Anti-social Behaviour, Crime and Policing Bill

Simon Hughes Excerpts

Monday 14th October 2013 Commons Chamber

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dawn Primarolo)]

With this it will be convenient to discuss the following:

Amendment 158, in clause 1, page 1, line 8, after ‘conduct’, insert ‘that might reasonably be regarded as’.

Amendment 163, page 1, line 10, leave out ‘and’ and insert ‘,’.

Amendment 164, page 1, line 10, after ‘convenient’, insert ‘and proportionate’.

Amendment 159, page 2, line 1, leave out ‘doing anything’ and insert ‘specified actions’.

Amendment 160, page 2, line 2, after ‘injunction’, insert

‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engage in’.

Amendment 161, page 2, line 3, leave out ‘anything’ and insert ‘specified actions’.

Amendment 162, page 2, line 3, after ‘injunction’, insert

‘which relate to the anti-social behaviour which the respondent has engaged or threatened to engaged in’.

Amendment 165, page 2, leave out line 6.

Government amendments 1 to 12.

Amendment 166, in clause 12, page 6, line 29, after ‘court’, insert

‘is satisfied that the exclusion is necessary and proportionate, and’.

Government amendments 13 to 15.

Amendment 167, in clause 21, page 11, line 24, after ‘satisfied’, insert

‘, according to the criminal standard of proof.’.

Government amendment 16.

Amendment 168, page 11, line 27, leave out ‘help in preventing’ and insert ‘prevent’.

Amendment 169, page 11, line 31, leave out ‘doing anything’ and insert ‘specified actions’.

Amendment 170, page 11, line 31, after ‘order’, insert

‘which relate to the anti-social behaviour which the respondent has engaged in’.

Amendment 171, page 11, line 32, leave out ‘anything’ and insert ‘specified actions’.

Amendment 172, page 11, line 32, after ‘order’, insert

‘which relate to the anti-social behaviour which the respondent has engaged in’.

Amendment 173, page 12, leave out line 3.

Government amendment 17.

Amendment 174, in clause 22, page 12, line 44, at end insert—

‘(9) The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.’.

Amendment 175, in clause 29, page 16, line 40, at end insert—

‘(7) The courts must taken into account the best interests of the child as a primary consideration when determining reporting a child’s case.’.

Government amendment 18.

Amendment 176, in clause 34, page 20, line 17, at end add—

‘(c) any other form of peaceful assembly.’.

Government amendments 19 to 44.

Amendment 177, page 61, line 22, leave out Clause 91.

Government amendments 45 to 48.

Amendment 96, in schedule 8, page 155, line 32, leave out paragraphs 24 to 27.

Government amendment 82.

[Simon Hughes]

I wish to speak to the new clause and amendments that I and the hon. Member for Aberavon (Dr Francis) tabled, and I will also say a word about the Government amendments and Labour’s amendment 96.

Our amendments all arise from the deliberations of the Joint Committee on Human Rights, which has just completed its report on the Bill. I welcome the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker)—if I can have his attention for a second—to his new responsibilities. I hope it will help him and the House if I say that we do not intend to seek to divide the House on the new clause or the amendments, but I hope that he will be able to give me a positive and constructive response. On many occasions we have been on the same side, trying to get positive and constructive responses from previous Conservative and Labour Governments. We have not always succeeded, but I hope that the new form of double act will allow me to ask for some reasonable changes and him to agree, either today or very shortly, to the changes that we seek.

I will put on record the relevant parts of the summary of the Joint Committee’s report, which we published on 9 October. It was the Committee’s fourth report of this Session. It states:

“The Anti-social Behaviour, Crime and Policing Bill was introduced in the House of Commons on 9 May 2013…It is a substantial Bill containing many provisions with significant human rights implications”.

The new clause relates to one of those implications. All the amendments in this group have human rights implications, which is why Mr Speaker has grouped them

We should like Ministers to pay attention to the issue of antisocial behaviour, which I shall come to expressly; to that of forced marriage; and, probably most politically controversially, to those of powers to stop, question, search and detain at ports, and compensation for miscarriages of justice. We shall come to those matters later in our deliberations.

We are grateful for the way the Bill team facilitated the Committee’s scrutiny of those issues, but we have three qualifications, as set out in our unanimous report. It states:

“First, we doubt whether the mechanisms for ensuring that a systematic analysis of the impact of laws and policies on children’s rights is carried out are yet embedded across Whitehall. We repeat our call for the Government to reassure Parliament that in future it will conduct a thorough assessment of the impact of legislation on the rights of children under the UN Convention on the Rights of the Child before the legislation is introduced. We propose to raise with the Children’s Commissioner the question of what can be done, in practical terms, to accelerate the Government’s progress towards implementing its undertaking to Parliament of nearly three years ago.

