Anti-social Behaviour, Crime and Policing Bill

Lord Taylor of Holbeach Excerpts

Tuesday 14th January 2014 Lords Chamber

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

My Lords, sexual offences against children are a serious crime and one of the utmost concern to the Government. I thank the noble Baroness, Lady Smith, for tabling this amendment to allow the House to debate this important issue today.

The Government are determined to do everything they can to protect the public from predatory sexual offenders. The United Kingdom has some of the toughest powers in the world to manage the risks posed by sex offenders, but we are committed to ensuring that the police and other enforcement agencies have the right powers to protect the public from sexual harm.

It may be useful to noble Lords if I outline some of the powers already available to the police to tackle the sexual exploitation of children. As the noble Baroness, Lady Smith, has said, in particular, the Sexual Offences Act 2003, already gives the police and the courts the power to close premises on a temporary basis where there are reasonable grounds for believing that they are being used for certain sexual offences involving a child and that closing the premises is necessary to prevent the commission of those offences.

Under that Act, service of a closure notice by the police will prevent anyone entering or remaining on the premises, unless they regularly reside in or own the premises, until a magistrates’ court decides whether to make a closure order. If the court is satisfied that the relevant conditions are met, it can make a closure order for a period of up to three months. An application can be made for the closure order to be extended but the total period for which a closure order has effect may not exceed six months. The Sexual Offences Act closure notice and order therefore operate similarly to the closure power in the Bill, although they are targeted specifically at sexual crimes against children, which are listed in Sections 47 to 50 of that Act. These crimes all relate to the abuse of children through prostitution or pornography. In addition to their duty to investigate criminal offences, the police have a statutory duty to safeguard and promote the welfare of children, and have powers to enter premises and remove children to ensure their immediate protection if they believe they are at risk of significant harm.

I recognise—the noble Baroness is correct to draw this to our attention—that there are concerns that the powers in the Sexual Offences Act do not go far enough. As the noble Baroness has indicated, Home Office Ministers have been in recent correspondence with the police and crime commissioner for Greater Manchester, Tony Lloyd, on this issue. Tony Lloyd has pointed to cases where takeaways and other premises could be used for grooming children.

As I have said, the closure powers in the 2003 Act relate only to premises used in connection with prostitution or pornography, so there may indeed be a case for extending their reach. As my noble friend Lady Hamwee has pointed out, I believe the 2003 Act rather than the closure powers in this Bill, which relate to anti-social behaviour, is the proper place to address this issue.

I suggest to the noble Baroness, Lady Smith, that if she would be prepared to withdraw her amendment, I will undertake to give the matter sympathetic and urgent consideration in advance of Third Reading. I cannot, at this stage, as noble Lords will understand, give any commitment to bring forward a government amendment at Third Reading. However, I will let her know the outcome of our further deliberations in good time so that she can, if necessary, retable her amendment, or something similar to it, at that stage.

We all want to ensure that all possible action is taken by the police to protect children at risk of sexual exploitation. I share the noble Baroness’s determination to get to the bottom of this issue and, as speedily as possible, to plug any confirmed gap in the powers of the police in this regard. I hope that on this basis she will be content to withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I am extremely grateful to the Minister for his response in this regard. It contrasts quite starkly with the comments from the noble Baroness, Lady Hamwee, who seemed to be much against taking action in the Bill. However, his response—

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Moved by

[Lord Taylor of Holbeach]

63: Clause 72, page 43, line 39, leave out “an employee” and insert “a representative”

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Moved by

[Lord Taylor of Holbeach]

76: After Clause 83, insert the following new Clause—
“Guidance
(1) The Secretary of State may issue—
(a) guidance to chief officers of police about the exercise, by officers under their direction or control, of those officers’ functions under this Chapter;(b) guidance to local authorities about the exercise of their functions under this Chapter and those of their representatives (within the meaning of section 72).(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.”

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Moved by

[Lord Taylor of Holbeach (Con)]

80A: Clause 91, page 61, line 41, leave out “a person” and insert “an adult”

[Lord Taylor of Holbeach]

My Lords, Clause 91 introduces a new discretionary ground for possession for offences connected with a riot. The existing grounds for possession for anti-social behaviour are discretionary and require that the anti-social behaviour must have occurred in the locality of the property. This means that thuggish behaviour committed against neighbours or in the immediate vicinity of a tenant’s home may currently be a basis for eviction.

However, similar offences likely to have a devastating effect on whole communities such as looting, or other riot-related criminal activity, committed by tenants further from their homes would not usually be taken into account. I do not think that that is right. It is important that people who wreck other people’s communities through riot-related offences should face the same consequences that they would if they carried out such behaviour in their own neighbourhoods.

It is not just the Government who are of this view. Following the 2011 riots, the e-petition entitled “Convicted London rioters should lose all benefits” received over a quarter of a million signatures, the second greatest number of signatories for any e-petition that has been submitted to the Government to date. That is strong evidence that the public want tough action to deal with rioters.

This clause seeks to make sure that that is the case by adding a new ground for possession into the Housing Acts 1985 and 1988 in respect of secure tenants and assured tenants respectively. Under the new ground, landlords will be able to apply for possession of a tenant’s property in England where the tenant or a person living in the tenant’s property has been convicted of an offence committed at the scene of a riot which took place anywhere in the UK.

