Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Monday 25th November 2013 Lords Chamber

[Baroness Trumpington (Con)]

My Lords, I listened to the debate on my old boss’s amendment with great interest and pleasure. This is what could be called “Bella Figura”. The Italians, Germans and French would never put up with these parades we have had in front of us or the noise we have endured—they would have been gone in no time at all. Much as I sympathise with many of their objectives, I very much deplore the way they try to attain them.

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

My Lords, this has been a very good small debate on what I consider to be a very important subject. My noble friend has done the House a great favour by raising this important matter for us to debate. I will not mention all those who have spoken but, without exception, all noble Lords have recognised the issue that we have to deal with. I hope I can demonstrate that the Government are looking for a positive way forward on this.

I am sure that many other noble Lords besides those who have spoken will have strong views on the noise generated by the demonstrations that take place in the vicinity of the Palace of Westminster. We have, of course, been here before. As noble Lords have pointed out, legislation to deal with such demonstrations was first passed in the Serious Organised Crime and Police Act 2005. We should not forget just how contentious that legislation was, which is why it was repealed and replaced with more proportionate measures in the Police Reform and Social Responsibility Act 2011, to which my noble friend referred.

My noble friend and the Committee will be sensitive to the need, before passing further legislation, to be very careful about taking any action that may impact disproportionately on people’s right to protest and their freedom of speech. However, I recognise the gross disturbance which amplified sound is now bringing to otherwise legitimate demonstrations. The proximity to the working offices of the House of Lords makes it difficult for Peers, officers of the House and staff to conduct their parliamentary duties. A number of noble Lords have referred to that.

With the Police Reform and Social Responsibility Act 2011 having addressed the problems in Parliament Square, noble Lords may feel that some of those problems have been displaced, particularly to the small area around the George V Memorial and the surrounding lawns and paving, as referred to in the amendment. Perhaps it would help noble Lords if I describe the law as it applies for areas away from Parliament Square. The 2011 Act strengthened local authorities’ by-law-making powers, in particular by including a power to seize items used in connection with the contravention of a by-law. Westminster City Council and the Royal Parks authority updated their by-laws immediately after the relevant provisions of the 2011 Act were brought into force. The by-laws include measures to deal with tents, structures and excess noise.

These by-laws, in many ways, already have the effect intended by this amendment. Westminster City Council by-laws and the Royal Parks by-laws contain strict noise control provisions covering Old Palace Yard and surrounding areas such as Abingdon Green. The by-laws state that a person should not make or allow to be caused any noise which is so loud or so continuous as to give reasonable cause for annoyance to others in the area. But here is the rub: the enforcement of by-laws is a matter for Westminster City Council and, ultimately, the police. Suspected breach of a by-law could lead to arrest and prosecution. In taking any enforcement decisions, the authorised officers or the police would take into account the need to allow a right to protest outside Parliament. Achieving a balance seems to be part of the difficulty. Perhaps the noble Lord, Lord Campbell-Savours, has suggested an idea that recognises this to try to avoid the gross disruption experienced currently. I do not know. Some noble Lords have questioned what he has proposed, but I thank him for giving us a possible solution.

[Lord Campbell-Savours]

There is a precedent for building on sensitive land within the area of Westminster; that is, the proposal being made by both Houses to build an educational centre of 6,000 square feet on Victoria Tower Gardens, which is the subject of a lot of debate at the moment. The proposal I am making is not that it would be one exhibitor; there might be a dozen exhibitors on rotation, drawing on different organisations, coming in nationally. Members of Parliament and Peers would visit in those circumstances because it would be a lobbying centre, and it would set a precedent that I think might be mirrored by other parliaments.

[Lord Taylor of Holbeach]

I thank the noble Lord for elaborating on what he is thinking. I thank him, genuinely, for trying to think positively about how to handle the rightful expression and the disruption to which Members, staff and officers of this House are currently subject because of the excessive noise.

Of course, there are further provisions. The Public Order Act 1986 allows the police to place conditions on static protests or demonstrations. The Environmental Protection Act 1990 allows the police to deal with noise issues. But enforcement lies at the bottom of all these measures at present, and the police need to balance the management of disruption caused by any protest against people’s right to protest—I think we would all accept that.

The police have sufficient powers under the Public Order Act, and the police and Westminster City Council can enforce by-laws that cater for noise issues around the Palace of Westminster. The issue, therefore, is how the existing by-laws are enforced. One would have to say that this is an operational matter for the police and Westminster City Council. That said, I fully recognise the degree of distress caused by the repeated use of musical instruments, loud-hailers and amplifiers in the areas adjoining your Lordships’ House and the disruptive effect that can have. I have been told—and we have heard today—of Peers evacuating their offices to work elsewhere, and of another who has been made to feel physically ill as a result of the noise. This cannot be tolerated.

I propose to my noble friend that he and I meet the Metropolitan Police and Westminster City Council to discuss this issue ahead of Report to examine a way forward in dealing with this problem. I suggest that we also include the Dean of Westminster Abbey. As my noble friend has pointed out, the abbey is also subject to the gross disturbance that amplified sound is now bringing to some demonstrations.

[Lord Marlesford]

Before my noble friend leaves this point, I remind him—the trouble is, he was not particularly involved in it—of when we were campaigning against what was happening in Parliament Square, which brought such discredit to the whole area and did not add to the credit of Parliament. I had a Private Member’s Bill on this and the argument that was always used was, “Oh, there are lots of powers”, and they quoted quite a number of the Acts of Parliament that my noble friend has just been quoting. It did not work. It was much too complicated for the individual authorities—whether it was the Met, Westminster City Council or the health and safety people—to do anything about it. The Act which was introduced to deal with Parliament Square appears to have been very successful. I suggest to the Minister that, much better than trying to play around with existing legislation which might be relevant to dealing with the problem, let us build on what has dealt with the problem in Parliament Square.

[The Countess of Mar]

My Lords, I explained that I had been in touch with Westminster City Council and the police. I know what the law is and I spent a whole afternoon trying to point it out to them, but they said, “No, it’s not us. Not me, guv”, so I was left frustrated. I hope that the Minister will therefore take notice of what the noble Lord, Lord Marlesford, has said.

[Lord Taylor of Holbeach]

I do absolutely. I need to satisfy myself, before we move on, that the existing provisions are not being enforced by Westminster City Council and the police, because they are both involved in enforcing them. I want a meeting to make sure that we have thoroughly thought through any provisions before we put them in legislation; I think that the House would expect that. We of course have an interest: we work here; we live here; we suffer the noise and disruption ourselves. We need to be able to justify in the wider Parliament other than this Chamber and even in the big parliament of the people outside any action that we choose to take. I am very mindful of what my noble friend says. Enforcement has not been successful.

[Baroness Trumpington]

Has the Minister left out Marble Arch, the obvious place being Speakers’ Corner, to go on existing?

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[Lord Taylor of Holbeach]

There are certain places where there has been a tradition of people being able to assemble to speak. The last time I went to Speakers’ Corner, I cannot remember loud-hailers or blast-master amplification being used as part and parcel of that process. It is the amplification of the message, seeking almost to penetrate this very Chamber, which I think is causing the difficulty.

[Baroness Knight of Collingtree]

Perhaps I may ask one further short question. In the many cases up and down the country where raucous parties have taken place, all it seems to need to get the police in action, on the spot and stopping the trouble, is for one or two people to complain. If one or two Members of Parliament, be they Peers or from another place, had the courage to go and complain to the police about the noise, does the Minister think that, under present rules, that might stop it?

[Lord Taylor of Holbeach]

I have to hold out that possibility but, on the other hand, it might not. If the latter is the case, it is perfectly proper for this House to seek a remedy which enables it to perform its function and for its Members to carry out their duties without the gross disturbance which they have otherwise been subject to.

We need to progress with a certain amount of caution here. We have to justify anything that we do by way of legislation with our friends in another place and with the greater public opinion outside. I advocate that as a matter of caution. However, we need to seek a way forward. I am looking to work with others to find a solution. We need to make sure that it is a sensitive and effective solution. I hope that with that and all that I have said my noble friend will be ready to withdraw the amendment.

[Lord Deben]

My Lords, I thank my noble friend for the consideration with which he approached my amendment. The truth is that the laws and by-laws to which he referred exist but are not enforced. He made that point. That was precisely what happened in Parliament Square. Parliament and the House of Commons decided that the square would need a special arrangement because that was the only way to make sure it was enforced. It has now been enforced in the new, much more elegant form brought in by the 2011 Act, about which I have heard no complaints, even from the most extreme of campaigners. They see that the balance is roughly there. It seems odd that what is sauce for the elected goose should not be sauce for the unelected, but happily continuing, gander. I have difficulty in understanding why there should be a difficulty, if I may put it as elegantly as that.

I am very happy to meet my noble friend and all the other people he spoke of, but I suspect that the House will want to come back to this at a later stage. However much conversation we have with the same people who failed to regulate the matters in Parliament Square before the law was changed, I suspect that we will want to come back to this House and propose again the simple concept of moving what is now limited to Parliament Square further along the road. Of course, I undertake that, in those discussions, the actual boundaries will be looked at again in case we have not quite got them right. I do not want to go further than is absolutely necessary because I do not want this to be different from, or impinge upon, other jurisdictions. This is about the Houses of Parliament. At the moment, it is about one House of Parliament—all I want to do is make sure that it is about both Houses. On that basis, I am happy to withdraw the amendment but hope that our discussions will end up with an amendment that is acceptable to the Government when we come to Report. I beg leave to withdraw the amendment.

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A further point has arisen since I had discussions with the Minister, which is whether the conditions that can be put on a PSPO can apply only to activities and the detrimental effect identified before people say, “Let’s have a PSPO”. Is it only those activities and the detrimental effect which have been identified and defined under the first condition, in Clause 55(2)(a), or could anything be put on once those are considered? Should the criteria for making an order not take account of the downsides of making it, rather than merely considering the benefits of doing so—in other words, should the legislation have a test of balance of judgment introduced into it? Should the prohibitions and requirements not be necessary rather than just reasonable? To what extent is discrimination acceptable between different types or groups of people, or differently aged people, in setting the prohibitions and requirements in the order? This is an important part of the Bill and I hope that we will scrutinise it carefully. I beg to move Amendment 23.

[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.

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[Baroness Hamwee]

I will not waste the Committee’s time by repeating the arguments, but this is an instance where guidance would not be enough. Unless we can have hard examples of where the provision might be properly used to restrict assembly where there is no other provision to deal with any of the problems, it would not be adequate for guidance to say something like, “The Government would not expect this to be used in such and such a situation”. This is a power that I would be very unhappy to give to anyone because of its misuse, unless there was a very good reason to allow it here and they have no other tools.

[Lord Taylor of Holbeach]

I am really grateful for this debate. It has been very helpful to the Committee to be able to talk in these terms. I draw noble Lords’ attention to Clause 55 and how it is constructed. I am not a parliamentary draftsman and sometimes legislation is difficult to read or understand, but here the tests that are required on public spaces protection orders are quite clear and explicit.

We all agree that rights to freedom of expression and peaceful assembly are important, and we would not wish to interfere with them in this Bill. Noble Lords are right to seek from me reassurance on this. What the amendment seeks to do is not as important as the probing that lies behind it. The legislation sets a very high test that must be applied before a public spaces protection order is used, as I will explain. The first condition of the test, in Clause 55(2), states that the activities must have had a detrimental effect on the quality of life of those in the locality or it is likely that such activities will occur which could have this effect. The second condition is that the activity is persistent, unreasonable and is justified by the restrictions on the notice. I think that gives us a pretty clear idea of the sort of activity which a public spaces protection order is designed to cover.

I consider it highly unlikely that, in the case of a peaceful protest, or holding placards or handing out literature, or talking to people, even the first condition could be met. I do not see that as being a condition which any court would allow.

[Baroness Smith of Basildon]

The noble Lord refers to “any court”. It is of course the local authority that will be making the judgment. The court would only be involved at a much later stage, if that was challenged. The Minister says that the second condition is that it has to be,

“of a persistent or continuing nature”

and “unreasonable”. It does not have to be. It has to be “likely to”: a judgment is being made as to whether or not the effect of the activities is “likely to” do something. That is a much weaker test than that which the noble Lord implied.

[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.

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Moved by

[Lord Taylor of Holbeach]

34C: Clause 55, page 32, line 38, at end insert—
“( ) publish the text of the proposed order;”

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[Lord Harris of Haringey]

My Lords, I want to interrupt this string of Liberal Democrat speakers to correct the noble Lord, Lord Greaves. He implied that the reason why parish councils were not referred to more explicitly in the Bill is that so many officials live in London and London does not have parish councils. However, London has the power to create parish councils. Indeed, last year a parish council was created in Queen’s Park following a referendum of local residents who voted for it by two to one, with about 1,000 residents voting in favour and about 500 voting against. Therefore, it is possible to create parishes in London and many local authorities have looked at this as a way of ensuring adequate local community and neighbourhood representation. Where such parishes or adequate community and neighbourhood structures exist, you would expect them to be consulted on the orders about which the noble Lord, Lord Greaves, is concerned.

[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.

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[Baroness Hamwee]

My Lords, I have Amendment 53FA in this group. It is an amendment to Clause 60, dealing with restricting the right of way over a highway. I am suggesting that in subsection (4), which provides:

“A public spaces protection order may not restrict the public right of way over a highway for the occupiers of premises”,

we should also refer to “users” of premises,

“adjoining or adjacent to the highway”.

This is a probing amendment to ask whether the term “occupiers” includes people authorised by the occupier. Obviously this would apply to all premises, but it was thinking about business premises that made me decide that this needed to be made clear, because restricting in effect the use of business premises would be a serious matter.

[Lord Taylor of Holbeach]

My Lords, I am grateful to my noble friends Lord Greaves and Lady Hamwee for explaining their amendments. Before I start on my notes, I should draw my noble friends’ attention to the underlying conditions that local authorities need to reflect on before they make orders. I think that they condition the whole approach and, to some extent, satisfy some of the anxieties that my noble friends have expressed.

I can assure my noble friend Lord Greaves that, like him, I fervently believe that public spaces are there for everyone to enjoy, but they should not be ruined by a careless and irresponsible minority. These new orders are designed to allow maximum flexibility for the council, meaning that restrictions on access to, or use of, any land should be considered only as a last resort. However, where restrictions on access are necessary, the option should be available to protect victims and communities from anti-social behaviour. That is what we are about and it is what the Bill is about.

On Amendment 41, I accept that the categories of land listed are important and, indeed, worthy of the further debate they have received today. This is exactly why many of them are covered explicitly in the draft guidance. However, making this amendment would stop the local council protecting those spaces more generally from issues that might deter usage. It is important that we do not inhibit the flexibility provided by these new orders.

Perhaps I may illustrate the point. Many of the categories of land listed here are commonly used by dog walkers as well as children. Given the risk to children of diseases spread by dog faeces, it is only right that a council has the ability to introduce measures to ensure that dog owners clean up after their animal. In addition, where some of these areas of land have become a focal point for people to congregate and drink alcohol, making usage by others unpleasant or even impossible, the council should be able to prohibit the drinking of alcohol to free the space for the majority who want to use it responsibly. The amendment as drafted would preclude the council providing these protections or any others that were necessary on the categories of land listed.

Amendment 41A is more specific and is designed to protect any rights of common, such as the right to graze animals, enjoyed by individuals or groups on common land. This amendment is, I believe, unnecessary. A public spaces protection order would not be used to stop a commoner exercising his right of common. In the case of rights of common, it is hard to imagine a situation where a right exercised by a commoner could result in anti-social behaviour, unless it were being done in a particular way. The new flexibility afforded to councils with the public spaces protection order means they can address the problem element of the behaviour while protecting the wider rights.

Amendment 54 would ensure that certain categories of land could not have access restricted. First, let me say that I accept the importance of maintaining access to footpaths, bridleways and byways so that they are available for the enjoyment of all. However, the list in Clause 61 relates to those highways that are of strategic value. This means that, in all probability, restricting access would have a significant impact on the community, if not the region or the country, that far outweighs the impact of any problem behaviours. I do not feel that the same can be said for all public rights of way. However, I agree that they deserve special consideration and I am happy to see how this can be made clearer in the guidance, but where the anti-social behaviour—and it is the anti-social behaviour that we are dealing with, not access—of those using these routes has reached a stage where the community is suffering, the council should have the ability to restrict access either in part or in totality.

I would like to make one more point which I hope my noble friend will appreciate. Due to the way in which the current orders in this area are framed, in many cases a gating order, and indeed the complete closure of a right of way, is the only option available to councils. The new order seeks to change this. Problem behaviours and anti-social individuals and groups can be dealt with more effectively under the new power, ensuring that the restriction of access is necessary only as a last resort. We have made this clear in the guidance, but I am content to work with interested groups such as the Open Spaces Society and the Ramblers, to see whether it can be made any more explicit.