Second, the number of significant Government amendments to the Bill with potentially significant human rights implications has made our scrutiny—”

any Committee’s scrutiny, but ours in particular—

“of the Bill’s human rights compatibility more difficult”.

We take up that issue with the Leader of the House on a regular basis, because the more amendments are tabled late in the day, the more difficult Committees such as ours find it to report to the House and advise colleagues on how to respond. The summary continues:

“Third, the Government has not always provided us with information it has promised in sufficient time to enable us to scrutinise it adequately. We call on the Government, once again, to ensure in future that we are provided with the information we request in time to inform our scrutiny of Government Bills.”

Let me address the new clause and amendments to the antisocial behaviour proposals collectively, and then I will consider them individually although I do not anticipate detaining the House for too long. Parts 1 to 6 of the Bill reform current measures on antisocial behaviour, and the Committee’s view is that preventive measures against antisocial behaviour are, in principle, a welcome fulfilment of the state’s positive obligation to protect people against having their rights interfered with by others—that is the important context in which we consider all human rights implications of the Bill’s antisocial behaviour provisions.

New clause 33 would add to the Bill the requirement that

“The courts must take into account the best interests of the child as a primary consideration”

when imposing an injunction. It is a common principle of criminal and welfare law that the best interests of children be taken into account, and we would like that written into the Bill. The new clause simply states that the best interests of the child should be taken into account in four situations, namely when the courts are deciding to impose

“an injunction;

the terms of any prohibition or requirement;

sanctions for breach of an injunction; and

when determining reporting of a child’s case.”.

The Committee considered the human rights compatibility of the new civil injunction to prevent nuisance and annoyance—an IPNA. The Bill states that an IPNA may be imposed if the court considers it “just and convenient” to prevent antisocial behaviour—a lower test than the test of necessity required by human rights law. We also considered that the new IPNA definition of antisocial behaviour is too broad and not clear enough. I hope Ministers will consider positively the idea that the Bill should be as clear as possible and compatible with other legislation; we should not start introducing concepts not found in other legislation, which would mean that people would not know how the law would be interpreted.

In the Committee’s view, the Bill’s current provisions on the prohibitions and requirements that can be attached to an injunction are far too broad. Furthermore, we have not been persuaded that it is necessary to state expressly that prohibitions and requirements in an IPNA must “so far as practicable” avoid any conflict with religious beliefs. The Committee is clear—the House has been clear about this on many occasions—that the freedom to hold religious beliefs, or any beliefs that may not be from a religious perspective, is not a relative right but an absolute right that cannot be interfered with. The power to exclude a person from his or her home through the use of an IPNA is a severe measure, and the Committee believes further provision is required to ensure that such a power is used only when necessary.

As the new sanctions can be imposed on children as young as 10, the Committee also scrutinised the provisions and considered their impact on the rights of children. To reduce the potential negative impact of IPNA measures on children, we recommend that the courts must take into account the best interests of the child as a primary consideration in any IPNA legal proceedings. That explains the Committee’s position, and I will now consider quickly other amendments in the group.

[Dr Huppert]

My right hon. Friend is making an extremely good point. Has he had a chance to consider the report by the Home Affairs Committee which, during pre-legislative scrutiny of the Bill, came up with many of the concerns he has highlighted? Perhaps the fact that two different Committees raised the same concerns will mean that our hon. Friend the Minister might reflect more on the issue.

[Simon Hughes]

I am aware of the report by the Home Affairs Committee. One good thing is that since I started—my hon. Friend was very young; indeed, he may not have been alive, or just about, I think—Select Committees have become more useful and effective. They play a strong and useful part not just in considering issues, as the Home Affairs Committee has done, but in looking at legislation and reporting to the House. If we set up Select Committees like the Home Affairs Committee, or the Joint Committee on Human Rights, on which I and the hon. Member for Aberavon have the privilege to serve and which he has the honour to chair, it is nonsensical if our recommendations are not properly considered by the Government.

Amendments 158, 163, 164, 159 to 162, 165 and 166 relate to part 1 of the Bill. They do not require any great supporting speech as I hope they are drafted clearly and make their point. Amendment 158 would amend clause 1 on the power to grant injunctions, and would add to subsection (2) the words “might reasonably be regarded”. If amended, the clause would read:

“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct that might reasonably be regarded as capable of causing nuisance or annoyance to any person”.

That seeks to introduce an objective rather than a subjective test, which we believe would be helpful in ensuring the law is clear.

Amendments 163 and 164 go together and would mean that one test a court should apply when considering whether to impose an injunction, in addition to whether it is “just and convenient”, should be whether it is “proportionate”. That is a simple proposition, and as I know from my constituency work—and, I guess, the same is true for colleagues—it is always difficult to judge whether going to court and getting an injunction is the right way to deal with what may be growing, yet still relatively modest, antisocial behaviour. We think proportionality is appropriate and that it is better to write that into the Bill.

