Anti-social Behaviour, Crime and Policing Bill Debate
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Lord Ahmad of Wimbledon
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Anti-social Behaviour, Crime and Policing Bill
Lord Ahmad of Wimbledon Excerpts(10 years, 4 months ago)
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“Guidance
(1) The Secretary of State may issue guidance to persons entitled to apply for injunctions under section 1 (see section 4) about the exercise of their functions under this Part.
(2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Ahmad of Wimbledon (Con)
My Lords, ahead of Report in the House of Commons, the Government published draft guidance for front-line professionals on the new anti-social behaviour powers. With the exception of those sections dealing with the review of criminal behaviour orders and the community remedy, this was to be non-statutory guidance.
In addition to the draft guidance produced by the Home Office, the Department for Environment, Food and Rural Affairs published a draft practitioner’s manual for tackling irresponsible dog ownership. Of course, the content of the draft guidance has been the subject of discussion during our Committee deliberations. On a number of points, noble Lords expressed concern that our expectations of how the power should be used would be in guidance with no statutory basis.
While I believe that the new powers have sufficient safeguards to ensure appropriate and proportionate use, I see merit in making the guidance statutory for all the new anti-social behaviour powers. Our intention is not to be prescriptive; it is essential that professionals and the courts have the flexibility to consider the facts of each case and choose the most appropriate course of action. However, statutory guidance will help them use the new powers more effectively. The amendments in this group will achieve that result and I trust noble Lords will support them. I beg to move.
Lord Greaves (LD)
My Lords, I wish to speak on the statutory guidance sections. I have one little amendment, Amendment 57, in this group, and it is fairly clear what it means.
This is the first time that I have spoken at this stage of the Bill, apart from one intervention, so I should declare my interests again in relation to this group and some others that we will come to. They are my membership of a district council in Lancashire as a councillor, my membership of the British Mountaineering Council, of which I am a patron, and my vice-presidency of the Open Spaces Society, and they relate to things that will come up later.
I thank the Ministers—particularly the noble Lord, Lord Taylor of Holbeach, who is not yet in his place—for the way in which they have approached this Bill, for the way in which they have been open to discussion and to holding meetings with the Bill team, and for the large amount of material that they have sent out in letters and so on. Their readiness to look at a lot of the questions raised at Second Reading and in Committee, and to come forward with quite a lot of amendments today—most of the amendments that we are discussing at the moment are government amendments—shows that they have been willing to listen. I have absolutely no doubt that the parts of the Bill in which I am interested—those on anti-social behaviour—are a lot better for that process, so I will put on record my personal thanks to them.
These amendments are all about guidance. As the Minister said, they mean that the guidance that we were told would be issued—we have already seen the draft guidance—and that is now out for consultation with various bodies will become statutory. This is very welcome. A caveat to that is that I would much have preferred the guidance to be statutory instruments and regulations, as those would have had the benefit of having to come before the House of Commons and your Lordships’ House. Nevertheless, it is better that the guidance should be statutory rather than it being left open as to whether or not people will bother to produce guidance. The fact that it is statutory guidance means that there will have to be proper consultation on it, that it will have to be published and everybody will know that, and that the Ministers issuing the guidance will have some accountability to the Houses of Parliament if we want to raise questions as a result of what is in it. That is welcome and it is being welcomed by a number of organisations with which I am in touch.
The guidance referred to in this group of amendments covers a number of different parts of the Bill, including IPNAs—I am interested that we are still calling them IPNAs following the amendment that was agreed this afternoon; I was trying to work out whether they should now be called IPHADs but at the moment they are called IPNAs—criminal behaviour orders, the powers of police community support officers, community protection notices, public space protection orders and the question of the closure of premises, and there may be others. The point that I would have made if I had been able to get in during the debate this afternoon is that the Bill is not really about everything that was discussed this afternoon.
Most of the debate was about free speech, freedom of assembly and the right of people to protest, as by-products of Clause 1. In practice, this Bill is about anti-social behaviour—or at least the majority of it that refers to anti-social behaviour is—and about whether it is successful in tackling anti-social behaviour more effectively than the existing regime based on ASBOs. I am optimistic that it will be more successful, but the guidance that we are discussing is going to be crucial to how it works on the ground. At the moment if you have to make an ASBO, you have failed.