The other amendments my noble friend Lord Greaves has in this group relate to restrictions on rights of way over a highway and appropriate safeguards. Amendment 53B seeks to provide further safeguards on the list of things that need to be considered before the right of way over a highway is restricted. I believe that as currently worded Clause 60 provides those assurances. However, we can consider how to go into more detail in the accompanying guidance to ensure that my noble friend’s concerns are addressed.

Amendment 53D would mean that all those affected would have to be notified in writing. In most cases, I think this would probably be correct. However, it may be that for some orders another medium would be more appropriate, such as speaking individually to those affected if there is only a small number. As such, I do not believe we should tie the hands of councils in this way in the Bill.

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[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.

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Moved by

[Lord Taylor of Holbeach]

44C: Clause 56, page 33, line 24, leave out “consult”

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Moved by

[Lord Taylor of Holbeach]

45A: Clause 56, page 33, line 25, at beginning insert “consult”

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Moved by

[Lord Taylor of Holbeach]

46A: Clause 56, page 33, line 27, at beginning insert “consult”

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Moved by

[Lord Taylor of Holbeach]

49B: Clause 57, page 34, line 2, leave out “consult”

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Moved by

[Lord Taylor of Holbeach]

51A: Clause 57, page 34, line 5, at beginning insert “consult”

Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Monday 25th November 2013 Lords Chamber

[Baroness Smith of Basildon]

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

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

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

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

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

I hope I can appear in the noble Baroness’s dreams in a good light. Do not have nightmares; that is all I say.

The decision to restrict activity on or access to public rights of way should not be taken lightly. Where anti-social behaviour, crime or disorder is present, local authorities will need to weigh up the impact of restricting access against the needs of the community. There are, as we have already discussed, additional consultation requirements associated with public rights of way above and beyond those expected more generally for a public spaces protection order. Those affected by the order must be notified of the proposal and be given details of how to see a copy of the restrictions. The local authority must also notify those persons of how they can make representations, and these representations must be considered before the order can be made.

Amendment 53G, proposed by my noble friend Lord Greaves, aims to protect private rights of way. I assure my noble friend that I agree with his sentiment. I am happy to confirm that the definition of public spaces included in Clause 60 will not allow for the order to be used for private rights of way. The principal access route to homes cannot be closed with a public spaces protection order. As such, I do not believe the amendment needs to be made.

On Amendment 53H, I understand the issue here relates to areas where there is a district council and a county council. Indeed, just as the noble Lord lives in such an area, so do I. In the situation described in the amendment, while the district council has the ability to make an order, the county council is likely to act as the highway authority. Therefore, in line with the consultation requirements I have just described, before restricting access the district council should consult the county council about the terms. However, I do not believe that this should come with a right of veto. In the majority of cases the evidence presented will be sufficient for both bodies, acting in the interests of the communities they serve, to agree. However, where this is not the case it should not prolong the misery for victims and communities, and so the district council should be free to make the order. On the basis of what I have said, I hope my noble friend will withdraw the amendment and I beg to move that the clause should stand part of the Bill.

On the specific question asked by the noble Baroness about the phrase in the clause,

“it must consult that other authority if it thinks it appropriate to do so”,

I can hardly see how, in the case of a public highway, it would be possible for a local authority to do other than consult those people. I have a note here which has come to my rescue. As to why it states in Clause 60(3),

“only if it is appropriate to do so”,

it is hard to imagine a situation where a council would not do so. However, it adds flexibility. Clause 60(3) was added to the Bill on Report in the Commons in response to a point raised by Gloria de Piero, the honourable Member leading on the Bill for the Opposition. It may be that the letter the noble Baroness is thinking of is the one from Damian Green to David Hanson of 7 October dealing with the Government’s amendments on Report in the Commons. I cannot remember ever discussing this issue before. However, it was added to the Bill on Report in the Commons, presumably with agreement.

I should say that it is only as a last resort. We have made it clear that the added flexibility means it is less likely that a right of way will be closed. This is covered in the guidance and we do not believe it needs to be in the Bill. It is also worth making clear that highways of strategic value cannot be restricted.

[Baroness Smith of Basildon]

My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.

[Lord Harris of Haringey (Lab)]

Perhaps the Minister can assist the Committee by giving us some examples of when this power might be required and what the circumstances would be. It is about restricting the public right of way to a highway, but under what circumstances is that likely to happen and what sort of roads would these be? The requirement is to notify “potentially affected persons”, which,

“means occupiers of premises adjacent to or adjoining the highway, and any other persons in the locality who are likely to be affected by the proposed order”.

Depending on the nature of the highway concerned, that could be a very large number. One also wonders why it is confined to the locality when it might have a much wider impact. I suspect that the answers might be clearer if I had a better understanding of the circumstances in which the Government envisage this power being used. If they are rather narrower than the potential of this clause seems to suggest, I would like some clarity on why that is not made clearer in the clause.

[Lord Taylor of Holbeach]

My Lords, it may be that I have been misreading this particular clause. I assumed that it was evidence of the phenomenon where you have both a district council and a county council, which my noble friend Lord Greaves referred to. It may be, of course, that the highway lies in two local authority areas, and that by restricting it to one local authority, an adjacent local authority that shares the highway might be affected. In that case it clearly would be appropriate for there to be consultation between the authorities. In effect, there would be a joint highway, shared with other authorities.

However, I am hazarding a guess and seeking to inform the House on the basis of guess-work. My best position is to say to noble Lords that there is clearly some uncertainty about the meaning of this and that I am quite prepared to write to noble Lords with all the detail. This is based on current gating order legislation, which has been used for many years by councils to deal with anti-social behaviour, so we might see a similar clause there. Clause 60 needs to be read with Clause 61, in particular subsection (1), which describes which public highways cannot be restricted. It excludes strategic highways, so it is non-strategic highways that are being considered here. I will write to noble Lords explaining how these two clauses operate together, as clearly they are both of a part.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for his very helpful suggestion for trying to get to the bottom of what it means. When he writes, perhaps he could focus on giving us an answer about when he thinks it would not be appropriate to consult the other authority. The other points he made are relevant and helpful.

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[Lord Greaves]

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

[Lord Taylor of Holbeach]

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

[Lord Greaves]

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

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

because the rest of them are,

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

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

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

--- Later in debate ---

[Lord Taylor of Holbeach]

I thank noble Lords for raising this issue because it gives me a chance to provide some detail and, to the extent that I am not able to answer all the factors, I will certainly write to all noble Lords who have spoken on these amendments.

Perhaps it would help if I explain briefly how Clause 62 provides a process by which a public spaces protection order can be challenged. The heading is “Challenging the validity of orders” and that is what the clause seeks to achieve. Within six weeks of an order being made or varied, any interested person can appeal to the High Court to challenge its validity. It is only right that those with an interest in the area should be able to do this and, as such, this route is not open to those who do not live in, regularly work in or regularly visit the area.

A challenge can be made on two grounds. The first is that the local authority did not have the power to make the order. The noble Lord, Lord Rosser, is quite right to draw the attention of the Committee to Clause 55, which stipulates the power that the order is designed to provide for. For instance, this could be in cases where the person challenging the order believes that the test for making an order had not been met. The second ground is if the requirement in this part of the Bill was not met; for example, if local community representatives were not consulted as required by Clause 55(7)(b).

The court has the power to quash the order, uphold it or quash any of the individual elements, including its time and duration. The court can decide to suspend the public spaces protection order in full or in part until the proceedings are complete. However, it does not have to do so; an appeal does not necessarily mean that restrictions are lifted. But this appeal mechanism acts as a valuable safeguard to ensure that local authorities do not use the order disproportionately.

My noble friend Lord Greaves has tabled Amendments 55 and 56, which raise the question of who should be able to challenge the issue or variation of a public spaces protection order.

I stress that it is important that we strike the right balance between councils being able to protect communities from harm and providing the right opportunities for people affected by it to challenge such action. That is why, as I have explained, we have sought to restrict the ability to challenge an order to those who have a direct interest—namely, those who live in, regularly visit or work in the area. I believe that in doing so we have given the right people an appropriate safeguard. There is, of course, nothing to stop national bodies raising a challenge through a local group or even an individual, but someone directly affected by an order should at least object to it for it to be challenged. Our reforms are all about putting the victim first, and it is only right that they have the ability to shape the local solution.

I hope I have been able to satisfy my noble friend, although I suspect not, because he strongly believes that national organisations should be involved in this process. That is not the Government’s view.

I shall seek to answer some of the particular questions that have been raised. The High Court is the appeal route for the three orders being replaced; the designated public places order, the gating order and the dog control order all have an appeal to the High Court. The noble Lord, Lord Rosser, asked when the restriction could be challenged when conduct does not justify the proposed restriction—so, in other words, there is improper balance. That is in Clause 55(3)(c). The noble Lord also asked why no one need agree to an order for it to be made. The council will have to consult the police and any community representatives they think appropriate. They may not reach agreement on the order but, none the less, if they were unreasonable in not reaching agreement in that consultation, that, too, would provide grounds for review. The intention is not to close the door on judicial reviews.

I will reflect on the noble Lord’s point on the whole business of the balance between the High Court application and judicial review—and, if I may, I shall write to him about it, because he raises a lot of detailed questions, particularly on the question of legal aid, and suchlike.

[Lord Rosser]

I thank the Minister for that. Until he made the comment about writing to me, I was going to ask him whether, if somebody considered a public spaces protection order to be unreasonable in any way at all, the Minister would say that they should pursue it under Clause 62 or do it through other legal channels. I gather that that is one issue that the Minister is going to consider and write on.

[Lord Taylor of Holbeach]

I certainly give that commitment. The noble Lord, Lord Rosser, also asked how long it would take to get an appeal heard. As he will know, that is a matter for the courts having regard to a number of factors, including the urgency of the case. He also asked how quickly a PSPO could be made; each one must be made following the requirements of the Bill, especially the consultation requirement. This will take different times in different circumstances; what is appropriate will include an assessment of the need for immediate and urgent action if this is the case. I have said already that the High Court can suspend a PSPO pending the outcome of the challenge under Clause 62, so I hope that the noble Lord will accept that. There was a lot of detail in his questions, which I think that only correspondence will be able to settle.

[Lord Rosser]

Does the Minister accept my interpretation of what the Bill says or not? It is an individual who has to take the case there—presumably, they must use professional lawyers and, presumably, there is a cost involved. Presumably, they have to feel sufficiently confident to take a case to the High Court, if it is the case that an individual has to take it and an organisation cannot take it on their behalf.

[Lord Taylor of Holbeach]

I have made it clear that this does not pre-empt the judicial review route, if that is considered preferable by the individual.

[Lord Rosser]

Then I come back to the point to which I know the Minister will respond. Is this the key clause for dealing with the belief that a public spaces protection order is unreasonable or unfair, or is judicial review the appropriate channel? The question that has just been raised goes to the heart of whether it is Clause 62 or judicial review, which is obviously not covered in the Bill. I hope that the Minister will clear up what the Government’s intentions are when he writes.

[Lord Harris of Haringey]

Perhaps the Minister could also clarify what he just said about also having a judicial review. My reading of Clause 62(7) is that judicial reviews are precluded. Perhaps, while the Minister is pondering that point, he could also answer the question of how this procedure is in practice different from the judicial review. Does this have more teeth or fewer teeth?

[Lord Taylor of Holbeach]

This clause is of course specific to the Bill, and so lays down the procedure of the considerations which apply in the Bill. Judicial review is a much broader process through which individuals can challenge legal conduct of the implementation of a PSPO. I have made it quite clear that the intention is not to close the door on judicial reviews, but I will reflect on the points that have been made by the noble Lords, Lord Rosser and Lord Harris of Haringey. I will be writing to all those who have participated in the debate.

[Lord Faulks]

Further to a point that I made a little earlier, which the noble Lord, Lord Harris, also made, of course the Minister is absolutely right: judicial review cannot be ousted by any provision. That is why I am a little perplexed about subsection (7), where it is provided:

“The validity of a public spaces protection order, or of a variation of a public spaces protection order, may not be challenged in any legal proceedings, either before or after it is made, except under this section”.

It looks, on the face of it, as though it is precluding challenge. I am sure that there is an explanation, but I look forward to it being included.

[Lord Greaves]

My Lords, I thought that I would be getting my views on this clause clarified. I am even more muddled, having heard this debate, than I was before. That is no fault of those taking part; lots of valid questions have been asked, which will need answering. I assume that my noble friend the Minister will copy any letters he sends to people around the Committee so that we can all see his answers. Is that the case?

[Lord Taylor of Holbeach]

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

[Lord Greaves]

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

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

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

--- Later in debate ---

[Lord Greaves]

My Lords, Clause 63(1) states that:

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

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

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

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

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

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

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

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

Amendment 56ZB states:

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

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

[Lord Taylor of Holbeach]

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

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

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

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

[Lord Greaves]

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

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, we know that in another place the Opposition stated their support for closure notices. I accept what the noble Baroness, Lady Smith, means when she says that she wants to clarify some of the detail in this, and I agree that a clause stand part debate is a good method to use. Clause 69 gives the police and local authorities a simple and easy-to-use power to close temporary premises that are the focus of public nuisance or disorder. There are a number of existing powers that could be used to close such premises, but they are similar.

[Baroness Smith of Basildon]

Did the noble Lord say, “to close temporary premises”? I am slightly confused by what he means by temporary premises.

[Lord Taylor of Holbeach]

“Temporarily”, I said. I am sorry. I might have said “temporary” but I meant to say “temporarily”. It may be me misspeaking or the noble Baroness mishearing but: “temporarily premises that are the focus of public nuisance or disorder”.

A number of existing powers could be used to close such premises but they are similar and overlap in a number of ways. We are consolidating these existing powers into a single scheme applicable to all premises associated with anti-social behaviour. These powers are flexible and can apply to private and residential premises, and to business premises whether licensed or unlicensed. The notice allows for immediate action while the longer-term order is put in place if it is required. This will give professionals a simple and flexible means to protect the public, making it easier to act preventively.

However, noble Lords will agree that such a power requires safeguards. Of course, local agencies already work informally with individuals and businesses to mitigate the risks of crime and anti-social behaviour before resorting to formal powers. This will continue to be the case. Most businesses want to protect their customers and premises. Where there is information that premises may be the location for or contribute to crime and anti-social behaviour, they can be invited to take action to tackle it, and many do.

Clauses 69 and 70 specify a minimum rank for police officers authorising the issue of a closure notice for up to 24 hours, with a higher authority needed for both the police and local authority for the extension of the notice up to a maximum of 48 hours. The provisions also include requirements about notification and consultation, and of course only the courts can require closures of premises for longer than 48 hours.

The noble Baroness has not tabled amendments but I can use some of the information that she was seeking. The court has to be satisfied that there is likely to be serious nuisance or disorderly, offensive or criminal behaviour. The second element is that it is necessary to prevent the nuisance or disorder from continuing, recurring or occurring. In practice, we expect that in most cases informal measures would be the right starting point. The draft guidance directs professionals towards informal measures in the first instance, where appropriate. Indeed, if alternatives to closure are available but have not been considered, it is difficult to see, save in exceptional cases, how it could be argued that the closure notice is necessary. Professionals, as public authorities, would have to exercise their powers proportionately or risk an adverse judicial review.

Additionally, in applying the test, a court, the police or a local authority must have regard to an individual’s human rights—for example, Article 8 rights. As I said when similar issues were raised in respect of earlier parts of the Bill, such qualified rights can be infringed only where to do so is necessary and proportionate in the pursuit of a legitimate aim.

The noble Baroness, Lady Smith, asked me what the reasonable grounds are. It is a matter of evidence, usually comprising of witness statements and statements of victims and police officers, in particular. CCTV evidence, for example, can also be brought into play when deciding whether there is a justification for the grounds. The term is commonly used in legislation and I hope that noble Lords will accept that.

The noble Baroness also asked who has been consulted. Given that the notice is affixed to the premises it would not be appropriate to name all the individuals who had been consulted. Guidance highlights the importance of partnership working and it is advised that the police and local authority keep a record of who has been consulted.

The noble Baroness also asked why we do not require the police and local authority to make information about the closure of the premises more publicly available, such as in a paper or some other way. The closure powers are flexible in that they can be used for residential, business, licensed and non-licensed premises. There may be circumstances where a short-term closure of the premises is needed to resolve a problem, such as closing a residential premises for 24 hours to prevent a Facebook party. That would not be of interest to the wider public in that area, and requiring the police or local authority to make a public announcement of all closures would add an unnecessary layer of bureaucracy. That is why we require the police and local authority to consult anyone they think appropriate as well as the owner and occupier of the premises. Clause 72 requires them, where possible, to fix a copy of the notice to the premises.

I hope that I have been able to answer the questions that the noble Baronesses have posed. I hope my noble friend will accept my explanations and agree to withdraw her amendment and that noble Lords will support the provisions in this part of the Bill.

