicable because, for example, avoiding the conflict would result in the respondent engaging in further anti-social behaviour purporting to be religious practice, the court would not be prevented from imposing prohibitions or requirements that it considered appropriate. This is something we can safely leave to the courts; they are more than capable of assessing the bona fide status of a respondent’s religious practice without express provision and, indeed, we have recently seen examples of that.

Amendments 20G and 22CB, tabled by my noble friend Lord Greaves, raise another important point. As we have made clear, the injunction should be available to help turn a troubled person’s life around, especially when they are young and impressionable. As such, it would not be helpful for requirements or prohibitions to unnecessarily stop them engaging in constructive training.

However, what is considered as training by some may not be worthy of special consideration by the court and some will try to use this term to delay the court’s process. Where training is worthy of consideration it is likely to be linked to an educational establishment or even a formalised work placement and, as such, is already provided for in the Bill. My noble friend also raised the issue of different wording in different parts of the Bill. We recognise that Clause 34(3) imports the word “training” whereas Clause 5(1) does not. I will certainly reflect on those two variations and return to them as required.

For the reasons I have given, I hope that my noble friend Lord Greaves will withdraw his amendment and that the noble Lord, Lord Harris—notwithstanding the important issues that he raised—will not press his.

[Lord Greaves]

My Lords, I am very grateful for that helpful response from the Minister and I look forward to the results of his reflection. To my noble friend Lady Hamwee I say, I am never legalistic; I may sometimes be pernickety, but that is a bit different. I had great sympathy for what the noble Lord, Lord Harris of Haringey, said, and had great sympathy for him, having to go to his Labour Party meetings on a Sunday morning. However, that reminded me that in the old days, and perhaps here and there now, there were things called socialist Sunday schools. If lads and lasses were getting out of hand, I am sure that going to socialist Sunday schools might have helped them. I cannot see how it could have done so, but it might well have helped them at least to organise their lives. Therefore, the question of regular events—such as non-religious ethical meetings—is important. I am grateful for the Minister’s comments, and I beg leave to withdraw Amendment 20F.

Amendment 20F withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Lord Greaves Excerpts

Monday 18th November 2013 Lords Chamber

Moved by

[Lord Greaves]

19A: Clause 1, page 1, line 5, leave out “10” and insert “12”

[Lord Greaves (LD)]

My Lords, Amendment 19A stands on its own. I should first apologise to the House for not being present for Second Reading. As this is the first time that I have taken part in this Bill I should, in line with the Code of Conduct, declare various interests that I know are going to come up. I am a member of Pendle Borough Council and its executive and vice-president of the Local Government Association. I am also a member and vice-president of the Open Spaces Society and a member and patron of the British Mountaineering Council. I will declare any other interests as they crop up.

The amendment is unusual for a first amendment on a Bill because it deals with a specific point rather than a general one that might lead to some general discussions, but there are amendments that are coming up fairly quickly where those general discussions can take place on the principles behind this part of the Bill. We are talking about the proposal to abolish ASBOs and introduce injunctions for the prevention of nuisance and annoyance. The proposal is that injunctions of this nature can be taken out against people from the age of 10 upwards. There was some discussion at Second Reading, which I read with great interest, about whether the age of 10 was appropriate or whether it was too low. The amendment provides an opportunity for some probing and consideration of that at this stage of the Bill.

It occurred to me that it might be useful to look at my party's policy on this matter. That could be a fairly original thing for someone in your Lordships’ House to do, but in any case I thought that it might be helpful. I discovered that we had agreed a policy paper within the past two years, Taking Responsibility: Policies on Youth Justice. Under the heading “More appropriate treatment of Young People in the Justice System”, it talked about the age of criminal responsibility. These are civil injunctions so, unlike ASBOs, they are not part of the criminal system—although as noble Lords pointed out at Second Reading, any young people involved in the system might not recognise a great deal of difference between the two.

The policy states:

“Liberal Democrats recognise that children aged under 14 often know the difference between right and wrong and have personal responsibility for their actions but that courts are not the appropriate way to deal with them”.

We are not talking about the wider youth justice system: we are dealing with what is in front of us. The paper went on to suggest that it would be better if there were specially trained panels to deal with young people of this age, similar to those in Scotland,

“with the emphasis on measures including restorative justice”,

and community sentencing. It continues:

“Panels would be expected to provide consequences which were proportionate, sought to reduce reoffending and provide amends to the victim as well as addressing any welfare needs the child had”.

They would also mean that,

“immature acts of youth do not result in a lifelong criminal record”.

Some of the principles behind this are embodied in the idea that the injunctions for the prevention of nuisance and annoyance—IPNAs, as I suppose we will have to call them—will bring in. The document went on to talk about the age of criminal responsibility across Europe, which varies, although the UK currently has the lowest ages in western Europe—10 in England and Wales and, at that time, eight in Scotland, although there is now new legislation in Scotland.

--- Later in debate ---

[Lord Taylor of Holbeach]

To respond to the noble Earl, 38 of the 41 police and crime commissioners listed anti-social behaviour as one of their major priorities in their crime plans, so the subject is at the top of the list. Certainly one would hope that as well as dealing with the consequences of anti-social behaviour, that could be converted into preventive action. I beg to ask my noble friend to withdraw his amendment.

