Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Monday 25th November 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I have a couple of quick questions on this issue. We tabled a clause stand part debate and I was slightly taken aback when the noble Baroness, Lady Hamwee, withdrew her two amendments because they touch on the issue that I wish to raise.

First, it seems to me that there has to be a very good reason to restrict a public right of way over a highway. Will it be in guidance, as there is nothing here to say that it should be a matter of last resort and that all other options should be considered before taking that step? It would be useful to have the Minister’s comments on that. Secondly, I have clearly been dreaming about this Bill—I am affected so greatly by it. I have just checked with the noble Lord’s officials as I was absolutely convinced that I had read in a letter from the Minister that he would make the amendment anyway, but I am told he has not. Clearly it is a very good amendment and he should make it. Will he enlighten me on Clause 60(3) which states:

“Before a local authority makes a public spaces protection order restricting the public right of way over a highway that is also within the area of another local authority, it must consult that other authority if it thinks it appropriate to do so”?

Why would it not think it appropriate to do so? Why would it not consult the other authority in whose area the highway on which it wishes to restrict public access or the right of way belongs? In my dreams I thought that this had already been done, but I am told by the Minister’s officials that it has not. Can he comment on that and explain why the authority must consult the other authority in whose area the highway is only if it thinks it appropriate to do so, rather than seeking the permission of the other authority as a matter of course? I hope that the Minister will clarify this as I am puzzled by the subsection.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

I hope I can appear in the noble Baroness’s dreams in a good light. Do not have nightmares; that is all I say.

The decision to restrict activity on or access to public rights of way should not be taken lightly. Where anti-social behaviour, crime or disorder is present, local authorities will need to weigh up the impact of restricting access against the needs of the community. There are, as we have already discussed, additional consultation requirements associated with public rights of way above and beyond those expected more generally for a public spaces protection order. Those affected by the order must be notified of the proposal and be given details of how to see a copy of the restrictions. The local authority must also notify those persons of how they can make representations, and these representations must be considered before the order can be made.

Amendment 53G, proposed by my noble friend Lord Greaves, aims to protect private rights of way. I assure my noble friend that I agree with his sentiment. I am happy to confirm that the definition of public spaces included in Clause 60 will not allow for the order to be used for private rights of way. The principal access route to homes cannot be closed with a public spaces protection order. As such, I do not believe the amendment needs to be made.

On Amendment 53H, I understand the issue here relates to areas where there is a district council and a county council. Indeed, just as the noble Lord lives in such an area, so do I. In the situation described in the amendment, while the district council has the ability to make an order, the county council is likely to act as the highway authority. Therefore, in line with the consultation requirements I have just described, before restricting access the district council should consult the county council about the terms. However, I do not believe that this should come with a right of veto. In the majority of cases the evidence presented will be sufficient for both bodies, acting in the interests of the communities they serve, to agree. However, where this is not the case it should not prolong the misery for victims and communities, and so the district council should be free to make the order. On the basis of what I have said, I hope my noble friend will withdraw the amendment and I beg to move that the clause should stand part of the Bill.

On the specific question asked by the noble Baroness about the phrase in the clause,

“it must consult that other authority if it thinks it appropriate to do so”,

I can hardly see how, in the case of a public highway, it would be possible for a local authority to do other than consult those people. I have a note here which has come to my rescue. As to why it states in Clause 60(3),

“only if it is appropriate to do so”,

it is hard to imagine a situation where a council would not do so. However, it adds flexibility. Clause 60(3) was added to the Bill on Report in the Commons in response to a point raised by Gloria de Piero, the honourable Member leading on the Bill for the Opposition. It may be that the letter the noble Baroness is thinking of is the one from Damian Green to David Hanson of 7 October dealing with the Government’s amendments on Report in the Commons. I cannot remember ever discussing this issue before. However, it was added to the Bill on Report in the Commons, presumably with agreement.

I should say that it is only as a last resort. We have made it clear that the added flexibility means it is less likely that a right of way will be closed. This is covered in the guidance and we do not believe it needs to be in the Bill. It is also worth making clear that highways of strategic value cannot be restricted.

[Baroness Smith of Basildon]

My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.

[Lord Harris of Haringey (Lab)]

Perhaps the Minister can assist the Committee by giving us some examples of when this power might be required and what the circumstances would be. It is about restricting the public right of way to a highway, but under what circumstances is that likely to happen and what sort of roads would these be? The requirement is to notify “potentially affected persons”, which,

“means occupiers of premises adjacent to or adjoining the highway, and any other persons in the locality who are likely to be affected by the proposed order”.