[Baroness Hamwee]

My Lords, I did not catch what sort of party was mentioned.

Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Wednesday 20th November 2013 Lords Chamber

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

My Lords, I thank my noble friend Lady Hamwee for these amendments, which give me an opportunity to explain more fully how those responsible for young people and young offenders can work together. In Amendment 21D, my noble friend is right to highlight the impact that something like exclusion from the family home could have on a young person. It is worth reiterating here that the power to exclude is available only when a much higher test of violence or significant harm to others is met. As such, it is a power that is rarely used in the context of the current anti-social behaviour injunction and we expect that it will rarely be used with the new injunction. This is especially true with young people. There are a number of examples where young adults have been excluded from a family home because of the reign of terror they have created. However, I sympathise with the point my noble friend raises and I would like to consider it further, without commitment, ahead of Report. In doing so, I would want to consult with front-line professionals on this point.

Clearly, if the provision remained as it is and the court were to decide to exclude someone under the age of 18 from the family home, it would also have to consider what additional support, such as accommodation, would be necessary to make it possible. There would also be a duty on local authorities to consider what support they are obliged to offer to the young person in such circumstances. However, there may be situations where, for the benefit of victims, alternative accommodation —with other family members for instance—could be in both the young person’s interest and that of the community. I should add that there may be cases where a 17 year-old respondent lives alone and where exclusion may be an appropriate response to his or her threatening behaviour.

The local youth offending teams will also have a role in the process of applying for an injunction against a young person and will provide a balanced and considered input early on, so I am not persuaded that simply preventing exclusion in all cases where the respondent is under 18 is necessarily the right answer. That said, if my noble friend is content to withdraw this amendment, I will return to the subject on Report after further consideration.

Amendment 21G seeks to put in the Bill a requirement for agencies to use informal approaches against under-18s before resorting to more formal measures to stop or prevent their anti-social behaviour. Early and informal approaches can be successful in stopping anti-social behaviour committed by the majority of perpetrators, including young people. I agree that when dealing with young people, informal interventions should be considered first in most cases as they can help stop bad behaviour before it escalates. Our draft guidance reminds professionals of the importance of considering informal measures in the first instance. Informal approaches could include acceptable behaviour contracts or, as they are sometimes called, acceptable behaviour agreements. These contracts can be an effective way of dealing with anti-social individuals, especially where there are a number of problem behaviours. They can also be very effective at dealing with young people early, to nip problem behaviour in the bud before it becomes more serious.

However, more formal measures must be available in the minority of cases where informal interventions are not appropriate. I am reluctant to restrict professionals in the way the amendment suggests because they need to have the flexibility to respond in all situations. There are, however, safeguards to ensure that injunctions are used appropriately. Before an application against an under-18 is made, the applicant must consult with the local youth offending team. This will ensure that the youth offending team is involved at the earliest stage in the process. They can give their expert views on whether an informal intervention would be more effective in dealing with the anti-social behaviour, rather than the more formal power in the form of an injunction.

In addition, before an application for an IPNA against those aged under 18 is made to the court, the applicant must,

“inform any other body or individual that the applicant thinks appropriate of the application”.

We would of course expect this to include the young person’s parents or guardians. As I have said, we would expect that in most cases professionals will look to informal measures first, but these provisions act as a safeguard to ensure that they do not automatically move to seeking an injunction, and that the youth offending team is involved in finding a solution to the young person’s behaviour.

I hope that I have explained how the Bill will ensure that the needs of a young person will be assessed when agencies are considering applying for an IPNA against that young person. I hope, too, that my noble friend understands why I do not think it would be necessary to put provision for good behaviour warnings in the Bill. I hope that she will withdraw her amendment on the understanding that I will consider the matters she raised.

[Lord Hope of Craighead (CB)]

Perhaps I may briefly take the Minister back to Amendment 21D. He made a number of points to explain how in practice this measure will be dealt with in the case of people under the age of 18. I was looking at the draft guidance as he was speaking and some of the points that he made do not appear there. Certainly, the point is made that the power of exclusion would not be used often, as is the point about the high threshold and so on. However, for example, the Minister mentioned the function of the youth offending team but that is not mentioned at pages 25 and 26 in this chapter of the guidance. I can see a value in the continuing duty of the youth offending team when dealing with young people who are excluded from their home, but it would be helpful if that were to be put in the draft guidance. Will the Minister undertake to look at the guidance as well as the drafting of the Bill when dealing with the point that the noble Baroness raised?

[Lord Taylor of Holbeach]

We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.

[Baroness Hamwee]

My Lords, we, too, will look at the guidance in the light of the debates. I say that as a promise rather than a threat—and I hope it is interpreted in that way.

My first amendment—as are so many amendments at this stage—is to some extent probing. I thought that the Minister made my case rather better than I did. I am glad that he will be consulting. I would not expect him to move forward on this without talking to the front-line professionals. I make just one comment on what he said: accommodation with other family members is unlikely to be available unless it was there without the need for an order. I am just thinking about the way that family dynamics work. As regards both amendments but particularly the second, I, too, will look at the guidance again and hope to provide some useful input to ensure that what the Minister describes as a longstop is a very long longstop. I beg leave to withdraw the amendment.

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[Baroness Smith of Basildon]

My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.

The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.

It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.

[Lord Taylor of Holbeach]

I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.

As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.

My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.

There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.

Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.

However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.

It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.

My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.

I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:

“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”

[Baroness Smith of Basildon]

Those are wise words indeed, but will the Minister confirm that my noble friend Lord Bassam was speaking about anti-social behaviour in terms of harassment, distress and alarm, and not an IPNA, which is to cause nuisance and annoyance?

[Lord Taylor of Holbeach]

The noble Baroness will know that an IPNA can be applied also in cases where there may have been harassment, alarm and distress, so although nuisance and annoyance is the test for an IPNA, it is not the absolute or exclusive text.

[Baroness Smith of Basildon]

This clause would apply to those who have committed a breach of an IPNA by causing nuisance and annoyance. Would that be correct?

[Lord Taylor of Holbeach]

The noble Baroness is quite right, but what we are seeking to do is to enable the IPNA-based process—at the discretion of the court, which I must emphasise to noble Lords, and in conjunction with the advice of the youth offending team—to determine whether this is the best way of dealing with this young person.

[Lord Deben (Con)]

I hope that my noble friend will stick hard to this, because one of the issues that most affected one in a very long life as a constituency Member of Parliament was the number of people whose lives had been made absolutely intolerable by activities of this kind. It is important that we stick to this in the way in which he has proposed.

[Lord Taylor of Holbeach]

I thank my noble friend for those encouraging words. I feel that we are right on this issue and I suspect that all noble Lords will know that, with discretion on this matter resting with the courts, there will be proper evaluation of the issues before any decision is made. I would expect any court to take full account of the nature of the behaviour before deciding whether to impose such a condition. I might add that the Home Affairs Select Committee considered this point during the pre-legislative scrutiny of the draft Anti-social Behaviour, Crime and Policing Bill. In its report on the draft Bill, the HASC said,

“we are happy to leave the decision not to name a young person to the discretion of the judge”.

We agree that this is appropriately a matter for judicial discretion for all respondents under 18, whether older or younger than 16.

For these reasons, I am confident that the reporting of under-18s will be carefully considered and used only in circumstances where it is necessary. I hope that I have been able to put this particular issue into context and that my noble friend will withdraw her amendment.

[Lord Hope of Craighead]

I come back briefly to the point about discretion. Of course it is right that the court will have discretion as to whether to grant an injunction. In the case of an application made without notice, the clause is perfectly clear; it gives wide discretion to the court as to what to do. My concern is that if the court decides to make an order, where is its discretion if you remove the provision in Section 49 to restrict the publicity that is given to it? It is that element of discretion that I think concerns the noble Lord, Lord Ramsbotham, and the noble Baroness. There are two discretions here. One is certainly there, very properly, in the way that the whole of Part 1 is drafted as to whether orders are to be made. It is the particular point about the discretion as to whether publicity should be given that is of concern.

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[Lord Taylor of Holbeach]

I am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am sorry if I struggled to get the place name right but I am delighted that he mentioned this point because I just received a note saying that Section 39 of the 1933 Act gives the court the discretion to impose reporting restrictions.

[Baroness Hamwee]

My Lords, I, too, was a little confused when the Minister referred earlier to Section 39, which the noble and learned Lord just mentioned. This will require some reading. The point, of course, is entirely right. It is how the court has discretion as regards publicity. I do not at all challenge the point on the injunction. I am very grateful to the noble and learned Lord, Lord Hope, for reminding the Committee that our courts are essentially public; that is where the concern comes from.

The Minister talked about the status quo. That confused me, because I thought that I was arguing for the status quo. He said that the status quo was good, but he challenged my amendment. I cannot see how we will not return to this on Report. However, I beg leave to withdraw the amendment.

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[Lord Taylor of Holbeach]

I could not agree more with the noble Baroness about the importance of behaviour regarding the environment. All noble Lords would join in that sentiment. I do see this as an ongoing debate on how Parliament, the Government, and communities as a whole can deal with what is manifestly a big problem. I am grateful, therefore, for the opportunity to debate these issues through the amendments tabled by my noble friends Lord Marlesford and Lord Goschen. My noble friend Lord Marlesford has come back on this issue following his Private Member’s Bill and the amendments that he made to previous legislation on similar grounds.

I shall address his amendment first. I know that littering from vehicles is something that he feels about passionately. I have been in the House when he has raised this issue previously and I also know that many noble Lords share his concerns, as I do myself. I consider it a source of considerable annoyance to see the roadside littered—if I may use the word—with discarded litter, discarded by people who do not seem to care about the visual and other impacts on the environment and other people’s neighbourhoods. Therefore, I come from a position of saying that littering should be treated seriously. My noble friend Lord Crickhowell is absolutely right. It is simply unacceptable to drop litter. Littering from vehicles can also present a danger by distracting or even injuring other road users or by obstructing the highway. Littering is anti-social and this is an anti-social behaviour Bill. It demonstrates disrespect for the community and it incurs costs for the taxpayer. In many communities, a lot of litter collecting is done by voluntary community groups. In my own area, the local civic society takes on responsibility for clearing up irresponsibly discarded litter. The Highways Agency spends around £10 million a year clearing litter and this often involves closing lanes, which also causes delays to other road users.

As my noble friend explained, his proposed new clause seeks to make it easier for local authorities to fine people when littering is witnessed from their vehicle. My noble friend feels that more people must be punished for this anti-social behaviour and that, if more people were or could be punished, fewer people would commit the offence in the first place. The Government are at one with my noble friend’s intentions. However, as my noble friend Lord De Mauley advised my noble friend Lord Marlesford during the Second Reading debate on his Littering from Vehicles Bill earlier this year, we do not believe that the approach he proposes is likely to contribute significantly to the resolution of this problem, and I think that I owe it to the Committee to try to explain that.

At present, because littering is a criminal offence, we advise local authorities not to issue fixed penalty notices for littering unless they are confident that the evidence against the offender would stand up if the case went to court. It is, of course, for local authorities to satisfy themselves about this and to assess the strength of each case on its merits. The amendment would also mean that, as a matter of law, the registered keeper of a vehicle could be punished for an offence committed by someone else, such as a passenger, or a family member who also had the use of the vehicle. The amendment makes clear my noble friend’s intention that the registered keeper should be held liable whether or not they gave instructions or allowed the contravention to take place. People who are innocent of any offence would therefore have either to pay the fine or take on further inconvenience and expense in challenging it, while the actual offender would go unpunished. It is hard to see how this approach is going to change offenders’ behaviour if someone else bears the punishment for their wrongdoing. In law, fairness and proportionality are crucial in gaining public support for the use of fines to punish this type of behaviour, but under the amendment an innocent party might be punished for the crime of another.

I accept that there is a place for keeper liability when it comes to the enforcement of traffic-related offences, but it is a very big step to extend this principle to other categories of offences. Government guidance on the use of fixed penalties is very clear that people should be fined only when it is proportionate and in the public interest to do so, and fining the registered keeper for any littering offence committed from their vehicle, regardless of their guilt, is neither fair nor proportionate.

Enforcement is the issue, and I agree with all noble Lords who have spoken that we want the message to the public to be loud and clear: littering is a crime. However, the amendment would distort that message by essentially decriminalising littering from vehicles, and at the same time it would create a legal anomaly. Littering while standing on the pavement would remain a crime, but dropping the same litter from within a vehicle would be treated as a civil offence. That risks sending the wrong message—that littering from vehicles is not really so serious.

More importantly, we also doubt that this proposal will achieve my noble friend’s desired aim, as it relies on the offence being witnessed. Its effectiveness would be limited by the number of enforcement officers available to the local authority, and they cannot be everywhere all the time. It will not be of any help when the offence takes place in an isolated area, in the dark or at such speed that the vehicle registration cannot be recorded. In some cases, CCTV may help, but even CCTV has limits as to the level of detail that it captures.

When my noble friend raised this proposal in the context of the Localism Bill in 2011, the then Minister, my noble friend Lord Shutt, responded:

“It makes sense to learn the lessons from the application of that approach in London before moving to wider legislation”.—[Official Report, 10/10/11; col. 1370.]

I know that my noble friend Lord Marlesford feels that the powers under the 9th and 10th London Local Authorities Acts have been in force in London for a year and that we should therefore have had time to assess their operation by now. However, the current evidence suggests that these powers have not been widely used. It has taken a long time for the boroughs to put in place the necessary appeals system and paperwork. Barely a handful of civil penalties have been issued so far, and the new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour—

[Lord Crickhowell]

I am grateful to my noble friend. He is giving one lot of statistics but does he have any statistics relating to the number of occasions when criminal prosecutions have been effectively brought for the same offence anywhere in the United Kingdom?

[Lord Taylor of Holbeach]

I apologise to my noble friend because I do not have such figures. I am not quoting any figures here; I was saying that I understand that only a handful of civil penalties have been issued. I shall certainly write to my noble friend if I am able to obtain the answer for the number of littering crimes that have been committed. As I said earlier, enforcement is the issue. The new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour of the general public. After this debate, it would be interesting for me to talk to my noble friend Lord True about his experience in his borough and to find out how useful he has found these provisions under the London Local Authorities Acts.

The lesson we have learnt so far is that the evidence does not support this approach as being so effective in tackling the problem as to justify rolling it out on a national scale. While we share my noble friend’s sentiment and respect his persistence, we cannot support this amendment and I hope that he will withdraw it.

We have heard a number of speeches. My noble friend Lord James of Blackheath sought to get to the bottom of several issues, but we doubt that my noble friend’s proposal will assist us in dealing with the problems mentioned by many of the speakers in this debate.

I now turn to the amendment from my noble friend Lord Goschen. He alluded to a number of matters on which I can now inform the Committee. This amendment brings to our attention the problem of fly-tipping. Like littering from vehicles, this is another example of individuals having little care or concern about the impact of their actions on the environment.

I am pleased to be able to reassure my noble friend that there are currently seizure and disposal powers in respect of vehicles used for illegal waste disposal. These are set out in Section 6 of the Control of Pollution (Amendment) Act 1989 and they apply in Scotland, England and Wales. However, we will be improving on these powers when we commence provisions in the Clean Neighbourhoods and Environment Act 2005 to repeal and replace them.

The new, wider powers relate to the seizure of vehicles used or about to be used in the commission of offences under Section 33 of the Environmental Protection Act, which relates to the unauthorised deposit of waste and includes fly-tipped waste, under Section 34, which imposes a duty of care to ensure that waste is transferred to an authorised person, and under Regulation 38(1) or (2) of the Environmental Permitting (England and Wales) Regulations 2010, which require waste operations to be carried out in accordance with a permit. It will also make it easier for local authorities and the Environment Agency to exercise their powers—for example, by removing the need for a warrant before seizure and for the retention of the vehicles pending investigation or completion of court proceedings.

The new, wider powers also provide for the forfeiture of seized vehicles following convictions for offences under Section 33(1) of the Environmental Protection Act or Regulation 38(1) of the Environmental Permitting (England and Wales) Regulations. The new Environmental Protection Act powers have already been commenced in relation to Wales and are in the process of being commenced for England. The related secondary legislation is in the process of being drafted and finalised. Subject to the normal clearance procedures, these powers are due to be brought into force as early as possible in 2014. Given that the powers sought by my noble friend’s amendment already exist and are in the process of being improved, I do not think the amendment is necessary and I hope that he will feel able not to press it.

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[Lord Rosser]

I certainly await with interest what the Minister has to say in response to these amendments. Subject to what he may say, at the moment it is not entirely clear why Clause 21(3) does not say that the court has to be satisfied “beyond reasonable doubt”. After all, other parts of the Bill lay down the standard of proof, whether that be reasonable doubt or the balance of probabilities.