Lord Rosser (Lab)
As has been said, the Home Office has already published draft guidance for front-line professionals. The purpose of these amendments is to refer to it in the Bill, with the conferring of powers on the Secretary of State to issue it. In one of the letters sent to us, the Minister also said that:
“We also undertook in response to yet other amendments to revisit the terms of the draft guidance for frontline professionals”.
That letter set out a list of the areas where they would review the draft guidance.
Is the outcome of that review known or is it still taking place? If it is still taking place, is the intention that we will see the outcome of the review of the draft guidance and know what it is before we get to Third Reading? We have at least had the advantage in the discussions we have had so far of knowing what was in the already published draft guidance and, if it is being looked at again, we ought to have sight of any revisions being made to it before we conclude our discussions on the Bill. That would be extremely helpful. Is it now the Government’s intention to review the draft guidance in the light of the carrying of the amendment earlier today, which must presumably have some impact on the draft guidance that has been issued?
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Greaves for his amendment and his comments. I have scribbled down here that I would convey his thanks to my noble friend Lord Taylor of Holbeach. I have so conveyed them and he has obviously heard them, so there we are.
Turning to Amendment 57, I can assure my noble friend that any guidance produced under the new clause proposed in Amendment 56 will automatically apply to any person or body designated under the new clause proposed in Amendment 53. We will come on to that amendment later in our proceedings but suffice it to say that, by virtue of subsection (2) of the proposed new clause, any designated person or body would be treated as a local authority for the purposes of Chapter 2 of Part 4 as a whole. As such, the guidance produced for local authorities under the terms of Amendment 56 will be applicable to persons or bodies designated in accordance with the provisions in Amendment 53. I hope that reassures my noble friend in relation to his amendment.
On the questions raised by the noble Lord, Lord Rosser, and taking the second question first on revisions to guidelines in the light of the vote, obviously the vote has happened and we shall look at the outcome. The guidelines will be finalised once the Bill has reached its final stages in Parliament.
As to where we are on the guidance, we are currently working with councils, the police and others. Over the coming months we will discuss the effects of the guidance but any results and further alterations will, unfortunately, not be available before Third Reading. However, the final draft of the guidance will reflect the terms of the Bill as enacted.
With those reassurances to my noble friend, I hope that he will be minded not to move his amendment.
Lord Ahmad of Wimbledon
My Lords, Amendment 22 is in similar terms to the one tabled in Committee by my noble friend Lady Hamwee and proposed by the Joint Committee on Human Rights in its report on the Bill. The amendment will specify in the Bill that when considering whether to make a criminal behaviour order, the court must be satisfied to the criminal standard of proof that the offender has engaged in behaviour that causes or was likely to cause harassment, alarm or distress to any person.
The government position was that, as the case law is clear on this point, there was no need to provide for the criminal standard in the legislation. This approach is in line with that taken in other legislation providing for other types of civil preventive orders. However, on reflection, we are satisfied that there are sufficient grounds here for taking a different approach. Part 1 expressly provided that an IPNA was subject to the civil standard of proof so, unless express provision was made in Part 2, we accept that there could be some doubt that the criminal standard would apply in proceedings in respect of the criminal behaviour order. This amendment therefore removes any such doubt. I beg to move.
Baroness Hamwee (LD)
My Lords, I am grateful to the Government for having reflected and I thank them for the amendment.
Lord Greaves
My Lords, this amendment is just trying to help the Government. They have a bit here that is wrong. I raised it in Committee and I thought it would be sorted out. I apologise that I did not notice that it had not been until it was too late to get it on the Marshalled List. Never mind: it has appeared.
In all these different sections and all the alphabet soup of IPNAs, PSPOs and the rest, there is a definition of what the local authority is in relation to that particular area. In the case of IPNAs it is all the principal local authorities. In most of them it is the lowest-tier principal local authority. For example, in relation to public space protection orders it reads:
“‘local authority’ means—in relation to England, a district council, a county council for an area for which there is no district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly”.
The definition here in relation to criminal behaviour orders is outdated. The definition in Clause 28(4) has, I think, been picked up from previous legislation which must have been enacted before there were any unitary authorities apart from the Isle of Wight, and certainly before there were any unitary counties. It simply reads:
“‘local government area’ means—in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.
This means that those areas where there is a unitary county, not a unitary district, are not included and so they are simply missed out of the list. These include Northumberland, Durham and Cornwall, for example, and, I think, one or two more.
My amendment will simply delete “the Isle of Wight”, which is a unitary county, and insert the words,
“a county in which there are no districts”.