Amendments 159 to 162 ask for greater specificity about what the injunction prohibits, and we have tried to tidy up the language a bit—to put it bluntly—and remove some relatively loose wording. Clause 1(4) currently reads:

“An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—

prohibit the respondent from doing anything described in the injunction;

require the respondent to do anything described in the injunction.”

There is a prohibition provision and a requirement provision. We ask the House to consider whether, rather than “do anything” the clause could be a bit more specific—that is a pretty general phrase not normally found in legislation. Amendment 159 would prohibit the respondent from “specified actions”, so the injunction would state, “You cannot throw stones through windows”, rather than, “You cannot do anything,” which may or may not be specified. “You must stop behaving badly” seems a rather unsatisfactory and general instruction, whether it is men behaving badly, or women or anybody else.

--- Later in debate ---

[Dr Huppert]

My right hon. Friend is making an extremely good series of points. Does he share a concern about positive actions? There may be cases where somebody, through no fault of their own, cannot perform a positive action. There were cases with indeterminate sentences, for example, where prisoners were required to do various courses, which in some cases were not available for them to do. Would that also be checked?

[Simon Hughes]

One of the things that I hope we do better now because of Select Committees is take time to get Bills right. We have pre-legislative scrutiny which—[Interruption.] The hon. Member for Kingston upon Hull North (Diana Johnson) knows that I was critical of large parts of the Health and Social Care Bill and I have been critical about the process for dealing with the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which has just gone through this House. I said here, and I have not changed my view, that the Government should have submitted the Bill for proper pre-legislative scrutiny. Unless it is absolutely impossible, pre-legislative scrutiny should always take place because draftspeople may do a good first job, but they may not think of all the issues that we, representing all parts of the United Kingdom, might spot and be able to use our experience to deal with. I agree with my hon. Friend the Member for Cambridge (Dr Huppert), and I hope the Government will be positive. I am sure these issues crop up in Lewes as much as in Cambridge and in Bermondsey and Southwark.

The religious beliefs issue is the last in this set of amendments. We ask the Minister to consider removing clause 1(5)(a). At present there is a list of four things which the prohibitions and requirements in an injunction must, so far as practicable, be such as to avoid: any conflict with the respondent’s caring responsibilities, any interference with the times at which the respondent normally works or attends school or any other educational establishment, and any conflict with the requirements of any other court order or injunction to which the respondent may be subject. The fourth one is

“any conflict with the respondent’s religious beliefs”.

As I indicated earlier, we think that that cannot properly be there because somebody’s right to hold a religious belief is absolute and therefore should not be qualified by the words

“must, so far as practicable, be such as to avoid—

(a) any conflict with the respondent’s religious beliefs”.

I am encouraged to think that the Minister in particular will be helpful because he has a good human rights record and I am sure he will want to say, on behalf of the Home Office, that the Home Office is positive about that.

There is one more amendment in the group relating to part 1—amendment 166— which deals with whether people can be excluded from their homes. We are clear that the sanction of excluding somebody from their home should be a sanction of last resort. It is a very serious thing to take away that right. At present there is a power to exclude a person from home in cases of violence or risk of harm. Clause 12 states:

“(1) An injunction under section 1 may have the effect of excluding the respondent from the place where he or she normally lives only if—

(a) that place is owned or managed by a local authority or a housing provider,

(b) the injunction is granted on the application of the local authority or housing provider, and

(c) the court thinks that—

(i) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or

(ii) there is a significant risk of harm to other persons from the respondent.”

This is a well publicised issue. In my borough, both when my colleagues were running the administration and when it has been under Labour administration, there has been discussion publicly as well as among councillors about whether an injunction should be used to kick people out of their council home or their housing association home, and if so, in what circumstances. In a way, such a provision is slightly discriminatory because it applies only to people who are in publicly funded housing; it does not apply to someone in private rented property. That remains an issue. We want the Minister to be positive about our amendment 166, which would add to subsection (c) one more condition—that the court has to be satisfied that the exclusion is necessary and appropriate. Of course, if someone has engaged or threatens to engage in violence, or has threatened other people in the house, whether it is domestic violence among members of a family or household or otherwise, the logic might be that they should be excluded. I do not resile from that at all, but because it is such a draconian solution the court needs to be clear that it is necessary and appropriate. That is the run of amendments in relation to part 1.

There is a smaller number of amendments relating to part 2, which is about criminal behaviour orders. The Committee recommends that the appropriate standard of proof required to establish anti-social behaviour for the purpose of a criminal behaviour order, which is a new order being introduced by the Government, should be made clear on the face of the Bill. The reason we say that is that it could be assumed that it was a civil standard of proof, as opposed to a criminal standard of proof. We think we ought to make that clear, not just so that the public know, but so that law enforcers and the public authorities know.

