Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Wednesday 20th November 2013 Lords Chamber

[Lord Rosser (Lab)]

My noble friend Lord Harris of Haringey has made the very powerful point that, frankly, everything depends on how intelligently or otherwise community protection notices are sought and applied and—to use the Minister’s words—whether anybody is acting mischievously in trying to seek or impose these notices. I am sure that when the Minister responds to the debate he will assure us that everybody will use them intelligently and everybody will work together in a great, grand partnership. That has been his basic theme throughout our debates but, of course, the Minister has no idea whether that will actually happen. I am sure that it will happen in the vast majority of cases, but it certainly will not happen in every case. The Minister must know that it is almost certain that, before long, the provision for community protection notices will be used in a way that is not being envisaged at the present time and, to that extent, is likely to be abused.

I will speak in particular to Amendments 22NB and 22NG which stand in my name. If a community protection notice is issued to an individual or body, the Bill states that they are required to,

“take reasonable steps to achieve specified results”.

Amendment 22NB deletes this wording because we would like to hear a little more from the Minister as to how this phrase will be interpreted and how it is expected to work. Can the Minister explain what counts as “reasonable” in this context and who will define what would be “reasonable steps”? Is it the intention that the person or body issued with a community protection notice will be told by the person issuing it what will be deemed to constitute,

“reasonable steps to achieve specified results”,

or is that all to be left up in the air?

Clause 40(3)(a) and (3)(b) refer to “specified things” with no requirement to take reasonable steps to do them but Clause 40(3)(c) refers to “specified results” and has a requirement to “take reasonable steps”. Why is there a difference in wording? If the reference to “reasonable steps” is so important, why does it not appear in Clause 40(3)(a) and (3)(b), which refer to “specified things”?

I turn now to Amendment 22NG. Clause 40(8) states:

“A community protection notice may specify periods within which, or times by which, requirements within subsection (3)(b) or (c) are to be complied with”.

Can the Minister explain why the Government have chosen to use the word “may” and not something more specific, such as “must” or “shall”? Why do the Government feel that there is no need for a specified period within which the requirements will be complied with—that is, requirements that are fair and clear to both the recipient of the community protection notice and the community itself? In what circumstances would a specified period not be helpful or would cause difficulties?

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, these amendments seek to make a number of changes to the test for a community protection notice and to the arrangements of the service of a notice and the appeal against a notice. They also deal with the relationship with existing legislation, namely the statutory nuisance regime. I will first address the amendments in the name of my noble friend Lady Hamwee.

Amendment 22NA seeks to ensure that any detrimental effect on an individual is “significant” in order for the test to be met and the notice issued. I appreciate that a community protection notice should not be issued lightly. However, the test already includes appropriate safeguards. Not only does behaviour have to be persistent or continuing as well as unreasonable, but the individual in question has also to be served with a written warning. That is on top of any formal interventions that the council or a police officer may have already tried. By the time a community protection notice is issued there can be no doubt in the perpetrator’s mind that their behaviour is unacceptable. At that point the council or the police should be able to act, and quickly, to prevent further harm being caused to victims or communities.

I do not believe, given the multi-limbed test and written warning, that trivial or benign behaviours will be dealt with using the new notice. Not least, it is hard to see how those could be considered “unreasonable”. As my noble friend is aware, we have already published draft guidance for professionals, which provides some information on how the test should be interpreted. We are working closely with professionals and victims’ groups over the coming months to ensure that this is as helpful as possible. I will be very happy to look at this further to ensure that guidance is fit for purpose.

Amendment 22NF is well intentioned and I can understand why my noble friend raises it. When a community protection notice is issued, she is right that the person issued with it should fully understand the consequences of what is happening. In fact, as the draft guidance outlines, we would consider it good practice for some of this detail to be also included in the written warning. Under Clause 40(7)(b), the effects of Sections 43 to 48, including the possibility of remedial action and the financial implications of that, have to be outlined in the CPN, so that is already covered. Councils or the police should not be required to outline exactly what remedial action could be undertaken in case the situation changes. However, there is certainly nothing to stop the local agency from including it if appropriate. The purpose of a community protection notice is to require the person on whom it is served to take specified action. The power for a local authority to take remedial action is very much a fallback.

Amendment 22QB seeks to delete the ability for an authorised person to enter premises to serve a notice. I assure my noble friend that this is not a power of entry in the traditional sense. It simply allows the authorised person, when the occupier or owner is unascertainable, to serve the notice. That is only possible,

“to the extent reasonably necessary”.

For instance, where the problem occurs on derelict land that is owned by someone who cannot be identified, the authorised person can go on to the land to post the notice on, for instance, a prominent building on the site such as a shed. In many cases, posting the notice on the exterior of a building may be sufficient. It certainly does not give the authorised officer the ability to break down doors to serve the notice.

Amendments 22QD and 22QE seek to clarify the powers of the court when an individual appeals against a CPN served on them. I agree with my noble friend in the case of Amendment 22QE: the courts should be able to vary the notice by reducing the requirements. However, I believe that this is already covered in Clause 43(4)(b), which allows for the notice to be modified. I can also understand the point made by Amendment 22QD. It is hard to envisage a situation where an appeal would result in a notice being modified in a way that was not in favour of the appellant. However, the courts should have the flexibility to modify a notice in this way if it thinks that it is appropriate. Therefore, I do not believe that we should make this change to the legislation.

