Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Monday 25th November 2013 Lords Chamber

Moved by

[Lord Ahmad of Wimbledon]

34B: Clause 55, page 32, line 38, leave out “consult”

[Lord Ahmad of Wimbledon (Con)]

My Lords, I can be brief with this group of government amendments which implement the recommendations made by the Delegated Powers and Regulatory Reform Committee in respect of certain of the delegated powers in Parts 1, 4 and 5 of the Bill. The amendments to Clauses 55, 56 and 57 are worthy of particular comment. The Delegated Powers Committee argued that, in relation to the public spaces protection orders, the current provisions in the Bill requiring a local authority to consult with the chief officer of police and community representatives was too narrow given the potential impact of such orders. The committee further argued that there should be a general duty to publicise the intention to make a notice. We are happy to accept the point made by the committee. The amendments to Clause 55 therefore require a local authority to publicise its intention to make an order so as to allow persons affected to make representations. In the normal way, a local authority would be bound to consider any such representations before making an order. This process is also replicated where the local authority plans to extend, vary or discharge an existing order by the amendments to Clauses 56 and 57 respectively. I beg to move.

[Baroness Smith of Basildon]

I was a bit slow on to my feet; I suspected that there may be other noble Lords wishing to speak on this.

The noble Lord will recall that these are the amendments over which I last week raised our concerns about their being tabled late. The anticipation was that they would be debated the day after they were laid, so I am pleased that we have had a gap and welcome the opportunity to look at them more closely.

The amendments to Clause 55 are in response, as the noble Lord has said, to recommendations from the Delegated Powers and Regulatory Reform Committee. The Government had tried to confer a wide-ranging and significant power on local authorities to control the ways in which public spaces are used without any requirement to publicise the public spaces protection order before it was made. We agree with the committee that that would have been inappropriate delegation of powers. I am pleased that the Government have tabled the amendment, which would require a local authority to publish the text of the proposed order, if I understand it correctly, or an extension in duration of an existing order, or any variation in a public spaces protection order. It adds clarity, which I welcome, but there are still concerns about the amended clause that will need to be addressed later in passage of the Bill.

As the noble Lord said, government Amendments 56ADA and 56ADB on orders relating to the Housing Act—those on absolute grounds for possession of anti-social behaviour—and government Amendment 100 about the granting of injunctions will ensure that those elements are subject to the affirmative procedure. We have serious concerns about these proposals. The amendments at least provide for a greater degree of accountability of the legislative process and add greater scrutiny to these powers, which we find deeply flawed. There are loopholes and my noble friend Lord Rosser will be speaking to those in the course of today’s debate.

I will give one example. Clause 4 specifies the bodies which are authorised to apply under Clause 1 for an injunction against a person to prevent them engaging in conduct capable of causing nuisance and annoyance. Subsection (5) of that clause will enable changes to be made to bodies and persons who are authorised to apply for an injunction under Clause 1, including making changes to the circumstances in which a body may make such an application. The Government’s view has been challenged, and I think they now accept this: it is not a general power to amend but is restricted to adding persons who may apply for an anti-social behaviour order under Section 1 of the Crime and Disorder Act 1998.

The Delegated Powers Committee said that the Home Office’s explanation does not take account of the different nature of an anti-social behaviour order from an injunction under Clause 1, including the different tests to be applied in each case when determining an application. As a result, the Government have now tabled amendments whereby this would now rightly be subject to an affirmative procedure, which is much more appropriate.

Government Amendments 56ADA and 56ADB relate to subsections (10) and (11) of Section 84A of the Housing Act 1985. One of the conditions that, if met, could be used to trigger repossession proceedings, is that the tenant,

“or a person living in or”,

even,

“visiting the dwelling, has been convicted of a ‘serious offence’; and that offence was committed in the locality of the dwelling, against a person who lives in the locality, or against the landlord or a person employed in connection with the landlord’s housing management functions”.

The Delegated Powers Committee stated that,

“the scope of the power is not limited in any way, but simply allows the addition or removal of any indictable offence. In our view, this is a significant Henry VIII power, since the way in which it is exercised will have a direct effect on the circumstances in which a court will be required to order possession”.

Therefore we certainly agree with the government amendment that it is more appropriate that these amendments subject this process to the affirmative procedure. Obviously, the repossession process can have a hugely detrimental impact on people’s lives, and as such, any such power introduced by the Government must be monitored closely. Noble Lords have to be aware that we have serious concerns about that policy. My noble friend Lord Rosser will speak about that in more depth when we come to our debate on Clauses 86 and 89 stand part.