Depending on the nature of the highway concerned, that could be a very large number. One also wonders why it is confined to the locality when it might have a much wider impact. I suspect that the answers might be clearer if I had a better understanding of the circumstances in which the Government envisage this power being used. If they are rather narrower than the potential of this clause seems to suggest, I would like some clarity on why that is not made clearer in the clause.

[Lord Taylor of Holbeach]

My Lords, it may be that I have been misreading this particular clause. I assumed that it was evidence of the phenomenon where you have both a district council and a county council, which my noble friend Lord Greaves referred to. It may be, of course, that the highway lies in two local authority areas, and that by restricting it to one local authority, an adjacent local authority that shares the highway might be affected. In that case it clearly would be appropriate for there to be consultation between the authorities. In effect, there would be a joint highway, shared with other authorities.

However, I am hazarding a guess and seeking to inform the House on the basis of guess-work. My best position is to say to noble Lords that there is clearly some uncertainty about the meaning of this and that I am quite prepared to write to noble Lords with all the detail. This is based on current gating order legislation, which has been used for many years by councils to deal with anti-social behaviour, so we might see a similar clause there. Clause 60 needs to be read with Clause 61, in particular subsection (1), which describes which public highways cannot be restricted. It excludes strategic highways, so it is non-strategic highways that are being considered here. I will write to noble Lords explaining how these two clauses operate together, as clearly they are both of a part.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for his very helpful suggestion for trying to get to the bottom of what it means. When he writes, perhaps he could focus on giving us an answer about when he thinks it would not be appropriate to consult the other authority. The other points he made are relevant and helpful.

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[Lord Greaves]

My Lords, that is very interesting. The discussion went beyond where I thought it might go. I was talking really about footpaths and bridleways but we now find that this power may apply to a majority of the road network in this country—no?

[Lord Taylor of Holbeach]

I point my noble friend to Clause 61(1), in which he will find a list of the highways to which it cannot apply.

[Lord Greaves]

My Lords, I think the Minister is relying on Clause 61(1)(e), which refers to,

“a highway in England of a description prescribed by regulations made by the Secretary of State”,

because the rest of them are,

“a special road … a trunk road … a classified or principal road … a strategic road”.

I am not sure that in terms of sheer mileage, they cover more than half the roads in the country. Unclassified roads are legion. No doubt they will appear in the prescribed description of roads made by the Secretary of State. To add to the questions asked by the noble Baroness, Lady Smith, we really want to know what roads will be prescribed under that subsection so that we can work out what is left and what might become public space.

As I say, that is all very interesting. On the first amendment, on private rights of way, I hesitate to get into the intricacies of private rights of way because there has been quite a lot of case law and it is all very complicated. I ask the Minister to have another look at it because it is quite possible for private rights of way to cross public land that will be designated as public space. This needs a bit more attention. Having said that, I withdraw the amendment.

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[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.

[Lord Harris of Haringey]

Perhaps the Minister could also clarify what he just said about also having a judicial review. My reading of Clause 62(7) is that judicial reviews are precluded. Perhaps, while the Minister is pondering that point, he could also answer the question of how this procedure is in practice different from the judicial review. Does this have more teeth or fewer teeth?

[Lord Taylor of Holbeach]

This clause is of course specific to the Bill, and so lays down the procedure of the considerations which apply in the Bill. Judicial review is a much broader process through which individuals can challenge legal conduct of the implementation of a PSPO. I have made it quite clear that the intention is not to close the door on judicial reviews, but I will reflect on the points that have been made by the noble Lords, Lord Rosser and Lord Harris of Haringey. I will be writing to all those who have participated in the debate.

[Lord Faulks]

Further to a point that I made a little earlier, which the noble Lord, Lord Harris, also made, of course the Minister is absolutely right: judicial review cannot be ousted by any provision. That is why I am a little perplexed about subsection (7), where it is provided:

“The validity of a public spaces protection order, or of a variation of a public spaces protection order, may not be challenged in any legal proceedings, either before or after it is made, except under this section”.

It looks, on the face of it, as though it is precluding challenge. I am sure that there is an explanation, but I look forward to it being included.

[Lord Greaves]

My Lords, I thought that I would be getting my views on this clause clarified. I am even more muddled, having heard this debate, than I was before. That is no fault of those taking part; lots of valid questions have been asked, which will need answering. I assume that my noble friend the Minister will copy any letters he sends to people around the Committee so that we can all see his answers. Is that the case?

[Lord Taylor of Holbeach]

I am certainly quite prepared to make my correspondence as broad as anybody would wish. I have certainly noted the people who have taken an interest in this matter and will try to make sure that everybody is included in the correspondence.