The draft guidance on criminal behaviour orders, under the heading “Test” on page 29, states:

“If the court is satisfied beyond reasonable doubt”.

Therefore, one thinks that the term is in the draft guidance, although it is not considered important enough to be in the Bill. However, when one turns to page 30, under the paragraph headed, “The Test”, it states:

“For a CBO to be imposed, the court must be satisfied that … the offender has engaged in behaviour”,

et cetera. There is no reference to “beyond reasonable doubt”.

So there is one case where the draft guidance states “beyond reasonable doubt”, and on the following page it is not put in. On page 31, under “Standard of proof”, the guidance states:

“It is expected that courts will follow the reasoning in”—

the case of Clingham v Royal Borough of Kensington and Chelsea—

“and apply the criminal standard of proof”.

Therefore, in one version it is expected that that is what the court will do. The reference to the test on page 30 does not say anything about the court having to be satisfied beyond reasonable doubt. However, on the previous page—29–when reference is made to the test, the words “beyond reasonable doubt” are put in. There is an inconsistency in the draft guidance over the wording and there is no reference at all to it in the Bill. I think that the noble Baroness, Lady Hamwee, is making the point that it has to be beyond reasonable doubt.

I have a further issue with the criminal behaviour order. The draft guidance states:

“The prosecution, usually the Crown Prosecution Service … may apply for the CBO after the offender has been convicted of a criminal offence … The CBO hearing will occur after, or at the same time as, the sentencing for the criminal conviction. The CPS will rely on the police or council to build the case to be presented to the court”.

However, the following paragraph states:

“There is no scope for retrospective applications”.

Does that mean that if the application is not made at the same time as sentencing but is done after the offender has been convicted of a criminal offence, there could be a separate hearing into the criminal behaviour order, with the police or the council having to present their case to the court and prove it beyond reasonable doubt? Perhaps the Minister can confirm that if the application is made in that way, the case has to be proved beyond reasonable doubt.

How long after the offender has been convicted of a criminal offence can the application be made for the CBO—bearing in mind that the next paragraph appears to say that there is no scope for retrospective applications? Does that just mean that there cannot be a retrospective application in a case that has already been heard and dealt with? It would be helpful if the Minister could clarify how long after the offender has been convicted of a criminal offence an application can be made for a CBO. Is it envisaged that it will be heard on the same day? What happens if the conviction occurs at 4 pm? If the police and the council have built up a case to present to the court, do you then continue on that day with the case being presented for a CBO? Do you adjourn the proceedings? How long can they be adjourned for? It would be very helpful if the Minister, as well as responding to the issue about reasonable doubt, could tell us something about how the logistics of an application for a CBO will work in the light of what is in the draft guidance.

[Lord Taylor of Holbeach]

My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.

For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.

Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.

Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.

The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.

Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.

[Baroness Hamwee]

Indeed, I am partially satisfied and I will not repeat the argument I made about the distinction between IPNAs and CBOs for the purpose of Amendment 22D.

I am puzzled as to why, if the Government expect the criminal standard of proof to apply and then—it is not quite the same—say that it “will” apply, they are reluctant to spell that out. It is a new offence and I would have thought that it would be better to spell it out, but there we are.

I did indeed intend to raise the evidential burden regarding Amendment 22C. For something to “help” is a very low threshold. It is rather a small objective and achievement. I hope it answers the noble Lord, Lord True, if I say that I was linking it back to Clause 21(3) because Clause 21(4) refers to “such behaviour”. That behaviour is described in Clause 21(3) as having “caused” or being,

“likely to cause harassment, alarm or distress to any person”.

We are talking about a criminal order so it seems to me that it is proper for there to be a more exacting test. However, having said that, I am grateful to the Minister for the partial consideration and I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, the noble Earl, Lord Listowel, made some interesting and useful points. We sympathise with the comments that he made and with these amendments. As the noble Baroness, Lady Hamwee, said, I do not want to repeat the comments made in the earlier debate on the amendments of the noble Lord, Lord Ramsbotham. However, I asked questions in that debate that the Minister did not answer, and similar questions apply in this debate.

The Minister will recall that I asked about the evidence base for the proposals brought forth by the Government. In that case, it was about what assessment had been undertaken to evaluate the safeguarding of the risk to children. He was not able to reply then and I am happy for him to write to me. The same questions apply here. They concern the evidence base on which the Government are bringing forward these clauses. A number of children’s and young people’s charities have contacted Members of your Lordships’ House with concerns about whether, in the clauses we are debating and in our previous debate, the breach of civil orders is against the rights of children and whether it would do more harm than good.

As I said then, I hoped that the Government have an evidence base on which they are bringing forward these amendments, but the Minister was not able to answer. I hope that he can on this occasion. One part of my question is about consultation around these proposals and the previous provisions. The second part of it is on the assessment that is undertaken to evaluate, in the previous case, the risk and, in this case, the effect of the Government’s proposals. Are the Government prepared to have a review period in both cases to see whether they have been effective and what changes should be made?

[Lord Taylor of Holbeach]

My Lords, I thank the noble Earl, Lord Listowel, for picking up the amendments of the noble Lord, Lord Ramsbotham, and presenting them in the way that he has. In replying, I am very happy to have a meeting with those Peers who are interested in the impact of the Bill and its provisions in general on young people. That would be useful. We have had some productive debates on the issue here in Committee. I hope that I have been and am able today to show that we see our role in seeking to prevent anti-social behaviour as one that tackles the difficulties that some young people have, and in rehabilitating and supporting them.

This brings us back to whether it is right for young people to face the full range of criminal sanctions when they act in a way that is seriously anti-social: I emphasise “seriously”. I understand the points that have been made by all noble Lords who have spoken: the noble Earl, Lord Listowel, my noble friends Lady Hamwee and Lady Linklater, and the noble Baroness, Lady Smith of Basildon. They have all expressed the importance of rehabilitation, especially in cases concerning young people. That is why it is so important that the injunction under Part 1 and the criminal behaviour order that we are discussing here can include positive requirements to help them turn their lives around.

Youth rehabilitation orders are often a fair and proportionate way to deal with a young person who has been convicted of an offence as an alternative to custody. Use of such orders is in line with the intentions of the Bill: that informal interventions and rehabilitative approaches should be used first and foremost, in particular, when dealing with young people. However, it is right that tough sanctions are available on breach.

Amendments 22KB and 22KC seek to restrict the sanctions on breach of a criminal behaviour order for under-18s so that a youth rehabilitation order must be made. Breach of a criminal behaviour order is an offence. There is no danger of this criminalising someone for the first time because an order can be made only once they have been convicted of a criminal offence. It is worth remembering that the criminal behaviour order is aimed at tackling the most serious offenders, and that by the time that it is breached an offender may already have failed to respond to positive requirements aimed at addressing the underlying cause of their anti-social behaviour. They may also already have had a youth rehabilitation order made in respect of their offending. We would expect the youth courts to do all they can to ensure their rehabilitation when considering the sanction for a breach. This may well be a rehabilitation order but it is right that they have the discretion to impose the most appropriate penalty in a given case, including a fine or, in the most serious cases, custody.

On the dispersal power, there needs to be an effective and serious consequence to breaching a dispersal order which is imposed by a police officer. Clause 37 provides the option to apply a fine or a prison sentence of up to three months. We expect the court to use these sentences appropriately and proportionately in accordance with sentencing guidelines. The three-month sentence is the maximum sentence available to the court and it may impose a lower sentence if appropriate, including a youth rehabilitation order if the offender is under 18. However, there may well be some young people for whom a fine or even detention is appropriate, and I would not wish to tie the hands of the youth courts which, after all, will have access to all the evidence and will be best placed to make a decision in individual cases.

I hope I have been able to reassure the noble Earl that the sanctions available on breach of the CBO and the dispersal power will help the courts. From the comments of the noble Baroness, Lady Smith, one could be forgiven for thinking that breach of an ASBO was not an offence subject to a maximum penalty of five years’ imprisonment, which is what the previous Government legislated for. This sanction applies to the ASBO and the sanction of imprisonment applies to young people as it does to adults. Like the previous Administration, we believe that tough remedies should be applied on breach where it is appropriate. It is for the courts to test what is appropriate, and the test for the CBO is analogous to that for the ASBO, as the noble Baroness would expect.

[The Earl of Listowel]

My Lords, I thank the Minister for his careful reply. I hear what he says and will take it away and consider it. I am concerned about looked-after children, who have often been so badly failed by their family. While the state is improving in its job as a corporate parent and the Government are doing good work in improving the consistency and quality of social workers, still so often the young people I meet are let down left, right and centre by the state itself by having too many different social workers and not being properly cared for in their residential care.

I am concerned that young people who will be caught by these measures will be troubling, but often very troubled themselves. They can be such a nuisance and so difficult to deal with that the risk is of a kind of unintentional ratcheting up of the response by the state until these terribly troubling—and terribly troubled—young people, who have often been very poorly treated in their own home, get punished by the state because their parents were not good enough for them. It falls to us to try to be as careful as possible to get a positive influence and impact on their lives.

For instance, in a children’s home, one might find that if a child is acting out in an aggressive and unhelpful way and if you have poorly trained staff, in the worst instances they will hit back at a child. They simply will not know how to respond. In the best establishments, one finds that the staff are really well supported and very thoughtful. They get in there really early on, before the child starts acting out, and prevent the escalation to where the police are called and the child gets reported and put into the criminal justice arena. I am being a bit longwinded here. It is so easy for Governments to ratchet up their response to these children because they are so difficult. One does not want to see a return to the past where we had the highest rate of juvenile imprisonment in Europe, which was a shame on this nation.

[Lord Taylor of Holbeach]

Perhaps I might intervene to reassure the noble Earl that what we are seeking to do with the Bill is to get early intervention of the type he is suggesting. When we are talking about CBOs, we are talking about people who have been convicted of a criminal offence. Our task must surely be to try to avoid people getting to that stage. That is why we are looking to build in early intervention and, even when criminality has occurred, to look at methods of rehabilitation as a vehicle whereby we can address the issues, which I agree are extremely sensitive, in the way that the noble Earl suggests. I hope that he does not mind me interrupting him.

--- Later in debate ---

[Baroness Smith of Basildon]

Having listened to the noble Lord, I am sorry that I missed that debate. However, I get his point about locality and location; I just seek further clarification on how that can be dealt with.

I have a couple of other points. The 48 hours that the Government propose for these dispersal orders are twice the period in the Anti-social Behaviour Act 2003. I understand that the only other legislation that permits dispersal powers in this way is the Violent Crime Reduction Act. I would understand why a longer timescale would be used in connection with violent crime. However, we are not talking about violent crime but about anti-social behaviour. There must be some evidence base for why the Government think that 48 hours rather than 24 hours is appropriate.

It would be helpful if the Minister could talk us through “Directions excluding a person from an area”. I have had conversations with those who could be practitioners in this area of legislation, and some of them seem to be slightly confused by how it will work. It is quite clear how the current process works, but how will such a direction to exclude an individual or group of individuals from an area work? If they are to be excluded from a locality for 48 hours, does somebody draw a handwritten map—“This is the area that you’re going to be excluded from”—to make clear where it is? Who else should be notified? Forty-eight hours is quite a long time. If there has been no local authority consultation and it has all been done very quickly, how do the person and other authorities know that they are to be excluded for 48 hours? If the direction is to be withdrawn or varied, how will they and others be notified? This lack of involvement and consultation with the local authority gives rise to a number of practical questions. I would be grateful if the noble Lord would on this occasion be able to answer my questions—which he has not, so far, been able to do on any other occasion, although I am getting used to it—and talk us through the process.

[Lord Taylor of Holbeach]

My Lords, I might have preferred to be participating in the passage of the CRoW Act, although it seems to have been a merciful release that I was not here to be involved in those debates. This is the first time we have had a chance to talk about dispersal orders, so it would be useful to give the background of what we want to achieve by them and try to answer the questions that noble Lords have asked me.

The new dispersal power will allow the police to deal quickly—I emphasise that word—with anti-social behaviour centred on a particular locality, nipping such behaviour in the bud before it escalates and providing immediate respite to the victims of the anti-social behaviour that is the cause of the difficulty. The new power combines the best elements of the current legislation into a single, more effective and less bureaucratic tool. When I come on to the business of liaison with local authorities, I think that the noble Baroness and the noble Lord, Lord Harris, will see what I mean by that.

The current process can be very slow, and as a result victims and communities can suffer for a number of months before the police can act. Part of the problem is that the existing dispersal power can be used only once a dispersal zone is in place, and a zone can be designated only following consultation with the local council. The new power will not require prior consultation, so it can be used more quickly. However, we recognise that there should be some supervision of the new power, and in this respect the provision has benefited from scrutiny by both the Home Affairs Select Committee and the Joint Committee on Human Rights. Responding to points made by the HASC, we have included the safeguard that the dispersal power must be authorised by an officer of at least the rank of inspector. The authorisation may be given if the officer is satisfied on reasonable grounds that use of the dispersal power may be necessary in a specified locality during the specified 48-hour period.

The requirement for the officer to be satisfied “on reasonable grounds” was included on the recommendation of the Joint Committee on Human Rights. We had intended it to be part of the test when the Bill was introduced, and we believed it to be implicit. However, in this instance we agreed with the committee that it would be clearer to have that explicit in the Bill. I am grateful to the committee for drawing this to our attention. The addition of “reasonable grounds” further emphasises that the test for authorising use of the power is objective.

On Amendment 22L, tabled by my noble friend Lady Hamwee, the two elements of the test will mean that officers consider whether use of the dispersal power is a proportionate response to the problem at the particular time and locality. As a public authority, the police must also exercise their powers proportionately under general public law principles and human rights obligations. It is not, therefore, necessary to include “proportionate” in the Bill. I am firmly of the view that the safeguards in the legislation will ensure that the dispersal power is used appropriately, based on local knowledge of the area and on intelligence that there are likely to be problems at a specific time.

I return to the question of locality. My noble friend has put forward Amendment 22N to ensure that an authorisation clearly identifies the locality where the dispersal power can be used. The authorisation for the use of the power must be given in writing, must be signed by the officer giving it, and must specify the grounds on which it is given. These grounds must include the specified locality and time period for which the authorisation applies. My noble friend’s amendment is therefore provided for in Clause 32(1), which states that the time and location for which the dispersal may be used are as specified in the authorisation. Perhaps I can elaborate on that.

Clause 32(1) and (2) are concerned with this authorisation process, so the intention is that the reference to locality in both subsections has the same meaning; i.e. they cover the same geographical area to be specified in the authorisation. As drafted, the Bill makes this clear. The new dispersal power will allow the police to respond swiftly and flexibly. For example, on a particular housing estate where there is likely to be anti-social behaviour at the weekend, an inspector could pre-approve use of the new power by his or her officers. Alternatively, if an incident occurred at a different time of the week when it had not been anticipated, a police officer could contact an inspector for authorisation to use the dispersal in that specific instance.

Amendment 22M, tabled by the noble Baroness, Lady Smith, and supported by the noble Lord, Lord Harris of Haringey, raises an important issue for the Local Government Association regarding consultation with local authorities. As noble Lords know, I have had meetings with the Local Government Association Safer Communities Board. The association has expressed some concern about the impact of these dispersal powers on community relations and has therefore argued for them to be subject to democratic oversight. I understand this point, but to require consultation would seriously undermine the flexibility and utility of the power and would reinstate precisely the difficulties we seek to remove from the current system.

However, the draft guidance states that the authorising officer may wish, where practical, to consult with the local council or community representatives before making the authorisation, in particular where there are concerns about community relations and the use of the dispersal in a particular area. Therefore, for example, when planning the policing of a football match, the police might decide to authorise use of the dispersal in the area surrounding the stadium. It is likely that the police already work with the local authority in planning this kind of event, and this would include a discussion on the use of powers in such a dispersal.

This issue was raised when I met with the Local Government Association recently. I agreed to include in the guidance that it is good practice for the police to inform the local authority after the dispersal authorisation is used. This will help the local authority work with the police to plan longer-term solutions in areas where there are persistent problems. I remind your Lordships that the Government have published this guidance in draft to assist with scrutiny of the provisions.

I agree that accountability is important, and Police and Crime Commissioners now have a vital role in holding forces to account on behalf of the public. Police forces will be required to keep records of the use of the dispersal power and, while there is no duty to do so, they may wish to publish data in the interests of transparency. Police forces can share data about the use of the dispersal power with councils to assist in their crime prevention planning, and plan longer-term solutions to hot-spot areas. The draft guidance that accompanies the legislation emphasises the importance of involving the community in taking a problem-solving approach in areas with persistent problems. Clearly, this would be a case in which we would expect police forces and local authorities to work closely together.

The current Section 30 dispersal power has worked well in some areas to deal with longer-term issues. Those powers are led by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the new public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems.