The Bill provides that a criminal behaviour order may be imposed if the court considers it “will help in preventing” anti-social behaviour. The Joint Committee on Human Rights does not consider this to be an appropriate or clear legislative test and we recommend that it is amended. As with the previous section, we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a criminal behaviour order do not satisfy the requirement of legal certainty, and we recommend to colleagues and to Government that the Bill be amended to achieve greater certainty.

Amendment 167 inserts after “satisfied” the words

“according to the criminal standard of proof”

in clause 21.

Amendment 168 would replace the words “help in preventing” with the single word “prevent”. Deciding whether something will help in preventing some behaviour gets us into rather esoteric territory and does not provide as clear a standard of proof as we would wish.

Amendment 169 is the same as an amendment we suggested to part 1, and would mean that instead of using the words “doing anything” to describe the actions, “specified actions” would have to be set out.

Amendment 170 is also similar to one of our amendments to part 1, and would ensure that the criminal behaviour orders

“relate to the anti-social behaviour which the respondent has engaged in”.

That would mean that there was a link between the activity and the public response.

Amendment 171 is a further amendment to clause 21 to make it is slightly more specific and, again, uses the phrase “specified actions” rather than “anything”. Amendment 172 makes the same change as amendment 170 a little further on, ensuring that the order relates to the antisocial behaviour in question.

Amendment 173 would leave out line 3 on page 12, which contains the same qualification as earlier about religious beliefs. The amendment would mean that the absolute right to religious beliefs would not be qualified when prohibitions and requirements in a criminal behaviour order were being considered by the authorities. We are trying to ensure that parts 1 and 2 are consistent and we hope that the Government will be positive about that.

Amendments 174 and 175 would add the following sentence, which reflects the principle I set out at the beginning of my speech, to the end of clauses 22 and 29:

“The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.”

We are seeking to ensure that the duty of the court is on the face of the Bill.

Amendment 176, the last in the group, applies to clause 34, which can be found on pages 19 and 20 of the Bill. Its last subsection states:

“A constable may not give a direction to a person under section 33 if the person is one of a group of persons who are—

(a) engaged in conduct that is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (peaceful picketing), or

(b) taking part in a public procession of the kind mentioned in subsection (1) of section 11 of the Public Order Act 1986 in respect of which…written notice has been given…or…written notice is not required”—

that is, a lawful public procession. We think that, after that, a provision should be included so that a police officer cannot give a direction if people are engaging in any other lawful form of public assembly. There are public assemblies that are not marches or picketing but that are perfectly lawful, and we do not think that they should be interfered with under the powers in the Bill. I hope that my civil libertarian colleagues on both sides of the House will fully support that.

That is part 3 dealt with, which leaves only part 5. It deals with the recovery of possession on riot-related antisocial behaviour grounds. The Committee’s view is simply put:

“While we recognise the seriousness of riot-related offences, we are not persuaded by the Government’s justification for the new discretionary ground of possession for riot-related anti-social behaviour. We are concerned about its potential serious implications for family members, and consider that it may disproportionately affect women and children. We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We therefore recommend that this provision is removed from the Bill.”

Let me pause and say that I am conscious that that area is controversial. The controversy arose in my constituency a year and a bit ago, in the summer, when we had “riots” on the streets of Southwark and—not to a huge degree, but to some degree—on the Walworth road and in Peckham. Other cities in Britain as well as other parts of London were affected by riots. The question is how we deal with those who are caught rioting. The issue that was the subject of widespread discussion was whether it is right to take away a home when one of the people living there has been involved in rioting. Is it right that a 15 or 17-year-old youngster living in a council property in Lewes, Cambridge, Southwark, Kingston-upon-Hull or anywhere else, should have their home taken away?

--- Later in debate ---

[Mr Reed]

That might be the hon. Gentleman’s view and that of many of his colleagues, but many in the police service and elsewhere do not share it. I do not take that view.

In abolishing ASBOs and replacing them with IPNAs, the Government are not only taking away the power of the police to clamp down effectively on antisocial behaviour, but making the police pay for any action that follows from their hugely diminished budgets. One chief inspector has said, on the record, that the costs of pursuing such action through the civil courts would be in the region of £1,500 on every occasion. Based on last year’s court figures for breaches of ASBOs, the switch to IPNAs will cost councils and police forces another £1.5 million a year. That £1.5 million will be taken from two of the hardest-hit parts of the public sector. If a 20% cut to policing was not bad enough, hitting the police with a £1.5 million additional annual bill just for doing their job in tackling antisocial behaviour is a pretty low and unwelcome blow.

As with all costs, the proposal introduces disincentives. In the Public Bill Committee’s evidence-taking sessions, the chair of the Police Federation, Steve Williams, was asked whether the cost of pursuing an IPNA breach, both in financial and staff resourcing terms, would deter the police from taking action, to which he replied:

“That is a strong possibility. Yes.”—[Official Report, Anti-social Behaviour, Crime and Policing Public Bill Committee, 18 June 2013; c. 9, Q11.]