[Lord Greaves]

My Lords, I am grateful to the Minister for trying to withdraw my amendment before I do, but he is a bit too enthusiastic. I am grateful to all noble Lords who have taken part in this discussion, which has been useful. It has shown that there is not quite as much clarity about how the youngest children in particular—10, 11 and 12 year-olds—will be dealt with in the new system. I hope that perhaps the Government might find ways to be clearer about that as the Bill proceeds. I am sorry that the noble Baroness, Lady Smith of Basildon, had to dash back from Argentina. Since she took up her responsibilities on the Opposition Front Bench I have admired her contributions to this House. I never quite thought of her as Eva Perón, but perhaps she can sing to us as well—that may be a thrill in store.

The Minister said that the Government are replacing ASBOs, which are a “heavy hammer”, with a more nuanced approach. The noble Lord, Lord Harris of Haringey, pointed out that they are doing this by sweeping away a whole range of means that perhaps on the face of it ought to provide a more nuanced approach and a greater choice of measures in each case, and replacing it with one. The crux of the matter—whether this injunction will work for young people and for people generally—depends on whether it is sufficiently flexible. The Minister referred to the draft guidance that has been published. For much of the anti-social behaviour parts of the Bill this draft guidance is still very skeletal. The part of this draft guidance that deals with the new injunctions and the way in which they might be the end of a series of actions is one of the better parts, although it can no doubt be further improved.

In particular, as far as these very young people—10 and 11 year-olds—are concerned, it is crucial that the measures and the intervention are there to prevent them ever getting to the juvenile court for an injunction. In my experience of kids in my area who have had ASBOs, once they are given one, for most of them the system has failed. There will be the same sort of thing with the IPNAs. Once kids are hauled up before a system of justice and have these things imposed on them, perhaps without sufficient support to make sure that they adhere to them and do not breach them, for most of them the system has failed at that stage. They are far from being rescued from a life of difficulties and crime—they are rather being set on the road towards it. That is my experience of people in our area. We all hope that this new system will be better for them.

Having said that, I am very grateful for the Minister’s careful comments, which set the Committee off to a good start as far as the anti-social behaviour parts of the Bill are concerned. I ask the Government to think again whether 10 is the right age for this. In the mean time, I beg leave to withdraw the amendment.

Amendment 19A withdrawn.

Moved by

[Lord Greaves]

19B: Clause 1, page 1, line 6, leave out “two” and insert “three”

[Lord Greaves]

My Lords, in moving Amendment 19B, I shall speak also to Amendments 20E and 22Q in the same group. The relationship between the new systems and statutory nuisances might appear a slightly obscure subject but I do not think it is obscure. It is fundamental to how it will work on the ground and to the workability of the measures in the Bill. Amendment 20E introduces a third condition for using IPNAs—injunctions for the prevention of nuisance and annoyance—which is that they do not cover the same ground as existing statutory nuisance powers.

Amendment 22Q leaps forward a little in the Bill to community protection notices, which are a parallel measure that the Bill introduces, again sweeping away quite a number of former powers into one power to prevent local nuisance such as litter, dog nuisances or whatever it may be. This states:

“A community protection notice may not be issued if the conduct constitutes a statutory nuisance under any other enactment”.

With these amendments I am trying to probe the relationship between the new measures and statutory nuisances, but also perhaps to probe the relationship between IPNAs and community protection notices. It is not entirely clear to me in what circumstances one might be appropriate and in what circumstances the other might be appropriate. It would help if the Minister could clarify that.

The Explanatory Notes to the Bill, I should say in passing, are of a considerably higher quality than some of the Explanatory Notes we get to Bills, which simply churn out the wording of the Bill in a slightly different way. The Explanatory Notes to this Bill make a real effort to explain what is behind the Bill, previous legislation, what it is replacing and the logic behind the proposals. Therefore, I should like to congratulate whoever in the Home Office wrote these. I do not usually congratulate the Home Office on anything, but on this occasion I do, very much.

It sets out some of the most common statutory nuisances:

“Noise … Artificial light … Odour … Insects … Smoke … Dust … Premises”.

We can all think of occasions when the troughings, or whatever they call them in the rest of the world, are leaking with water down the downspouts and covering everyone who goes past. The list goes on:

“Fumes or gases … Accumulation or deposit”—

which gives rise to all sorts of images—

“Animals kept in such a manner or place as to be prejudicial to health or a nuisance”,

and, indeed, any other matters in enactment.

These are clearly problems, or nuisances, which it is also intended that the new community protection notices should cover at least to a degree. The Explanatory Notes say that the community protection notice is intended to,

“deal with unreasonable, ongoing problems or nuisances which negatively affect the community’s quality of life by targeting the person responsible”.

Specifically they will replace litter notices, some dog legislation and so on.

Part 3 of the Environmental Act 1990 places a duty on a local authority to investigate complaints of statutory nuisance from people living within its area. There is clearly an overlap here. The question I ask is: will the use of an IPNA or a community protection notice preclude later prosecution for a statutory nuisance if the investigations reveal, or the officers concerned come to the view, that there is indeed a statutory nuisance involved? Will the community protection notice be overridden or withdrawn if it is found that there is a statutory nuisance, or is there a choice? Will it be a pragmatic decision on the ground at any given time, or can the two go hand in hand? Can a CPN or an injunction be proposed and be going through at the same time as a prosecution for statutory nuisance is taking place?

--- Later in debate ---

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank my noble friend Lord Greaves for his amendments and my noble friend Lady Hamwee for her comments. It is interesting that she talks about noise. In one’s own personal experience, what is music to some is noise to others. I think we shall be returning to this.

With regard to the amendments to the new injunction, it is our view that they could make the actual process much slower and more bureaucratic—akin to the orders that we seek to replace. It would not help professionals deal with anti-social people and, more importantly, would not help victims who have to endure the perpetrator’s behaviour.