I will deal with some particular questions asked by the noble Baroness. On the question of dispersal orders, she thought that people might be confused about what is actually involved in being dispersed. Much of the new power is available to the police now, but guidance will share good practice on how the dispersal orders should be used. In most cases, the officer will provide this information in writing and, in many forces, officers actually provide a map for the person given the dispersal order to show them the area from which they are excluded.

[Baroness Smith of Basildon]

I do not want to disrupt the Minister as he answers other noble Lords’ questions, and I am grateful to him for answering one of the questions that I raised. I just wondered whether he is going to come to the other questions I asked, about the representations he received that the current process was inflexible, and what examples he had of those. I also asked why the Government have not abided by their response to the Home Affairs Select Committee, as they committed themselves to do.

--- Later in debate ---

[Lord Taylor of Holbeach]

That is not my practice; I try to be open with the Committee about what these proposals entail and what they mean. Perhaps I have not emphasised that the whole Bill is built on good working relations between the police and local authorities. That is the whole purpose behind so much of this legislation. The reason why prior consultation has been eliminated is not because of the situation where the fairground had trouble the night before and it has been decided to put in place a dispersal order to deal with the problem the following evening, because clearly that would be a case where the authorities would talk together about how to deal with the problem. The situation we are dealing with is where there is disorder in an area at that time and where consultation with a local authority would impede a prompt response to that situation, and prompt dispersal.

[Lord Harris of Haringey]

That is even more disturbing because it implies that if, at 11 am, there is a concern that there is about to be disorder, that is the point at which an inspector could authorise police officers. It is always difficult to see how they are going to have the maps in their pockets to serve to people if they are dealing with a situation of that degree of urgency. I just think that what we are being told describes a series of situations where you really wonder how this is going to work in practice. The danger is that a misjudgment —and I am sure it would not be common—made by an officer of the rank of inspector could cause really serious community disruption. I can envisage circumstances where this would happen and this would provoke riotous behaviour in a wide area far worse than the disorder that was originally expected.

[Lord Taylor of Holbeach]

The noble Lord is concerned about the rank of inspector, but of course operationally, inspectors are the rank that has local knowledge and information. That is one of the key elements of this legislation; we are talking about locality here, and that is one of the main reasons why the rank of inspector was included in the Bill, in response to the Home Affairs Committee’s legislative scrutiny. I should emphasise that these powers already exist, and the way in which they are being used in this Bill comes as no surprise to the police nor to local authorities. The powers are used on a regular basis; they are familiar with the issues raised by the noble Lord, and the PCCs are in a position where they provide democratic accountability on the use of these powers.

[Lord Harris of Haringey]

I appreciate that lots of noble Lords are present for the next debate and I am sorry that this is holding them up. The way in which the legislation is framed—and I cannot immediately see how it could be done in a different way—does not necessarily mean that the inspector who authorises it is the one with knowledge of that particular community or locality. I use the word “locality” to make sure that I get it exactly right for the noble Lord, Lord Greaves. The provisions simply say, “an inspector”. I can conceive of circumstances in which a police force might decide to have an expert at the rank of inspector who will deal with dispersal orders for the whole force, who would then not have the local knowledge or input, which local councillors or neighbourhood officers might have, about the likely community reaction under those circumstances. There are some serious issues here which I hope the Minister will take away and consider.

[Lord Taylor of Holbeach]

Of course, I will consider all matters raised in this debate—I am happy to do so. We want to try to make sure that this works. But I have emphasised to the noble Lord the role of local authorities, the inspector and the police on the ground; it is all a matter of responding to a situation and having a vehicle available that harnesses powers to disperse that already exist to effectively handle that situation.

[Lord Harris of Haringey]

My Lords—

[Lord Taylor of Holbeach]

I think that I must respond to points made by other noble Lords—

[Lord Harris of Haringey]

If the Minister will forgive me, what he is saying is that all those different bodies will of course be working together. But that will be in the absence of an overarching plan in which the local authorities must necessarily engage—we debated that on Monday night. And it is in the absence of the specific power that used to exist whereby a local authority had to be consulted before the powers were used. That is not a recipe for saying that there will automatically be that degree of co-ordination and working together. That is the ideal, and I am sure that it is what everyone will strive to achieve, but we are talking now about things that will almost be happening in the heat of the moment, and I question how, in the heat of the moment, it will be possible to have a map that will clearly define the locality from which individuals are being excluded.

[Lord Taylor of Holbeach]

My Lords, the noble Lord is forgetting that anti-social behaviour is a concern for all public authorities, whether they are police and crime commissioners, who place it pretty high up their list of priorities, or local government and elected councillors or serving police officers. All those authorities place anti-social behaviour high up their list; they are not going to be negligent about dealing with the practical application of those powers. There will be pre-discussions between those authorities on the way in which all those powers are used.

We do not need in this Bill to tell people what to do or where their duty lies; they are quite capable of fathoming it out for themselves. We need to explain to them what power they have and the methodology whereby that power can be legitimately exercised. We are doing that in this Bill. I hope that the noble Lord will understand exactly the point the Government are coming from in this legislation. If I may say so, he has a mischievous side to his nature, and I think that he is seeking to make difficulties for the legitimate aspirations of people in authority, in local government and the police, who will clearly make sure that these powers are used effectively in the interests of preventing anti-social behaviour. That is why I am so resilient in resisting his temptations on these things.

[Lord Harris of Haringey]

My Lords—

[Lord Taylor of Holbeach]

I will reflect on what the noble Lord says, but I was about to address the points raised by the noble Baroness, Lady Hamwee, some time ago.

[Lord Harris of Haringey]

I am not being mischievous. Like the Minister, I want to make sure that these powers are effective. I also do not want to see unnecessary disorder caused because of their misapplication. That is why I am raising these issues. I actually made a self-denying ordinance that I was not going to intervene on the Minister again. However, his suggestion that I am doing this mischievously rather than because I am concerned about it led me to do so.

[Lord Taylor of Holbeach]

I accept the noble Lord’s explanation, but perhaps I can turn to the points raised by the noble Baroness, Lady Hamwee.

The noble Baroness asked about how we undertook in the draft Bill to provide the consultation with local authorities; we did not do that in the draft Bill. I have made it clear that I would expect police and local authorities to work closely together in the exercise of all anti-social behaviour powers under the provisions in the Bill. We believe that this clause and the dispersal power that arises from it are useful. The current Section 30 dispersal power has worked well in dealing with longer-term issues. Those powers are held by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems. The arrangements set out in Clause 32 balance the need for safeguards with the flexibility vital to dealing with a wide range of anti-social behaviour. I commend the clause to the Committee.

[Baroness Hamwee]

My Lords, I do not think that I should prolong this debate, and I shall keep until after today the questions that have occurred to me during the course of this debate.

My noble friend Lord Greaves has a much better memory than I have and has reminded us of the distinction between locality and location, as identified in previous legislation. I could not help but notice that my noble friend the Minister, in talking about Clause 32(1), used the term “location”, so I think we may need to be absolutely clear about that. But that can wait until after today.

I will say to both Front-Bench speakers who were sorry to have missed the Countryside and Rights of Way Bill proceedings that we dealt with an awful lot of it at unearthly hours of the morning and right through the night. On one occasion, breakfast was provided for the House, except for those who were stuck in the Chamber dealing with the Bill. So the noble Baroness may be a bit less sorry that she missed it. I beg leave to withdraw the amendment.

Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach 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 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.

[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”.

--- Later in debate ---

[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).

[Lord Beecham (Lab)]

I follow briefly and with some trepidation in the footsteps of my noble friend Lord Harris. I draw the Minister’s attention to Clause 41(2), which states:

“Conduct on, or affecting, premises occupied for the purposes of a government department is treated for the purposes of section 40 as conduct of the Minister in charge of that department”.

Can the Minister give us some examples of conduct that would be attributed to a Minister which might invoke the community protection notice procedure—for example, the activities of Jobcentre Plus, the DWP or some other government departments? What do the Government have in mind here?

[Lord Taylor of Holbeach]

I suppose that this comes back to the accountability of Ministers. I am accountable to the Committee this evening in giving answers to somewhat difficult questions. I promise to write to the noble Lord with an explanation. He was very astute. I saw him leap with alacrity at a particular point and show it to a colleague on his Bench, so I knew that something might be up. I will write to the noble Lord.

[Baroness Hamwee]

My Lords, I should have thought that the noble Lord, Lord Beecham, would have been glad to ensure that if there were conduct on the part of a government department that might justify a CPN there would be someone there on whom it could be, not literally, pinned.

I come back to my amendments. The Minister said that victims do not care how a problem is solved or who solves it. I agree with that. In my group of amendments I am seeking to ensure that the most effective mechanism is used. That is why I keep coming back to the need to ensure that the professionals who will be left to use the existing statutory powers are confident that no confusion will be caused. If it would be helpful to undertake further discussions with probably not only the Minister’s own department but Defra, I know that there are people who will be happy to try to thrash this issue out in a practical fashion following today’s proceedings. For the moment, I beg leave to withdraw the amendment.

--- Later in debate ---

I believe that people are not taking this issue sufficiently seriously. There should be legislation from central government to make it an offence to have this stuff growing on your land and doing nothing about it. I beg to move.

[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.

Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon]

We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.

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

My Lords, I am grateful to my noble friend Lord Greaves for tabling this amendment, because it does seem to be a good place to start. The issue has certainly triggered a lot of arguments from colleagues, if I may say so. We have set this age of 10 because that is the age at which children are currently deemed capable of being responsible for their actions under the criminal law. My noble friend showed quite clearly that this is something that has been enshrined in legislation for some time, but I emphasise that the focus of the injunction is to nip issues and problems in the bud.

Many of us agree that the move away from automatic criminalisation of young people is a step in the right direction; noble Lords have backed the Government’s decision to move in that direction. Breach of an injunction does not result in a criminal conviction, giving the young person a chance of reform with a clean slate. This is not the case with anti-social behaviour orders, where breach is a criminal offence; this change has been widely welcomed by, among others, the Home Affairs Committee in another place. In addition to the injunction, positive requirements can be used to help address the causes of a young person’s anti-social behaviour, to help them to turn their life around before that behaviour escalates to something more serious.

We have also built in requirements for the local youth offending team to be involved at different stages in the process, to allow for the proper and thorough consideration of the needs of the young person. This goes far beyond what was required for the anti-social behaviour order. Furthermore, on the recommendation of the Home Affairs Committee, we have limited the maximum period of an injunction to 12 months where it is issued against someone under the age of 18, whereas the minimum duration of an ASBO is two years. Twelve months will provide agencies with sufficient time for them to work with other agencies to address any underlying issues driving anti-social behaviour. It strikes the right balance between providing victims with the respite they need and sending a strong message to young people that anti-social behaviour is not acceptable.

My noble friend Lady Hamwee emphasised the importance of the guidance. We have published draft guidance for front-line professionals and I hope that noble Lords will take time to have a look at it. I think they will find that it complements what the Bill seeks to do, and it is a very important document. It is available on the Home Office website, but if those who want a hard copy let me know, I will ensure that one is sent to them. It will be relevant to the youth offending teams and, in relation to Part 6 of the Bill, to police and crime commissioners; again, my noble friend mentioned how important the role of the PCCs could be. We are consulting on the draft guidance at the moment, and we would welcome comments from noble Lords on what it should include.

The noble Earl, Lord Listowel, asked about reporting restrictions. We are going to come to that issue; it is in this early part of the Bill and will be debated as we have amendments down to discuss it. Amendment 21A has been tabled by my noble friend Lady Hamwee. I hope that the noble Earl will be able to be involved in that debate.

The noble Lord, Lord Ramsbotham, mentioned that the House is of course considering the Age of Criminal Responsibility Bill, introduced by my noble friend Lord Dholakia. He also questioned the risk of a lack of co-ordination across government. I hope—indeed, I have had private conversations with the noble Lord about this—that all this legislation is of a piece. It is designed to address the failure of Government to get on a child-focused agenda. The IPNA in particular is part of our Home Office legislation to reinforce child focus, and victim focus, in the same legislation so that we successfully tackle anti-social behaviour.

The noble and learned Lord, Lord Hope of Craighead, mentioned the question of the guidance and whether courts could be included in it. In theory, court rules could cover this, provided that the relevant rule-making committees agreed. We will consider the utility of this, as well as whether guidance could play a useful role here. I look forward to hearing from the noble and learned Lord on this issue.

If I may say so to the noble Baroness, Lady Smith, the timing of this particular day’s business, which I think all noble Lords will have found themselves swotting up on a little more earnestly than they might otherwise have done, was agreed through the usual channels, and indeed I understand from my colleague that the proposal was welcomed by the opposition Chief Whip, although I was not in the Chamber at the time.

I emphasise to the noble Baroness that the IPNA is not the only means of addressing anti-social behaviour by children. We have made it clear in the draft guidance that the police, local authorities and others should consider a non-interventionist basis in the first instance if they can do so. The Bill also provides for more serious cases at the other end with the criminal behaviour order, so there is a flexible response to the phenomenon. As I said earlier, the youth offending teams—

[Lord Harris of Haringey]

I am grateful to the Minister for giving way. Will he give us some examples of when he thinks it will be appropriate to use the injunction route for a child of 10 or 11? What does he envisage as the penalties in the event of breach?

--- Later in debate ---

[Lord Taylor of Holbeach]

That follows on from where I was in my argument. The engagement of youth offender teams is key to this issue. They welcome the opportunity of intervening earlier—pre-offending, one might say—because one of the deficiencies of the current system is that the remedy lies in an anti-social behaviour order, which is a rather heavy hammer with which to deal with the problem. This is much more nuanced. I cannot answer the noble Lord in specifics because I am not thinking quickly enough on my feet. However, I hope I have reassured him that the early stages of anti-social behaviour are likely to be dealt with informally, as they would be at present. The injunction method gives a framework for remedial activity, particularly with a young offender, but we should remember that IPNAs apply to others as well as young people.

[Lord Harris of Haringey]

I am grateful to the noble Lord for attempting to answer the point. The amendment deals specifically with young people. Before we come to Report, could the noble Lord write to me and other noble Lords setting out, in more detail, his thinking on the circumstances which will lead to an IPNA for a young person when everything else has failed? What does he see as being the consequences of a breach? It sounded to me as though the consequence was a referral to a criminal behaviour order and the youth offending team process. I am not suggesting he try and answer now: he clearly wants to have the information in front of him. However, it would be helpful to the Committee to have that information.

[Lord Taylor of Holbeach]

The penalties, set out in Schedule 2, include up to two years’ detention for children of 14 or over, but only in exceptional cases. The noble Lord has invited me to write to him on this issue and I am very happy to do so. I hope he also has the opportunity to read the guidance because that will help in his understanding of how the IPNA is meant to operate on the ground, in particular cases, and will help inform him just as much as my letter will do.

[Baroness Smith of Basildon]

I am sorry to intervene on the noble Lord, but I asked a question about Article 3 of the UN Convention on the Rights of the Child and the comment made by the Joint Committee on Human Rights that this Bill has no requirement to consider a child’s best interests, their specific needs or learning difficulties. Why does the Bill have no reference to that?

[Lord Taylor of Holbeach]

That will be the subject of a later amendment, but I can reassure the noble Baroness that, as a legal process is involved, the courts have to take into account the human rights of anybody who is before them. It is not for the Bill to make that explicit: it is a matter of practice within the courts.

[The Earl of Listowel]

My Lords, I am very grateful to the Minister for the care with which he is responding to these questions. I would be grateful if he would drop me a line about the advice the Government might offer the new police and crime commissioners on funding youth services. It is so important that children have something to do with themselves. At this very difficult time, youth services are being cut right to the bone. Therefore the new police and crime commissioners have a lot of resources that they can choose to focus wherever they please; if some of those went to youth services that would be very helpful.

[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.

--- Later in debate ---

The Government have created a problem here but there are a number of suggestions, including the amendments today, that could help to address it. I hope that the Minister has taken careful note and will come back with a positive response.

[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.

Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I think that I can be very brief at this point. I have sat in the noble Lord’s place, albeit in the other place, and one thing he will have in his file is a note on the amendment saying, “Resist”. May I tempt him not to on some occasions? Amendment 20 in the name of the noble Lord, Lord Faulks, seems eminently sensible and reasonable. It actually seeks to put some necessary clarification in the Bill. The Minister said he would look very sympathetically, and I hope he will, at Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins. There is a serious issue about people with learning disabilities. It does not mean that they are not capable of causing distress through anti-social behaviour, but the measures by which it can be addressed and dealt with have to take into account any special measures and any learning disabilities that an individual may have. I hope that the Minister can look favourably on both those amendments.

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

My Lords, I may be about to surprise the noble Baroness. Well, to some degree—modestly surprise her. With these amendments we return once again to the issue of the test. I understand the concerns that noble Lords have articulated. Some of the arguments are returning to this issue and it is very important that we debate them and get them clear in our minds. I shall start with Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins.