My key point on these government amendments is that while we think that they are more appropriate, agree with the comments made by the Delegated Powers Committee, and support specific amendments—we certainly will not oppose them—we still have concerns, even with that additional layer of scrutiny, that the proposals should be subject to greater scrutiny from your Lordships’ House. We shall speak to those later in the debate.

[Lord Ahmad of Wimbledon (Con)]

I note what the noble Baroness has said and appreciate the support, albeit qualified, for the government amendments from the Benches opposite.

Amendment 34B agreed.

--- Later in debate ---

Moved by

[Lord Ahmad of Wimbledon]

35A: Clause 55, page 32, line 39, at beginning insert “consult”

--- Later in debate ---

Moved by

[Lord Ahmad of Wimbledon]

36A: Clause 55, page 32, line 41, at beginning insert “consult”

--- Later in debate ---

[Baroness Smith of Basildon]

As a point of clarification, I am fully aware that it is not three years in every case—it is up to three years. However, one of my concerns is that, because of the cost of renewal and the uncertainties around that, a number of local authorities may think that three years has become the default. It will be easier for them to run to the maximum of three years rather than face the bureaucracy and costs of renewal by doing otherwise.

[Lord Ahmad of Wimbledon]

My Lords, first, I thank all noble Lords who have participated in this debate. In doing so I make the general point that sometimes in debates such as this you hear some noble Lords saying that the period is too long and others saying that it is too short, and so going down the middle is normally the solution. The noble Baroness talked about perfection. Dare I say that, perhaps on this clause, we are as near to that as we can be? I will address the amendments and the questions as far as I can but I hope, as I always do with the noble Baroness opposite, that she will gain some reassurance from what I say, if not from my words then at least from my tone.

These amendments relate to the process of reviewing and extending public spaces protection orders, as we have heard. As noble Lords are aware, there is currently no statutory review point for the orders we are replacing and they can run indefinitely. The argument has been made about where we are today. Putting in a limit is a positive way forward, otherwise—to quote the noble Baroness’s words back at her—these orders run on and on. It is important to look at how they should be reviewed. I believe that there should be a formal review point, which we have decided to set at three years.

The effect of Amendments 41B and 44A, which stand in my noble friend’s name, would of course be to limit this to 12 months. I have listened to the arguments that she put forward. As we have made clear in the guidance, orders do not have to last for three years—a point just made by the noble and learned Lord. There is flexibility within this, according to the circumstance and the situation and at the discretion of the issuing authority, including the local authority, as to what is appropriate. If appropriate, these can be reviewed or discharged before three years have elapsed. My view is more qualified and endorsed after listening to the debate and I believe that three years is a proportionate balance between the needs of users and the protection of the community, especially given the everlasting orders that we are seeking to replace.

Amendments 44B and 49A—which I take to be an alternative to Amendments 41B and 44A—would ensure that orders could not be extended more than once. The noble Lord, Lord Harris, raised the specific point that the legislation allows only for renewal. I am sure that he has reflected on Clause 56; there are provisions specifically to allow for the recurrence of a renewal of an order. He is nodding so I am sure that he agrees with the point I am making.

Of course, there are situations in which longer-term restrictions could be necessary; for example, as I am sure my noble friend is aware, these orders will replace, among other things, dog control orders, as the noble Baroness, Lady Smith, said. This means that a public spaces protection order will be required, as a dog control order is now, to ensure that the fouling of public land is dealt with. I am sure that my noble friend will agree that this is not a problem that can be fixed in three or indeed six years and an ongoing restriction is therefore required. As such, preventing the further renewal of orders would mean communities having to put up with dog mess as well as other potentially anti-social behaviours, such as public drinking.

Turning to Amendment 48, my noble friend will be aware that the orders being replaced by the public spaces protection order do not include a formal review and, as such, can last indefinitely. In reforming the powers, we believed that it was only right that a statutory timeframe was built in, and I am sure that my noble friend will welcome that in principle. As the legislation states, the review should be conducted every three years.

Of course, I understand the concerns raised by my noble friend about the potential impact of a three-year restriction if applied to all orders but, as I have already said, the legislation is clear that councils can limit the duration of an order to a period of less than three years. Indeed, as the draft guidance suggests, in a situation where a public right of way is being closed for the first time to try to deal with a specific issue, the council may well prefer to review this after a shorter period of time.

To make this amendment would mean that all orders covering rights of way would have to be reviewed every six months. This would include, as I have already mentioned, welcome restrictions to deal with dog fouling and the consumption of alcohol. This would turn the new power into a bureaucratic nightmare that resulted in councils that decided to use it living in a loop of constant consultation and review. As I have said before, in my own experience as a local councillor for 10 years, consultations were regularly part and parcel of our decision-making, but if we had to issue an order and then immediately start another consultation, I fear that we would be constantly in consultation mode.

