Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, scrutiny can be misunderstood. Criticism, however gentle and constructive, can be heard as objection. Therefore, I apologise to my noble friend the Minister that tonight I focus on what concerns me in the Bill—many aspects of which I welcome. However, I am explicit in welcoming my noble friend Lord Paddick.

The focus of the Bill is the issue of victims, which is hugely important. As I thought about anti-social behaviour, which can have an enormous impact, I also thought that identifying all victims is not always easy. Perpetrators may be victims, too. Those who engage in conduct capable of causing nuisance and annoyance may themselves be the victims of health problems, learning difficulties or the failings of society. They may become society’s victims because the response, through measures such as these, is neither appropriate nor effective. They may be victims in the traditional sense—for instance, beggars run by criminal groups.

I welcome the inclusion of positive requirements to help turn around behaviour, which, of course, is resource-intensive. However, there seems to be a blurring of lines between the civil and the criminal. We have due process for a reason: to differentiate between the factually guilty and the factually innocent, and thus between those who should and should not be subject to sanction. However, here we are without the criminal standard of proof that would be appropriate and strict liability means that we risk using orders against those who do not comprehend fully their actions or their impact. That, of course, is once we get past whether we should address through these measures conduct of as low a level as nuisance or annoyance, in the normal sense of those words. The terms are very wide; you do not even have to travel on the Clapham omnibus to invoke them.

Indeed, some people truly regard as a nuisance what is to others the exercise of civil liberties—many of your Lordships will have heard representations from naturists on this point. Other people will regard conduct that is a nuisance to some as simply normal. Some immigrant communities gather on the street because that is normal to them, but it may make other local residents uncomfortable. ACPO commented yesterday on the importance of not becoming,

“intolerant to normal child-like behaviour”.

It is alert to this, of course, because the police have to respond. We all know that legislation cannot do everything but, to quote ACPO again, talking about the importance of diverting young people from committing anti-social behaviour,

“A small minority of children and young people commit anti-social behaviour so enforcement responses need to be proportionate and effective”.

I would like to understand better why ASBOs have not been successful, given that there is such a high rate of breach. I am depressed that the impact assessment for this Bill assumes a breach rate of 40% for IPNAs, which must mean considerable reliance on the criminal or contempt of court proceedings without, for adults, the possibility of community penalties.

I will mention two other aspects. In the criminal courts, the default position is not to name and shame a child or young person for reasons of rehabilitation and safeguarding. I would like to see the same approach here. In my view, imprisonment as a sanction for breach of a CBO, an IPNA or a dispersal order, particularly in the case of a child, is not proportionate. Surely any action that justifies detention will be an offence under other legislation. In 1997, the then Government said that ASBOs would rarely be used against under-18s but that has not been the case. It is a reminder that legislation needs to be precise.

The response to many of these points often directs us to guidance and judicial discretion to mitigate harsh impacts. Even if it is appropriate that a matter gets as far as a court, I, for one, would prefer to rely on the law as expressed in statute. My noble friends Lord Dholakia and Lady Linklater, who are voices of compassion—including for those at risk of harm, whom I do not want to be thought to be ignoring— and experience of the dangers of stigmatising and criminalising, will have a lot to say on that part, I am sure.

The community remedy documents, which have been mentioned, involve the community, and I welcome that, but, as their object needs to be solely punishment, should we have concerns such as those which this House expressed when police and crime commissioners were introduced? In preparing these documents, a PCC, for electoral reasons, might not take a rounded view but might respond in a rather simplistic manner.

Having talked about proportionality and reasonableness, noble Lords will not be surprised by my reservations about dispersal powers, which I fear are too restrictive for a society that values its freedoms. I do not even get as far as mere reservations about riot-related powers of possession. Generally, the powers of eviction that the Bill introduces worry me intrinsically and for practical reasons, including the duties of local authorities whose role across the Bill needs more exploration. Nor will noble Lords be surprised at my view that public spaces protection orders are potentially oppressive. That is one issue where we are asked to look to guidance. My noble friend Lord Greaves will have a good deal to say on that.

My noble friends Lady Doocey and Lord Redesdale will talk about dangerous dogs. I take the view that the legislation should be about dangerous owners. No doubt my noble friend Lord Marks of Henley-on-Thames, along with the other stellar cast of lawyers, will address the extradition provisions in forensic detail. I warn him that I will join in on the issue of compensation for miscarriage of justice. Happily, far fewer people are affected by that than by other parts of the Bill—which is an argument in itself for not rolling back the law—but it is ironic that the burden of proof is lowered at the start of the Bill and then raised at the end when it deals with individuals who suffer a miscarriage of justice at the hands of the state. They should not have to prove their innocence, a concept not used elsewhere in the criminal justice system.

Many of my noble friends will speak about forced marriages. I give no guarantee that their views will be the same. I confess that I am not convinced about criminalisation. It has not eradicated female genital mutilation. The danger of increased underreporting because of fear of incriminating family members seems real to me.

My noble friends Lady Harris of Richmond and Lady Doocey have long been concerned about the powers and effectiveness of the IPCC. The accountability and professionalism of the police is particularly topical. So is the extent of the Schedule 7 powers under the Terrorism Act. My noble friend Lord Avebury and I will have a good deal to say in Committee on this, when we will want to understand the justification for powers that are still very broad. I welcome the proposed changes as far as they go, but without justification for the changed powers and how they are exercised in practice public confidence is jeopardised.

I return to and finish on the early clauses. These are not my words but those of Kevin Brown of Newcastle University, whose work on this I read with interest. He said that balancing can become a zero-sum game when policymakers assume that by taking rights away from one set of people they can improve the lot of another.