Anti-social Behaviour, Crime and Policing Bill

Norman Baker Excerpts

Monday 14th October 2013 Commons Chamber

[Mark Field]

I cannot use ignorance of the law as an excuse, but my hon. and learned Friend knows considerably more about these matters than I do. He makes a relevant point, which is that we do not necessarily have to go entirely down that route. The ASBO legislation and this concurrent legislation is designed to look at the whole issue of antisocial behaviour in a constructive and codified way. The problems to which I have referred apply not simply to the City of Westminster, Southwark or inner-London boroughs. Increasingly, it will become apparent in places such as Manchester, Leeds and Birmingham, so we should look at it fairly urgently. Without being overly negative about the potential open-door arrival of a significant number of people from Romania and Bulgaria, there is no doubt that some of the specific problems in central London in recent months have come disproportionately from groups who have already come to this country from those other EU states. We need to ensure that local authorities are given a chance to take action. As such, I feel strongly that the Bill should be amended better to reflect the circumstances that affect inner-city areas, recognise the particular challenges that are faced in the UK’s major cities and specifically enable a court to grant IPNAs with automatic powers of arrest in a wider variety of circumstances.

This matter will have to be dealt with in amendments in another place. To answer directly the question put by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), I hope that we will have a further amendment to clause 3 to add an additional subsection applicable only in major city centres or other designated areas, which varies the conditions under which a power of arrest attachment can be made to include wording such as “deliberately organised antisocial behaviour”. That will have to be dealt with in our further deliberations on the Bill.

I take this opportunity, Mr Deputy Speaker, to thank you for allowing me to make a brief contribution. I accept that the Minister is aware of some of the specific concerns for Westminster, but I also very much accept that he may wish to deal with this in writing rather than going into it in great detail this evening.

[The Minister of State, Home Department (Norman Baker)]

May I take the opportunity of my first outing in my new capacity to thank Members on both sides of the House for their good wishes and congratulations. I am deeply grateful for the support that has been shown across the House over the last week following my appointment. I look forward to working constructively with Members on both sides of the House as we take this agenda forward.

I am also delighted to see my predecessor, my hon. Friend the Member for Taunton Deane (Mr Browne), in the Chamber. I pay tribute to him for the significant work that he has done as a Home Office Minister. His attention to detail and his commitment have been exemplary, and I look forward to trying to emulate that in my role. I also welcome the hon. Member for Croydon North (Mr Reed) to his new role on behalf of the official Opposition.

I will now deal with the various Government new clauses and amendments. Overwhelmingly, they follow up points raised in Committee, which is a testament to the effectiveness of the scrutiny the Bill underwent upstairs. There are a number of drafting and technical amendments in this large group. So as not to delay the House unduly, I will focus my remarks on the amendments of substance.

The injunction to prevent nuisance and annoyance and the criminal behaviour order are important new powers to deal with individuals who commit antisocial behaviour. Courts will be able to use them both to prevent certain behaviour and to require positive actions—for example, addressing a drug or alcohol problem that is an underlying cause of an individual’s antisocial behaviour.

The Committee agreed non-Government amendments tabled by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) to clauses 1 and 21. These would require a court to avoid any conflict with a person’s caring responsibilities when attaching such conditions. This would be in addition to the duties that were already in the Bill, to ensure that conditions are suitable and enforceable and, so far as practicable, to avoid conflicting with a person’s religious beliefs, work, educational commitments or any other court order imposed on them. As my hon. Friend the Member for Taunton Deane said in Committee, we always expected courts to take account of caring responsibilities, which are clearly a relevant factor in ensuring that conditions are suitable and enforceable, and I repeat that for the benefit of the House.

There is a concern that references to caring responsibilities might weaken the new powers in practice. A number of the agencies that would use and enforce injunctions and orders tell us that there is a real danger that specifically including caring responsibilities in the Bill would make it more difficult to secure appropriate conditions, and that is not in the interests of the victims that these injunctions are designed to protect. I can assure my hon. and learned Friend that we do expect these matters to be taken into account by courts considering injunctions as they relate to caring responsibilities.

My right hon. Friend the Member for Southwark and Bermondsey—I think he has gained a north somewhere; Bermondsey North and Southwark—asked why the words on religious belief were qualified with the phrase “as far as practicable”. I am advised that it is similar to the right to manifest one’s religion set out in article 9 of the convention. The right is qualified and can be limited where necessary and proportionate. For example, it is not necessary for someone who professes to be a Christian to attend church every single day. I hope that is helpful and answers his point.

