Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Monday 25th November 2013 Lords Chamber

[Lord Harris of Haringey]

My Lords, I echo the remarks made by the noble Lord, Lord Faulks, because I do not understand what this clause is about. Maybe it is my failure to read it properly, but this seems to be about a mechanism for challenging process. It is not an appeals process so it does not do what is says on the tin or in the Explanatory Notes. This is solely about the validity of orders. The noble Lord, Lord Greaves, is concerned about the Ramblers’ Association acting on behalf of ramblers who use a path. The association would only be able to challenge an order on the basis that the local authority did not have the power to make that order, or the particular variations, or that it had not complied with the process described elsewhere in this clause. I rather assumed that an appeal would be for somebody to look again at the principles going into that decision, not whether the process was followed correctly. This is not the clause described in the Explanatory Notes. It is something very different.

If it is the Government’s intention to create an appeal mechanism of some sort, this is not it. However, if the Government’s intention, irrespective of what is said in the Explanatory Notes, is to provide a mechanism for challenging the validity of the process, I do not understand why we have this one, given that all those cases would be amenable—as I understand it—to judicial review. It would be helpful if the Minister told us if this clause is meant to reflect what is said in the Explanatory Notes or what it says in the clause heading “Challenging the validity of orders”. If it is the latter, what is the point of having nicely bound Explanatory Notes that do not tell us the Government’s intentions?

[Lord Rosser (Lab)]

My Lords—

[Lord Greaves]

Perhaps I could speak before the noble Lord, and then he could speak last before the Minister. I am grateful to my noble friend Lord Faulks and the noble Lord, Lord Harris of Haringey, for clarifying my thoughts on this. I must admit that my thoughts were muddled after reading this. I think that they are clarified now but perhaps the Minister will muddle them again—I do not know. I ask him one question. If this process is indeed one of judicial review of the process as opposed to a normal appeal on the merits of the case, will the judicial-reviewable process include the guidance as well as what is set out in the Bill?

[Lord Rosser]

My comments will be much in line with those already expressed. It is worth recalling the very considerable powers given to a local authority with a public spaces protection order. It has the power to impose such an order for a period of up to three years without, apparently, any requirement to secure the approval or agreement of any other individual groups, bodies or organisations, including the courts.

There are just two conditions that a local authority must satisfy. First is that,

“activities carried on in a public place … have had a detrimental effect on the quality of life of those in the locality”,

or that,

“it is likely that activities will be carried on in a public place … that … will have such an effect … The second condition is that the effect, or likely effect, of the activities … is, or is likely to be, of a persistent or continuing nature … is, or is likely to be, such as to make the activities unreasonable, and … justifies the restrictions imposed by the”,

public spaces protection order.

The only check on that local authority power is that:

“An interested person may apply to the High Court to question the validity of … a public spaces protection order”,

on the grounds,

“that the local authority did not have the power to make the order … or to include in particular provisions or requirements imposed by the order”,

or,

“that a requirement under this chapter was not complied with in relation to the order or variation”.

Bearing in mind the potentially significant but apparently unchallenged powers that a local authority will have to make a public spaces protection order, it is important that the Minister places clearly on record how weak or strong are the proposed provisions to challenge the validity of such orders and how, in practice, they are expected to operate.

What do the Government believe that Clause 62(2) means in practice? That is the clause referring to the grounds on which an application can be made to the High Court, to which I referred a few moments ago. In an early debate this evening, the Minister said that the fact that activities carried on in a public place had to be,

“of a persistent or continuing nature”,

and “unreasonable” was adequate protection, but each local authority will interpret those words as it sees fit. How regularly does an activity have to be carried out to be persistent or continuing? Can that issue be taken to the High Court in challenging the validity of an order? On what basis might it be deemed that a local authority did not have the power to make a public spaces protection order or to include particular prohibitions or requirements imposed by the order? Would that include a challenge that the two conditions referred to in Clause 55(1) and (2) had not been met? If so, why does the Bill not set that out clearly in Clause 62(2), or does a local authority not having the power simply mean that the challenge can be only on the basis that the area to which the order relates is not a public place?

