Anti-social Behaviour, Crime and Policing Bill

Lord Hylton Excerpts

Tuesday 14th January 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I am pleased to speak in support of Amendment 80G—to which I added my name as a member of the Joint Committee on Human Rights—and to follow the noble Baroness, Lady O’Loan, who has moved the amendment so powerfully.

I apologise for not being able to be present during the Bill’s Committee stage, but I have read the debate. It was striking that no noble Lord other than the Minister, of course, spoke in support of Clause 91. The noble Baroness, Lady Berridge, who is also a member of the Joint Committee on Human Rights, called it an unhelpful precedent. The noble Lord, Lord Faulks, lately of the Joint Committee on Human Rights, and the noble Lord, Lord Paddick—who have both already been quoted—called it a step too far. To the Minister’s credit, he has taken note and come back with government amendments. In my view, however, his amendments are a step not far enough. They do not meet the concerns of the Joint Committee on Human Rights which have been voiced in two reports on the Bill and lie behind Amendment 80G. The noble Lords who serve on the JCHR said in Committee that Clause 91 smacks of punishment rather than serving as a means of preventing harm. As the noble Baroness, Lady O’Loan, said, it would create a double punishment. The Minister talks about tough action, but tough action was taken after the riots, as the noble Lord, Lord Faulks, argued strongly in Committee. Moreover, in many cases the punishment will be applied to people who are totally innocent of the behaviour in question. The noble Baroness, Lady Hamwee, talked about the clause creating new victims.

In response to the JCHR’s concerns on this point, the Minister tried to reassure your Lordships that the power would be discretionary and the courts would have regard to what is reasonable before granting a possession order. He also argued in Committee that it is an established principle of tenancy law that a tenant is held responsible for the behaviour of members of their household. Surely tenancy law concerns behaviour that affects the accommodation and/or contravenes a condition of the tenancy and not behaviour that could have taken place hundreds of miles away. Indeed, the Minister himself has dubbed it “riot tourism”. That is not a phrase that I would use but it underlines the fact that we are talking about behaviour that has no implications for the neighbours of those concerned, and nor does it affect the landlord.

Research into existing discretionary anti-social behaviour powers reveals how, in practice, women are often held responsible for the behaviour of sons and/or male partners. Reporting on this research in an article in the Journal of Social Welfare and Family Law, Caroline Hunter and Judy Nixon note that two out of three complaints of anti-social behaviour against women heads of households concern the behaviour of teenage children—mainly sons—or male partners or boyfriends. The article states:

“Regardless of the difficulty and in some cases, the impossibility women experienced in controlling the behaviour of their teenage sons or boyfriends, they were deemed responsible for the behaviour and were as a result evicted from their homes … while the lack of fault on the part of the women in many of these cases was striking and in some cases acknowledged by the judges, this was not a sufficient factor to prevent the women from being punished and evicted from their homes”.

So I am not reassured by what the Minister said about this being discretionary and about the reasonableness of the judicial system.

Subsequent analysis of more recent Court of Appeal cases found a similar pattern, in particular in relation to the behaviour of male partners—not underaged children but partners. Limiting the operation of Clause 91 to cases where a riot-related offence is committed by an adult member of the household, as under the government amendment, in practice makes little difference. In many cases, it will be adults, probably males, sons or partners, who are the perpetrators.

The phrase of the noble Baroness, Lady Hamwee, was striking: we are creating new victims here. Those innocent victims who will lose their homes will disproportionately be women and children. The Minister also tried to reassure us by saying that the impact will be small, there will not be that many people affected. What about every woman and child who loses their house, their home, because of this provision? Surely that is not just; that is not fair.

[Lord Hylton (CB)]

My Lords, I am sure that nobody wishes to condone rioting or the serious damage and intimidation that it can cause. Most of us are grateful to the Government for bringing forward their amendments. Nevertheless, they do not deal with the discrimination against, for example, owner-occupiers, because they touch only on secure and assured tenants. There is the further point that the Bill, even as amended, is very likely to punish the innocent. Unless the Government can come back with a very much better defence of the clause, I shall certainly support the noble Baroness and my noble friend if they wish to press the amendment to a Division.

[The Earl of Lytton (CB)]

My Lords, first, I should like to clarify a point made by the noble Baroness, Lady Lister of Burtersett, and reinforce what she said about the Landlord and Tenant Act issues under secure tenancies.

The legal situation, as I understand it from my profession as a chartered surveyor, is that tenants are responsible for the actions of those living with them only to the extent of the lease terms and the demise concerned. It does not and never has extended to liability for the wider actions of members of a tenant’s household elsewhere. Even general paving clauses such as “immoral or illegal activity” have, as I understand it, been pleaded in vain. I put that clearly. The noble Baroness, Lady O’Loan, has raised a valid point here. The whole of Clause 91 looks like being a knee-jerk reaction that would go beyond what is necessary and desirable.

I would like to ask one or two questions for clarification. What about the whole question of the rehabilitation of offenders? When somebody has been indicted, put into prison, served their sentence and comes out, what are the circumstances in which a court will grant this further period of indefinite rustication, if you like, from any sort of enjoyment of a place that they can call a home and to which they can naturally relate? What are the safeguards? Is this the default position, or does it concern the second or third strike after the event? We do not know and I invite the Minister to clarify the position.

Moreover, what about the selective post-sentence treatment of rioters as a particular species of offender under the Bill—as opposed to, say, murderers or other offenders? Very large numbers of offences are anti-social, and virtually all have a victim class of some sort who would naturally look, under the terms of the overarching principle of this Bill, to some sort of rebalancing. I worry about the singling out of this class of offender. Maybe the Minister can explain how that works. This provision could result in a class of persons without rights to occupy anything that they could call a home of their own. That needs to be circumscribed and contained in some way because the circumstances of the offence will not necessarily be replicated. If there is no risk of replication, what is the court being instructed to do? The justification is rebalancing towards the interests of victims—for them to feel that justice has been done. Would Clause 91 achieve that rebalancing? I am not clear that it would.