The Committee also agreed an amendment to clause 4, tabled by my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch), to add head teachers and principals of further education colleges to the list of persons who can apply to a court for an injunction. The intention was to tackle bullying in schools and colleges. I agree that it is vital that powers are in place to address that problem, which blights the lives of too many young people, but we need to get the detail right. She rightly referred to the consultation that has taken place and the responses to it, and I am grateful for her analysis and her decision on how to proceed. However, I want to assure her that we have drafted guidance to explain how the injunction could be used to address bullying, with the help of front-line professionals and the BeatBullying organisation, which has advised us on the matter. I entirely accept her point about online bullying, a matter I was considering only this afternoon in the Home Office. I can assure her that, as far as I am concerned, bullying will not be taken off the agenda.

Amendments 10 to 15 to clause 12 relate to the power to exclude the subject of an injunction from their home. As I have said, the Bill provides for prohibitions to be attached to an injunction. In extreme cases where the antisocial behaviour has involved actual violence or the threat of violence against another person, or where there is a significant risk of harm, someone can be excluded from their home, but only if they live in social housing.

--- Later in debate ---

[Simon Hughes]

My hon. Friend has said that his amendments deal with an issue that was clearly controversial: the ability to deal with social housing tenants but not others and the need for a level playing field. I hope that he will not forget to deal with amendment 166 from the Joint Committee on Human Rights, which would add some additional requirements, and that he might be persuaded that they are useful additions.

[Norman Baker]

My right hon. Friend is as eager as he was when he first arrived in this House many years ago. If he will allow me, I will get to the Committee and the amendments he referred to in his opening remarks in due course.

Another important issue raised in Committee relates to the application of the new powers in relation to antisocial behaviour in or around a respondent’s home, this time in relation to the criminal behaviour order. The first condition that must be met before a criminal behaviour order can be made is that the court is satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the offender. In Committee the right hon. Member for Delyn (Mr Hanson) tabled an amendment to remove that limitation. My right hon. Friend the Minister for Policing and Criminal Justice made it clear at the time that the criminal behaviour order is not intended as a tool for tackling domestic violence, as other more suitable powers are available for that, and that remains the case. However, having considered the matter further, we recognise that there might be cases where antisocial behaviour is inflicted by one member of a multi-occupancy household on another and where the flexibility to apply for such an order could be helpful. Amendment 16 therefore removes that limitation.

I turn now to the amendments to clause 93, which relate to the community remedy. That welcome initiative gives victims of low-level crime and antisocial behaviour a say in the punishment of offenders out of court. Police and crime commissioners will work with the public and chief constables to compile a menu of out-of-court sanctions that can be used in appropriate cases following consultation with the victim. At the heart of the community remedy is our commitment to empowering victims and communities to say what is right for them. I do not think that that will include use of the stocks, which was referred to earlier.

We have brought forward amendments 45 to 48, which have three elements. The first two will put on the face of the Bill what had always been our expectation: the actions included in the community remedy document must promote public confidence in the use of out-of-court disposals and include an element that is punitive, restorative or rehabilitative. The third change is a power for the Secretary of State to issue guidance to which police and crime commissioners must have regard when preparing a community remedy document. A draft of that forms part of the document for practitioners, which we published last week.

The other Government amendments in the group are largely technical in nature, and I have placed a detailed letter in the Library. I commend the Government amendments to parts 1 to 6 of the Bill to the House.

I turn now to amendment 96, tabled by the shadow Home Secretary and spoken to today by the hon. Member for Croydon North. I am firmly of the view that antisocial behaviour still ruins too many lives and damages too many communities. There are, of course, problems in our inner cities, but there are also problems in our smaller towns, and that concerns all Members of this House.

Up to March 2013, 2.3 million incidents of antisocial behaviour were reported to the police and we know other incidents were reported to councils and social landlords. The previous Government tried—genuinely, I think—to address the problem, but after more than 10 pieces of legislation introduced before 2010 we have been left with a mishmash of powers that is confusing for the public and for the professionals who have to use them, and that is less and less effective. The antisocial behaviour order may have worked well in individual circumstances, but overall it has not worked well. Such orders are too often seen as a badge of honour and, as has been said, over 50% of them have been breached at least once and just over 40% have been breached more than once. Also, the number of orders issued has been falling year on year. People are losing confidence in ASBOs.

[Mr Steve Reed]

Why are the Government seeking to decriminalise antisocial behaviour when 80% of the public feel it is on the rise? How does that help?

[Norman Baker]

I will come on to the powers we are introducing, but the hon. Gentleman spent a lot of his contribution talking about the injunction to prevent nuisance and annoyance, which is one of the tools we are proposing, but we are also proposing a criminal behaviour order, a breach of which is a criminal offence. The CBO is in some ways most akin to the ASBO we are seeking to replace, the injunction being an extra tool.