This amendment raises the important issue of the proper considerations which must be considered in applications for IPNAs under Part 1 against respondents with learning disabilities. The amendment may not be necessary, because I have already spoken at length about the test for the injunction and the two limbs of the injunction, but I reiterate that, in deciding whether to grant an injunction, the court will consider whether it is fair, reasonable and proportionate to do so. That is within the terms under which a court would consider any injunction. In doing so, the court will be aware of its obligations to prevent discrimination against any respondent and to ensure that a respondent’s human rights are respected. Of course, the court will also ensure that the respondent is capable of complying with the terms of the injunction—indeed, that is specifically mentioned in the guidance. If the noble Lord will look at that section he will find that it is referred to. It is all part of the “just and convenient” part of the test which goes along with the whole business of nuisance and annoyance as being a joint, two-limbed test.

Returning to Amendment 20B, my noble friend Lady Hamwee pointed out that the Housing Act refers to “a nuisance”, not simply “nuisance”. I can reassure her that the test for the new injunction is based on that used for anti-social behaviour injunctions in the 1996 Act. No difference is intended but one of the two usages had to be used in this case to provide that continuity. Similarly, in respect of Amendment 20C, the use of the term “annoyance” in addition to “nuisance” also derives from the Housing Act 1996. The two terms will take their ordinary meaning. The dictionary definitions we have heard from my noble friend Lord Greaves are very interesting, but there is a meaning in law, by precedent, which is clear to the courts and, indeed, the Law Society has made clear that it welcomes that definition. They are commonly used together and may cover a broader range of behaviours than either would alone. We see the benefit in retaining the familiar test that includes both; that was mentioned in previous debates.

My noble friends Lord Faulks, Lady Hamwee and Lady Berridge, and the noble and learned Lord, Lord Hope of Craighead, all made similar points about Amendments 20 and 20H, as, indeed, did the noble Baroness, Lady Smith. The amendment in the name of my noble friend Lord Faulks was, of course, one of those recommended by the JCHR. Both amendments seek to add an explicit test of reasonableness to the threshold for making an injunction. The Government are aware of the concerns about the test for the injunction under Part 1 and I listened carefully to those concerns expressed at Second Reading and again today. I agree that it is important that the courts consider reasonableness, fairness and proportionality in deciding applications for injunctions to prevent nuisance or annoyance. The courts will consider these factors as a matter of course as part of the second limb of the test—that it is just and convenient to grant an injunction—as I said in my answer to the amendment in the name of the noble Lord, Lord Wigley. However, the courts will be aware of their obligation to discharge their functions compatibly with the European Convention on Human Rights, an exercise which requires a consideration of necessity and proportionality. However, we will want to consider whether we have done everything necessary to ensure that this is so with the drafting of Clause 1.

That is not to say that we necessarily agree with the amendments as they are drafted. Both would revise the “nuisance or annoyance” test, and I have made it clear that we see the merit in keeping a test that is already familiar to the courts. However, we want to consider whether we can make it clearer in the legislation that the courts must be satisfied that it is reasonable to issue an injunction under Part 1. This is what the amendments seek to achieve and, in that sense, we are not very far apart on this issue, so I will reflect carefully on Amendments 20 and 20H in advance of Report.

In conclusion, the test for the new injunction is tried and tested, it has a long pedigree and I see no evidence that it has given rise to the difficulties that a number of noble Lords have suggested in this and previous debates. The previous Administration sought to recast and strengthen the “nuisance or annoyance” test for an anti-social behaviour injunction back in 2003. This House endorsed that strengthening and on this issue, as I have said before, I am happy to endorse the position then taken by the noble Lord, Lord Bassam. The police, local authorities and others will not act lightly in seeking an injunction. They and the courts must exercise such powers in a reasonable, fair and proportionate manner. As I have said, I am ready to take away Amendments 20 and 20H and explore, without commitment, whether it would be appropriate to introduce into the test an explicit reference to reasonableness. That point aside, for the sake of the victims of anti-social behaviour, who must be at the forefront of our deliberations on the Bill, I would be loath to weaken the effectiveness of the new injunction. I have no doubt that we will return to this matter on Report. I thank noble Lords for speaking to their amendments and I hope that they will be content not to press them.

[Baroness Hamwee]

My Lords, before my noble friend responds, of course let us all think about it, but may I put one further, supplemental thought in the Minister’s mind? He talked about the pedigree of the term “nuisance or annoyance”. If a lot of that pedigree comes from the housing context, then we need to be careful about transposing the words without the constraint around it. That may not be the right word, but we need to consider the reasonableness of the term if we are moving into a different context.

[Lord Taylor of Holbeach]

Perhaps I should rely less on the Housing Act and draw attention to other matters such as the abuse of alcohol in public places, for example, which uses a similar test, or the parking of vehicles on highways and the obstruction of highways, which was also mentioned by me in a previous debate. This does not apply just to housing matters; there are other issues that have used the test of nuisance and annoyance. I do not see the problem that my noble friend suggests.

[Baroness Hamwee]

Or even “nuisance or annoyance”?

Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Monday 18th November 2013 Lords Chamber

[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.

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

My Lords, I should begin by refuting the suggestion of the noble Baroness, Lady Smith, about our focus on IPNAs at the expense of other measures. She has admitted that there are six measures involved in anti-social behaviour prevention and control, so the IPNA is one part of a suite of measures in the Bill. She makes no mention of the criminal behaviour order, which clearly provides much of the cover which was given by the ASBO.

[Baroness Smith of Basildon]

The noble Lord is wrong. My second amendment refers to criminal behaviour orders and I spoke to those in the course of my speech. I am surprised that he says I did not mention criminal behaviour orders when I tabled a whole amendment on them.

--- Later in debate ---

[Lord Taylor of Holbeach]

Yes, but I am dealing with Amendment 96 and in speaking to that amendment, the noble Baroness made no mention of criminal behaviour orders. She sought—perhaps accurately, in her eyes—to make a comparison between the IPNA and the ASBO. The two are not meant to be the same or to deal with the same problem in the same way. There is a suite of six provisions in the Bill, which are all meant to deal with situations which the Anti-social Behaviour Act has not managed to address. ASBOs are not an effective power. I say from this Dispatch Box that they are becoming increasingly less effective. Let us look at the published statistics: up to the end of 2012, 58% of anti-social behaviour orders were breached at least once and just over 43% were breached more than once. A staggering 68% of ASBOs issued against under-18s have been breached. By any objective measure, if an order has been around for more than 10 years and had plenty of time to bed down but has such a high breach rate, that is not evidence of success. I am surprised that the noble Baroness is so wedded to the idea of maintaining it.

If one wants to seek the root cause of the failure, it is that ASBOs can take months to obtain. They fail because they leave victims exposed while being obtained and because they do so little to address the offending behaviour, so are we surprised that the number of ASBOs has declined year on year since 2005? That is why we are abolishing the ASBO and the failure that goes with it, and replacing it with more effective powers in the IPNA and the CBO. By replacing the hotchpotch of 19 ineffective and under-used anti-social behaviour powers with six new, flexible and more effective ones, we will give front-line professionals that toolkit which the noble Baroness sought in her speech. The new injunction will replace anti-social behaviour orders on application, anti-social behaviour injunctions, individual support orders and intervention orders. As I said in earlier debates, the injunction under Part 1 is modelled on anti-social behaviour injunctions which have been used successfully by social landlords for over a decade. For more serious cases, where a perpetrator has a criminal conviction, the criminal behaviour order will be available. Like the injunction, it can be used to impose prohibitions and requirements, but breach is a criminal offence with accordingly tough sanctions.

--- Later in debate ---

[Baroness Smith of Basildon]

I apologise for intervening on the Minister, but I wonder if he thinks he has answered the question that I asked about costs. If he does, his response was completely inadequate. I asked what assessment had been made of the costs and quoted the impact assessment, and I asked whether the Government had considered whether or not the imposition of positive requirements would be related to the funds available. The Minister has said that these will be made and funded locally, and that he makes no apologies for local government deciding how they are funded. If there are additional costs on local government, surely the Minister and the Government should have some understanding of what those costs are going to be. He may be coming to the point about what guidance will be issued, but I think that he said that there would be no guidance on what measures could be introduced.

[Lord Taylor of Holbeach]

I was coming to that point, but I shall just deal with the cost element. The impact assessment, as the noble Baroness rightly says, did not hazard a guesstimate of that figure; in many ways it would have been a meaningless guess because we cannot know all the facts. We cannot know the extent to which local organisations, local authorities and voluntary organisations are already participating in much of that activity which is designed to help young people, or indeed older people, who are in difficulties. Much of the voluntary sector is dealing with this work. The whole point of the framework of the IPNA is that it provides a framework in which groups such as this can operate effectively. We are certain that there will be savings as well as additional costs in the reduction of anti-social behaviour that is going to follow from these measures. I will continue, if I may, because the noble Baroness wanted to know about the guidance.

The emphasis on empowering front-line professionals and giving them the flexibility to respond to individual needs is the reason why we have not provided detailed guidance on this point. That said, we have published draft guidance for front-line practitioners where we have included a steer on positive requirements and issues that local practitioners might like to consider. Pages 25 and 32 of the draft guidance provide examples of the sort of positive requirements that might be possible. We have deliberately not set out to provide an exhaustive list, as we do not want to produce a limited menu. Instead, we want to allow local practitioners, who are best placed to judge what positive requirements are likely to have the greatest positive impact on an individual, to remain unfettered in their use of positive requirements and allow for new and innovative interventions to be developed.

As I said, this is a draft document and if further, more detailed guidance would help front-line practitioners we can look at this again as we work to produce a final version. If noble Lords feel they can contribute to producing the final document, they are, as I said earlier, most welcome to do so. It is a testament to our commitment that we have published draft guidance. I have stood at the Dispatch Box and had to talk about guidance which is to come, which may be part and parcel of the implementation of legislation, without having the document in front of me. In this Bill, we are fortunate: we have the draft guidance on which we can base our discussions. We intend to publish this on a non-statutory basis, but I am quite prepared to acknowledge that we are ready to consider whether our commitment to produce such guidance should be reflected in the Bill.

[Baroness Smith of Basildon]

I apologise to the noble Lord for intervening, but I want to clarify, to make sure that I have not misunderstood what he said. Is he saying that, because they cannot quantify the costs at the moment, the Government do not know what those costs will be? Will he give an assurance that the Government will meet those costs or is he saying there will be no contribution from the Government to any additional costs incurred by local authorities in IPNAs or criminal behaviour orders?

[Lord Taylor of Holbeach]

I can give the noble Baroness some sort of figures on the comparative costs. It has been suggested that it will cost £1,500 to pursue proceedings for breach of an IPNA and that was quoted. However, the National Audit Office reported in 2006 that the average cost of prosecution for breach of an ASBO was around £1,500. So, if the figure for pursuing a breach of Part 1 is correct, it will be no more expensive. In addition, the new injunction will be quicker to obtain than a stand-alone ASBO. The National Audit Office found the average cost of obtaining a stand-alone ASBO was about £3,100, compared with a cost of £1,600 for one of the existing injunctions which, like the new injunction, uses the civil standard of proof. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions and enable—

[Baroness Smith of Basildon]

My Lords—

[Lord Taylor of Holbeach]

I will finish what I am saying, if I may. I will not sit down before the noble Baroness has a chance to intervene. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions, enabling agencies to act more speedily in stopping further harm to victims.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for allowing me to come back on him, because he misunderstood. I was asking about the costs and the funding of positive requirements. Although I mentioned the cost of proceeding with the breach of an IPNA, that was not the point I raised when I intervened on the noble Lord. He must have had an earlier note. I am asking if I had understood his point about the cost of positive requirements and whether the Government would make any contribution, bearing in mind the additional burdens doctrine. Was he saying that there will be no additional costs in pursuing positive requirements?

[Lord Taylor of Holbeach]

The Bill makes no provision for the funding of costs.

[Lord Harris of Haringey]

My Lords, I assume that the noble Lord has finished. I found the reply that the Minister gave rather disturbing as regards the issues it covered and did not cover. He spent the first half of his remarks talking about Amendment 96. We have yet to hear the reason why it is necessary to repeal all the ASBO provisions in advance of bringing in the arrangements for the new injunctions. That is quite an important point. The Minister supports a Government who I think believe in free-market principles. If the ASBO and the procedures around it are so inadequate, do not work and are so costly, what is to be lost by allowing both to coexist, at least for a period, until we see how the new regime works? In practice, people—local authorities, housing bodies or whatever—might vote with their feet and decide whether to use the IPNA route or the ASBO route. That would be consistent both with the Government’s principles about a free market and with their localism principle, and would also allow a bit of reality to creep into this—which would be unique for this Government and probably for all previous Governments. People would discover which system works by looking at the arrangements that people followed at a local level. The Government need to explain why it is not possible for the two systems to coexist so that we can see which ones work and which ones do not.

[Lord Taylor of Holbeach]

The answer is very simple: we do not think that ASBOs are effective. We are proposing a Bill that deals with anti-social behaviour and in our view the measures that currently exist do not meet the requirement that we as a Government want to present as a remedy for anti-social behaviour. That is why we do not support the retention of the ASBOs. They are expensive, not effective in reducing anti-social behaviour and not effective in providing a remedial pattern of behaviour for young people who get into trouble. We want to ditch them and replace them with those measures which the Bill provides for, which give a much better and positive way forward for young people and protect victims.

[Lord Harris of Haringey]

My Lords, I do not think that anyone doubts that the Minister and the Government are keen to tackle issues about anti-social behaviour, as indeed were the previous Government, and as I suspect has been the case for very many years. Nobody is pretending that ASBOs are perfect or that they solve the deep-seated, underlying difficulties of anti-social behaviour. However, we are saying that these new arrangements are untried. We simply do not know whether they will work or whether they will be better. If they are so much better, as the Minister assures us they will be, then if the two coexisted on the statute book, people all over the country, when dealing with cases of anti-social behaviour, would opt for the noble Lord’s system as opposed to this dreadful, outdated system that he is apparently now so keen to scrap. However, if—just if—it turns out that under certain circumstances the ASBO route might have been better, that will no longer be available. I fail to understand what is lost by leaving in place the existing arrangements, at least for a period, to see how things work out in practice.

I turn to what the noble Lord calls the “positive” elements of the arrangements. These will not be cost-free. Ensuring compliance will involve costs. If an individual is involved—and some will relate to individuals—it will involve costs in terms of that person’s time and maybe their expenditure. If it involves an agency, such as a local authority, which is required to provide particular opportunities for individuals concerned, there will be the cost of providing those opportunities. There has to be transparency as to what those costs are going to be and how it is going to be delivered. If there is not—given that local authorities are facing very significant reductions in their budgets and the voluntary sector is facing a crisis in its funding, in many instances, or in the demand on its services—there is a real risk that the Government are creating these new injunction-based powers but setting them up to fail. I believe the Minister and the Government actually want to do something positive about anti-social behaviour, so I think it unwise to be setting up arrangements, and setting them up to fail, without addressing the question of how the funding is to be taken forward.

Briefly, at the end of my remarks, I return to the amendment that I proposed. The Minister has said that the requirement I am proposing should be included in the Bill is not necessary because it is already there. He quoted the Bill as saying that,

“the court must receive evidence”.

However, that is not the same as,

“the court must be satisfied”—

which is the phraseology that I use. The court could receive evidence but the local authority might stand up or be represented at the court and say, “We no longer have the resources to provide this”. The court could still, in the light of that information, none the less say that it is satisfied and will make the order. Alternatively—and this is also quite possible—a parent or guardian could say, “We give the undertakings. We are confident that we can prevent the recurrence of this type of behaviour and will take the necessary steps”. However, receiving that evidence and being satisfied are not the same thing.

I ask the noble Lord to consider these matters again and to come back to us before Report to say whether these requirements will work—or whether we should not be assured that we are not setting up individuals or organisations to fail by asking them to do things that they cannot deliver, that they are not funded to deliver or, frankly, that no one really believes will happen but simply satisfies them. These new arrangements, in which the Minister quite properly has a great deal of confidence, could otherwise eventually be deemed a failure simply because these issues were not addressed. As I am sure I will receive this information and those assurances between now and Report, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I am very pleased to have the chance to talk about this issue because I am concerned that Westminster City Council, a flagship council, has expressed anxieties. I reassure my noble friend Lady Hamwee that the letter has gone to Councillor Nickie Aiken from my honourable friend Norman Baker, who was the Minister responsible for crime prevention and was the lead on this Bill in the Commons. I have met with my noble friend Lord Flight. I hope that we had a very productive discussion. Much of the information that he has been able to give came out of that meeting on Friday. It is now Monday and things have moved in a rather compressed way.