The new injunction is designed to be used quickly and, in many cases, preventively, to stop problem behaviours before they escalate. These problem behaviours will not always relate to a statutory nuisance. Therefore, to include an additional condition which suggests that statutory nuisance should be considered every time would, in all likelihood, result in some social landlords or police forces being unable to act quickly to protect the victim. We expect social landlords and police forces to work in partnership with local councils to deal with shared problems, such as anti-social noise nuisance. If social landlords and police forces felt obliged to seek advice from the local council’s statutory nuisance team before every injunction, this could delay the process of the application unnecessarily, and lead to victims suffering even more. Moreover, this new third limb of the test could open up the process to prolonged and costly legal challenges, as respondents sought to argue that their conduct amounted to a statutory nuisance.

The same is true of my noble friend’s amendment to Clause 40. As he will be aware, we had originally excluded statutory nuisance from situations in which a community protection order could be issued. However, after discussing the matter at length with environmental health officers and other professionals, we discovered that this exemption could result in an undesirable scenario. Some perpetrators might use the appeal mechanism to go unpunished via either the statutory nuisance or the breach of the community protection notice.

My noble friend Lady Hamwee is correct that the Opposition Front Bench raised such concerns in Committee in the Commons. Having considered the matter further, the Commons was content to make this change on Report. So I ask my noble friend to accept my assurances that we continue to work closely with statutory nuisance experts, to ensure that the guidelines reflect the important rule that the regime plays in protecting communities from behaviour that is a nuisance or prejudicial to health. In addition, I assure my noble friend Lord Greaves that the issue of a community protection notice, or the granting of an injunction by the court—which was a specific question he asked—in no way discharges the local authority from its statutory duty to serve an abatement notice where behaviour meets the required threshold.

I say to my noble friend Lady Hamwee that our draft guidelines already deal with the interface between statutory nuisances and the new powers in the Bill. I can reassure her that we continue to engage with environmental health practitioners on how this guidance can be further developed in advance of the commencements.

My noble friend Lord Greaves also asked about the choices available. There is no choice as to whether a local authority serves an abatement notice for statutory nuisance. It must serve one if it is satisfied that a matter is a statutory nuisance. He referred to the Explanatory Notes. There is a good example in there that is illustrative of what may be a nuisance, but not a statutory nuisance. A dog bounding over a fence, or through a hole in a fence, can be a nuisance. Recently, I experienced that with my young son, aged 20 months. Suddenly, a dog scurried under a fence, and appeared next to him. It was certainly more than a nuisance to his father, who was far more startled, whereas the dog was just being playful. In those cases, the first and most sensible thing for anyone who is trying to be a good neighbour to do is to talk their neighbour and see if the matter can be resolved locally. Where such behaviour persists, a non-statutory injunction is not appropriate, and a sensible solution is required before putting it on to a more serious basis.

Let me reassure my noble friend Lady Hamwee once again that the Government continue to talk to experts in the field. Based on my explanation, I hope that my noble friend will withdraw his amendments.

[Lord Greaves]

My Lords, I have found the Government’s answer to these amendments a bit less satisfactory than their answer to the previous group. We will get on to community protection notices later but I think that the last example that the Minister put forward was a good one. It provided a good reason why CPNs may be a very important and useful new power compared with what currently exists: they will not relate specifically to one thing, such as litter, dogs or whatever, but will be a general power based on whether an anti-social nuisance is taking place.

If I may say so, the other examples that the Minister gave show that the people here who are preparing these things and explaining to us how they will work do not fully understand how things work on the ground, if they work well. Noble Lords seem to think that the police and social landlords operate in one little area and that the local authority is something quite different. Where these things work well, those different groups work together on these issues all the time. The first people to go and investigate the noise may or may not be the police and it may or may not be the social landlord. However, most people who experience anti-social behaviour do not live in social housing. In my experience and, I think, that of many people, most people who experience anti-social behaviour live in private tenanted accommodation, and therefore social landlords are not relevant. The people who turn up to deal with the noise nuisance may be local authority officers. In my part of the world, there is a scheme in which the local authorities work together. They have an out-of-hours service whereby, even at three o’clock on a Sunday morning, somebody will answer the telephone and try to do something about it.

Therefore, if things work well, they work well because people on the ground from those three agencies, as well as from other agencies that may exist locally—some of them voluntary—work together in that way. That is why I think that saying that, on the one hand, there will be the council and the environmental health officers with their statutory nuisance abatement powers and, on the other hand, there will be everybody else with these powers is not quite how it is going to work. I hope that it will work but locally everything has to be much more flexible than the Minister seemed to suggest.

The guidance is going to be crucial but, as it stands, I do not think that it is adequate in this area. I am aware that work is taking place to improve it but, when it comes down to it, the idea that local authorities will stop the police or a social landlord going ahead and taking action because they may be investigating and they have other powers is just not how it works. In any case, even a local authority may have a statutory duty to serve an abatement notice if it is satisfied that a statutory nuisance is taking place, but in practice that is not how it works. In practice, a local authority will always go down the route of contacting the people involved, as well as the landlord, and attempting to resolve the matter without serving a notice. If it does serve a notice and the matter gets to court because people appeal against the notice, then, if the local authority has not gone out of its way to resolve the matter, the court will send it back and say, “You’re not having this. Go and do it properly”.

Having said all that, if they are willing, some further discussions on this matter with the Government in the mean time would be very helpful. I beg leave to withdraw the amendment.