That is equivalent to the wording elsewhere. As I say, I am just trying to help the Government by making the legislation cover the whole of England and to get it right. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I am for ever grateful to my noble friend Lord Greaves for continuing to keep us on our toes with his scrutiny of the various definitions of local government area as used in the Bill. This amendment relates to Clause 28 which, as my noble friend said, requires a chief officer, in carrying out a review of a criminal behaviour order made against a person under 18, to act in co-operation with the council for the local government area where the offender lives.
This is an area of statute law where there is more than one way of defining a local government area. I have to advise noble Lords that the definition in Clause 28 is correct, but I accept that the drafting could always adopt a different approach. In order to preserve the overall structure laid down by the Local Government Act 1972, the area of a unitary council is usually designated both a county area and a district area, even though it has only a district or a county council. Therefore, in an area where there is a unitary county council, that council will be the council for the district in which the offender resides. In short, the provision works as drafted.
Just as a clarification on the issue of the Isle of Wight, my understanding is that it is a case apart in that it still has districts, albeit no district councils. The express reference to the Isle of Wight therefore avoids any ambiguity in this respect. In light of this explanation, I hope that my noble friend is minded to withdraw his amendment.
Lord Greaves
I refer the Minister to page 31 of the Bill and the meaning of “local authority” under community protection notices, for example, where the list is different. That specifically refers to,
“in relation to England, a district council, a county council for an area for which there is no district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly”.
It does not refer to the Isle of Wight specifically and separately but refers to,
“a county council for an area for which there is no district council”.
In Clause 67, on page 40, the definition is identical to that for community protection notices.
It may be that, as the Minister said, Northumberland, Durham and Cornwall are districts as well as counties, but that would be news to them since they think that all their districts were abolished a few years ago and that, in common parlance, they are unitary counties. In normal lists of local authorities in England, you refer either to unitary authorities if that is what you mean—you could do that—or to unitary districts and unitary councils. Clearly, unitary districts such as those in Berkshire are districts and so come under the general thing of districts.
Even if the Minister’s rather obscure explanation is right, why is the same terminology not used in different parts of the Bill? Different terminology is used for IPNAs, community protection notices and public space protection orders. It is different because it has simply been picked up, in the case of Part 2 of the Bill on criminal behaviour orders, from previous legislation. All I ask is that the Minister goes away and looks at this again. Even if what he says is right, surely the terminology in the different parts of the Bill should be the same. Could the Minister respond to that?
Lord Ahmad of Wimbledon
My Lords, again, if I follow my noble friend’s point, it partly proves my own that different drafting approaches to this issue can achieve the same end. I am assured that the Bill is not defective as drafted so I urge my noble friend to accept the approach we have taken, but I listened to his comments again. I assure him that I will sit down with my noble friend Lord Taylor and the officials once more to get the required assurance that the drafting is correct. I will write to my noble friend Lord Greaves in that regard.
Lord Greaves
I am grateful for that. I hope the Minister will write to me in good time: I will put the same amendment down at Third Reading if I do not get satisfaction. If it is true that the Isle of Wight is a case on its own and has to be mentioned separately, why is it not mentioned separately in all the other cases of IPNAs, PSPOs, community protection notices and so on? The Minister seems to have it both ways. Again, he has not answered my basic question as to why—so that people can understand it—the same terminology is not used in different parts of the same Bill. The answer will be that different officials wrote different parts of the Bill but that is no reason for not standardising it when you have the opportunity. Having said that, when a Minister makes an offer, I believe it is within the traditions and courtesy of the House to accept it. I will do so and beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon (Con)
My Lords, under Clause 45 it is an offence to fail to comply with the terms of a community protection notice. The defences provided for in Clause 45 in respect of this offence in part repeat the grounds on which the making of a notice can be appealed. However, criminal proceedings on breach of a notice should not be the forum to repeat earlier proceedings on an appeal against a notice. Amendments 37, 38 and 39 therefore remove this particular defence contained in subsections (3) and (4) of Clause 45. It will continue to be open to a person charged with the offence of failing to comply with a notice to argue that they took all reasonable steps to comply with the notice or that they had some other reasonable excuse for the failure to comply. This will bring this aspect of the Bill into line with the approach taken with the public spaces protection order and the closure powers where a reasonable excuse defence also applies. I beg to move.