Amendments 22ND and 22NE bring us back to the subject of statutory nuisance. As my noble friend explained, the amendments are designed to ensure that there is no overlap between the new CPN and the statutory nuisance regime, established under Part III of the Environmental Protection Act 1990. Amendment 22ND would ensure that the new notice was not used wherever conduct was already subject to a control under another statute. Amendment 22NE goes further still and seeks to carve out noise nuisance from the new CPN. This goes completely against what we are trying to achieve through these reforms, and I hope my noble friend will now understand the way in which we see this working alongside the existing powers. Victims do not care which power is being exercised or from which statute it is derived. They do not really care who deals with their problem or who answers their telephone call at 3 am. They just want anti-social behaviour to stop. That seems like a pretty reasonable wish to me; that is what this Bill is seeking to provide. Those tasked with stopping the behaviour should be able to respond quickly and effectively, using more than one power where this is appropriate and justified. This is not least because the community protection notice can cover behaviour which does not fall within the ambit of statutory nuisance, even though there may be some overlap. These amendments could result in officers being unnecessarily risk averse, potentially not using the new power and so allowing anti-social behaviour to continue, ruining victims’ lives for longer than necessary.

The new CPN will be available to deal with a wide range of anti-social behaviour. To say “It can be used for this behaviour but not that behaviour” would simply return us to mistakes from the past. We must move on from focusing on the behaviour and instead understand the impact it is having on the victims and communities that are being damaged.

I was asked by my noble friend Lord Greaves for 10 ways CPNs could be used. I can give him three—I have three prepared already—and no doubt a certain amount of inventiveness will allow me to write to him with another seven, but at least these give an idea. They can be issued to any individual or body persistently behaving in a way that has a detrimental effect on the quality of life of people in the locality. That is the essence. For example, there is no current notice system to cover an individual who regularly allows their dog to foul a communal garden. A group regularly taking the same route home late at night while drunk, making noise and waking their neighbours: this behaviour is not covered by the statutory nuisance regime. A third example might involve a takeaway which persistently allows its customers to drop litter on the pavement outside and causes noise nuisance late at night. It could be required to put bins outside the shop and ensure that customers leave quietly after 10 pm. Current notices can only be used to deal with one particular type of behaviour. I am trying to give illustrations of the sort of issues that have considerable anti-social consequences and which can be dealt with through a CPN regime.

I have to say to my noble friend that we have acknowledged the importance of the statutory nuisance regime in guidance. We have acknowledged the wealth of experience available on the subject and made it clear that, when problems are persistent, police officers and social landlords should speak to their partners in the local authority to determine which action is most appropriate. The CPN is a simple but powerful tool, available to protect communities from persistent and unreasonable behaviour that is having a detrimental effect on people’s quality of life. It must remain so and, as such, I urge my noble friend to withdraw her amendment.

--- Later in debate ---

[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.

[Lord Rosser]

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

“a requirement to stop doing specified things”.

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

“a requirement to do specified things.”

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

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

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

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

“reasonable steps to achieve specified results”.

[Lord Faulks (Con)]

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

[Lord Rosser]

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

[Baroness Hamwee (LD)]

My Lords, my much less elegant interpretation of these provisions is that paragraph (c) is about “how” and paragraphs (a) and (b) are about “what”. There is an absolute requirement to achieve paragraphs (a) and (b) but there can be only a reasonable requirement—and a choice of ways—as to how to to get there.

[Lord Taylor of Holbeach]

I would see it as being about outcomes as opposed to methodology. Noble Lords are familiar with this concept and understand the particular example.

Moving on to Amendment 22NG, while I cannot think of a specific example where it would not be necessary to include the specified time for actions to be undertaken on a notice, I am not the front-line officer dealing with anti-social behaviour on a daily basis. Those officers have told us that the additional flexibility afforded by the new powers is exactly what they want. They do not want to be constrained on a time limit. This is directional and they want to be satisfied that the direction of travel is working properly. To put a time limit on it may be counterproductive. The amendment would erode that flexibility.

The noble Lord, Lord Rosser, asked what is meant by “reasonable”. We have discussed “reasonable” before. In this case, the power will be used by council enforcement officers and police officers. These are trained professionals who make this judgment on a daily basis. What is reasonable in one situation is not reasonable in another. The judgment has to be made on a case-by-case basis. I hope that the noble Lord will accept that.

The noble Lord, Lord Harris, came up with the notion of CPNs for a string of shops promoting payday loans or for an off-licence. The conduct has to be defined as being unreasonable and a notice that imposes unreasonable requirements can be appealed. However, if an off-licence has benches outside encouraging people to congregate and engage in conduct that would be detrimental, it could be required through a CPN to remove the benches. That would be a perfectly reasonable request.

Except for the seven examples that I owe my noble friend Lord Greaves, I hope that I have given noble Lords the answers to their questions—but I appear not to have done so.

[Lord Rosser]

I really would like to hear the answers to my questions. I asked whether it was the intention that the person or body issued with a community protection notice would be told by the person issuing it what would be deemed to constitute,

“reasonable steps to achieve specified results”,

or will that be left in the air? Presumably, if there is an argument about the matter, it will be left for the courts to determine. Is that the case or will they be told what will be deemed to be reasonable steps to achieve specified results?

[Lord Taylor of Holbeach]

We should not make the methodology of serving the notice, which is what the noble Lord is referring to, specific. We discussed this when we talked about the requirement to do certain things. The steps that might have to be taken to achieve specified results may be up to the individual to judge. What is not in doubt is the need to indicate the specified result that is required. We discussed this issue when we were talking about the difference between paragraphs (a), (b) and (c).