Amendment 19B withdrawn.

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[Lord Morris of Aberavon (Lab)]

My Lords, we are all grateful to my noble friend Lady Mallalieu for raising these matters. She has spelled out her concerns and anxieties about what might be unintended consequences. We should always pause and think, particularly with regard to Amendment 19C, when a standard lower than the usual criminal standard is sought to be imported. I am always nervous of including any test other than the usual one in a criminal court. The noble and learned Lord, Lord Lloyd, has done a good service to us here in spelling out—and I am sure that he is right—the two parts of the procedures: civil, in order to obtain the injunction, then the usual criminal one, where there has been a breach or an allegation of a breach. This should reassure those of us who are anxious—and I was anxious when I first read it—of importing any lower standard.

I appreciate the remarks of my noble friend Lord Harris, who has dealt with this in part. I invite the House to stand back and try to deal with the mischief that we are concerned with of unacceptable behaviour in closely-knit communities. For more than 40 years, I represented an industrial constituency with large housing estates. People would come to my surgeries—as they did with my noble friend Lord Harris, who was in a slightly different capacity but with the same problem—and ask: “What can we do? We have been to see the housing manager, the police and everyone we can think of and nothing happens”. Time after time, we were impotent.

Far more frequently than would be admitted, the problem was that people were not prepared to come forward and give evidence, because they had to live in that community after the event. That is the crux of it. We are dealing with a real mischief. This is a small change to what we might expect of a standard of proof before any sanctions are imposed, but there are well-hallowed precedents for doing it in this way. Provided one maintains the usual criminal standard for a breach of it, then I for one am satisfied with Amendment 19C.

[Lord Greaves]

My Lords, do the Government expect more or fewer people to be arraigned before the courts for injunctions under this new system, compared with people given ASBOs? Have they made an assessment of that? This is important because, we hope, the number of people who are given the new injunctions or who at the moment are given ASBOs, are a minority—quite a small one—of people who cause some kind of low-level anti-social behaviour in the sort of communities that the noble and learned Lord has been talking about.

Do the Government have an assessment of how the new system will affect the numbers who get to the end of the road and have one of these badges—if that is what they are—put upon them? Secondly—I thought about this while listening to the noble Lord, Lord Harris of Haringey—the fundamental thing is: what level of resources are on the ground to deal with these problems and to prevent people getting either the new injunctions or ASBOs? The harsh reality is that in many parts of the country at the moment, that resource is going down.

In my area, what people might think of as a crime and disorder partnership—we call it a community safety partnership—has been extremely successful in the towns and wards of the borough. One meeting that I try to go to each month as a ward councillor is called a PACT meeting—police and communities together. It is a group of residents who meet police and councillors in the ward each month to talk about these problems: local crime and particularly disorder and anti-social behaviour. It works. Sometimes, a handful of people turn up. Then, when something erupts in some of the streets, a lot of people turn up and it provides a focus for dealing with these problems. However, it requires the local police to have the time and resources to take part in such activity. It also requires the local authority’s anti-social behaviour staff to be there and to be prepared to get involved at the case, area and street levels. If it is in an area of social housing, it involves the social housing providers as well. Other people get involved as well.

In our part of the world, that system is being slowly withdrawn for purely financial reasons, as the police cannot afford to devote the resources to it that they have done. If the police are given a choice between relatively high-level and low-level crime, they will put more resources into high-level crime. They might also be given a choice between low-level crime and local disorder or the preventative work where the local neighbourhood teams go round to talk to people, getting to know the patch and its lads and lasses who are hanging around on the streets and might get into bother. The police might find diversionary activities for them, if they have the resources. If that is going on, the system will work, but once that is withdrawn, then all the IPNAs, ASBOs and anything else in the world will not solve the problem. The numbers will increase, because the numbers who get to that level will increase, but the problems on the ground will get worse.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to make one brief point which follows on from that made by the noble Lord, Lord Greaves. At Second Reading, the Minister made a lot of the breach rates for ASBOs; he said that they were about 60%. The point that I made in my Second Reading speech was that, in my experience as a sitting magistrate, breach rates have declined over the past few years as ASBOs have been more appropriately introduced. I have checked my recollection with my colleagues and I think that they would agree with my comments. Why does the Minister think that breach rates will decline when he is proposing through IPNAs to reduce the burden of proof to a balance of probabilities, and to address nuisance and annoyance rather than “harassment, alarm and distress”? Those two changes are very likely to lead to an increase in the number of breaches, which seemed to be a fundamental point in his seeking to replace ASBOs. I know that later in this Committee there will be a proposal to run the two systems in parallel, which seems a sensible way forward while the IPNA is bedded in.

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[Lord Taylor of Holbeach]

My Lords, I hope that I am never anything but positive. As I made clear at Second Reading, the provisions of the first six parts of the Bill, which deal with anti-social behaviour, are about protecting victims of anti-social behaviour. It was good to hear noble Lords across the House recognising that that is what lies at the heart of what we are trying to achieve here. It ensures that police, local authorities and all those other agencies that are listed in the Bill can, where necessary, take swift action to bring respite to both individual victims and communities. The noble Baroness, Lady Mallalieu, is right: the central purpose of the new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates. It is essential for the threshold to be set at the right level for that to happen.

The amendments seek to retain the key features of the anti-social behaviour order that the Government are seeking to replace. I understand the arguments and the concerns that a number of noble Lords have expressed about the test of the new injunction and I have seen the legal opinion given by my noble friend Lord Macdonald of River Glaven, but I am sure it will not be a surprise that I am going to explain why we do not agree with these amendments and why I do not agree with my noble friend.

