Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Tuesday 29th October 2013 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, speaking so late in the batting order enables me to cross out a large number of things that I would otherwise have said, which will be to the benefit of your Lordships.

I acknowledge that the Bill, so eloquently introduced by the Minister, contains many good and useful measures. As he knows, I am something of a crime statistic sceptic. I shall not dwell on that, although he introduced that point in his introduction to the Bill. Suffice to say that at least the matter is now being looked at by the Public Administration Select Committee, and it is fair to leave matters there for the time being.

Some of the proposals I particularly welcome—on the trade in illegal firearms, the question of sexual harm and violence, and forced marriage are commendable. I will not touch on extradition—that is well above my pay grade—and I shall steer clear of dogs for the time being. I acknowledge the issue and tragedy of appalling behaviour that blights lives and, in terms of my profession, affects property values and utility. It distresses people and persecutes them. More particularly, from the point of view of public resource, it causes disproportionate costs to social landlords, the police and others, and is a burden on the public purse. We have to deal with it, but the question is whether the means are proportionate. Bypassing the legal safeguards, as appears to be apparent in Part 1 of the Bill, is rarely the appropriate way forward. That has been mentioned by many other noble Lords.

As I say, I come to this from a property angle. I am often involved in neighbour disputes. One thing to realise is that it has nothing to do with the property; it has to do with lifestyle, dogs, noisy children, music, and maybe with race or colour, and things like that. These are the things that feed into some of the loose legislation that we already have, and in that context I think of the Protection from Harassment Act. I was recently sent some correspondence highlighting just how variable the approach to enforcing that Act is. Indeed, the test for what constitutes harassment is so loose and undemanding of proof that it almost seems to be a fibbers’ charter. That probably explains why it is so often the case that with the benefit of hindsight the person claiming to be harassed turns out to be the primary perpetrator. I cannot tell noble Lords the number of occasions when I have felt that that was the situation, so definitions are vital.

In this Bill we risk falling into the same trap. I acknowledge the huge problems caused by anti-social activity but we have to have plausible, possible and legally proper procedures. I am not a lawyer so all my information on this is totally second hand. The Bill has the potential to make a difficult situation worse. It has the novel invention of making what used to be, or certainly as I understood it, the last resort equitable civil remedy of an injunction the first resort coercive measure or tool of behavioural compliance, if you please. Forgetting for one moment the legal test for something that is also tied in with criminal sanctions ultimately and with criminal activities, under this Bill one has to consider the lower civil standard of legal proof. Putting to one side the legal practicality, precedent and social propriety of attaching an injunction to a minor, Part 1 of this Bill promises to do something that it cannot in practice achieve. I would have much preferred to see some alteration to the ASBO regime. If ASBOs are considered to be substantially inoperative, why should anyone imagine that what we have here will cut any more mustard with the typical offender? That escapes me.

Under this Bill an injunction can be obtained with no cross undertaking on costs or for damages, losing the greatest single safeguard against abuse. I wonder why we should suddenly make this a free bet for the enforcer against the person accused—accused, I might add, on some of the flimsiest evidence you could possibly come across. It will generate numerous appeals and be a burden on public expenditure.

Part 2 continues with this approach. Even those found guilty by the courts are entitled to fair dealings and due process. So how does a fair and objective assessment on what has,

“caused or was likely to cause harassment, alarm or distress”,

operate and what is the convicted person to deduce from the application of such an open-ended and loose definition? That society is going to treat him fairly? Hardly. Or that he should mend his ways? Maybe. The right reverend Prelate the Bishop of Lichfield touched on this point. I can recommend a solution: introduce proper triggers, tests and defences into this Bill, identifying the nature of the act based on fact and not hearsay, supposition or mere irrational fear and let us not try to muddle up the criminal and the civil evidential test.

I now turn to Part 3. Clause 32(2) seems equally lacking in substance on its trigger provision. The bottom line is that an officer needs only to be satisfied on reasonable grounds that there is likelihood of someone being alarmed or distressed. No wonder all sorts of fair-minded and sober types such as the Open Spaces Society and, dare I say it, the naturists, have been on to me, concerned that it might be used against them. In fact, it could be used against a wide variety of people engaged in quite straightforward activities. Part 4 is no better. It rests on a concept of undefined detrimental effect. The process seems to be based on strict liability and the authority implementing it seems to have complete non-recourse powers.

I will touch on Part 11 briefly. This is nearly my final point. In March I raised matters to do with crime figures, policing and the concept of police accountability. That is the pivotal point. It seems to be the nub of what has happened since, what has been through the press and what we have heard about evidence before the Home Affairs Select Committee and so on. That cannot go unuttered in the context of this Bill. Accountability rests on several key principles. First, there will be a completely independent referral body over which there is no police influence. The noble Baroness, Lady Doocey, mentioned aspects of that. Secondly, there will be a power to recommend and insist on adoption of recommendations. Thirdly, when there has been a failure, even without criminality or malfeasance—which are actionable anyway—there will be consequences and sanctions so that the public have confidence in what is being done in their name. At the moment, none of the checks and balances we have match that template.

As I see it, the current regime is weak, although to be fair to the Minister, it is a great deal better than it was three years ago and I acknowledge some of the great strides that have been taken and the courage with which they have been pursued. However, we cannot be at all complacent.

My final point is a question. Two weekends ago, one of the Sunday papers put forward the suggestion that many civil actions taken against the police for poor performance or injustice of one sort or another have been settled out of court with the details never divulged. Of course this cuts both ways: is it people taking a free-bet pop at the police or are the police at fault? We do not really know. I am sure some of them must be worked on a no-win, no-fee legal principle. Can the Minister inform the House, or perhaps write to me, of what the numbers are by category in the period since May 2010, and whether he has any view, or can obtain any figures, on what the cost is to the public purse? As I say, the police should not be subject to free pot-shots, but also the citizenry need to know where they stand. It is important that transparency informs what we do and what we debate in this House.