Perhaps the Minister could give some examples of what might be deemed a prohibition or requirement that the local authority had imposed on the order which it would not have the power to impose under the Bill. Clause 62(2) also refers to a challenge on the basis that a requirement under this chapter was not complied with in relation to the order. Does that ground relate purely to process, or would it include other issues? If so, can the Minister give some examples?

How quickly do the Government think that an application under subsection (2) would be heard in the High Court? If a local authority has made a public spaces protection order preventing use of, let us say, a public footpath in the light of objections from landowners and nearby residents—or, alternatively, a local authority has made a public spaces protection order preventing the use of a large public square in a major city which is regularly used for the purpose of rallies or public protest meetings, in the light of opposition from local residents or businesses—the question of how quickly access to the High Court can be made is not unimportant.

As an individual can apply to the High Court, how much is it likely to cost to make such an application and will the use of professional lawyers be mandatory or optional? Will legal aid be available? If so, to which categories of interested people will it be available? Does the reference to an interested person making an application to the High Court mean that a business or other organisation cannot make an application to question the validity of a public spaces protection order? If that is the case, what is the Government’s argument for taking that stance?

Clause 62(5) states that,

“the Court may quash the order … or any of the prohibitions or requirements imposed by the order”.

Does that include the length of time of up to three years for which the order has been imposed by the local authority?

The Government say that the Bill is about victims, but people on the wrong end of an unjustified local authority public spaces protection order will also be victims, so what provisions in the Bill will enable support to be provided to such individuals, including support in taking a challenge to the High Court? On the face of it, one might conclude that the proposals for public spaces protection orders are fair and reasonable. If they are applied by reasonable people acting in a reasonable manner, they almost certainly will be. However, the question is: what are the safeguards in the Bill to prevent abuse of this power? What or who is there to stop a local authority from acting unreasonably in making an order in the first place? Is there in reality nothing?

[Lord Faulks]

Is the answer to the noble Lord’s question not that if an authority acts unlawfully its acts are amenable to judicial review, just as any other administrative acts are?

[Lord Rosser]

I am waiting to see what answer the Minister gives me. The noble Lord himself raised a particular reference to Clause 62, so perhaps he is also waiting for an answer to his point.

I ask the question again. Is there in reality nothing, with the only redress being an application to the High Court by an interested party? If the answer is that you go to the court on some other issue of judicial review, it comes back to the point about what this clause is doing in the Bill. If that is the case on the question I have raised about the specific grounds on which the validity of the order can be challenged in the High Court and how restrictive or otherwise those grounds are, I suggest that that is very relevant—as is the speed with which an individual can get a hearing at the High Court, along with the cost of doing so and the support that will be given to them.

There is obviously some confusion about what Clause 62 means; that is clear from the contributions made by a number of noble Lords. I hope that the Minister will be able to provide detailed answers to these questions and thus resolve any confusion there may be about what this clause is meant to mean, and in what circumstances and on what basis it will be applied.

[Lord Taylor of Holbeach]

I thank noble Lords for raising this issue because it gives me a chance to provide some detail and, to the extent that I am not able to answer all the factors, I will certainly write to all noble Lords who have spoken on these amendments.

Perhaps it would help if I explain briefly how Clause 62 provides a process by which a public spaces protection order can be challenged. The heading is “Challenging the validity of orders” and that is what the clause seeks to achieve. Within six weeks of an order being made or varied, any interested person can appeal to the High Court to challenge its validity. It is only right that those with an interest in the area should be able to do this and, as such, this route is not open to those who do not live in, regularly work in or regularly visit the area.

A challenge can be made on two grounds. The first is that the local authority did not have the power to make the order. The noble Lord, Lord Rosser, is quite right to draw the attention of the Committee to Clause 55, which stipulates the power that the order is designed to provide for. For instance, this could be in cases where the person challenging the order believes that the test for making an order had not been met. The second ground is if the requirement in this part of the Bill was not met; for example, if local community representatives were not consulted as required by Clause 55(7)(b).