Following concerns raised in Committee and by the Joint Committee on Human Rights, we gave a commitment to consider the amendments tabled at that stage by my noble friends, Lady Hamwee and Lord Greaves, which proposed that the new ground would apply only where the tenant and not a member of the household has been convicted of a “serious offence”, rather than any offence, as currently drafted.

Recognising the concerns that have been expressed, government Amendments 80A to 80F provide further reassurance that the new ground will apply only to the more serious cases of riotous behaviour. Amendments 80A, 80C, 80D and 80F provide that landlords would be able to seek possession under the provisions of Clause 91 only where the tenant or an adult member of their household has been convicted of an offence at the scene of a riot.

We have retained the application of the ground to the convictions of adult members of the household as we do not believe that adult perpetrators of serious anti-social behaviour or criminal activity should be able to escape consequences for their home simply on the basis that the tenancy is not in their name.

In addition, to address concerns relating to the possibility of minor offences triggering possession under this ground, Amendments 80B and 80D would restrict the application of the new ground to “indictable offences” instead of any offence committed at the scene of a riot as currently drafted. This means that convictions for less serious offences such as common assault and obstructing a police officer in the execution of his duty will not trigger possession under this ground. However, I emphasise our commitment to ensuring that we send a strong signal: if you get involved in a riot, whether it is near your home or not, there may be consequences for your tenancy.

With regard to the concerns raised by the Joint Committee on Human Rights that the ground amounts to a double punishment and may disproportionately affect children, it is important to note that the new ground is discretionary and that the court can grant possession only where it considers it reasonable to do so. This means that the court can take into account the circumstances of the tenant and other family members, including children, when deciding whether to grant possession. I should add that available evidence also indicates that landlords resort to eviction only as a last resort. In addition, these government amendments would provide additional safeguards in the Bill to ensure that whole families are not evicted under the new ground for the actions of a child during a riot. I would reassure the noble Baroness, Lady O’Loan— I am pleased to see that she is in her place—and the noble Baroness, Lady Lister, who have tabled Amendment 80G to remove Clause 91 from the Bill, that we expect the impact of the provision and the number of evictions, including those of families, to be very small over time. That is especially as I hope that we will not see any future occurrences of the disgraceful looting and rioting across England that we saw in the summer of 2011.

I hope that the House will agree that these government amendments respond positively to the concerns that have been expressed about this provision and that your Lordships will support the retention of Clause 91 in its amended form. I beg to move.

[Baroness O'Loan (CB)]

My Lords, Clause 91 as originally drafted added a new ground for possession under Schedule 2 of the Housing Act 1985 and Part 2 of Schedule 2 to the Housing Act 1988 so that, as the Minister has said, a landlord might apply for possession where someone living in the property has been convicted of an offence committed at the scene of a riot which had taken place anywhere in the United Kingdom. The Joint Committee on Human Rights, of which I am a member, has consistently stated that this clause should be deleted from the Bill. In the first instance the committee stated that it was unnecessary and disproportionate. It was also concerned about the potentially serious implications of this clause for family members and considered that it may disproportionately affect both women and children. The committee said that it amounted to a punishment rather than a genuine means of preventing harm to others.

I wish to set out absolutely the aggravated nature of riot offences. Living in Northern Ireland, I have long experience of the fear and the horror of riots. People who commit criminal offences must be pursued under the criminal law. To allow an offence committed anywhere in the UK, even if the conviction were to be on indictment only, to be grounds for eviction where there is a tenancy, is certainly to impose a second punishment on a limited group of people who do not own their own home and who have committed no offence, since the other members of the household have committed no offence. I should like to thank the Minister for meeting with me in December to discuss this issue, and for giving me the opportunity to articulate again the difficulties with this clause.

I note the amendments that the Government have now tabled and the fact that they make in effect two changes. The clause will apply only where an adult member of the household—someone living in the house—has been convicted of an indictable offence. That is to be welcomed because it limits the effect of the clause. It relieves from the threat of eviction the families of young people who may have fallen into bad company, but who have been dealt with for their criminality under the criminal law. However, that still leaves tenants and their householders subject to a possible double punishment for a crime committed either by a tenant or someone else who lives in the rented property, and no such double punishment can be applied to a private householder. The family of such a household will be put through the stress, fear and expense of fighting an eviction application. It will go on for months, and while they may well win at the end of the day, there will still have been serious disruption and expense and, above all, distress to the family. Can the Minister tell me whether there is a time limit on the use of a conviction as a ground for eviction? If a person was convicted in 2013, could that conviction be used in 2014? If he was convicted 2011 as a result of the London riots, could it be used in 2014?

Clause 91 would create the curious circumstance in which someone convicted of a riot offence in Edinburgh, Glasgow or even Belfast could be evicted in England and Wales but a person convicted in England and Wales could not be evicted in Scotland or Northern Ireland. The Government have offered no justification for this measure, nor is there any necessity for it, even in its amended form. In the Minister’s letter to the Joint Committee on Human Rights, the explanation for the Government’s amendments is that, in light of the Lords Committee stage debate, they concluded that it would be appropriate to place further safeguards on the face of the legislation. However, the Minister repeats the Government’s position that “this provision is intended to deter the sort of deplorable ‘riot tourism’ that we witnessed in summer 2011”. The Joint Committee on Human Rights states:

“In our view it is the job of the criminal law, not the civil law, to deter riot-related offences and to administer sanctions when such offences are committed. Nor do we consider the existence of judicial discretion to be a satisfactory answer to our concern about the disproportionate impact of eviction on other members of the household who have not engaged in such behaviour. We maintain our recommendation that clause 91 be deleted from the Bill”.