(a) to a constable, or(b) to a person employed by a local authority or designated by a local authority under section 50(1)(c)”
Lord Ahmad of Wimbledon
My Lords, the Bill confers the power to issue a community protection notice on the police, local authorities and persons designated by a local authority. Provision is made for items used in the commission of the offence of breaching a notice to be forfeited or seized on the order of a court. As my noble friend Lady Hamwee pointed out in Committee, forfeited items must be handed over to a constable and disposed of by the relevant police force. Similarly, the power to seize items is vested in a constable. My noble friend suggested that amendments be made to confer similar powers on local authority personnel in the interests of parity. The Government are satisfied that this would be a sensible extension of these provisions and Amendments 40 to 45 to Clauses 47 and 48 modify the provisions accordingly.
My noble friend also tabled amendments in Committee which sought to enable persons authorised by a local authority to serve a closure notice. I said then that I could see merit in such an approach and that is why the Government have tabled amendments to achieve just that. Amendments 63 to 70 would allow the local authority to contract out the service of the closure notice, while the decision to issue the closure notice would continue to rest firmly with the local authority. I commend the amendments to the House.
Baroness Hamwee (LD)
My noble friend Lord Greaves often describes what this House is about as ensuring that Bills are workable. That was what was in my mind in tabling these amendments at the previous stage. I do not suppose that the world will change dramatically as a result of them, but I am glad that we are making the Bill more workable at local level. I am grateful for that.
“(7) An interested person may not challenge the validity of a public spaces protection order, or of a variation of a public spaces protection order, in any legal proceedings (either before or after it is made) except—
(a) under this section, or(b) under subsection (3) of section 63 (where the interested person is charged with an offence under that section).”
Lord Ahmad of Wimbledon
My Lords, in Committee my noble friend Lord Faulks and other noble Lords questioned the effect of Clause 62(7). He asked whether this had the effect of stopping an application for judicial review against a council that makes a public spaces protection order. I agreed to go back and consider the matter further. On reflection, it is true that, as originally worded, the clause meant that judicial review was not available. This was because an interested person can challenge an order in a broader way than is open under a judicial review and, as such, the requirement for that process did not seem necessary. I believe that this is right: it ought not to be possible for the same person to challenge a public spaces protection order on effectively the same grounds through two different legal procedures.
However, as my noble friend pointed out, because only “interested persons” as defined in the Bill may challenge a decision to make an order, this has inadvertently left national bodies and others who do not fall into the category of an “interested person” without any means to challenge a decision. Amendment 51 rectifies this and ensures that the option of judicial review is available to those who do not qualify as “interested persons”. I hope the House will agree that this is a fair way of ensuring that all parties with an interest in a public spaces protection order can challenge the terms of the order should they consider there to be a case for doing so. I beg to move.
Lord Greaves
My Lords, there was quite a lot of discussion about this question in Committee and it became clear that the Bill was not very clear. I think that the noble Lord, Lord Rosser was involved in those discussions. The amendment now proposed is extremely welcome and has been welcomed by various national organisations that were concerned about it. Again, it is to the credit of the Government that they have seen the sense of this and sorted it out.
Lord Ahmad of Wimbledon
My Lords, in Committee I undertook to consider an amendment tabled by my noble friend Lord Brooke of Sutton Mandeville that sought to acknowledge the excellent work of the City of London Corporation in managing some of the important public spaces in and around the capital. We agree that my noble friend’s proposal has significant merit. Amendment 53 therefore provides for statutory custodians, such as the City of London Corporation, to be designated by order of the Secretary of State. The effect of such an order will be to enable the designated body to make public spaces protection orders in respect of the land they are also responsible for managing. The amendment also includes the safeguards proposed by my noble friend ensuring that the local authority will continue to have precedence in the decision-making process. Therefore, a designated body will be able to make a public spaces protection order only where the local authority does not wish to act.
In addition, any designated body will be able to make an order only in respect of those matters it already has the power to regulate through by-laws, so there will be no extension of scope. For the time being, the City of London Corporation is the only body that we have in mind to designate under this order-making power. This is in line with a similar provision that currently exists under the terms of the Clean Neighbourhoods and Environment Act 2005 in respect of dog control orders which will be replaced by the provisions in the Bill.
Amendments 52, 58, 59, 60 and 61 are consequential on the main amendment. I am once again grateful to my noble friend for raising this issue on behalf of the City of London Corporation. I trust that these amendments address the issue that he and it has raised and, accordingly, I commend them to the House.