I know Members on the Opposition Benches are still wedded to ASBOs, despite the evidence, but by any reasonable assessment the statistics show it has been increasingly failing. I want a system that is more effective at tackling antisocial behaviour and has the confidence of the professionals who use it. We know that agencies such as the police, local councils and social landlords are working hard to protect victims and stop antisocial behaviour, but they need the right powers to do this. That is why we are replacing the existing powers with six streamlined, more flexible, quicker and more effective ones to protect the public better.

[Mr Reed]

The Minister talked about trusting the police and local councils and adding more tools to their armoury, so instead of abolishing ASBOs why does he not leave them on the statute book so that police and councils can choose whether it is appropriate to use them or IPNAs, or any of the other tools the Government are providing in this Bill?

[Norman Baker]

First, ASBOs have been increasingly ineffective and have become a badge of honour in some cases; secondly, we want to streamline the powers so they are clear; and, thirdly, we want to use powers that are quick and efficient and that do the job, which is what Members on both sides of the Chamber want: we all want a swift reduction in antisocial behaviour.

As I have said, the main replacements for the ASBO are the injunction under part 1 of the Bill and the criminal behaviour order under part 2. In drawing comparisons with the ASBO, they should be seen together, rather than be taken individually. The injunction is a purely civil remedy. That means it has a lower test than the ASBO on application, coupled with the lower civil standard of proof, so it will be quicker to obtain than the existing order. Front-line professionals will be able to use it as a preventive measure to nip emerging problems in the bud before they escalate into something more serious—which I think is good news for victims— but, crucially, the court could also include “positive requirements” in the order. That is missing from the ASBO arrangements; indeed, that is one of their major flaws. That has meant the focus has been on stopping the behaviour, but not on getting individuals to deal with the underlying drivers of their behaviour. If we are to prevent reoccurrences of bad behaviour, it is very important we address that.

Unlike for the ASBO, breach of the IPNA will not be a criminal offence. This means there is no risk of criminalising under-18s. It will also help to reduce the burden on the police and others in gathering and providing evidence. That does not mean that the injunction has no teeth if it is breached: it does. Adults can be imprisoned for up to two years for breaching the terms of the IPNA, and the court can detain an under-18 if it thinks that, due to the severity or extent of the breach, no other power available to the court is appropriate.

We must not look at the injunction in isolation. It is complemented by the CBO, which will be available to deal with the most serious antisocial behaviour. Breach of a CBO will be a criminal offence with a maximum sentence of five years in prison. That is the same sanction as is available for the breach of an ASBO, but the CBO will be more effective than the ASBO because, like the injunction, it can have positive requirements attached to it to help the offender turn their life around.

These reforms are about putting the victim first and providing streamlined, effective powers for enforcement agencies to do just that. Amendment 96 seeks to retain a discredited regime that has left people across the country suffering from antisocial behaviour. I therefore hope, perhaps optimistically, that the hon. Gentleman will withdraw his amendment in due course.

[Mr Reed]

rose—

[Norman Baker]

If the hon. Gentleman is going to withdraw it, I will gladly give way.

[Mr Reed]

I am not planning to withdraw it. I wonder whether the Minister is dismissing out of hand the views of the organisations that wrote a letter to The Times saying that this is “Ill-thought-out legislation” that will waste police time and clog up the courts. The signatories to that letter include the Standing Committee on Youth Justice, Barnardo’s, Liberty, the National Council for Voluntary Youth Services, JUSTICE, the Children’s Society, the Howard League for Penal Reform, UK Youth, the Prison Reform Trust, and the Children’s Rights Alliance for England. It is disappointing to hear the Minister dismiss the legitimate concerns raised by those well-respected organisations.

[Norman Baker]

I am certainly not dismissing them, and they have been looked at carefully, but it is important to look at the IPNA and the criminal behaviour order in tandem rather than merely concentrate on one of them.

[Stephen Phillips]

Does my hon. Friend agree that rather then relying on letters from the great and the good, perhaps the best thing to do is to rely on the British people? He will no doubt remember that in 2012 Angus Reid conducted a survey in which only 80% of people said they thought that ASBOs had been effective in tackling antisocial behaviour. Is not that why we need to change the regime?

[Norman Baker]

That is exactly right. The shadow Minister said that the recent crime survey showed that 80% of people think that antisocial behaviour is increasing. That suggests to me that the current regime is not working and needs to be replaced by something more efficient.