The justification for the current position under the Housing Act is that those convicted of rioting in their locality pose a threat to their local community and that, in order to protect that community, the person must be removed from it. This justification cannot cover the proposed extension of the ground for eviction—there is no link between the crime and the local area. As the noble Lord, Lord Paddick, a former deputy assistant commissioner of the Metropolitan Police, stated in Committee,

“the provision to order possession of a property when the offence has absolutely nothing to do with protecting neighbours, for example, from anti-social behaviour, is a step too far. It is politically motivated and is not driven by the needs of justice. Therefore, it should be no part of this Bill”.—[Official Report, 2/12/13; col. 62.]

The Government have sought to justify their proposals by stating that the threat of eviction is intended to deter those considering engaging in riot-related behaviour —but that is the purpose of the criminal law.

In Committee, the noble Lord, Lord Faulks, who is soon to take his place on the Front Bench, stated that he could not endorse the clause. He did not qualify that in any way:

“The courts have sufficient powers to deal firmly with offenders caught up in a riot … The criminal justice system—some would say ‘for once’—in general responded very well to what occurred”.

He also said:

“Those who committed offences during the riot on that occasion were dealt with speedily and firmly”.

He stated that he did not think it was “necessary or appropriate” to legislate in this manner,

“given all the other powers that exist elsewhere in the Bill”,

and concluded that,

“this clause is a step too far”. —[Official Report, 2/12/13; col. 60.]

In 2011, Wandsworth Council threatened to evict a Liberty client, Maite de la Calva, and her younger daughter, if her son was convicted of a crime committed during the riots in 2011. Her son had been arrested and charged during the disorder. He had moved out of his mother’s property earlier in the year, but she was still served with a notice by Wandsworth Council seeking possession, which stated that she was likely to have breached her tenancy agreement. The authority vowed to apply for a possession order evicting her and her daughter if her son was convicted. This was despite her contribution to the local area over the past three years: she was described as a credit to her housing estate by neighbours and spent her spare time volunteering with a youth charity and working with domestic violence victims. She had committed no crime herself and would not have faced that threat had she lived in a mortgaged house. Liberty represented her in challenging Wandsworth Council’s attempt to punish her and her daughter for her son’s conviction. Eventually the council was persuaded to back down, but not before considerable anxiety and suffering had been inflicted. If the eviction powers set out in the Bill are enacted, even as modified by the present government amendments, there will be many more cases just like this one and it is unlikely that the outcome in all of them will be as positive.

Removing a person and their family from social housing is unlikely to lead to less, rather than more, crime and anti-social behaviour. Dispossession will shift the problem elsewhere, creating new and greater problems for the individuals concerned and their families. Private housing may be unavailable and private sector rents are rising, partly as a consequence of the welfare reform measures. Temporary accommodation does not deal with the issue: it splits up families; it disrupts education and social cohesion; and the end result may well be that alternative accommodation becomes unaffordable for many families, leading to increased homelessness and destitution.

I ask the Minister to consider again the fact that the Joint Committee on Human Rights has consistently said that this clause is neither necessary nor proportionate; that it is not about protecting a local area; that it discriminates against those in public housing; and above all that it will create significant distress to people who have committed no crime.

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[Baroness Hamwee]

With the leave of the House, just to pursue the point made by the noble Lord, Lord Ponsonby, the information that I had from the chief executive of Wandsworth was that, in that borough after the 2011 riots, 12 notices of seeking possession were served, which is the first step in eviction proceedings. That resulted in an outright possession order and subsequent eviction in one case; seven others resulted in possession being granted but suspended on terms or an undertaking being given to the court. That, of course, supports what the noble and learned Baroness said about the court’s position.

[Lord Taylor of Holbeach]

This has been a good debate on an important subject, and I am grateful to the noble Baroness, Lady O’Loan, for bringing it to us today. However, I reiterate that, as with the existing discretionary grounds for possession, the legislation has always contained important safeguards—not least the discretion of the court, at the end of the day. However, this has been recognised by the Government in our amendments, reflecting the key concerns, if not all the concerns, of the Joint Committee on Human Rights.

A lot of noble Lords have spoken in this debate, including the noble Lord, Lord Rosser, the noble Baroness, Lady Lister, the noble Earl, Lord Lytton, my noble friend Lady Hamwee, the noble Baroness, Lady O’Neill, my noble friend Lord Elton, the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Paddick and the noble Lord, Lord Ponsonby. A number of points have been made, all working on a theme.

To put the debate in context, I remind the House that the Housing Act 1996 already provides for a ground of possession where a tenant, a member of their household or a visitor has been convicted of anti-social behaviour or a criminal offence in the locality—there is the difference—of their property. Many of the issues that noble Lords have pointed to are already familiar to those who have to make the decisions. The noble Lord, Lord Ponsonby, referred to the debates in Wandsworth, and I am grateful to my noble friend Lady Hamwee for giving us the figures there. Such decisions have to be made by housing authorities and landlords over time in any event, and the courts themselves have to consider the impact not only on the perpetrator of the crime but on the family. This is familiar ground.

