Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Monday 25th November 2013 Lords Chamber

[Lord Marlesford (Con)]

There was a campaign for a long time—much too long—to remove the most unsatisfactory arrangement under which certain individual protestors hogged the space in Parliament Square, to which the noble Lord, Lord Martin, has just referred. It was eventually ended and the square is infinitely better from every point of view. We were all strongly in favour of having protests, but not permanent protests. I am not absolutely clear where the noble Lord, Lord Campbell-Savours, is suggesting his hut should be. I believe that the area, as the noble Lord, Lord Martin, said, is very much a world heritage site, and it would be difficult to accommodate a permanent building in any of those spaces without intruding on the area. I strongly support the amendment of my noble friend Lord Deben.

[Baroness Hamwee (LD)]

I support the notion, if not necessarily the detail of finding a way of using what is at the heart of our democracy and an area that has Parliament, Westminster Abbey and the Supreme Court, around it, and which is indeed a world heritage site—I shall not get into the issue of whether traffic should be using it—to provide a means of public expression. I mean expression by the public, not those of us who are in the buildings. That is something in which the Hansard Society is interested as well.

My noble friend’s speech was about the amplification of noise and his amendment would extend the prohibitions to the other prohibited activities, which are about putting up tents, having what is called sleeping equipment, and so on. The noble Lord, Lord Martin, may have referred to this, but other noble Lords have focused on noise. If there is to be an extension—I agree that the fewest extensions or prohibitions the better—I wonder whether it is necessary to deal with both aspects.

[Lord Deben]

Yes, it parallels exactly what is already enacted for Parliament Square. The reason for that is: when people look at the present situation they could easily duplicate what was the major problem in Parliament Square, which was people living there week in, week out. It excludes that, but it does not exclude the normal arrival to speak or to put forward views, or indeed to ask permission for loudspeakers, which is also possible. It would merely put us in the same position as the House of Commons, which seems to be a not unreasonable proposition.

[Baroness Hamwee]

My Lords, I accept that, of course, and the possibility of seeking permission. But we have not experienced the problem of people moving into Abingdon Green, and so on. I think that my noble friend will understand my slight caution about that part of the amendment.

[Lord Harris of Haringey (Lab)]

My Lords, I realise that when the House is in a mood of almost unanimity the noble Baroness, Lady Hamwee, can be relied on to inject a notion of something or other into the discussion. It is therefore very dangerous to say that perhaps this amendment is not quite right, but I do so as somebody with an office in Millbank House. I notice that the boundaries that the noble Lord, Lord Deben, has created would effectively mean that Millbank House could be completely surrounded by demonstrators, which would be entirely consistent with what has been said.

I am not sure that if they were to use loud-hailing equipment it would make a substantial difference. I wonder whether the boundaries are set quite right to cover the full extremities of the parliamentary estate, bearing in mind the way in which sound carries. If the Government are going to take away this amendment—as I hope they are—and think about it carefully and positively, I suggest that they look at precisely those boundaries to make sure that the whole of the parliamentary estate is covered.

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[Baroness Smith of Basildon (Lab)]

My Lords, I have some sympathy with the points made by the noble Lord, Lord Greaves, although the words of his Amendment 34A may not find too much favour in the light of the previous debate, when it refers to,

“making speeches whether or not amplified”,

given the discussion that we have had about amplified speeches outside your Lordships’ House.

There is an important criterion on which, I believe, the noble Lord is seeking reassurance from the Government. People have a democratic and legitimate right to protest in public places, and we would really not want to see these powers misused, if people are campaigning or lobbying for a particular cause or issue, although I do not think that that is the Government’s intention. It would be helpful to have some comment from the Minister. Can he give reassurance that there are no circumstances in which this provision would be allowed to curtail legitimate debate, campaigning or protest? As the noble Lord, Lord Greaves, said, there are other ways in which such issues should be dealt with. We all know of cases where laws have been used for purposes other than those intended by Governments. As the Minister will appreciate, it creates huge suspicion when provisions seem open-ended. I hope that he can give reassurance and be very clear on that, perhaps stating specifically in guidance that the intention would not be to limit in any way the democratic responsibilities of the citizen.

[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.

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I am not arguing against being able to use public spaces protection orders for gating purposes because that is how the Government now want to proceed. I am asking the Minister whether we can have some really good, genuine safeguards to ensure that they will be used only for those very local circumstances where the purpose is to keep people away from residential property and not to stop people using linking routes—usually footpaths—which are of value to the community. As it stands on rights of way, the Bill removes the basic safeguards in the Highways Act. At the very best, it shifts the balance to enable the easy closure of a right of way for three years, then for it to be extended for three years at a time, and eventually for ever. Real problems are involved in conflating gating orders with all rights of way. I am sure that there are ways around that by which everybody’s objectives can be reached, and I ask the Minister to treat this seriously and to have further discussions about it. I beg to move.

[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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Moved by

[Baroness Hamwee]

41B: Clause 56, page 33, line 9, leave out “3 years” and insert “1 year”

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[Baroness Hamwee]

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

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

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

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

[Lord Greaves]

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

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[Lord Ahmad of Wimbledon]

I never object to any noble Lord interjecting and asking questions. I have sought to explain why a defined period is specified in Clause 56. I shall certainly take back the suggestion on this matter made by my noble friend Lord Faulks and speak to officials. However, Clause 56 provides a key link through from Clause 55 to Clause 57 and sets out quite specifically the details behind the order. I therefore commend the clause to the Committee on the understanding that I will further consider Amendment 55A.

[Baroness Hamwee]

My Lords, having started as one who believes—I hope that I still do—very considerably in local democracy, I suppose that I have fallen into the trap over the years of viewing whatever comes to us on green paper as restricting it; it is the cynical view that too much legislation has somehow engendered. Like others, I do not see this debate as being two-dimensional in the way that the Minister has just described; that is, “Is it too long or too short? Well, it is in the middle so that must be okay”. It is a three-dimensional debate and the points that have been made about the expression of local democracy are important and serious. The Committee has challenged the structure of the provisions in a way that will bear a good deal of further consideration. The distinction made by my noble friend Lord Greaves between the different types of content of the orders—access on the one hand and particular activities on the other—may also get us to a better point.

On activities, I should have learnt by now not to look at my BlackBerry during debates, but a very long e-mail on this subject has just arrived from the naturists, who have been quite active in making representations on this Bill. It tells me that nudity is a state, not an activity, so how does this affect them? They are worried.

I do not want to leave it quite on that point so I come back to what the orders try to do and how that is best achieved. I shall of course withdraw my amendment at this point, but I hope that we might be able to discuss between now and Report how the orders will operate. Sadly, I see that the LGA, whose briefing I have just looked up, says that it does not think that the provisions are in need of further amendment. Perhaps we need to talk to it as well. I beg leave to withdraw the amendment.

Amendment 41B withdrawn.