[Dr Huppert]

The shadow Minister mentioned a list of people who have concerns about IPNAs. I think they would agree with my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) and I that we could look at those concerns, and I am sure that the Minister will do so. They do not support ASBOs, as he suggests; they would like to get rid of ASBOs and have an improved, more sympathetic IPNA.

[Norman Baker]

I am grateful for that intervention, which puts the matter on the record.

The shadow Minister expressed concern about the costs of dealing with IPNAs and the new regime that we propose to introduce. It is worth quoting the chief constable of Thames Valley police, Sarah Thornton, who said:

“So in terms of improving the effectiveness, yes we are going to have to train officers, but I think that is worthwhile…If there is a bit of additional training cost, it really would be well worth it in terms of additional effectiveness in tackling anti-social behaviour locally.”

In other words, the relatively modest amount spent on training on IPNAs will more than repay itself in terms of the results that accrue. It is also worth pointing out that ASBOs were not without their costs either; it would be foolish to think that they were. A cost was involved in dealing with breaches of ASBOs just as there is with anything else. If I remember correctly, the shadow Minister quoted a cost of £1.5 million for breaches of IPNAs—allegedly; I am not quite sure where that figure comes from—but ASBO breaches cost money as well. If he wants to make a fair comparison, he ought to include that in his assessment.

Let me turn to the amendments tabled by my right hon. Friend the Member for Southwark North and Bermondsey—[Interruption.] I am sorry—Bermondsey North and Southwark. I want to call it Southwark and Bermondsey because that it is what it was for so many years. Anyway, I mean my very old friend who moved the amendments. His amendments and those of the hon. Member for Aberavon (Dr Francis) pick up a number of points raised by the Joint Committee on Human Rights, which is of course a very important Committee of this House. I am grateful to the Committee for its detailed scrutiny of the Bill. Taken together, the amendments would introduce additional requirements that professionals and the courts would have to meet in order to use the new powers. While I agree that we must ensure that appropriate safeguards are in place, I believe that those are already built into the Bill and fear that the Committee’s amendments would lose some of the benefits of our reforms in streamlining powers and processes to help victims and empower front-line professionals.

New clause 33 is concerned with the use of injunctions in cases involving children and seeks to place in the Bill a requirement that the interests of the child are treated as a primary consideration when imposing an injunction, any associated conditions or sanctions for a breach. In shaping our reforms, we have, naturally, carefully considered the needs and rights of young people, which are important, so that we get the right balance between enforcement and helping those who commit antisocial behaviour to turn their lives around. I am a little concerned, to be honest, about the use of the word “primary” in new clause 33 with regard to setting that balance.

--- Later in debate ---

[John McDonnell]

I wonder whether the Minister could re-read the script that he has just read. He spoke about an individual having

“engaged or threatened to engage in conduct causing nuisance or annoyance”.

The wording in the clause is

“conduct capable of causing nuisance or annoyance”.

That is the problem. That is where judgment enters into it. That is why amendment 158 was tabled. It would put the emphasis on reasonableness in that judgment.

[Norman Baker]

I understand entirely the point that the hon. Gentleman is making. I make no promises, but I have a lot of time for his analysis of the legislation and will consider the point carefully.

I will turn to the amendments that my right hon. Friend has tabled to clause 12, which sets out the limited circumstances in which an injunction may exclude someone from their own home. I agree that the courts must consider whether it is necessary and proportionate to exclude someone from their home, regardless of whether they live in social housing, rent privately or own their own home. However, I am not persuaded that those principles need to be included in the Bill.

We have made it clear in the guidance that not only do we expect that the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate to use the power, taking into account the individual’s article 8 rights. As such, applications should be made only in exceptional cases that meet the high threshold set out in clause 12—that is, where there is a threat of violence or a significant risk of harm.

Several of my right hon. Friend’s amendments to clause 21, which provides for the criminal behaviour order, are similar to those that he tabled in respect of the injunction and are unnecessary for the same reasons. The draft guidance to the Bill makes it clear that we expect that the courts will follow existing case law from the House of Lords in relation to antisocial behaviour orders and that they will apply the criminal standard to criminal behaviour orders. The amendments to clause 21 are therefore unnecessary.

My right hon. Friend has also tabled an amendment to the new dispersal power to explicitly exempt all peaceful assemblies from its use. I agree that that is an important point, but I would argue that the safeguards that we have built into the legislation will ensure that the dispersal power is used proportionately, while maintaining the flexibility to allow the police to act quickly to protect victims and communities from antisocial behaviour. Where behaviour is lawful and is not causing harassment, alarm or distress, the test for using the dispersal power will not be met. Mere presence in an area is not itself a ground for dispersal, so the power could not be used. The test will be met only if someone’s behaviour is causing or is likely to cause harassment, alarm or distress to members of the public, or crime or disorder in the locality.