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[Lord Elton]

Forgive my ignorance, but it is important to get this right, and I am left in doubt. The noble and learned Baroness, Lady Butler-Sloss, said that this was a power given to the court, but earlier the Minister spoke as if the discretion lay with the housing authority. Who actually makes the decision in such cases?

[Lord Taylor of Holbeach]

The court does not initiate the action; the housing authority does. The court makes the decision as to whether the action is reasonable. That is the difference. I think all noble Lords would understand that, and I hope I have not confused anybody by any of the ways in which I have described the decision-making process. The point is that there are checks and balances in such a process. Housing authorities live with them all the time.

I was specifically asked about adult children at university, not living at home and therefore being largely out of the control—or rather, beyond the influence—of their parents, because of the distance involved. The key word is “reasonableness”. It seems to me very unlikely that a landlord would seek possession in those circumstances, and I doubt very much that any court would grant possession on that basis.

I think it would be a mistake to remove Clause 91 altogether. We in this House have a duty to remember victims: the families whose homes are wrecked and whose jobs are lost. The noble Baroness said the fact that an action has taken place 100 miles away makes no difference. I disagree with her. The consequences of these actions affect people in their homes and in their work. It is important that we make people aware of their responsibility to others through the law and that potential rioters bear in mind that there may be consequences for their tenancy wherever they choose to wreak havoc. This clause does that. It should serve as a deterrent and shows that the public’s views on this issue are not being ignored by the Government. I beg to move.

Amendment 80A agreed.

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Moved by

[Lord Taylor of Holbeach]

80B: Clause 91, page 61, line 42, after “an” insert “indictable”

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Moved by

[Lord Taylor of Holbeach]

81: Clause 93, page 64, line 28, at end insert—
“( ) consultation with the local authority for any part of the area,”

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Moved by

[Lord Taylor of Holbeach]

83: Clause 93, page 65, line 3, at end insert—
“local authority” means—
(a) 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;(b) in relation to Wales, a county council or a county borough council;”

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[Baroness Hamwee]

My Lords, it seems that in Scotland the provisions which are in force have not been as effective as one would have hoped. I am not sure that the laws against proxy purchasing of alcohol have been terribly effective. I would be concerned if bringing in a further measure which failed to achieve what we wanted to see was a deterrent to anything more effective. Is the Minister aware of what the police think about this? After all, enforcement is what matters when one is introducing a new offence.

[Lord Taylor of Holbeach]

My Lords, when we debated this issue on 4 December, we agreed that, because smoking is largely an addiction taken up during childhood or adolescence, reducing the availability of tobacco to young people is important if we are to succeed in reducing overall smoking uptake. This new clause seeks to create a new criminal offence of an adult purchasing, or attempting to purchase, tobacco products on behalf of a child or young person under the age of 18. This act is commonly known by the phrase, “proxy purchasing”.

While smoking prevalence among young people has declined considerably in recent years, there are still each year around 300,000 young people in England under the age of 16 who try smoking for the first time. As a starting point, we must continue to take action to encourage adults to quit smoking. If smoking is seen by young people as a normal part of everyday life, they are much more likely to become smokers themselves. The Government’s Tobacco Control Plan for England is clear that, to promote health and well-being, we will work to encourage communities to reshape social norms, so that tobacco becomes less desirable, less acceptable and less accessible. We aim to stop the perpetuation of smoking from one generation to the next.

We need to think carefully about whether creating a proxy purchase offence would have an impact on how accessible tobacco is to children and young people, and whether it would have a meaningful impact on reducing smoking rates among young people. Obtaining cigarettes from retailers is just one of many avenues by which young people access tobacco. We know that children and young people obtain their cigarettes from a wide range of sources. Some young people take tobacco from their parents, from other family members or from older friends. In such circumstances, no proxy purchase has occurred. Introducing a new proxy purchase offence would not tackle that particular way of getting tobacco.

I understand that introducing a proxy purchase offence for tobacco is supported by some retailer organisations, including the Association of Convenience Stores and the National Federation of Retail Newsagents. Let me be clear that I recognise the important role played by retailers in ensuring that tobacco products are sold in accordance with the existing age-of-sale legislation. I also want to recognise the important work that retailer organisations have played in recent years to support their members in meeting age-of-sale requirements.

I realise the difficulties that some retailers face, and I understand why some feel that it should be an offence to buy tobacco on behalf of under-18s. I also understand that the creation of a proxy purchasing offence has the support of the tobacco industry—as the noble Lord, Lord Faulkner, said. However, I am sure that noble Lords will agree that the creation of effective and practicable legislation should be informed by evidence. In the area of proxy purchasing, the Government’s current view is that we want to see evidence that a proxy purchase offence would be effective both in reducing young people’s access to tobacco and in having a deterrent effect on those adults who are prepared to buy cigarettes on behalf of children and young people.

In fact, I am concerned that some of the evidence that is currently available suggests that creating a proxy purchasing offence would have only limited benefit. For example, a Scottish study published in August 2013 looked at how young Scottish smokers living in disadvantaged communities obtained their cigarettes. The study concluded that the introduction of a proxy purchasing offence in Scotland had had little discernible impact.