I will conclude my remarks in saying what I intend to do but, first, I should express that we are aware of the problems of persistent and aggressive begging with which a number of councils are faced. I attend the meetings of the safer communities board of the LGA fairly regularly nowadays because I enjoy them and find them very useful. When I went, I think that I was able to explain to those gathered, who included the leader of Bradford City Council—a large city—that the measures provide a portfolio of remedies to deal with this sort of circumstance. The criticism from Westminster City Council came to me rather out of the blue.

However, the Government appreciate those concerns and acknowledge the impact that aggressive begging can have on individuals, businesses and communities. I am aware that Westminster is working with its partners to do what it can to tackle the problem. I think that noble Lords will realise that it is extensive. Westminster has expressed its concerns. It is important that councils, the police and others work together on all these matters, which is one of the underlying themes behind this Bill.

As I have said, last Friday I met my noble friend Lord Flight. It seems that the concerns about the injunction to prevent nuisance and annoyance stem from its differences from the ASBO with regard to powers of arrest. The breach of an ASBO is of course a criminal offence and, as such, someone can be arrested simply for a breach. In contrast, the new injunction is a purely civil measure with civil penalties for a breach. Consequently, we do not consider it appropriate or proportionate for it to have an automatic power of arrest. As such, we have limited the court’s ability to attach a power of arrest to the most serious cases; that is, cases where a perpetrator has been violent or has threatened violence, or if there is a significant risk of harm to another person.

I understand the intention of my noble friend’s amendment and I am sympathetic to local councils’ concerns. He has mentioned other councils and I accept that others may have notified him of their concern. However, I should like to make two points. First, the effect of the amendment may not actually achieve its aim and, secondly and more importantly—we can change the amendment but it is a question of how the Bill operates—there are more appropriate powers that could be used as provided for in this Bill.

The amendment would require a threat of,

“intentional or deliberate anti-social behaviour”.

As has been mentioned by my noble friend Lady Hamwee, this is rather a broad brush. These words insert subjective elements that raise evidential thresholds for enforcement agencies and the courts. The courts would have to consider the state of mind of the perpetrator in ensuring that the power of arrest has been used lawfully. Before arresting an individual under the amendment, the police would need to satisfy themselves that the perpetrator had deliberately or intentionally committed anti-social behaviour. That may look easy to do on the face of it but may be different in practice. For example, it has been suggested that some of the foreign nationals who beg aggressively are coerced into these activities by organised crime gangs. My noble friend Lady Hamwee referred to that too. This is rather different from the current situation with the breach of an ASBO where there is no subjective element. That is why we say this amendment may not help councils in practice in the way that they hope.

However, there is a more fundamental reason why I believe the amendment is not necessary. I can understand why councils have focused on the injunction. It is, on paper at least, the direct replacement for the ASBO on application. However, it seems what the councils actually want are swift, efficient and cost-effective powers to prevent anti-social behaviour, supported by meaningful punishments. As I indicated earlier, as did my noble friend, such powers are in this Bill. The community protection notice under Part 4—which we will being coming to, I hope, soon—is intended to deal with particular ongoing problems or nuisances which negatively affect the community’s quality of life. The notice could be used to direct an individual to stop causing the problem and can, if necessary, be served on the spot. While a written warning is required, depending on the behaviour in question, it would not be necessary to wait too long before the actual notice was issued. It could almost be done immediately where appropriate and necessary.

The notice could be used to stop a specified action or wider behaviour, such as aggressive begging. It will then be available to councils as well as the police to ensure either agency was able to deal with the problem there and then. Breach of any requirement in the notice—for instance, failing to cease begging in a certain area—will be a criminal offence, subject to a fixed penalty notice or prosecution. Critically, a person may be arrested on suspicion of a breach. On conviction an individual would be liable to a fine of up to £2,500. That to my mind is a significant punishment.

Alternatively, where a persistent problem is detrimental to the local community’s quality of life, the public spaces protection order could be used by the council to impose restrictions. For instance, in areas where aggressive begging is a problem, a blanket ban could be imposed on it, ensuring that the council or police can act quickly when it occurs. In addition, the order can be used preventively, so if the council reasonably believed that the problem would simply move to another location—which is a real problem—it could use the new order there too. Local authorities would need to consult the police and other interested parties before seeking to impose an order, but the decision to use the new power would be theirs. It would be vested in local authorities. Again, breach of the order would be a criminal offence, subject to a fixed penalty notice or prosecution. Here again, a person could be arrested on suspicion of a breach. On conviction the offender could face a fine of up to £1,000.

My noble friend mentioned the dispersal power under Part 3, which may be useful to deal with individuals or groups causing problems by allowing the police to move them on immediately and away from the area where they habitually operate, for up to 48 hours. We will talk about how dispersal orders operate when we come to consider relevant amendments. Failure to comply with a direction is a criminal offence which will normally be tried in the magistrates’ court or a youth court for people under the age of 18.

There is a portfolio of measures in this Bill which can be used by local authorities, I think, effectively. The fact that begging persists here in the capital is an indictment of the fact that we still do not have effective measures to deal with it. I think that the Bill provides them.

I hope that I have been able to reassure my noble friend of my earnest desire to get this matter sorted. I am very pleased to meet with Nickie Aiken or for that matter any other councillors responsible for this area of activity in their local authorities, to try to explain to them how in practice they can use the measures provided for in the Bill to deal with what is a very serious problem.

[Baroness Hamwee]

My Lords, the Minister has given a very detailed reply as to the measures available, but I am sure that he would agree that none of that reduces the need to deal with trafficking and immigration control, which I think is actually behind quite a lot of what is happening which is so offensive.

[Lord Taylor of Holbeach]

In some circumstances there is undoubtedly some suggestion that people involved in begging have been brought here as part of criminal gang activity. But that is another crime and there are other measures to deal with it. Meanwhile, local authorities’ concern is to make sure that members of the public, tourists and businesses are not interfered with by beggars in public places.

[Lord Flight]

My Lords, I thank the Minister for that very detailed response. I am hopeful that what he described will be an effective measure for dealing with this issue. The only area where I still have some uncertainty, and where Westminster and other councils have uncertainties, is the double-stage aspects of both CPNs and the new public spaces protection orders. There is concern that warnings will be given out to people who will disappear and then come back again as soon as the police have gone. But I am grateful that the Minister has accepted the request to meet not just Councillor Aiken but any other of the local authorities concerned, to go through their concerns and thrash out a mechanism that can work. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

That should be a collective strategy. The police and crime commissioner, and, in London, the Deputy Mayor for Policing and Crime, should be responsible for drawing up that strategy, but it should be drawn up in consultation with and with the agreement of the local authorities in that area. There may well be other bodies, including the major housing providers, who should be part of the process of drawing up that overarching strategy for how, collectively, those different organisations will address issues of anti-social behaviour in their patch. I am surprised that so little is said about police and crime commissioners in the Bill. There should be a coherent, overarching approach and strategy adopted within a police force area, working in conjunction with local authorities. I beg to move.

[Lord Taylor of Holbeach]

My Lords, the election of police and crime commissioners put the public back at the heart of our drive to cut crime. I am pleased that the noble Lord, Lord Harris, has recognised how effective police and crime commissioners are.

[Lord Harris of Haringey]

Do not push it.

[Lord Taylor of Holbeach]

Well, I welcome even modest conversions and am delighted that the noble Lord has proposed this amendment because I have always seen police and crime commissioners as being important.

Under Section 5 of the Act which introduced them, police and crime commissioners are required to issue and publish a police and crime plan, as the noble Lord said. They must do so within the financial year within which they were elected, and they are under a statutory duty to consult their chief constable in drawing up this plan.

The police and crime plan must set out the plans for, among other things, the police and crime objectives and the policing of the area for which the chief constable is responsible. In developing their plans, the police and crime commissioner must consult the public and, in particular, victims. The plan must also be scrutinised by the police and crime panel in each area before it is issued.

The Association of Police and Crime Commissioners has published details on its website about the individual police and crime plans and the key priorities in them. It is no surprise, at least to me—and I do not think that it would be to other noble Lords—that tackling anti-social behaviour is consistently cited as one of the top policing and crime objectives in local force areas. Out of 41 police and crime commissioners, 30 put tackling, preventing and reducing anti-social behaviour among their key priorities in their individual plans. Eight PCCs put reducing the impact of, and keeping people safe from, anti-social behaviour as among their individual priorities, and three further plans clearly set out to encourage the reporting of anti-social behaviour. Therefore, all police and crime plans make reference to anti-social behaviour.

The amendment proposed by the noble Lord, Lord Harris, would create duplication and add bureaucracy. If police and crime commissioners are required to produce individual police and crime plans for their own local areas—which is part and parcel of what they are required to do under the Police Reform and Social Responsibility Act—why should Parliament require them to publish a local anti-social behaviour strategy for their local area in separate legislation? Why should front-line professionals and the courts have to wait to use the injunction under Part 1 as required by this amendment?

This Government are serious about tackling anti-social behaviour and so are elected police and crime commissioners, as evidenced by the figures that I have given. Our anti-social behaviour reforms are about the police and their partner agencies putting the needs of victims first. This means giving the right powers to do this. I have said already that the new injunction is one of the key planks in our reforms. Agencies and the courts must be able to use this as swiftly as possible—I hope that the noble Lord does not see his amendment as a delaying tactic.

I understand the importance of PCCs’ involvement—indeed, some of our reforms provide an active role for them; for example, the community remedy, which is in Part 6 and specifically mentions police and crime commissioners. We will draw their attention through guidance and otherwise to the new powers—I hope that the noble Lord is aware of this—but what will not help anyone in putting victims first is to duplicate and delay using the new powers, which is what this amendment would do. I therefore invite the noble Lord, Lord Harris of Haringey, to withdraw his amendment.

[Lord Harris of Haringey]

My Lords, this amendment was not about trying to delay the process—I think that the Minister tries to ascribe to me motivations that I do not have. The amendment is about trying to make it work effectively.

I acknowledge that police and crime commissioners are required to draw up and should all have in place a police and crime plan. But it is a police and crime plan, and they draw it up in consultation simply with the chief officer of police for their area. That is the requirement in the legislation.

[Lord Taylor of Holbeach]

If the noble Lord will forgive me. It has to be presented to the police and crime panel as well.

[Lord Harris of Haringey]

It has to be presented to the police and crime panel, but the panel has no executive role, as far as that is concerned. It does not have a power to reject or amend it. It is simply there as part of a formal process. I am sure—or at least I am told somewhere—that police and crime panels are doing a good and valuable job in terms of monitoring the activities of police and crime commissioners, but they are not part of the consultative mechanism. They are not there to represent the interests of their local authorities and it is not regarded as their function to be, for example, a series of the crime and disorder leads from the various local authorities in their area.

It is a different function. It is a function about scrutiny, whereas crime and disorder leads in individual local authorities are there in an executive capacity. I do not think that the involvement of police and crime panels solves the issue. If one is to be effective in tackling anti-social behaviour, one needs to work with the local authorities and all the different agencies involved, including the housing providers. That is what this amendment is about.

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Taylor of Holbeach]

Amendment 21B, tabled by the noble Baroness, Lady Smith, would require the courts to take into account whether or not to grant applications for arrest warrants in cases where an arrest warrant was not attached to prohibitions in the injunction at the time of its issue but was sought subsequently, when the breach had occurred.

We are not introducing a new and untested power under Clause 9. The courts are used to handling applications for arrest warrants: for anti-social behaviour injunctions on which the IPNA is modelled and gang injunctions, as well as other injunctions. We should therefore bear in mind that the courts are already experienced in handling applications for arrest warrants and dealing with breach proceedings and they are experienced in doing so without needless delay or copious guidance. So while I agree with the point made by the noble Baroness, Lady Smith, on the importance of swift action—indeed that is one of the reasons we are reforming the anti-social behaviour powers—I am not persuaded that statutory guidance is needed on this point.

My noble friend Lady Hamwee has also tabled an amendment to the provisions on powers of arrest. The purpose of Amendment 21C is to prevent an arrest warrant being issued against someone who breaches a requirement in their injunction. They would only be able to be brought before the court to answer the breach of a prohibition in the order. With respect to my noble friend, I do not agree with that. Whether a term in an injunction is a prohibition or a requirement, they form part of an order of the court. They must be complied with. The requirement to do something about the cause of your anti-social behaviour is as important as the prohibition to stop it. The courts must have the power to enforce them both. If a person is not forced to do something about their behaviour by complying with a positive requirement, it is likely that they will eventually breach the order and cause further problems. That has been the problem with anti-social behaviour orders.

As my noble friend points out, this is different from the approach we have taken in Clause 3. At the time an injunction is made, a power of arrest can only be attached to a prohibition and not to a positive requirement. The reason for this distinction is that the test under Clause 3 is, rightly, a high one. A power of arrest can only be attached where there is a threat of violence or harm. It is difficult to see how this test could be met by breaching a positive requirement. However, the provisions in Clause 9 for obtaining an arrest warrant do not include such a high test because here the focus is on enforcing the injunction, not on preventing an immediate risk of violence or harm.

On the basis of this explanation, I hope that the noble Baroness, Lady Smith, will be content to withdraw her amendment.

[Lord Beecham (Lab)]

My Lords, the Minister has not addressed the thrust of my noble friend’s amendment, in terms of the potential for delay. This is an area where, by definition, the quicker one proceeds to a resolution of the matter, the better. There are some constraints in the way the court system currently works which make that rather more difficult. A number of proposed court closures have affected both county courts and magistrates’ courts. I assume that these breaches would be basically dealt with in the county courts, but there have been closures there as well. Do the Government have any indication of how long it will take to secure these injunctions, in the light of that development and the general pressure on the court system?

It is not necessarily the case that a matter can be easily resolved at a first hearing. There is also the question of the operation of legal aid under the rather restricted system we now have. One assumes, and perhaps the Minister can confirm this, that legal aid would be available for those who qualify, on financial grounds, to defend an application for an injunction. There seems to be a potential for an undesirable delay, which may or may not be necessary. The thrust of my noble friend’s amendment is that the Government should endeavour to begin properly and assess the likely timescales and the likelihood of delays and then to give guidance to ensure that, where necessary, the relevant resources can be made available. Could the noble Lord deal with those issues?

[Lord Taylor of Holbeach]

My Lords, the noble Lord has asked me a number of detailed questions. If he does not mind, I will look at the record and write to him, as I do not have the briefing here to be able to reply in detail to all that he wishes to know.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. He did not fully address a couple of questions in the points that I made. One of the issues was about delays in county courts. I did not say that county courts were facing delays—that came from local government, the police and the Home Affairs Select Committee in the other place. The other point I raised was that, if he is not prepared to consider guidance prior to this being introduced to ensure that county courts are able to deal with these matters in a timely way, will he agree to consider and bring back to your Lordships’ House at Report a statement on whether, rather than having guidance beforehand, it is possible to truncate the normal five-year review period to see whether it is working? This issue should be reviewed after one year to see whether there are delays in the county court system which slow down the process of justice, or whether, as the Minister said, everything is working fine and there is no problem.

The delays at the moment are occurring for a number of reasons—they are under pressure to reduce staffing in county courts, and my noble friend Lord Beecham also raised some of the issues. I also understand that there are more litigants in person because of the reduction of eligibility for civil legal aid. Both those issues add to the delays in the system. We do not need to have a process whereby people suffer anti-social behaviour when someone has breached their IPNA and then there is a lengthy delay while they wait for the courts to assess whether an arrest warrant can be issued. Therefore, if the Minister rejects out of hand the issue of guidance beforehand, will he agree to look at truncating the review period and review how it is working after a year rather than five years?

[Lord Taylor of Holbeach]

I will take a look at the record and if I feel that it will be productive and I can add to the position they have stated I will write to the noble Lord, Lord Beecham, and the noble Baroness. I cannot commit to a particular timeframe, but if there is evidence of a problem to which the noble Baroness is able to draw my attention, I will deal with it.

[Lord Beecham]

It occurs to me to ask the noble Lord whether there have been any consultations with the judiciary about this aspect. I assume that that may have been the case. Presumably the judiciary will have a view on the imposition of a new burden on it. We talked about the new burdens doctrine earlier this evening as regards the costs of some of the proposals in the Bill on local government and whether they will be met. From a local government perspective I cannot say that I was very thrilled with the Minister’s response to that; he seemed rather to ignore it. However, this is a different sort of new burden—one placed on the courts system. That being the case, one would have imagined that this would have been discussed with the judiciary at some level. Has the noble Lord any knowledge of such discussions taking place, or were any representations made as a result of consultations on the Bill?

[Lord Taylor of Holbeach]

I was anxious to move on, as noble Lords may have guessed, but I think that the sentiment of the House is that the night is perhaps getting on—although I was just getting into my stride. I have found answering these amendments somewhat more difficult than others as they stray into a legal capacity where my skill base is probably not as substantial as that of the noble Lord, Lord Beecham. None the less, I have said that I will look at the record and write to noble Lords on the basis of the points they have made when I am able to give them a fuller and more reasonable answer to the points they raised. No doubt we will have plenty of opportunity to deal with that in future. In the mean time, I ask the noble Baroness to withdraw her amendment.