In Committee, Government Members said that IPNAs were necessary because they, unlike ASBOs, would not lead to a criminal record. They believe that criminalising children is wrong. However, breaching an ASBO is the criminal offence, not being subject to one. I must tell Government Members who share those concerns that IPNAs have been roundly criticised for lowering the burden of proof and for their lack of proportionality. Twenty-five organisations, including Liberty, the Children’s Society and Barnardo’s, put their names to a letter to The Times criticising IPNAs for their low burden of proof, and because they do not require “any form of intent”. The letter states:

“Such ill-thought out legislation will sweep up all kinds of non-criminal and non-serious behaviour, wasting police time and clogging up the courts. It threatens to divert resources from genuinely harmful or distressing behaviour, where the police and other services should be focussed”.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I warmly welcome the hon. Gentleman to his new responsibilities. I remember his days as Labour leader of Lambeth very well. I understand that he would rather keep ASBOs. If the criticism he cites from the newspaper letter is right, and if he shares it, will he support the cross-party amendments from the Joint Committee on Human Rights, which would make clear exactly what the standard of proof should be and introduce other protections?

[Mr Reed]

I argue that we should retain ASBOs alongside IPNAs as alternatives for the police and local councils to choose as they believe appropriate in the circumstances.

The IPNA will be available whenever behaviour is found to be likely to cause nuisance or annoyance. I can give examples from my constituency of Croydon North. I have received complaints from residents about children playing and making a noise in the street. They are at liberty to raise their grievances, but there is a question of proportionality. Under the Government’s proposals, we could be left in the farcical situation that children get handed down a court order for playing, while the hardened offender gets let off the hook with no sanction. It is a perverse and muddled policy from Ministers.

--- Later in debate ---

The right hon. Member for Bermondsey and Old Southwark said that he will not press any of the amendments to a Division, but I hope we will receive assurances that these issues will be addressed.

[Simon Hughes]

I said that we would not press the amendments to a Division tonight so that we can hear what the Government have to say, but we are committed to the amendments and we are clear that the Bill needs to be amended in the way that we propose. We are not going to back-off. We need a better Bill.

[John McDonnell]

I am hoping that the relationship the right hon. Gentleman has with the Minister is so influential that accommodation can be reached on this matter. If there is not accommodation, I think the amendment will come back at a later stage, because the measure will be seen to be unacceptable. If it did go through, I think it would cause future Governments—here and elsewhere in Europe—immense difficulties as these matters are contested, because the right to free speech is being undermined, as well as the articles of human rights legislation that allow people to enjoy the freedom of being in their own home.

On that basis, I support the amendments and hope we will get a positive response to them from the Minister.

--- Later in debate ---

[Dr Huppert]

I absolutely accept that there are problems of antisocial behaviour, including in many areas of my constituency. I am sure that all hon. Members’ constituencies are affected by it. The fact that there is an antisocial behaviour problem, however, and the fact that the words “antisocial behaviour” appear in the name of the order does not mean that the one is a solution to the other. I simply do not accept that they have been a very effective mechanism. Much better approaches have been taken by a number of innovative councils. Islington, for example, has tried antisocial behaviour contracts, which have been far more successful and there has been a range of successes elsewhere.

Simplifying the toolkit available is another issue. I welcome the idea of going down from 19 powers to six, which will make it much it much easier for people to find out what the options are. That is another reason why I reject the idea of keeping ASBOs together with IPNAs—injunctions to prevent nuisance and annoyance—which seems to me to be the worst of both worlds. The Bill must be aimed at trying to prevent harm and I hope that we will be able to solve that problem, helping people to get their lives back on track by dealing with the problems, rather than basing things on mediaeval punishment and state-aided revenge.

There are some concerns about the changes to IPNAs. ASBOs dealt with behaviour in

“a manner that caused or was likely to cause harassment, alarm or distress”,

while IPNAs talk about

“conduct capable of causing nuisance or annoyance to any person”.

I certainly hope that my hon. Friend the Minister causes nuisance or annoyance to the Secretary of State; I expect that to be part of a working relationship and I am rather nervous about Secretaries of State being allowed to apply for IPNAs on this basis, if only for health-related issues. There is concern about what is meant by

“conduct capable of causing nuisance or annoyance to any person”.

I suspect we all carry that out on a regular basis or could find people whose conduct could be described in that way. That worries me, as it could be used more broadly. We heard from the Association of Chief Police Officers that IPNAs could stigmatise and criminalise young people unnecessarily, and they also tend to blur the distinction between criminal activity and nuisance.

The report from the Joint Committee on Human Rights—I commend my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for his excellent speech, clarifying detailed and important amendments—says that

“the new…definition of anti-social behaviour is broad and unclear”.