Nevertheless, that is not to say that evidence does not exist, and I encourage those who support this amendment to provide evidence of the likely public health benefits of creating a proxy purchasing offence to the Department of Health for further consideration. Proxy purchasing of tobacco is an area that the Department of Health is keeping under review, and any further evidence that is provided will be carefully considered. I assure noble Lords that I will draw the attention of my noble friend Lord Howe to the debate we are having on the subject this afternoon.

As the noble Lord, Lord Rosser, said, those in support of a proxy purchase offence point to Scotland, where the offence was introduced in April 2011. While I understand that a light-touch approach has been taken on enforcement and that the legislation has been in place only for a few years, I note that only one fixed penalty notice has been imposed since the offence was introduced, and that there have been no convictions. Furthermore, whether the legislation has had any deterrent effect is also not clear.

The statistics for the similar offence of the proxy purchase of alcohol show that convictions are few and far between in that area, too, in no small part because of the burden of proof required. Furthermore, the alcohol offence includes a defence that the purchaser had no reason to suspect that the individual they bought the alcohol for was under 18. This amendment does not address that point.

Whether local authorities want the creation of a proxy purchasing offence is not at all clear at the moment. After all, they rather than the police would be responsible for enforcement. The Minister responsible for public health made it clear during a debate on this issue in the House of Commons in October that the Government would be happy to hear the views of local authorities on the potential for effective enforcement, or to hear of good examples of existing local measures to reduce access to tobacco by young people. I also call on those in the public health community to provide this sort of evidence for the creation of a proxy purchasing offence. I want to be clear that we are not rejecting the creation of a proxy purchasing offence outright, but we need to give the matter further consideration.

While we understand the views of retailers and the tobacco industry on proxy purchasing, the Department of Health will continue to work with local authorities and the public health community to understand their views. I want to reassure your Lordships that the Department of Health will also keep under review relevant evidence and experience from elsewhere. I again encourage those with evidence to make it available; I cannot reiterate that enough.

[Lord Avebury (LD)]

My Lords, if the evidence is supplied, how will the Government deal with it? If we do not agree the amendment, the Minister would have to wait until further primary legislation was brought forward. Would the Government consider implementing a clause of this kind by order rather than placing it in the Bill?

[Lord Taylor of Holbeach]

I think that I can answer that best by saying that if the evidence were provided and the Government were persuaded that creating this offence was a practical and effective way of dealing with a policy issue that I am sure all noble Lords in the Chamber agree with, they would wish to see it introduced through primary legislation. However, I am not in a position to be definitive in my answer, and I think that my noble friend will understand the reasons for that. I can assure noble Lords that we are committed to reducing the availability of tobacco to children and young people. However, our actions must be guided by evidence and effectiveness. On that basis, I hope that the noble Lord, Lord Rosser, will be prepared to withdraw his amendment.

[Lord Rosser]

I would be grateful if the Minister would first clarify what he has just said. One interpretation is that the Government do not really intend to do anything further themselves but are urging anyone else who thinks that there is any evidence to put it in front of them. I am not sure whether that is what the Minister is saying. Obviously, if anyone else does have evidence on this issue, of course they should submit it to the Government—but are the Government themselves seeking to do anything to ascertain or produce evidence? The Robinson and Amos study of 2010 looked at how young people’s sourced cigarettes and attempted to circumvent underage sales. It concluded that there was a problem, and one suggestion was that regular national smoking surveys should include questions that would capture more accurately the nature and extent of proxy purchases. What I am asking the Minister is whether it is now purely up to other people to put the evidence in front of the Government, or are the Government, through the Department of Health, actually doing any work themselves to seek to ascertain evidence of their own?

The amendment that I moved would be a key tool by which the authorities would know that there was a problem in a particular location because of evidence that proxy purchasing was taking place. Again, is the noble Lord’s response that it is basically up to everyone else to provide the Government with evidence, or is he saying, “If you have any evidence, provide it to us, but we are also”—whether it be through the Department of Health or anyone else—“seeking that evidence ourselves”?

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[Lord Taylor of Holbeach]

Perhaps I may respond to that point. The Government are determined to try to stamp out smoking as a habit, particularly among young people, so they are being proactive. However, what I am saying on this particular issue and this particular amendment is that the advocates of proxy purchasing as an offence—the noble Lord, Lord Faulkner, drew attention to the wide number of people who are, and I said it myself in my speech—will be helped in their advocacy if they can provide the Government with the information they need to make sure that if at a future date they choose to implement such a policy through legislation, they will have the information on which to base that decision.

[Lord Hope of Craighead (CB)]

My Lords, I want to make a point about the evidence. It may be my fault, but I am not entirely clear what evidence the Minister is looking for. It is quite difficult, until such a measure is in force, to know whether it will be effective. Of course the Scottish experience is there as an example, and it may be that the noble Lord is relying on that, but the fact is that until the measure is actually put on to the statute book, you cannot be absolutely certain one way or the other that it will be effective. On the other hand, there is certainly evidence, which has been referred to, that people with knowledge of the way these things work are asking for the measure. Is that not evidence to justify putting the measure on to the statute book, taking the view that it may do some good and would certainly do no harm?

[Lord Taylor of Holbeach]

I have always been cautious about taking the latter point that the noble and learned Lord, Lord Hope of Craighead, has made. I always appreciate the noble and learned Lord’s contributions, but just putting something on the statute book because it might work is probably not a particularly good way of going about things.