I fear that the effect of these amendments would be to weaken the effectiveness of the new injunction in providing relief to victims and communities. Amendment 19C seeks to replace the lower, civil standard of proof—on the balance of probabilities—with the higher, criminal standard of proof beyond reasonable doubt. Amendment 20A seeks to replace the “nuisance or annoyance” test for the IPNA with the anti-social behaviour test of “harassment, alarm or distress”. Finally, Amendment 20D seeks to revert from the requirement that it must be “just and convenient” to grant an IPNA to the test of “necessary and proportionate”.

As I have said, our reforms are about putting victims first. This means giving front-line professionals the right powers to protect victims and communities effectively from anti-social behaviour. The IPNA has been designed as a purely civil power which can be obtained quickly through the courts, to protect the public and stop an individual’s behaviour escalating.

It may interest noble Lords that the test of nuisance or annoyance was introduced in the Housing Act 1996 and subsequently amended by the Anti-Social Behaviour Act 2003 to extend to conduct capable of causing nuisance or annoyance. This test is used for the anti-social behaviour injunction. It is well recognised by the courts; they know it and are familiar with it. They apply it on a daily basis when deciding whether to grant injunctions to stop or prevent anti-social behaviour.

The term is also used in a number of other statutory contexts. For example, in Section 13 of the Criminal Justice and Police Act 2001 which relates to alcohol consumption in designated public places; in Section 9A of the Housing Act 1988 in respect of proceedings for possession; in Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982 in respect of street trading consents; and in Section 142 of the Highways Act 1980 in respect of obstruction of highways. I could go on, but I have already demonstrated, with this list, that “nuisance or annoyance” is a widely used, statutory term that is understood by both front-line professionals and the courts.

It is therefore not surprising that the Law Society fully supports the use of the test in Part 1. Its recent briefing says:

“The Society strongly suggests that the test is retained and that judges are allowed to exercise their discretion and considerable experience in dealing with these matters. The test is already familiar to the courts and other partners working with families and offenders”.

That this is a well established test has been true for some time. When it was being considered in your Lordships’ House in 2003, the noble Lord, Lord Bassam—who was then Home Office Minister and is now Opposition Chief Whip, but who is unfortunately not in his place at the moment—made a similar point. He said:

“‘Nuisance or annoyance’ is a well-established legal test which the courts are perfectly comfortable to use”. [Official Report, 23/10/03; col. 1791]

That was true then and it is true now, which is why the Government believe—as the previous Government did—that this is the right test to use. To retain the test that applies for the ASBO, as these amendments seek to do, would increase the evidential burden on front-line professionals who are working hard to protect victims and deter perpetrators. It would hinder them in providing respite to victims and communities more quickly. That this will be the consequence of these amendments has been put clearly in the briefing submitted to your Lordships by the Social Landlords Crime and Nuisance Group, which says,

“we consider that these amendments are unnecessary and would, if carried, lead to unintended consequences and seriously disadvantage victims. They would also have significant adverse financial and other resource implications for agencies”.

In relation to the amendment in the name of the noble Baroness, Lady Mallalieu, to apply the criminal standard of proof, their briefing note goes on to say:

“Raising the burden of proof to beyond reasonable doubt will effectively remove the ability to use professional evidence or hearsay, something which conflicts directly with the core purpose of the Bill, to deliver better outcomes for victims. To do so will make it extremely difficult to prove matters to the criminal standard without the victim giving evidence first-hand”.

These are telling points, which were reinforced by the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon. They were also shared by the Chartered Institute of Housing, which also published a briefing note for your Lordships.

The central purpose of this new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates to more serious levels or to criminality. That is in the interests of victims and perpetrators. To wait until these higher tests can be met would stop professionals from taking formal court action where it is necessary and from acting when there is more chance of the perpetrator addressing the underlying causes of their behaviour.

As to fears that injunctions will be handed out like confetti to stop children skateboarding or playing football in the street, or to silence street preachers giving public sermons, I can only quote again from the Law Society, which said:

“The Law Society supports retaining the legal test for the Injunction to Prevent Nuisance and Annoyance … as currently drafted in the Anti Social Behaviour Crime and Policing Bill. We do not agree with those who claim the test is too weak and should be strengthened by imposing conditions such as ‘seriousness’ or ‘malice’. Some are worried that the test is too weak and could result in preachers, buskers and even carol singers finding themselves subject to an injunction but the Law Society do not agree with this interpretation”.

Neither do I. The Law Society would not support these provisions if it had concerns that they would or could be used to stop children playing or people exercising their legitimate rights to freedom of assembly or freedom of expression.

I fully share the noble Baroness’s desire to ensure that these powers are used reasonably and proportionately. Significant safeguards are already provided for in the Bill, not least that an injunction must be authorised by a court. I am ready to consider further whether it would be appropriate to provide in the Bill that the court must consider, in the light of all the relevant circumstances, that it is reasonable to grant an injunction. I therefore urge noble Lords to listen to the Law Society and to the front-line professionals who are telling us, loud and clear, that these amendments are not necessary and would significantly weaken the provisions in the Bill.

If this amendment was made, it would make no difference at all to children doing the normal playful things that children do or to street preachers sermonising on the high street. However, it would make a real and detrimental difference to the victims of anti-social behaviour, who would not get the quick respite they need from those who make their lives a misery. The amendment loses sight of the victims of anti-social behaviour, who should be our first consideration. For that reason I urge the noble Baroness to withdraw it.