I agree completely; the definition must become rather more defined.

When the Home Affairs Committee carried out pre-legislative scrutiny, we argued that there should be a test of intent or recklessness and that any action taken should be “necessary”. Something in that space is absolutely essential: whether it be through the wording used or by the introduction of a mens rea to try to offset the lower threshold to avoid hitting people with mental health issues, we need something to tighten up the definition of IPNAs without being overly broad.

My right hon. Friend was absolutely right about positive requirements. These are, in principle, very good and very helpful, but the concern was, as we heard in the Select Committee, that the councils would struggle to deliver those positive requirements in some cases. We know that the court

“must receive evidence of suitability and enforceability before a requirement is imposed”,

but not that the positive option will be available to someone. We must check that the positive requirements are doable, which I hope can be confirmed.

We have to deal with the issue of children because a huge number of these IPNAs will be issued to children. They have to be heavily involved in the resolution programme while being viewed as victims. I agree with new clause 33, sponsored by the Joint Committee on Human Rights, as the courts must take into account the best interests of the child as a primary consideration in any of these legal proceedings. I hope that the Minister will focus particularly on that.

[Simon Hughes]

Sometimes, of course, the best interest of the child is to have discipline from outside the family. It is not a one-way street that says that the best interest of the child is always a soft option; it may sometimes be a tougher option when the family is not up to the job.

--- Later in debate ---

[Simon Hughes]

I and a former leader of Lambeth council and others have dealt with these issues for a long time. I have heard the hon. Gentleman’s criticism, I understand it and it will be made from experience. I hope he will tell us what he and Westminster city council cabinet members and officers think might be the right answer. None of us has a perfect solution. We are all trying to find the best combination of tools to have in the box.

[Mark Field]

Naturally, I will try to be constructive. I wholly agree that the lower level nuisance and annoyance behaviour covered by an IPNA does not always warrant the threat of criminal prosecution, which perhaps happened in the past with ASBOs. Among the concerns expressed earlier was that elements of those ASBOs were not being properly enforced. We should rightly look to avoid criminalising the country’s youth wherever possible, but in practice the specific problems that we face with, for example, the very professional, aggressive begging on the streets of Westminster, literally within yards of where we are all sitting tonight, can currently be tackled only through the use of ASBOs on application. We rely heavily on the genuine threat of arrest to protect victims and to deter professional aggressive beggars, who are completely different from the 16-year-old who has got into trouble by graffitiing a bus-stop, for example. We lose that threat under the new proposals.

I want also to speak briefly about the antisocial behaviour committed by people with no fixed UK address. From the experience in Westminster city council area, but also in the City of London area that I represent, I know that tackling antisocial behaviour often involves dealing with organised aggressive begging gangs from across the EU. I fear that we will hear a lot more of this in the months to come. Some individuals travel to the UK in large numbers, with the sole intention of doing a short, but profitable begging stint before returning to their home. These people enter the UK according to their rights as EU citizens, and cannot currently be deported unless they remain in the country for longer than three months or commit a criminal offence. While they are in the UK, and particularly while they are here in central London, they have no fixed address and are completely transient in nature, with many sleeping rough.

Where we have previously dealt with such individuals through ASBOs on application, under the IPNA system the local authority will be able to apply for an arrest warrant only after a breach has occurred, by which time the individual in question may well have left the country, entirely unchallenged, to return at a future date. These people are deliberately off the grid, and we must have some legislation in place that closes this potential loophole and does not actively encourage the gaming of the system.

--- Later in debate ---

Having sought the views of professionals over the summer recess, we agree. If allowing someone access to their home puts the victim at risk of violence or significant harm, powers must be available to stop that. Amendments 10 to 15 therefore extend the power to exclude a person from their home beyond the social housing sector. Of course, that power should be used only exceptionally, which is why it is subject to a high judicial threshold and, in the case of renters in the private sector and owner-occupiers, applications are restricted to state agencies, meaning the police and the local council. I hope that hon. Members will welcome our response on those matters. The Government has listened carefully to the Committee and the experts.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[John McDonnell]

The last one is amendment 177. I think the right hon. Gentleman said it was amendment 178. On amendments 176 and 177, I do not think the Minister has gone anywhere near far enough to satisfy the concerns of the Joint Committee or other Members.

--- Later in debate ---

[Simon Hughes]

The hon. Gentleman is absolutely right; I meant amendment 177, which is the highest-numbered in the group. I apologise if I said amendment 178 mistakenly. I think the Joint Committee will hold the same view as him.

I hope that my hon. Friend the Minister will realise that by not taking the opportunity of a lifetime to make concessions on the Floor of the House on Report of the first Bill for which he was responsible in the Home Office, he may have lost a reputation that could never have had a parallel. However, he has an opportunity to redeem himself and establish his credentials.