Having said that, the Government are serious about evaluating this issue. We know that it has been rather disappointing in Scotland—I think the noble and learned Lord would know that from his own experience—and I gave some illustration of that. It may not be the solution, but it is certainly a possible solution, and I urge the House to allow the Government to evaluate that in a proper fashion.

[Lord Berkeley of Knighton (CB)]

My Lords, if I may make one small point—

[Lord Rosser]

I note what the Minister has said about the situation in Scotland. I do not know whether that means he has had further information since we discussed it in Committee, but the Government said then:

“The Scottish Government, who we have talked to about this issue, say they do not currently hold any information about the numbers of convictions or, as yet, any evaluation of the effectiveness of the new offences”.—[Official Report, 4/12/13; col. 279.]

It appears from what the Minister has just said that, since 4 December, the Scottish Government have now said to the Westminster Government that the provision is not working. I do not know whether the Minister has had that information since we discussed it in Committee.

[Lord Taylor of Holbeach]

I do not want to give that impression. I am not prejudging this and I simply gave an evaluation. The results are disappointing because there have been no convictions and just one offence has been reported.

[Lord Rosser]

That is slightly different from what was said in Committee, when the noble Lord, Lord Ahmad of Wimbledon, on behalf of the Government, referred to the fact that, as far as the Scottish Government were concerned, there had been no evaluation of the effectiveness of the new offences. However, I will leave it at that and do not intend the pursue the issue any further.

I would like to think that the Government’s view is that they will play a part in seeking to evaluate the evidence for the measures set out in this amendment and that it is not simply up to other people to provide it to them. I hope that is what I can draw from what the Minister has said. I might have drawn the wrong interpretation, so I will not say that I will withdraw the amendment on that basis, but, in the hope that that is the correct interpretation and that the Government in fact intend to take an active role in evaluating the evidence and not simply rely on others to provide it, I beg leave to withdraw the amendment.

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[Baroness Smith of Basildon]

My Lords, I am grateful to my noble friend Lady Gale and the noble Lord, Lord Trees, for bringing these issues before us for debate. We had a fairly lengthy debate on dogs in Committee. It was quite illuminating at certain points and also helpful in outlining the extent of the problem we face. Even since that debate took place there have been several quite dreadful attacks on people, with some serious consequences, which shows the need for strong action.

In Committee I acknowledged the seriousness of the problem and reported on the scale of the attacks. I do not intend to repeat all the figures. They are on the record and, in any event, they will have increased in the past couple of months. However, they are truly shocking, and, given that 23,000 postal workers have been attacked in the past three years, I wonder how many suffered delivering our Christmas mail.

Something the Minister said in Committee gave me cause for concern. I have no doubt that he is convinced that the Government’s actions will work. I was very pleased that in Committee he committed to reviewing the effectiveness of government measures, and I trust he is willing to confirm that review in your Lordships’ House. I think the noble Lord, Lord Redesdale, would also welcome a report back on how the Government’s measures are working if no amendment is agreed.

The Minister also said in Committee:

“I hope the Committee will agree that it is better for a dog owner to address the problem themselves rather than to be compelled to do so under the terms of a notice”.—[Official Report, 02/12/13; col. 106.]

It is precisely because some dog owners do not address the problem themselves that there is the need for a dog control notice. If every dog owner could be trusted to take the necessary action, no notices would be required. It is because so many owners are negligent in that regard, and dogs are able to attack people—or, as we have heard, other dogs or animals—that there needs to be further protection and further action. I believe that dog control notices are the way forward.

When a dog attacks a person or another dog, it may not be malicious on the part of the owner. I think I stressed that. It may be a lack of awareness, but the consequences are the same in either case. Dog control notices provide the ability for local authorities to take action to prevent such attacks. A wide range of organisations supported the introduction of dog control notices—the RSPCA, Battersea Dogs & Cats Home, the British Veterinary Association, the pet charity, Blue Cross, the Communication Workers Union and the Association of Chief Police Officers. I hope that the Minister will consider bringing this forward solely to try to address what I know he and the House regard as a serious problem. I agree with the noble Baroness, Lady Gale, that we hope to have a better response from the Minister and that he will give some ground on the issue of dog control notices. If not, can he indicate that the review he referred to in Committee will be reported to your Lordships’ House so we can judge the effectiveness of the existing legislation?

The noble Lord, Lord Trees, brings his professional expertise to this debate—for which we are grateful—with his Amendments 86B and 86C. I was shocked at the number of attacks he referred to on other animals and cats. I was not aware that it was so great. I think it reinforces the need for preventive measures and, undoubtedly, prevention is the preferable way forward. His amendments are helpful and I will be very interested to hear the Minister’s comments on them. The suggestion that he take them away and consider them and bring them back if he thinks there is merit in them and they can improve the Bill is very helpful and wise.

[Lord Taylor of Holbeach]

My Lords, this has been a useful debate. I thank the noble Baroness, Lady Gale, for bringing it back for us to consider, having had this debate in Committee. In a number of instances we are going over ground we have discussed before, but it is important that we try to set the Government’s position in some context. As noble Lords will know, I was a Minister in Defra—and, indeed, had quite a lot to do with some of the early talks about how to deal with dogs and the dangers that out-of-control dogs present not only to postmen and people visiting houses but to people going about their daily lives.