[Lord Greaves]

My Lords, before the noble Baroness does that, will the Minister answer the question that I asked? Do the Government believe that by significantly reducing both the level of the test and the level of proof required, there will be more IPNAs than there are ASBOs at the moment, and if not, why not?

[Lord Taylor of Holbeach]

I apologise to my noble friend for not answering his question. I was asked two questions—the noble Lord, Lord Ponsonby, also asked one. I was in a hurry because I am aware that we have a busy day. However, I can quote from the published impact assessment:

“The estimated volume of Crime Prevention Injunctions issued is assumed to follow the orders they replace with increase of 5 per cent in comparison with the baseline. It is not thought that there will be a large widening of availability due to the lowering of the threshold of proof, as this is only lower than the ASBO and not the ASBI which forms the majority of estimated applications for the Crime Prevention Injunction”.

I turn to the matter raised by the noble Lord, Lord Ponsonby. Positive requirements in the IPNA will help people to address the underlying causes of their anti-social behaviour. We believe that this will reduce breach rates in future.

Scrap Metal Dealers Bill

Lord Greaves Excerpts

Friday 30th November 2012 Lords Chamber

[Lord Greaves]

My Lords, I start by reminding the House of my interest as a district councillor for Pendle in Lancashire. I think that I should have declared the same interest in a previous Second Reading debate this morning, on the Prevention of Social Housing Fraud Bill. I apologise for not doing so at that time and do so belatedly now.

I, too, support all the past—and probably all the future—speakers in this debate in welcoming this Bill and supporting it. My noble friend Lady Hamwee said that we would hear lots of anecdotes from people about the situation in different areas and I am always reluctant to disappoint my noble friend. One of the main problems in my part of the world in east Lancashire is the theft of metal gully grates. That obviously causes great danger to people and expense to Lancashire County Council, which has to replace them. However, in many cases the county council refuses to replace them because they are in unadopted streets, and so potentially there could be, literally all over the place, very dangerous large square holes, particularly in back streets, which at this time of the year will be full of leaves and litter. In the event, it comes down to the borough council of Pendle and town and parish councils to put their hands in their pockets and provide the money for replacing the gully grates because relying on house owners and landlords to do so is an impossible situation.

There are also real problems with back yards in closely packed terraced streets, where people will simply take away anything that is left in a back yard, or they will go in and take pieces of the downspouts and the troughings—anything that they can come round and check out and then return at two o’clock in the morning to remove. I received an ironic telephone call fairly recently. Pendle council has a service for taking away washing machines, dishwashers, fridges and anything like that. You leave it out in the back yard, tell the council you want it removed and it comes and takes it away. Somebody rang me up and asked why the council was employing people to remove their washing machine at two o’clock in the morning. Of course, it was not the council but somebody who was taking it away and doing the council’s job for it. We hear accounts from the local police, who are obviously involved in all this, that raiding parties from over the border in Yorkshire often come and take away all this stuff. This seems to be their excuse, although it appears that people do come over the border from Yorkshire and steal our stuff. It is not just metal either. Metal theft is just part and parcel of a wider problem. This Bill is clearly restricted to metal theft.

[Lord Willis of Knaresborough]

May I say that I object very strongly to these appalling assertions about the people of Yorkshire?

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[Lord Greaves]

As a Yorkshireman living in Lancashire, I sometimes find myself with dual loyalties. However, I can assure my noble friend that it is not Yorkshire as a whole that people blame: it is specifically people from Bradford. As a Bradfordian, I still have dual loyalties there.

Obviously, this Bill is just about metal. However, people steal not just metal but stone. Colne is a stone town and people will come and remove copings from people’s back yards and flagstones. They came to the parish church and raided not just the lead from the roof but took the big stone balls which were on top of the gate pillars outside the church. We are talking about a grade 1 listed building. So it is a huge problem. The most ludicrous example occurred last week. The council had just provided new turf to grass over a rather overgrown area where houses had been pulled down. Some people came, possibly over the border from Yorkshire, rolled up some of the new turf and took it away. It is quite extraordinary what people will do. I am not quite sure whether they wanted it for their cricket pitches in Yorkshire.

It would be out of character if I did not pick up a couple of detailed points. Perhaps the Minister or the noble Baroness, Lady Browning, can answer these points, or they can write to me later if they cannot answer them today. There is a question about the exclusion of residential premises from Schedule 2, which refers to closure notices and closure orders, and exactly what is meant by residential premises. I think that there was very brief discussion of this in the House of Commons Committee on whether, if somebody has a scrapyard and they put a caravan on it and have somebody living there, that counts as residential premises. To what degree would a house surrounded by a big garden have to be used for the purposes of buying and selling scrap metal before it was defined as a scrapyard? There is an issue there which may need resolution.

On the question of inspection and enforcement, I think it is fairly clear that the cost of the licences that people will have to take out under this Bill will be expected to cover a local authority’s administrative costs in running the system. Will they also be expected to cover the additional costs that will inevitably exist for local authorities that take seriously their duties of inspection and enforcement within the system? Inspection and enforcement will in part be the duty of the local police, working with the local authority, but clearly there will be extra work for the local authority. Will it be able to cover those costs from licensing?

The Bill will not solve all our problems. Noble Lords talked about other things that will be necessary, particularly an effective local neighbourhood policing system that can collect together the local knowledge and information that is so often necessary in order to track down people who are doing this—even if they are coming over the border from Yorkshire. However, it is a useful and necessary step forward. It may not be a panacea but it is welcome and I, too, join my noble friend in asking the Government to give guarantees that they will bring the legislation into operation pretty quickly after it has—as we hope—passed through your Lordships’ House.