Seriously, however, some of the issues involved are important ones of civil liberties. The Joint Committee thinks so and Members from throughout the House think so, so I hope the Minister will persuade his colleagues that there need to be changes, and that the ones suggested in the new clause and amendments could be among them. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

Amendment made: 1, page 2, line 7, leave out paragraph (b). —(Norman Baker.)

Clause 4

Applications for injunctions

Amendments made: 2, page 3, line 38, at end insert—

‘() the Natural Resources Body for Wales,’.

Amendment 3, page 3, line 39, leave out from ‘functions’ to end of line 43 and insert

‘, or a Special Health Authority exercising security management functions on the direction of the Secretary of State, or

() the Welsh Ministers exercising security management functions, or a person or body exercising security management functions on the direction of the Welsh Ministers or under arrangements made between the Welsh Ministers and that person or body.’.

Amendment 4, page 3, line 44, leave out paragraphs (h) and (i).

Amendment 5, page 4, line 1, at end insert—

‘( ) In subsection (1) “security management functions” means—

(a) the Secretary of State’s security management functions within the meaning given by section 195(3) of the National Health Service Act 2006;

(b) the functions of the Welsh Ministers corresponding to those functions.’.—(Norman Baker.)

Clause 8

Arrest without warrant

Amendments made: 6, page 5, line 21, at end insert—

‘(za) a judge of the High Court or a judge of the county court, if the injunction was granted by the High Court;’.

Amendment 7, page 5, line 27, leave out ‘(3)(a)’ and insert ‘(3)(za) or (a)’.—(Norman Baker.)

Clause 9

Issue of arrest warrant

Amendments made: 8, page 5, line 38, at end insert—

‘() a judge of the High Court, if the injunction was granted by the High Court;’.

Amendment 9, page 6, line 3, at end insert—

‘( ) A warrant issued by a judge of the High Court must require the respondent to be brought before that court.’.—(Norman Baker.)

Clause 12

Power to exclude person from home in cases of violence or risk of harm

Amendments made: 10, page 6, line 24, after ‘lives’ insert ‘(“the premises”)’.

Amendment 11, page 6, line 25, leave out paragraph (a).

Amendment 12, page 6, line 27, leave out ‘the local authority or housing provider’ and insert—

(i) a local authority,

(ii) the chief officer of police for the police area that the premises are in, or

(iii) if the premises are owned or managed by a housing provider, that housing provider,’.

Amendment 13, page 6, line 35, leave out ‘local authority or’.

Amendment 14, page 6, line 37, leave out ‘authority or’ and insert ‘housing’.

Amendment 15, page 6, line 40, leave out ‘authority or’ and insert ‘housing’.—(Norman Baker.)

Clause 21

Power to make orders

Amendments made: 16, page 11, leave out line 26 and insert ‘any person’.

Amendment 17, page 12, line 4, leave out paragraph (b).—(Norman Baker.)

Clause 32

Authorisations to use powers under section 33

Amendment made: 18, page 18, line 23, leave out from ‘if’ to first ‘that’ in line 25 and insert ‘satisfied on reasonable grounds’.—(Norman Baker.)

Clause 40

Power to issue notices

Amendment made: 19, page 23, line 1, leave out subsection (5).—(Norman Baker.)

Clause 43

Appeals against notices

Amendments made: 20, page 24, leave out lines 19 to 22.

Amendment 21, page 24, line 31, leave out subsection (3) and insert—

‘(3) While an appeal against a community protection notice is in progress—

(a) a requirement imposed by the notice to stop doing specified things remains in effect, unless the court orders otherwise, but

(b) any other requirement imposed by the notice is of no effect.

For this purpose an appeal is “in progress” until it is finally determined or is withdrawn.’.—(Norman Baker.)

Clause 45

Offence of failing to comply with notice

Amendments made: 22, page 26, line 9, leave out ‘specified in’ and insert ‘alleged to constitute a failure to comply with’.

Amendment 23, page 26, line 11, leave out paragraph (a).

Amendment 24, page 26, line 19, leave out paragraph (a). —(Norman Baker.)

Clause 60

Orders restricting public right of way over highway

Amendment made: 25, page 36, line 7, at end insert—

‘( ) 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.’.—(Norman Baker.)

Clause 62

Challenging the validity of orders

Amendments made: 26, page 37, line 6, at end insert ‘, or

() a variation of a public spaces protection order.’.

Amendment 27, page 37, line 10, after ‘order’ insert ‘or variation’.

Amendment 28, page 37, line 11, after ‘order’ insert ‘(or by the order as varied)’.

Amendment 29, page 37, line 13, after ‘order’ insert ‘or variation’.

Amendment 30, page 37, line 15, after ‘order’ insert ‘or variation’.

Amendment 31, page 37, line 17, leave out ‘public spaces protection order’ and insert ‘order or variation’.