While it is true that some organisations, as mentioned by the noble Baroness, support dog control notices, it is similarly true that some do not—and it is by no means the case that the scales are weighted on one side of the argument. That aside—it is history really—the animal welfare organisations have all agreed to suspend their campaigns for dog control notices and to work with us to ensure that the same aims may be achieved through the community protection notice.

I very much welcome this constructive approach from the sector. It is a genuine partnership, working with the Government to ensure that measures may be as effective as possible. That really answers the noble Baroness’s point as to how the facilities offered by the community protection notice will be publicised and how it will be implemented. It will be implemented with the co-operation of the dog charities, and I expect this dialogue to continue after implementation; I know my colleagues in Defra will listen to these organisations on the question of how effective the implementation is.

The noble Baroness, Lady Smith, suggested a report for Parliament. I am sure that this House will readily take to a debate on this subject a few years hence, when the new regime has had a chance to have an impact. I am confident that it would be a positive debate; I would like to think so.

As I said, Defra officials are in regular contact with the national policing lead on dangerous dogs, as well as other units involved in this work, so that the new measures may be as useful and as user-friendly as possible in cases of irresponsible dog ownership. Reference has been made to the guidance that has been produced for practitioners. The Local Government Association, representing those who will be using the measures—they are likely to be the enforcers—has been consistent in its message that it does not see the need for an additional power specifically in relation to dogs.

The Government agree with the underlying aim of the amendment: to hold irresponsible dog owners to account and, more importantly, to change their behaviour. However, we have already provided the necessary powers in the Bill, so it remains the case that we cannot support the amendment. Effective use of the provisions in the Bill should see an increase in responsible dog ownership and a reduction in the number of dog bites and dog incidents.

I make it clear that the community protection notice can do all that the dog control notice proposed in the noble Baroness’s amendment can do. In fact, I will be so bold as to go further and say that it can do more, because it avoids the prescriptive nature of issue-specific notices and allows practitioners to respond to all manifestations of behaviour that negatively affect the community. Focusing on the impact of the behaviour ensures that dog owners are not unjustly penalised and that communities are protected from existing, as well as new, forms of irresponsible dog ownership.

The community protection notice provides a mechanism so that officers faced with a case of irresponsible or anti-social dog ownership may decide on the most effective way to stop and prevent future recurrences of that behaviour. It may be by requiring the dog to be on a lead in certain areas, fixing inadequate fencing, attaching a letterbox guard or requiring the owner to attend training classes. The officer, in consultation with welfare experts where necessary, may use the notice to educate owners and increase responsibility.

It may be helpful to provide an example to noble Lords of how the CPN could work in practice. Many noble Lords will have heard about terrifying and unacceptable incidents in which postal workers have been attacked or regularly have to face the unpredictable and, at times, out-of-control behaviour of dogs at certain properties. Clause 98, in amending the Dangerous Dogs Act 1991, corrects the current legal lacuna and will ensure that the Crown Prosecution Service can take forward prosecutions where postal workers and others are injured, or indeed fear injury, by a dog while on private property.

However, let us suppose that the threshold is not met; perhaps the dog is out of control but not dangerously so, as defined by the 1991 Act, but is nevertheless barking excessively at the postal worker or jumping up at the letterbox. I think that all noble Lords have had enough doorstep delivering experience to know exactly what we mean. Under the new powers we are introducing, the postal worker may alert the authorities and report the behaviour. I should take a moment to congratulate Royal Mail on its sophisticated reporting and logging systems for these incidents, which have proved useful in tackling such irresponsible ownership.

The local authority may investigate and, if it is satisfied that the test for the community protection notice has been met, serve a written warning that such behaviour is evidently detrimentally affecting the quality of life in the locality—in this case, that of a postal worker, although other people may be affected. An officer from the authority may wish to visit the address and discuss the issue with the owner, or may simply post the order as a warning to the owner. The warning would state that the officer considers the threshold to have been met and would detail the offending behaviour. It would make clear that the officer will serve a community protection notice should the behaviour not change or stop, and that, over time, this may result in prosecution and a criminal record.

For many owners, this level of intervention will be sufficient, and the engagement from an officer will encourage the owner to consider the opportunities for better education and training. However, if the warning is not heeded, a community protection notice could be served, which may make a number of requirements of the owner: for example, that they attend dog training classes with their dog and/or attach a letterbox guard or similar item, as I have already illustrated. The owner will be provided with the opportunity to become more responsible and the postal worker will be better protected. Should the owner attend training classes, the dog’s welfare may also be improved. All this can be achieved with a community protection notice, fully negating the need for an additional power in the form of a dog control notice.

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[Baroness Gale]

My Lords, I thank all noble Lords who have taken part in this short debate and the Minister for his reply. When I spoke to my amendment, my noble friend Lady Donaghy was not able to be here. I am very pleased to see that she is now in her place; I know that she supported the amendment. I also thank the noble Lord, Lord Redesdale, for his contribution. I agree with him that we need a separate piece of legislation on dogs, but we will not go down that road tonight. I also thank the noble Lord, Lord Trees, for his contribution on protected animals, and my noble friend Lady Smith for her contribution and her support on this matter. She spoke about the need for a review, and in his reply the Minister said that we could perhaps have a debate in a few years’ time. I am not quite sure whether he meant that that would be the review or that there will be a review and we can then debate it.