Public Bodies Bill [HL]

Lord Greaves Excerpts

Monday 28th February 2011 Lords Chamber

[Lord Empey]

I have always been a devolutionist and felt that there had to be a local dimension to most things. The noble Lord, Lord Judd, was asking whether people fully understood the social and other implications of what has been happening in this country over recent years. The answer for me is yes. I still have a constituency. It is largely an inner-city constituency in east Belfast. The people at my advice centres are queueing up, looking for help with DLA, housing benefit and how we can get them training, so I am very familiar with all of that. But having elaborate structures today, whether they be in Northern Ireland, in Scotland or anywhere else, is not the whole answer. There is another dimension.

The noble Lord, Lord Foulkes of Cumnock, will be well aware that we have another dimension in Northern Ireland, where we are up against the Republic, which has a very attractive corporation tax rate. At the end of the day, that was attracting more inward investment to that region than anything that any of our industrial development organisations could do.

Local government also has a role to play. There is no model that is absolutely applicable in every part of the UK. I would be very afraid to take a position on the north-east of England, about which a vast array of people seem to be extremely passionate. The noble Baroness, Lady Armstrong of Hill Top, made a powerful speech in respect of what she saw in her region and many other noble Lords, including the noble Lords, Lord Bates and Lord Greaves, spoke on it as well.

[Lord Greaves]

I actually spoke about the north-west and not the north-east, but I will back the north-east as well.

[Lord Empey]

The noble Lord was saying at one stage, if I recall, that part of his region felt that it belonged to the north-east. The point is that there is a large pool of people who feel passionately that the north-east in particular has a critical mass and should have representation. I know that the noble Lord, Lord Prescott, attempted to offer regional government to that region and it did not want it at that stage. Otherwise, I dare say, it would have, just as Scotland and London and other places have, its own economic development unit, probably with a Minister working full-time on that area.

The question for us is whether this is going to be solved simply by structures or by a combination of structures and a policy involving close linkages with higher and further education and training. I am not convinced, having established one of these bodies in the past, that the model that we need to go forward for the next 10 or 20 years is necessarily the model that we have adopted in the past. I am not saying that everything that is being proposed by the Secretary of State is the right solution. Local people in those areas would have a better grasp of that than I would have from a distance. But I no longer put my faith in the structures. When you talk to businesspeople, they are very dismissive of bureaucracy. Their real interest is not in any grants that you can offer them; it is whether you have the people on the ground who can do the job. That is the thing that matters most.

There seems to be a new dimension opening up. I do not have all the answers and it is not entirely clear that the Secretary of State for Business has them either. But things have changed dramatically in the past few years, not least because of Europe and what it is now deciding. We have signed up to that. The ability of local organisations to take strategic decisions and effectively to buy in the businesses that come to invest has diminished. We have to be aware of what is happening in the rest of Europe. We feel that people in other parts of Europe do not apply the rules as strictly and rigorously as we do. I am sure that noble Lords from Scotland and elsewhere have had that repeated to them time and again. We play by the rules while others ignore them. That is one source of considerable concern to people in the regions, who feel that we are not necessarily playing on a level pitch.

When one is next door to a region where there is 12.5 per cent corporation tax versus what we have, that is what I call real competition. It is something to which no individual organisation, whether regionally based or otherwise, has a solution on its own. I am for regional solutions but I am no longer putting my faith simply in the structures that we develop. Those structures themselves sometimes get in the way of business; they frustrate businesspeople and, of course, they are very expensive. Whether we have the balance right remains to be seen and I have no doubt that there will be further debate to establish that.

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[Lord Greaves]

I wonder whether the noble Lord—as he says, both of us know the Pennines well—will agree that when a region such as the north-west finally gets a complete set of local enterprise partnerships, or LEPs, whatever pattern it is, what will happen—and it is already being discussed—is that at regional level all the LEPs will come together to form some sort of association or confederation of LEPs to recreate a structure at a regional level. However you look at it, this will be necessary.

[Lord Hoyle]

I could not agree more with the noble Lord. Of course that is what is going to happen. Something is being tossed away needlessly by the Government in a very hasty decision, without due thought being given to either region. I certainly agree with him that these things will need to come together if the various regions throughout the country are to benefit. Unless we do that—unless we get them together—we have failed. I am so sorry that they are being split up in this way, only for them all to come together under another name, as the noble Lord, Lord Greaves, says. In view of the pleas that have been made from these Benches and from other Benches, particularly from the Benches within the coalition—they seem to sit a little bit apart at times—will the Government please think again before destroying the RDAs?

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[Lord Taylor of Holbeach]

I take a great deal of comfort from my noble friend Lord Bates, who shares my view of the ability of the north-east to develop common policies where it wishes to do so. There are individual differences between Teeside, Tyneside and Wearside. You would not want to say you were in Newcastle when you were in Washington—I remember somebody getting into terrible trouble for doing so. Locality is very specific and the north-east has different characteristics. It is not homogenous and there are methods of getting economic development in the north-east which do not depend on having a single body to deliver it. A coalition of different bodies with a common policy may well be a much more effective method for doing so.