The court has the power to quash the order, uphold it or quash any of the individual elements, including its time and duration. The court can decide to suspend the public spaces protection order in full or in part until the proceedings are complete. However, it does not have to do so; an appeal does not necessarily mean that restrictions are lifted. But this appeal mechanism acts as a valuable safeguard to ensure that local authorities do not use the order disproportionately.

My noble friend Lord Greaves has tabled Amendments 55 and 56, which raise the question of who should be able to challenge the issue or variation of a public spaces protection order.

I stress that it is important that we strike the right balance between councils being able to protect communities from harm and providing the right opportunities for people affected by it to challenge such action. That is why, as I have explained, we have sought to restrict the ability to challenge an order to those who have a direct interest—namely, those who live in, regularly visit or work in the area. I believe that in doing so we have given the right people an appropriate safeguard. There is, of course, nothing to stop national bodies raising a challenge through a local group or even an individual, but someone directly affected by an order should at least object to it for it to be challenged. Our reforms are all about putting the victim first, and it is only right that they have the ability to shape the local solution.

I hope I have been able to satisfy my noble friend, although I suspect not, because he strongly believes that national organisations should be involved in this process. That is not the Government’s view.

I shall seek to answer some of the particular questions that have been raised. The High Court is the appeal route for the three orders being replaced; the designated public places order, the gating order and the dog control order all have an appeal to the High Court. The noble Lord, Lord Rosser, asked when the restriction could be challenged when conduct does not justify the proposed restriction—so, in other words, there is improper balance. That is in Clause 55(3)(c). The noble Lord also asked why no one need agree to an order for it to be made. The council will have to consult the police and any community representatives they think appropriate. They may not reach agreement on the order but, none the less, if they were unreasonable in not reaching agreement in that consultation, that, too, would provide grounds for review. The intention is not to close the door on judicial reviews.

I will reflect on the noble Lord’s point on the whole business of the balance between the High Court application and judicial review—and, if I may, I shall write to him about it, because he raises a lot of detailed questions, particularly on the question of legal aid, and suchlike.

[Lord Rosser]

I thank the Minister for that. Until he made the comment about writing to me, I was going to ask him whether, if somebody considered a public spaces protection order to be unreasonable in any way at all, the Minister would say that they should pursue it under Clause 62 or do it through other legal channels. I gather that that is one issue that the Minister is going to consider and write on.

[Lord Taylor of Holbeach]

I certainly give that commitment. The noble Lord, Lord Rosser, also asked how long it would take to get an appeal heard. As he will know, that is a matter for the courts having regard to a number of factors, including the urgency of the case. He also asked how quickly a PSPO could be made; each one must be made following the requirements of the Bill, especially the consultation requirement. This will take different times in different circumstances; what is appropriate will include an assessment of the need for immediate and urgent action if this is the case. I have said already that the High Court can suspend a PSPO pending the outcome of the challenge under Clause 62, so I hope that the noble Lord will accept that. There was a lot of detail in his questions, which I think that only correspondence will be able to settle.

[Lord Rosser]

Does the Minister accept my interpretation of what the Bill says or not? It is an individual who has to take the case there—presumably, they must use professional lawyers and, presumably, there is a cost involved. Presumably, they have to feel sufficiently confident to take a case to the High Court, if it is the case that an individual has to take it and an organisation cannot take it on their behalf.

[Lord Taylor of Holbeach]

I have made it clear that this does not pre-empt the judicial review route, if that is considered preferable by the individual.

[Lord Rosser]

Then I come back to the point to which I know the Minister will respond. Is this the key clause for dealing with the belief that a public spaces protection order is unreasonable or unfair, or is judicial review the appropriate channel? The question that has just been raised goes to the heart of whether it is Clause 62 or judicial review, which is obviously not covered in the Bill. I hope that the Minister will clear up what the Government’s intentions are when he writes.