Amendment 32, page 37, line 17, leave out ‘its prohibitions or requirements’ and insert

‘the prohibitions or requirements imposed by the order (or by the order as varied)’.

Amendment 33, page 37, line 20, after ‘order’ insert ‘or variation’.

Amendment 34, page 37, line 21, after ‘order’ insert

‘(or by the order as varied)’.

Amendment 35, page 37, line 24, leave out from first ‘or’ to end of line and insert

‘variation, or any of the prohibitions or requirements imposed by the order (or by the order as varied)’.

Amendment 36, page 37, line 25, leave out ‘its prohibitions or requirements’ and insert

‘the prohibitions or requirements imposed by the order (or by the order as varied)’.

Amendment 37, page 37, line 29, after ‘order’ insert

‘, or of a variation of a public spaces protection order,’.—(Norman Baker.)

Clause 63

Offence of failing to comply with order

Amendment made: 38, page 38, line 3, at end insert—

‘( ) Consuming alcohol in breach of a public spaces protection order is not an offence under this section (but see section 59).’. —(Norman Baker.)

Clause 70

Duration of closure notices

Amendment made: 39, page 42, line 14, at end insert—

‘( ) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.’.—(Norman Baker.)

Clause 73

Power to court to make closure orders

Amendment made: 40, page 44, line 11, at end insert—

‘( ) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.’.—(Norman Baker.)

Clause 81

Reimbursement of costs

Amendments made: 41, page 49, line 17, after ‘owner’ insert ‘or occupier’.

Amendment 42, page 49, line 21, at end insert—

‘( ) An order under this section may be made only against a person who has been served with the application for the order.’.

Amendment 43, page 49, line 22, after ‘must’ insert ‘also’.

Amendment 44, page 49, line 26, leave out paragraph (c).—(Norman Baker.)

Clause 93

The community remedy document

Amendments made: 45, page 64, line 3, at end insert—

‘( ) For the purposes of subsection (2), an action is appropriate to be carried out by a person only if it has one or more of the following objects—

(a) assisting in the person’s rehabilitation;

(b) ensuring that the person makes reparation for the behaviour or offence in question;

(c) punishing the person.’.

Amendment 46, page 64, leave out lines 6 to 11 and insert—

‘(a) have regard to the need promote public confidence in the out-of-court disposal process;

(b) have regard to any guidance issued by the Secretary of State about how local policing bodies are to discharge their functions under this section;

(c) carry out the necessary consultation and take account of all views expressed by those consulted.

‘( ) In subsection (3)(c) “the necessary consultation” means—

(a) consultation with the chief officer of police for the area,

(b) consultation with whatever community representatives the local policing body thinks it appropriate to consult, and

(c) whatever other public consultation the local policing body thinks appropriate.’.

Amendment 47, page 64, line 16, at end insert—

‘( ) The Secretary of State must publish any guidance issued under subsection (3)(b).’.

Amendment 48, page 64, line 22, at end insert—

‘“out-of-court disposal process” means the process by which a person is dealt with under section94 or by means of a conditional caution or youth conditional caution.’.—(Norman Baker.)

New Clause 20

Functions of Scottish Ministers under Firearms Acts

‘(1) In section 5 of the Firearms Act 1968 (weapons subject to general prohibition)—

(a) in subsections (1) and (1A), for the words between “commits an offence if,” and “, he has in his possession” there is substituted “without authority”;

(b) in subsection (4), for the words from the beginning to “the Scottish Ministers” there is substituted “An authority shall be subject to conditions specified in it, including such as the Secretary of State or the Scottish Ministers (as appropriate)”;

(c) in subsection (6), for the words before “revoke an authority” there is substituted “The Secretary of State or the Scottish Ministers (as appropriate) may at any time, if they think fit,”.

(2) In section 5A of that Act (exemptions from requirement of authority under section 5)—

(a) in subsections (1), (2)(a), (2)(b), (3), (4), (5), (6) and (7), for “or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)” there is substituted “or the Scottish Ministers”;

(b) in subsection (6), for the words after “without the authority of the Secretary of State” there is substituted “or the Scottish Ministers (as appropriate)”.

(3) In the Firearms (Amendment) Act 1997—

(a) in sections 2, 3, 4, 5, 6, 7(1) and 8 (exemptions from prohibition on small firearms etc), for “The authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)” there is substituted “The authority of the Secretary of State or the Scottish Ministers”;

(b) in section 7(3), for the words “or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998)”, in the first place where they occur, there is substituted “or the Scottish Ministers”.

(4) In the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750)—

(a) in Schedule 1, in the entry for the Firearms Act 1968, the words “5 and” are omitted;

(b) in Schedule 5, paragraph 3 and paragraph 18(2) to (6), (7)(a) and (8) are omitted.’.—(Damian Green.)

Brought up, and read the First time.