[Simon Hughes]

The hon. Member for Hayes and Harlington (John McDonnell) and I both raised that last matter. I understand my hon. Friend’s argument, but I do not see how it is logical to protect picketing and processions in the Bill, as was done in Committee, but not the general right of free assembly. I do not think that the Bill should say that one can do certain things and not face a dispersal order, but not make it clear that one can do other lawful things without facing a dispersal order.

[Norman Baker]

There was particular concern about processions and picketing. That is why they were singled out for mention in the Bill. I have made it plain this evening that where a behaviour is lawful and is not causing harassment, alarm or distress, the test for the use of the dispersal power will not be met. I hope that that gives my right hon. Friend the reassurance that he seeks.

Amendment 177 would remove the ability of landlords in England to seek to evict tenants when they or members of their household have been convicted of an offence at the scene of a riot anywhere in the United Kingdom. The Government believe that clause 91 sends out the strong and important message that if somebody gets involved in a riot, whether it is near their home or not, there may be consequences for their tenancy. However, Members have asked me to reflect on that matter and I will, of course, listen to the House and reflect on it without prejudice to the outcome of that reflection. We will respond fully to the report of the Joint Committee on Human Rights in due course. For now, however, I hope that my right hon. Friend will not press amendment 177 or new clause 33.

The shadow Minister and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who is no longer in his place, spoke about amendment 82, which is a consequential amendment to the Government of Wales Act 2006. Provisions on antisocial behaviour orders are among the exceptions to the legislative competence of the National Assembly for Wales in respect of local government matters. Amendment 82 simply updates that exception to recognise the abolition of the ASBO, thus preserving the status quo with regard to the Assembly’s competence. The UK Government is firmly of the view that amendment 82 is purely consequential upon the abolition of antisocial behaviour orders, so a consent motion is not required. It is also difficult to wait for the outcome of the Silk commission, as a failure to amend the Government of Wales Act now would alter the legislative competence of the National Assembly. Our intention is therefore to preserve the status quo and no more.

[Stephen Phillips]

Is it not a difficulty, though, that even though the amendment may be intended simply to be consequential and to replace the provision relating to the ASBO, it is drawn so broadly that, as Opposition Members have pointed out, it might also have an effect in other areas in which the Assembly currently has legislative competence?

[Norman Baker]

The advice I am getting from officials is very clear—that this is an appropriate conclusion to reach. However, three Members have now raised that matter, and they have done so in quite strident or convinced terms, so I will write to them with a firm conclusion.

[Mr Steve Reed]

We are raising these issues because the Welsh Assembly Government have raised them. Perhaps, rather than driving something through after the UK Government have legal advice that is clearly different from the Welsh Assembly Government’s, the Minister will commit to speaking to the Welsh Assembly Government before taking further steps.

[Norman Baker]

As I understand it, we have spoken to the Welsh Assembly Government, but I think I have made a generous offer in saying that because Members have raised a constitutional point, although I believe the Government’s position is sound—that is the clear advice I am getting from officials—I will ask officials to set that down for me in writing, and I will write to the three Members who have raised the matter this evening. I think that is quite a good offer, if I may say so.

I hope that I have been helpful in responding to the amendments and new clauses that Members have tabled. I think we have a good Bill, and I commend it to the House.

[Simon Hughes]

I am grateful to my hon. Friend the Minister for dealing with all the new clauses and amendments—those that I moved not on my own behalf but on behalf of the Joint Committee on Human Rights; the Opposition Front Benchers’ amendment; and his own Government amendments.

For the record, first, my constituency is called Bermondsey and Old Southwark. I know that it is the fourth formulation of the name in 30 years, but none the less, we have to keep up. Secondly, the Minister is still a good friend, but for him to call me “my very old friend” was not a way to get off on the right foot. He is not that much younger than me, although I accept that there is a gap between us.

On the substance of the new clause and amendments, I am clear that we are right to say no to antisocial behaviour orders, for reasons that Members of all parties have given evidence of. We are also right, as a Government, to introduce two options—a criminal order and a civil order. I hope that when the Bill becomes law, Ministers will produce something that makes clear the benefit to youngsters of not having a criminal record, because they will not have committed a criminal offence.

In relation to certain of the new clauses and amendments, I believe that the Joint Committee and other colleagues will not want to let the matter rest. I refer particularly—I am guessing, because the Committee will form its view collectively—to new clause 33, amendments 158, 165 and 166, and, most importantly, amendments 176 and 178.