[Lord Greaves]

Does my noble friend accept that there could be a difference between the kinds of restrictions he is talking about, which in appropriate circumstances we would all find sensible to last for a long period of time, and actually banning access itself? It is when access itself is banned on a right of way that the real problems start to occur.

[Lord Ahmad of Wimbledon]

I take on board what my noble friend is saying. That is why I believe that, as the clauses are drafted, there is flexibility with regard to the circumstances, the situation and indeed the tenure appropriate to the offence that is being perceived. I have already flagged up that in this instance, if an issue arose for the first time, the local authority may well be minded to apply an order of smaller duration to allow for exactly the kind of review and assessment that my noble friend is suggesting. I understand the point my noble friend makes and, as I have said, it probably refers more to the restricting of access than anything else. I have listened and we will consider how to make the guidance more specific in this regard.

Finally, Amendment 55A relates to appeals against public spaces protection orders. My noble friend has asked for clarification of whether there is a right of appeal against the extension of an order. That is a fair point. The amendment would provide an additional opportunity to challenge an order every time it was extended. This could result in additional appeals, even if the circumstances had not otherwise changed. That said, my noble friend has raised an important point and I will take it away and reflect further on it.

The noble Baroness, Lady Smith, asked if I could predict the number of orders and renewals. Crystal balls are hard to come by and the important thing we are seeking to do here is to ensure that the orders are specific, time-limited and can be reviewed. Again, if the behaviour has been corrected, the order does not need to stay in place for ever. That is an important point to bear in mind. How often are we expecting the orders to be renewed? That is very much up to the local authorities to decide. One order can cover more than one behaviour with a shorter consultation process, so there is less paperwork, less bureaucracy and less delay. Reviews can be quite light-touch, so one review may be more intensive than another. It would be almost impossible to give a cost for each review.

We should not forget that there is an absolute need for democratic accountability for the continued operation of these orders. The Government feel that the balance has been struck. The noble Baroness talked about the Ramblers and Battersea Dogs and Cats Home. Perhaps she would like to respond and tell me whether she believes that what we are seeking to do in Clause 56 is appropriate, because the current situation means that there is no time limit. We are seeking to ensure three years, with the possibility to review, and a three-year period is allowed for only if the local authority chooses to persist with that; if it chooses to put one year down, that is its prerogative.

[Baroness Smith of Basildon]

The noble Lord invites me to say whether I think it is a good idea. The way to find that out is to review the operation after a couple of years. I am not really satisfied that saying that because some people want one year and some people want it for ever, if we find the middle number that is the right way to go. That does not address specific circumstances but I thank him for trying to answer my questions. He missed one: I asked what assessment had been made of why these were needed and what demand there was. Who has called for these changes to be made and have one order covering all three issues?

[Lord Ahmad of Wimbledon]

My Lords, I hope I have illustrated that there is a need to decrease bureaucracy when you take three and turn it into one. Coming back to a point that the noble Baroness raised about enforcement, it makes that much easier. Certainly, my own experience in local government substantiates that. I am sure other noble Lords may share that experience.

It is right and proper that these orders should be regularly reviewed. The noble Baroness asks what evidence there is and why we have taken this route. The Government believe it is right to devolve these decisions to the people who are on the coalface, so to speak: the local authorities, the people who are closest to circumstances at a local level. I hope that I can share my own experience but also that of anyone who has served in a local authority. The last thing you need is central government or a central diktat telling you what is appropriate for your local area.

[Noble Lords]

Oh!

[Lord Ahmad of Wimbledon]

What the Government are seeking to do is exactly what we have said on the tin: to allow local authorities to decide what is appropriate for them. I always take the laughter of the noble Lord, Lord Greaves, as approval.

[Lord Harris of Haringey]

My Lords, I am grateful to the Minister for giving way, but if the desire is to give all this freedom to local authorities, I am still not clear why Clause 56 is needed at all. As has been pointed out, Clause 55(8)(c) states, “must … specify the period”, so you cannot just say, “We’ll just whack it in and see what happens”, and Clause 57 allows for variation. While I am on my feet and so as not to interrupt later, in case the Minister does not have the answer in his notes, I would be interested in his response to the question asked by the noble Lord, Lord Faulks, as to the objection to changing “must” to “may” in Clause 56(5), so that there might be a less onerous process for the renewal of orders.

[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.