Lord Brooke of Sutton Mandeville (Con)
My Lords, I shall speak to government Amendment 53, to which my noble friend has just spoken. In responding to my amendment in Committee, my noble friend Lord Ahmad was kind enough to acknowledge that there appeared to be a strong case for extending the availability of public spaces protection orders to bodies other than local authorities. I am most grateful that further consideration has confirmed that view. I know also that the City of London Corporation, whose position prompted my earlier intervention, is grateful for the constructive and open-minded approach taken by officials during discussions on this point. No doubt, other bodies that manage public spaces under statute but are not local authorities will also find the change helpful.
My noble friend will recall that in my amendment in Committee, to which Her Majesty’s Government have now helpfully responded, I alluded to Epping Forest. In this appreciation of the Government response, I quote a testimonial about the Corporation of London from 1979—35 years ago—when I moved in the Commons the Second Reading of a private City of London (Various Powers) Bill on behalf of the City which primarily related to Epping Forest. Two of my noble friends who are now in your Lordships’ House spoke in that Second Reading debate: my noble friend Lord Tebbit, then MP for Chingford, and my noble friend Lord Horam, then replying to the Bill as Under-Secretary for Transport. They were thus witnesses to the quotation uttered by the late Arthur Lewis—then and for the previous 34 years Labour MP for West Ham, where he was Tony Banks’ predecessor—when he spoke in that debate. I quote the conclusive passage in his speech:
“I do not trust the Department of Transport. By its actions over the years it has not proved that it has the best interests of the people at heart. The City of London has proved this. It has done so for 100 years, and certainly to my personal knowledge for the past 34 years … I have gone along to many Ministers, ministerial advisers and local government officers. I have never found any of them so accommodating or helpful as the City of London authority and its officers. They have not put themselves out in the way that the City of London’s officials have. When I have problems or difficulties over Wanstead Flats, West Ham park or Epping Forest, I know that I get better treatment from the authority’s officials than I do from ministerial Departments”.—[Official Report, Commons, 6/3/79; col. 1203.]
I am confident that the Home Office will be rewarded by the Corporation of London for government Amendment 53 with just such similar imaginative service in future.
Finally, to wind up, I also thank the Minister for taking up the drafting point in Clause 67(2) that I raised in Committee in relation to the interpretation of Chapter 2. I note that this has been addressed in the Report stage print of the Bill now before us and I express appreciation for the Government’s reaction to that.
Lord Rosser
I will just raise one or two questions on these amendments. Again, I look particularly at what was said in the letter we received from the Minister. On these particular government amendments, that letter ended by saying that any public spaces protection order,
“made by a designated body under the provisions of the new clause would take precedence over a PSPO made by the local authority in whose area the land is situated”.
As I understand it, that means that a PSPO made by the City of London Corporation—if it was so designated—would take precedence over a PSPO made by the local authority covering the area of Epping Forrest, Ashtead Common, Hampstead Heath or any other areas. I would be grateful if the Minister could confirm whether that is the case. It is what the last sentence of his letter dealing with these government amendments says, as I just read out.
On the face of it, that would appear to be rather odd because Clause 55, which deals with public spaces protection orders, says that two conditions must be met, the first that,
“activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality”.
If the City of London Corporation has responsibility for managing an open space, presumably most of those who will be deemed to be affected on the basis of the,
“quality of life of those in the locality”,
are unlikely to actually live in the open space and likely to live in the areas surrounding it, which are presumably within the area of the local authority.
I am not seeking to raise some frivolous point, and my intention is not to oppose this amendment. What I am getting at is whether there are potential areas of conflict now between what the City of London Corporation may deem to be necessary or desirable in a public spaces protection order and the views of the local authority, bearing in mind that it is surely only the local authority that can make the judgment on whether activities were being carried on which had a detrimental effect on the quality of life of those in the locality. I would be grateful if the Minister could clear that up. Perhaps I have misunderstood it. If I have, I am sure the Minister will explain that when he responds.
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend for his kind remarks and I reiterate the Government’s thanks for raising these issues. On the noble Lord’s point on clarification of the letter, it is my understanding—and we are just double-checking—that the letter got the position the wrong way round, so we apologise for that. I trust that clarifies the point.
Lord Rosser
If I may confirm what the letter should have said, it is that the PSPO made by the local authority has precedence over that made by the City of London or a designated body. That clears it up. I thank the Minister very much.