[Lord Beecham]

The noble Lord has just reminded me that I really ought to have declared an interest. I am still a solicitor, not so much practising but an unpaid consultant in the firm for which I used to act. I am only sorry that a particular noble Baroness is not in the Chamber because I used to appear before her father in the county court when he was sitting as a district registrar—an experience not to be recommended, I have to say, to those who followed me.

--- Later in debate ---

[Baroness Hamwee]

In that case, my Lords, I apologise to the House but I do want to raise at this point whether Schedule 2 should stand part of the Bill. The Minister is aware of the particular concern that I have, which is that the schedule provides for sanctions in the event of a breach of the injunction. My concern is about the sanction applicable to children—the sanction of imprisonment. Children who breach an IPNA can be given a supervision order or, if they are over 14, up to three months’ detention. I do not think that the Minister will be surprised at concern as to whether such a sanction is proportionate, productive and compatible with children’s rights, for reasons of which the Committee will be very well aware.

Detention of any length in the case of children is something that many noble Lords are concerned about—whether it is not only not effective but also particularly harmful for children. I am not aware of evidence that imprisonment for breaching an ASBO acts as a deterrent for children committing anti-social behaviour. We are all aware of the potential harm for children’s development and the impact on their rehabilitation. We all know stories about fast-tracking children into the criminal justice system by dealing with them inappropriately at a very early stage in what may or may not—one hopes not—turn out to be a criminal career. Only the most serious crimes committed by children lead to custodial sentences. The IPNA is, of course, a civil measure, and detention is a very disproportionate sanction for a breach when the child has not actually committed a criminal offence. In brief—and I have kept it brief—I would be grateful if the Minister could tell the Committee how detention for children can be justified in this way.

[Lord Taylor of Holbeach]

My Lords, I hope that the Committee will forgive me if I rattle through my notes here, as I am aware of the lateness of the hour. I am grateful that my noble friend Lady Hamwee has raised this issue; it is an important point about the justification of detaining under-18 year-olds if they have breached the terms of an injunction in Part 1.

It is important to remember that, although the test for an injunction is the civil standard of proof, in the event of the breach of the test what applies will be the criminal standard of proof—beyond reasonable doubt. The court must also consider whether the young person has a reasonable excuse for breaching the injunction. Only a young person over the age of 14 can be detained and for not more than three months. Currently, under the anti-social behaviour regime, a young person can be detained for up to two years. It is also important to say that detention can be used only as a very last resort,

“where the court determines that because of the severity or extent of the breach no other power available to it is appropriate”.

Secondly, when the breach is established, it will be a civil contempt of court. This means that a young person will not be saddled with a criminal record, unlike with the breach of the anti-social behaviour order. We have also said in draft guidance that informal approaches should be used in most cases involving young people. When agencies believe that a more formal intervention is necessary, the courts must have the power to deal with young people who have not responded to the informal approaches or who wilfully ignore the terms of their injunction.

I hope that I have made it clear to my noble friend that these powers are used extremely sparingly. They are certainly not a power of first resort—they are of last resort only.

[Baroness Hamwee]

My Lords, I have already made clear this afternoon my concern about reliance on guidance. I wonder whether, if this sanction is so rare, a child would find himself faced with it, and there is no other basis on which to consider detention—that is, if you believe that detention, even used sparingly, is a correct approach. I expect to come back to the matter, and apologise to the Committee that, in the rush to get amendments tabled with the change of timing of this Committee stage, I missed this last week.

Security Services: Supervision

Lord Taylor of Holbeach Excerpts

Thursday 7th November 2013 Lords Chamber

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

My Lords, I join other noble Lords in thanking the noble Lord, Lord Soley, for presenting this topic for debate, and I am grateful to all noble Lords who spoke so eloquently in this debate. I think that noble Lords will understand that, in line with the practice of successive Governments, I shall not comment on specific issues relating to the work of the intelligence agencies. I shall focus on the breadth and depth of supervision of the UK’s intelligence agencies, and the fact that they are second to none and—given recent reforms extending parliamentary oversight, of which this House is very much aware—fit for purpose.

Secret intelligence helps protect national security, tackle terrorists and stop criminals. But this does not mean the activities of the intelligence services go unchecked. Successive Governments have rightly introduced measures to ensure that the use of intrusive powers needed to obtain intelligence are governed by a strict legal and policy framework compatible with the Human Rights Act. This ensures that intelligence activities are authorised, necessary and proportionate, and provides robust statutory oversight.

Oversight starts within the intelligence agencies themselves, which enforce rigorous internal controls. Their recruitment and training procedures are designed to ensure that those operating within them can be trusted to do so lawfully and ethically. A culture of compliance with the letter and spirit of the law pervades everything they do. Noble Lords have rightly paid tribute to the work of those in the intelligence agencies. In their most recent reports, both the Intelligence Services Commissioner and the Interception of Communications Commissioner commended the integrity and professionalism of the agencies’ staff.

In addition, of course, Secretaries of State are accountable to Parliament and the public for the agencies’ actions. They take decisions on whether to authorise the use of intrusive powers by the intelligence agencies. Senior members of the judiciary are appointed as Interception of Communications and Intelligence Services Commissioners to oversee the process of authorisation of intelligence activity, which includes reviewing the decisions of Secretaries of State and reporting to the Prime Minister on their work.

Several honourable Members in the other place recently urged the commissioners to play a more visible role. I agree. Oversight must be seen to be effective. That is why, as noble Lords mentioned—indeed, the noble Lord, Lord Reid of Cardowan, gave us an up-to-date briefing on what was going on down the other end—the Intelligence and Security Committee is, for the first time, holding an open evidence session with the three heads of the intelligence agencies. It is because of this landmark occasion that the noble Lord, Lord Butler of Brockwell, as a member of the ISC, told me that, contrary to his wish, he would not be able to participate in today’s debate. However, we should remember that so much of the commissioners’ work—and, of course, that of the ISC—involves extremely sensitive information and that there will be limits to what they can responsibly report on publicly.

Separately, the Intelligence and Security Committee examines the policy, administration, past operations and expenditure of the intelligence agencies. Noble Lords will remember that earlier this year the Justice and Security Act significantly reformed and strengthened the committee’s powers. As a result of that Act the intelligence agencies are more accountable to Parliament and no longer have the ability to withhold information from the ISC. The new ISC has a broader remit, extra powers to consider past operational activity, and twice the resources. Those reforms were not conjured from thin air but followed public consultation on the best way to modernise judicial, independent and parliamentary scrutiny of the intelligence agencies, while allowing them to get on with keeping us safe.

The noble Lord, Lord Foulkes of Cumnock, asked what the composition of the ISC will be and how it will be brought together. I can say that with the new appointments process, although the PM nominates the members after consultation with the Leader of the Opposition, Parliament will appoint the ISC. The reforms in the Justice and Security Act mean that the ISC will itself select its chair. Should the committee wish to nominate a member of the Opposition as the chair, it will be free to do so. I hope that that will reassure the noble Lord.

[Lord Foulkes of Cumnock]

I am grateful to the Minister for that. However, can he clear up the point I raised about the balance of membership between the two Houses? As I understand it, we are being required to provide 50% of the running costs. We are also used to Joint Committees of both Houses having roughly equal membership. Can he assure us that that will be the case with this committee?

[Lord Taylor of Holbeach]

If I sought to reassure the noble Lord, I might make a mistake. However, I will check that out and write to him. The noble Lord makes a very good point as a loyal Member of this House, and I hope that I will be able to give him a positive answer.

We have to give these new arrangements time to bed down and to prove their effectiveness. I am certain that the committee will succeed in giving Parliament and the public confidence that the Executive and the agencies are properly held to account. As the noble Lord, Lord Soley, said, the whole business of keeping legislation up to date is a matter for the House authorities, and he made an interesting suggestion about how we can keep pace with technical change. However, that is a matter not only for the Government but for the House authorities as well.

Supervision does not stop with the ISC. The courts provide an independent avenue for anyone who wishes to complain about intelligence activity. Anyone who feels that they have been subject to improper use of intrusive powers by the intelligence agencies can complain to the Investigatory Powers Tribunal, which provides independent judicial oversight. If it decides that legislation has been breached or human rights infringed, it can quash warrants, order the destruction of records and award financial compensation.

One need only look at the range of activity this year alone to see that the system works. The ISC has published reports on foreign involvement in UK critical national infrastructure, communications data, and GCHQ’s alleged activity in relation to PRISM. It is now reviewing the tragic killing in Woolwich in May and will begin another review next year into intelligence legislation, which may assist with the point made by the noble Lord, Lord Soley. The Interception Commissioner is investigating reports related to interception following the Snowden leaks. A judicial review of the police’s decision to stop David Miranda in August is currently being heard by the courts, and the independent reviewer of terrorism legislation—David Anderson QC—will then report on the police’s use of terrorism powers in that case.

The Investigatory Powers Tribunal is considering several cases arising from the Snowden leaks that have been brought by parties including Liberty and Privacy International. If these investigations and legal cases lead to criticisms, recommendations for change, or adverse judgments, the Government will listen, reflect and respond. This is how effective oversight works, and this is how we can best ensure that Parliament and the public can have confidence in the work of intelligence agencies while protecting the secrets that need to remain secret.

I will now comment on some of the points made by noble Lords in the course of the debate. I welcomed all the contributions, which were good. I do not necessarily share the views of my noble friend Lord Blencathra on the proportionality of different levels of terrorism. I thank the pre-legislative Joint Committee on the draft Communications Data Bill, which did Parliament great justice in its scrutiny. The ISC undertook similar scrutiny of that Bill; it took evidence from the intelligence agencies and was briefed on GCHQ capabilities in this area. From its informed position, it considered there was still a communications gap requiring legislation. The noble Lord, Lord Reid of Cardowan, paid right and proper tribute—

[Lord Reid of Cardowan]

Given the Minister’s accolades for all the work done by both the ISC and the committee of the noble Lord, Lord Blencathra, can he tell us what has happened to that Bill? What is the blockage?

[Lord Taylor of Holbeach]

I do not think that there is a blockage, but I think it is sensible that we reflect on the two committees’ contributions to the legislation. No doubt the Government will bring forward legislation in due course to cover the gap that was detected in our ability to handle modern communications.

[Lord Reid of Cardowan]

I am grateful, but given that a gap has been identified, that means there is a gap in counterterrorism, surveillance and national security. Can the Minister explain why it is taking so long to reflect on that, when so much work has already been done? Will he comment on the suggestion that the blockage is actually the Deputy Prime Minister?

[Lord Taylor of Holbeach]

I think that the noble Lord is being a little mischievous on this particular issue. Heaven forfend that he should be so. He knows the background against which the issue is being debated. All I can say is that the challenge to be effective in the real world, and maintain a proper balance, is what the Government are seeking to do. That is why we are so supportive of having proper scrutiny of the security services. I have been interrupted. I hope noble Lords will forgive me, but I must rush because otherwise I will run out of time.

I reassure my noble friend Lord Strasburger that the ISC has very much increased resources, and is now responsible not just to the Prime Minister but to Parliament itself. The communications data gap relates to what is happening in the UK. GCHQ is a foreign intelligence-gathering agency, and this is its core mission. The Communications Data Bill focused on the communications gap in this country.

The noble Lord, Lord Judd, made one of his usual passionate contributions. I noted his call for a longer debate on these issues. I would welcome this. However, the shortage of time has not inhibited noble Lords in the expressiveness of their contributions.

I thank the noble Lord, Lord Rosser, for his contribution. It is not technical capacity that governs intelligence gathering but the need for intelligence. I cannot comment on the Foreign Secretary’s statement applying to overseas activities, but all of GCHQ’s work is carried out in accordance with a strict legal and policy framework which ensures that its activities are legal, necessary, proportionate and targeted. I hope that we can say that of all the activity that is done in our name by these important parts of our national security apparatus.

EU: Free Movement of Labour

Lord Taylor of Holbeach Excerpts

Tuesday 5th November 2013 Lords Chamber

[Lord Empey]

To ask Her Majesty’s Government what assessment they have made of the present arrangements for the free movement of labour within the European Union.

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

My Lords, the Government support free movement but do not tolerate abuse. We are focusing on work across government to tackle abuse of free movement and address pull factors such as access to benefits and public services. We have consistently raised the issue of fraud and abuse with other member states, and in April the Home Secretary wrote, with Germany, the Netherlands and Austria, to the Council presidency. We continue to welcome the brightest and the best but immigration must benefit the UK.

[Lord Empey (UUP)]

Given that the economies of the original EEC countries were at similar stages of development and that the 28 economies of the current EU are not, is the policy of free movement of labour compatible with current economic circumstances, and will the Minister confirm that the Prime Minister will be raising this matter with our EU partners in the course of his reform negotiations?

--- Later in debate ---

[Lord Taylor of Holbeach]

I can certainly reassure the noble Lord on his latter question. As regards our negotiations with the EU, although we support the principle of free movement we continue to give high priority to preventing the abuse of free-movement rights. The Home Secretary has repeatedly raised questions about free-movement abuse at European level and, as I said, we are getting increasing support for our position from other member states, including Germany.

[Lord Taverne (LD)]

My Lords, the Prime Minister argues eloquently for the completion of the single market and for its extension to services, which would greatly benefit this country, but is there not a transparent inconsistency, and is it not obviously counterproductive, to seek at the same time to modify the free movement of labour, which is one of the pillars of a single market?

[Lord Taylor of Holbeach]

I accept that the noble Lord is quite right in saying that free movement was one of the founding principles of the European Union, and we in this Government support it. Although the vast majority of individuals coming to the UK reside here lawfully and make a positive contribution to our society, a small minority abuse these rights by either becoming a burden on their local communities or turning to crime.

[Baroness Smith of Basildon (Lab)]

My Lords, in each answer the Minister has spoken of abuse of the system. Does he accept that enforcement of the national minimum wage helps to prevent bad employers undercutting the wage of local workers by not allowing them to exploit foreign workers on lower wages? We know that that is a real problem but only two prosecutions have been brought since this Government took office. To help tackle this issue, will the Minister and the Government support us by giving local councils the power to enforce the national minimum wage and bring their own prosecutions?

[Lord Taylor of Holbeach]

The noble Baroness has expanded the Question somewhat into Labour policy and that is not necessarily something on which I can support her. However, I reaffirm the Government’s support for the national minimum wage. Indeed, it has never been part of our policy to do other than to maintain a national minimum wage, and we do so regularly.

[Lord Hannay of Chiswick (CB)]

My Lords, will the Minister say whether the Government support the findings of the report published this morning by UCL which demonstrates that there are major benefits to this country from economic migrants from the European Economic Area and the European Union? If the Government agree, does he not think that it is more important to concentrate on the practice of free movement rather than the principle?

[Lord Taylor of Holbeach]

The principle is important but it is the practical that I have been trying to address. I have not read the UCL report but I have noticed the media comments on it and the key findings. I reiterate that what matters now is that we take steps, through our policy on access to benefits and public services, to reduce the incentives for abuse and to prevent this problem from growing.

[Lord Avebury (LD)]

My Lords, has my noble friend noticed the Ipsos MORI survey which shows that the level of abuse of free-movement rights is far less than Mrs May seems to imagine?

[Lord Taylor of Holbeach]

I have not noted that particular report. I am concerned that we are experiencing a pull factor in this country, and that is something that we need to address if we are going to get a proper balance between migrants who are coming here to support the British economy and those who, through other purposes, are seeking to abuse our systems.

[Lord Lea of Crondall (Lab)]

My Lords, will the Minister recommend that all colleagues study reports on the nature of multinational corporations in this context? Is he aware that many executives and other workers in many industries, including the motor car industry, are moving all the time from, say, a job in Frankfurt to a job in Limoges or wherever? We need Ministers’ assistance to improve the public’s perception of this issue as the tabloids are not going to do it.

[Lord Taylor of Holbeach]

I agree with the noble Lord that many of the people coming here are essential to the British economy. That is why the Government facilitate their presence here, to support economic activity in the country. As I say, we welcome the brightest and the best.

Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Tuesday 5th November 2013 Lords Chamber

Moved by

[Lord Taylor of Holbeach]

That it be an instruction to the Committee of the Whole House to which the Anti-social Behaviour, Crime and Policing Bill has been committed that they consider the Bill in the following order:

Clause 104, Schedule 5, Clauses 105 to 109, Clauses 151 to 154, Clauses 1 to 10, Schedule 1, Clause 11, Schedule 2, Clauses 12 to 86, Schedule 3. Clauses 87 to 96, Schedule 4, Clauses 97 to 103, Clauses 110 to 118, Schedule 6. Clauses 119 to 131, Schedule 7, Clause 132, Schedule 8, Clauses 133 to 150, Clauses 155 and 156, Schedule 9, Clauses 157 to 161.

Motion agreed.