[Lord Greaves]

I am most grateful, as I am sure other noble Lords are. I have two quick points. For all this talk of whether it is the High Court or judicial review, they are both way above the abilities of ordinary people. If I go on a local footpath anywhere in this country and I find that it is blocked and complain to the highways authority, and the highways authority does nothing about it, I can go to the court to make the highways authority do something about it. That court is the magistrates’ court. However, if I then find signs up saying that the local authority has just issued a public spaces protection order to stop me walking on it, there is no way on God’s earth that I will go to the High Court, because ordinary folk do not do that kind of thing. There may well be Members of this Committee and your Lordships’ House who spend half their time in the High Court, but most of us do not; and after the one or two occasions on which we have ever been there, we may never want to go back again.

If there are to be decisions like this, which affect basic, historic rights to walk on paths and land, there needs to be a proper appeals mechanism just as there is under the Highways Act. If a local authority closes a footpath under the Highways Act and you do not like it, you can appeal to the magistrates’ court. That is the sort of level at which ordinary people can function. Are the Government saying that ordinary people are not able to get help and support from organisations that can operate at a higher level, such as the Ramblers or perhaps the CLA, but are on their own? Sorry, but they are individuals, and it clearly states here that it is about an individual, not even a local business, as the noble Lord, Lord Harris, said.

I think that there is something wrong and we need to have further discussions about it, but not now. I beg leave to withdraw the amendment.

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[Lord Greaves]

My Lords, Clause 63(1) states that:

“It is an offence for a person without reasonable excuse”.

The words “without reasonable excuse” are part of the reason for putting these probing amendments down in order to find out what they mean. Subsection (1) continues,

“(a) to do anything that the person is prohibited from doing by a public spaces protection order, or,

(b) to fail to comply with a requirement to which the person is subject under a public spaces protection order”.

Again, my amendments refer to the kinds of access that are specifically enabled by legislation, historic practice and common law; that is, rights of way, commons, village greens and town greens. Amendment 56ZA is about those. It states:

“Subsection (1) does not apply if the prohibition or restriction relates to—

(a) travel along a footpath, bridleway, restricted byway or byway open to all traffic”,

or presence on access land. If I am walking along with an Ordnance Survey map in my hand, or if I am a bit more modern and I have a fancy phone or tablet, and I walk on to this land or on to footpaths where access has been prohibited from access by a public spaces protection order, why should I become a criminal for doing things which, on the face of it, I believe to be reasonable? This amendment probes to what extent that would be a criminal offence. The question is, would I be behaving in a reasonable way if I did that? If I met an owner, a resident or somebody else who told me to get off because some sort of spaces order had been made on the land, would I still be breaking the law if I said, “No. I’ve got this Ordnance Survey map which maps the access land and shows the rights of way, and I’m okay”?

Amendment 56ZB states:

“A person does not commit an offence unless the local authority has displayed information about the relevant restrictions and requirements on or adjacent to the land that is subject to the public spaces protection notice in such a way that it is reasonable for the person to have seen the notice”.

The possibility under public spaces protection orders for people to break the law but not know that they are breaking the law—in other words, breaking the order, which is an offence—simply because the local authority or other authorities have not provided adequate information on the site, is very great indeed. These are probing amendments to test what would happen under those circumstances. I beg to move.

[Lord Taylor of Holbeach]

My Lords, I understand that these are probing amendments relating to the circumstances in which someone may commit an offence when a public spaces protection order is breached. I can see the reasoning behind Amendment 56ZA. Clearly, it is hard to see how using a public right of way in an appropriate and responsible manner, or mere presence on common land, a town or village green, or on access land, could constitute an offence. However, in the extreme circumstances where the council, in consultation with the relevant bodies, has decided to place restrictions on access to the land that apply to everyone, there must be a penalty for breach.

Similarly, Amendment 56ZB seeks to provide that it is not an offence to breach the conditions of a public spaces protection order if the local authority has not publicised it in a certain way. As I have said before, I do not believe it is for primary legislation to state how restrictions will be publicised; not least there may be situations where it is not necessary or appropriate to do so in the entirely sensible way my noble friend suggests. The place for this is in regulations or guidance.

However, on the more important point of a defence of reasonable excuse, I would like to assure my noble friend that a person commits an offence only if they breach a condition without reasonable excuse. The courts carefully consider whether there is a “reasonable excuse” to breach an order if the local authority has not publicised it appropriately. As such, regardless of what is in the legislation, or indeed the guidance, it is in the best interests of the local authority to make sure that people using the public space know what is expected of them; otherwise, it becomes unenforceable. Earlier this evening we discussed unenforceable legislation in connection with a matter affecting this House.

I hope that, with this reassurance, my noble friend will feel able to withdraw his amendment.