[Lord Taylor of Holbeach]

If I could just explain, there will be a review of all this legislation; we are committed to post-legislative scrutiny of this Bill. I am suggesting that if the House wished to focus particularly on dog issues, I am sure that would be considered a suitable subject for debate by the usual channels.

[Baroness Gale]

I thank the Minister for his reply. I am sure that we will have a debate on this matter. He said that he believed that the community protection notices would be as effective as, or even more effective than, the dog control notices. We all hope that they will be as effective as the Minister hopes they will be. It is good to know that the campaigning organisations will now be working with the Minister to improve the legislation and ensure that it works. With that, I think we made our case strongly. I am sorry the Minister was not able to accept it, but we want the new Bill and the community protection notice to work effectively. As we cannot have what we wanted, I ask the Minister to work with the organisations, and work together now, to make sure that it will work. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Marland (Con)]

My Lords, no one bows more than I do to the noble Baroness, Lady Smith, as I had the pleasure of engaging in debates with her for two and a half years, but I agree with my noble friend Lord Deben that we are in danger of overkill here and I disagree with the comments of the noble Lord opposite. It is clear that we have to generate public confidence and this amendment makes a very good stab at trying to establish it, which is absolutely fundamental.

However, the process through which people have to go in applying for a firearms licence is incredibly rigorous. The checking process is rigorous, as is the storage process, but there will always be people outside that process who will abuse it, as my noble friend Lord Deben said. The problem with the amendment is that it leaves out a whole range of people who should be included in the category we are discussing. That is why I have drawn the conclusion that legislating for the sake of legislating to tighten regulation that is already tightly drawn is not the answer. Like noble Lords on the opposition Benches and those who support the amendment, I understand that public confidence has to be of the utmost. We have to let the police ultimately decide who is able to hold a firearms licence—they, and they alone, should decide that.

[Lord Taylor of Holbeach]

My Lords, I am very grateful to my noble friend Lord Marland for that speech. This has been a useful debate, in which noble Lords have cast around a bit and have perhaps extended the debate beyond the terms of the amendment proposed by the noble Baroness, Lady Smith. It may help if I explain how the current regime operates, because we have to consider the amendment in the light of what is already being done to deal with these matters.

As the noble Baroness has explained, the first part of the new clause she proposes seeks to create a presumption that, if an applicant for a firearm certificate or shotgun certificate meets one of the stated criteria in her amendment, the police should not grant such a certificate. The stated criteria include violent conduct, evidence of domestic violence and drug or alcohol abuse.

I share the noble Baroness’s concern about firearms being possessed or accessed by unsuitable persons. However, under the provisions of the Firearms Act 1968, the police already have the ability to take these factors into account when assessing the risk to public safety. The Firearms Act 1968 specifies that, before a licence can be issued, the police must be satisfied that the applicant can possess a firearm or a shotgun without danger to “public safety or the peace”. That is the basic test, so the law is sound in this respect and there is no need to change it.

I understand that there are concerns in particular about domestic violence and abuse. The police do take domestic violence and abuse very seriously. If they are called to a domestic violence and abuse incident and they suspect that a person is in immediate danger, they are able to seize any firearms immediately under powers in the Firearms Act 1968, the Firearms (Amendment) Act 1988 or the Police and Criminal Evidence Act 1984. The police would also complete the domestic abuse, stalking and “honour”-based violence risk identification checklist, which asks them to consider the abuser’s occupation and interests and whether this could give them unique access to weapons. It also ensures that the police ask victims whether weapons have been used to hurt them before.

Moreover, in response to concerns, last July we published new guidance on this issue which provides greater detail on how the police should handle such cases. The guidance makes it clear that, although each case must be considered on its merits, evidence of domestic violence will generally indicate that the application should be refused.

Furthermore, revised firearms guidance, published fully in October, specifies that the police must take seriously intelligence falling short of a conviction and information when assessing a person’s suitability to possess firearms. It also states that forces must have procedures in place to monitor any activity of certificate holders or their associates which has come to the notice of the police, and that following a domestic violence incident an immediate review of the suitability of a certificate holder should take place. These recent changes—they are recent changes—underline how vital it is to ensure that those in possession of firearms do not pose a risk, and they serve to make the firearms licensing system stronger.

The proposed new clause also seeks to introduce a requirement that the police must follow any guidance issued by the Home Secretary when assessing public safety. I understand the argument being made here. However, I do not consider that this would be the right approach. The law provides the police with discretion in recognition of their responsibility for public safety in local areas, so it is right that chief officers have discretion to assess applications for firearm and shotgun certificates, taking into account the merits of each case and the published guide.

I say in response to the remarks of the noble Baroness, Lady Smith, and, indeed, those of the noble Lord, Lord Hunt of Chesterton, who was concerned that the procedures might be deficient, that the test the police must apply in deciding whether to grant a certificate is whether the applicant can be permitted to possess a firearm without causing danger to public safety or the peace. An applicant has a statutory right of appeal to the Crown Court against the police’s decision to refuse a certificate. Therefore, the police will want to be satisfied that they have a rational, cogent and well evidenced justification for a decision to refuse a certificate to enable them to justify their decision in the event of an appeal. While the police may consider the possibility of a successful appeal in deciding whether to refuse a certificate, this factor is not part of the statutory criteria for the decision to grant or refuse a licence and therefore will not be part of the process, which will be based on the test of not endangering public safety or the peace.