I gave way to my noble friend when I was talking about the West Country. If I might take Bristol as an example, it is far better for the local partners to develop policies for the specific issues it faces, and for Cornwall to do likewise. I strongly believe that any economies of scale that a regional approach may have are more than outweighed by an absence of local knowledge and commitment and the consequent loss of responsiveness to local circumstances. In response to the noble Lord, Lord Whitty, who asked why the Gloucester, Swindon and Wiltshire LEP was rejected, I would say that, although there was some business support for the proposal, other businesses in the area felt that a different geographical approach was right. Ministers have gone back and asked the partners to discuss their proposals again in order to develop an approach which takes the full range of local views into account. So the matter is not concluded; it is still under debate, and the Government await evidence on which to make their decision.

[Lord Greaves]

I will give my noble friend a slight rest. Does he not accept that not only are the Government apparently out of step with what most people in the north-east think but their thinking on regionalism is completely out of step with pretty well every other country in Europe of a similar size? It really risks England becoming the most centralised country in the whole of western Europe. While what he says about LEPS and putting the emphasis at a more local level might well be a perfectly acceptable way forward, the real problem is that the LEPs are being deprived of pretty well all the resources which the RDAs and regional bodies have at the moment. Therefore, unless they are lucky enough to get some of this relatively small amount of regional development fund money, they are going to be toothless.

[Lord Taylor of Holbeach]

I should remind the noble Lord that I do not consider £1.4 billion in the regional growth fund to be insignificant. Noble Lords may well feel—and they clearly do—that it is better that the taxpayer should fund large redistributions through RDAs, but there may be other ways in which economic policy can be directed, as my noble friend Lady Harris of Richmond mentioned. She talked about tax incentives. Far be it for me, as a very lowly member of the Government, to challenge the Treasury on tax incentives, but there are different ways of doing these things other than handing out taxpayers’ largesse. I emphasise that that is the way in which this Government are thinking.

Perhaps if I talk about the north-east, I might be steering into danger. I am not too frightened of doing so because we should recognise that the north-east does not have a single monolithic economy. The region has a varied economic geography, with significant economic poles, across the Rivers Tyne and Wear and the River Tees. Each place has a different industrial heritage and different strengths, opportunities and threats. The local authorities in Tees Valley have a strong track record in working together and were quick to put forward an application to form a local enterprise partnership. This argues that they recognise the benefits of these new arrangements. A partnership has now been established, covering the authorities in the rest of the region. As Vince Cable has made clear, this is not to say that some form of co-operative arrangement across the north-east is not justified if local partners want it. I said that at Second Reading and I have just said it again. However, I strongly question whether a regional development agency, with all its attendant complexity and bureaucracy, is necessary to achieve this.

The previous Government gave RDAs the task of narrowing the gap in growth rates between the prosperous region of the greater south-east and the rest of England, and provided them with significant resources over a sustained period to help them achieve this. However, it was a target that they failed to meet. Between 1990 and 1999, the real gross value added per head in the greater south-east grew by around 1.8 per cent in each year, compared with around 1.4 per cent in the other six regions—a gap of 0.4 of a percentage point. Between 1999 and 2009, annual growth in the greater south-east fell to 1.4 per cent, compared to 0.8 per cent in the other regions—a gap of 0.6 of a percentage point. Therefore, the gap in growth rates has widened by around 0.2 of a percentage point. It is time to try a new policy, even in the north-east.

As the White Paper makes clear, we are encouraging businesses, local authorities and their partners to develop local enterprise partnerships based on real economic areas, rather than artificial administrative regions. The new partnerships are based on where people live and work. Businesses and civic leaders will work together to drive sustainable economic growth and create the conditions for private sector job growth in their communities. Partners have responded to this invitation in an enthusiastic and innovative way. So far, 31 partnerships have been asked to form boards, covering 87 per cent of England’s population and a similar proportion of businesses. We are actively engaged with partners in the remaining areas, helping them to develop proposals that will meet our broad criteria.

I reassure the noble Lord, Lord McKenzie of Luton, that five LEPs have been asked to establish their bases in areas that cover the east of England. I assure the noble Lord that there will be partnerships covering the entire region. There will be no businesses or parts of the population that are not covered by an LEP.

--- Later in debate ---

[Lord Taylor of Holbeach]

The skills will be developed as part of the skills policy of the Government. My honourable friend in another place, the Minister, Mr John Hayes, has recently announced a skills strategy for the country. If we have not debated it in this House, it is because we have been very busy debating other things. However, it is a very important strategy, and it is part and parcel of the strategy for economic growth in this country.

Perhaps I may continue to describe the regional growth fund. It is intended to encourage private sector enterprise and create sustainable jobs. In particular, it is designed to help places currently reliant on the public sector to make the transition to private sector-led growth. I suspect that there is a feeling across the House that this is important. Once again we are encouraging proposals to come from the bottom up, responding to local circumstances. When the first round of bidding closed at the end of January, we had received nearly 450 proposals, showing that there is a significant appetite for an approach of this kind. My noble friend Lord Heseltine is chairing the panel which will be selecting the best of these proposals; and noble Lords have referred to my noble friend in contributions to this debate. Noble Lords will need no reminding that encouraging growth throughout the country is a cause dear to his heart.

[Lord Greaves]

I apologise for intervening again. The resources may be significant, as the Minister said, but they are considerably less than the resources available at the moment, either through RDA or through the regional housing pots and all the other resources, which are being either dramatically cut back or scrapped altogether. Is not the problem that many of these places that have put forward good, exciting schemes and want to get ahead will be denied a penny because they will not win the competition that the noble Lord, Lord Heseltine, is presiding over?

[Lord Taylor of Holbeach]

I cannot guarantee that all the 450 proposals will find funding. However, I can be sure that the ones for which funding is found will be successful and provide opportunities for the people in those areas.