[Lord Greaves]

My Lords, the real problem with this measure is that it criminalises trespass in certain circumstances where people not only think they are not trespassing but have evidence in their hand which shows that they are allowed to be there. This is the potential problem that could arise. I am not sure that the Minister’s answer has tackled that thoroughly and completely. This issue needs further discussion but, for the moment, I beg leave to withdraw the amendment.

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[Lord Taylor of Holbeach]

My Lords, we know that in another place the Opposition stated their support for closure notices. I accept what the noble Baroness, Lady Smith, means when she says that she wants to clarify some of the detail in this, and I agree that a clause stand part debate is a good method to use. Clause 69 gives the police and local authorities a simple and easy-to-use power to close temporary premises that are the focus of public nuisance or disorder. There are a number of existing powers that could be used to close such premises, but they are similar.

[Baroness Smith of Basildon]

Did the noble Lord say, “to close temporary premises”? I am slightly confused by what he means by temporary premises.

[Lord Taylor of Holbeach]

“Temporarily”, I said. I am sorry. I might have said “temporary” but I meant to say “temporarily”. It may be me misspeaking or the noble Baroness mishearing but: “temporarily premises that are the focus of public nuisance or disorder”.

A number of existing powers could be used to close such premises but they are similar and overlap in a number of ways. We are consolidating these existing powers into a single scheme applicable to all premises associated with anti-social behaviour. These powers are flexible and can apply to private and residential premises, and to business premises whether licensed or unlicensed. The notice allows for immediate action while the longer-term order is put in place if it is required. This will give professionals a simple and flexible means to protect the public, making it easier to act preventively.

However, noble Lords will agree that such a power requires safeguards. Of course, local agencies already work informally with individuals and businesses to mitigate the risks of crime and anti-social behaviour before resorting to formal powers. This will continue to be the case. Most businesses want to protect their customers and premises. Where there is information that premises may be the location for or contribute to crime and anti-social behaviour, they can be invited to take action to tackle it, and many do.

Clauses 69 and 70 specify a minimum rank for police officers authorising the issue of a closure notice for up to 24 hours, with a higher authority needed for both the police and local authority for the extension of the notice up to a maximum of 48 hours. The provisions also include requirements about notification and consultation, and of course only the courts can require closures of premises for longer than 48 hours.

The noble Baroness has not tabled amendments but I can use some of the information that she was seeking. The court has to be satisfied that there is likely to be serious nuisance or disorderly, offensive or criminal behaviour. The second element is that it is necessary to prevent the nuisance or disorder from continuing, recurring or occurring. In practice, we expect that in most cases informal measures would be the right starting point. The draft guidance directs professionals towards informal measures in the first instance, where appropriate. Indeed, if alternatives to closure are available but have not been considered, it is difficult to see, save in exceptional cases, how it could be argued that the closure notice is necessary. Professionals, as public authorities, would have to exercise their powers proportionately or risk an adverse judicial review.

Additionally, in applying the test, a court, the police or a local authority must have regard to an individual’s human rights—for example, Article 8 rights. As I said when similar issues were raised in respect of earlier parts of the Bill, such qualified rights can be infringed only where to do so is necessary and proportionate in the pursuit of a legitimate aim.

The noble Baroness, Lady Smith, asked me what the reasonable grounds are. It is a matter of evidence, usually comprising of witness statements and statements of victims and police officers, in particular. CCTV evidence, for example, can also be brought into play when deciding whether there is a justification for the grounds. The term is commonly used in legislation and I hope that noble Lords will accept that.

The noble Baroness also asked who has been consulted. Given that the notice is affixed to the premises it would not be appropriate to name all the individuals who had been consulted. Guidance highlights the importance of partnership working and it is advised that the police and local authority keep a record of who has been consulted.

The noble Baroness also asked why we do not require the police and local authority to make information about the closure of the premises more publicly available, such as in a paper or some other way. The closure powers are flexible in that they can be used for residential, business, licensed and non-licensed premises. There may be circumstances where a short-term closure of the premises is needed to resolve a problem, such as closing a residential premises for 24 hours to prevent a Facebook party. That would not be of interest to the wider public in that area, and requiring the police or local authority to make a public announcement of all closures would add an unnecessary layer of bureaucracy. That is why we require the police and local authority to consult anyone they think appropriate as well as the owner and occupier of the premises. Clause 72 requires them, where possible, to fix a copy of the notice to the premises.

I hope that I have been able to answer the questions that the noble Baronesses have posed. I hope my noble friend will accept my explanations and agree to withdraw her amendment and that noble Lords will support the provisions in this part of the Bill.

[Baroness Hamwee]

My Lords, I did not catch what sort of party was mentioned.