UK Bill of Rights

Simon Hughes Excerpts

Tuesday 28th January 2014 Westminster Hall

[The Minister of State, Ministry of Justice (Simon Hughes)]

Bore da, Mr Williams. It is a pleasure to serve under your chairmanship. I am grateful to the hon. Member for Nottingham North (Mr Allen) for bringing a UK Bill of Rights back on to our agenda. He and I have often worked together, and he is greatly respected across the House not just personally but for his chairing of the Political and Constitutional Reform Committee. I am pleased that he has secured this debate. He might expect me to say that, as I am a human rights lawyer by training—I did a traineeship and worked for a while at the Council of Europe in Strasbourg dealing with human rights applications from this country. I am delighted to have the privilege of responding to this debate, which is home territory for me. The one thing I had not realised is that tomorrow is the anniversary of Thomas Paine’s birth, so I join the hon. Gentleman in recognising the timeliness of today’s debate. My hon. Friend the Member for Lewes (Norman Baker) will no doubt celebrate tomorrow, because that is where Thomas Paine did his writing.

On 15 June 2015, we celebrate the 800th anniversary of Magna Carta, and plans are in hand for great celebrations, and so they should be. Magna Carta was the first general statement of rights in England, and three clauses remain in force. Clause 1 confirms the liberties of the Church of England and of all freemen of the realm. Clause 9 confirms the liberties of the City of London and other cities, towns and ports. And Clause 29 reads:

“No Freeman shall be taken or imprisoned, or be disseised”—

which means unlawfully dispossessed—

“of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”

That principle drives the hon. Member for Nottingham North, and it should drive us all in a country in which we do not have a codified constitution. We have written documents, but they are not put together in one place.

When people talk about the Bill of Rights, the one that most comes to mind—the hon. Gentleman referred to this—is the Bill of Rights enacted in 1689 after William and Mary were invited to take the throne after the end of the reign of James II. Of that legislation, the declaration of right remains. It is the only formal Bill of Rights that this country has ever had, but the key elements are as relevant today as they were then: that Parliament should be frequently summoned and that there should be free elections; that Members and peers should be able to speak and act freely in Parliament; that no army should be raised in peacetime and that no taxes be levied without the authority of Parliament; that laws should not be dispensed with or suspended without the consent of Parliament; and that

“excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.

We do not have laws in this country with a constitutional status above other laws, and Parliament is free to repeal any legislation that it wants to repeal, but if one looks back across the sweep of history, Magna Carta and the Bill of Rights are the two laws that people regard as the bedrock of our democratic country’s civilisation today.

When preparing for this debate, I not only considered the recent Commission on a Bill of Rights, which I will address in a second, but looked at which other countries have Bills of Rights. I was surprised to discover that fewer countries than I expected have something called a Bill of Rights, although many have written constitutions. Obviously, Thomas Paine translated from the French “Declaration of the Rights of Man and of the Citizen,” which was part of the French constitution. In addition to the UK’s Bill of Rights, the first 10 amendments of the US constitution are called the Bill of Rights. The 1922 constitution of the Irish Free State adopted a Bill of Rights. Canada passed a Bill of Rights in 1960, although that was updated with something called a charter of rights and freedoms. New Zealand passed a Bill of Rights Act in 1990, and the new South African constitution of 1996 contains a Bill of Rights. In terms of specific provisions, those are the common law traditions.

I am pleased that the hon. Gentleman did not forget to say what we are talking about. I am often frustrated when people debate Bills of Rights or human rights and do not say what those rights are. He cited some of the rights, but I will state the convention rights that, at the moment, are the nearest we have to a Bill of Rights. The Human Rights Act 1998 allows people to exercise those rights in our courts, and I think they matter hugely to the people of Nottingham, Southwark, Hampshire, east London and elsewhere, and we should get the message out loud and clear. We do not do enough to ensure that people understand that they have the following rights: the right to life and the abolition of the death penalty; the prohibition of torture and inhuman or degrading treatment or punishment; prohibition of slavery and forced labour; the right to liberty and security of the person; the right to a fair trial; prohibition of punishment without law; the right to respect for private and family life; the right to freedom of thought, conscience and religion; the right to freedom of expression; the right to freedom of assembly and association; the right for men and women to marry and found a family; the right to peaceful enjoyment of personal property; the right to education; the right to free elections; and the prohibition of discrimination. There is no citizen or resident of this country who would not sign up to those rights. Between us we clearly have not done enough to get out the message on what we are talking about. There is often huge criticism of human rights, yet if people are reminded of what those rights are about, they say, “We want some of that, please.”

At the last general election, the two parties now in government made different manifesto commitments on human rights. The Conservative party manifesto stated:

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”

The Liberal Democrat manifesto stated:

“We will…ensure that everyone has the same protections under the law by protecting the Human Rights Act.”

When the coalition was formed, there had to be a negotiation and as the hon. Member for Nottingham North rightly alluded to, we agreed in the coalition agreement to deal with it. The coalition agreement is clear:

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights”—

I stress that point—

“ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”

That was an attempt to reconcile two different proposals for how we move forward from two different parties, but I think it was a perfectly proper next step. I repeat the thanks to the commission for the work it started and has completed, and for the report it has given to the Prime Minister and Deputy Prime Minister. It has made a significant contribution to the debate and I refer those who are interested to the commission’s report, “A UK Bill of Rights? The Choice Before Us” which was published just over a year ago, in December 2012, and is available. It is worth a read.

The commission did about a year and a half of work to produce its final report. It was thoughtful and detailed, and I remind the Chamber of its key conclusions. A majority of the commission concluded that there is a strong argument in favour of a UK Bill of Rights. However, that was on the basis that any such Bill would need to incorporate and build on all the UK’s existing obligations under the European convention on human rights and that it would provide no less protection than is currently contained in the Human Rights Act and the devolution settlements. That was in line with the terms of reference that the commission was given.

The majority of the commission saw the lack of public ownership of the Human Rights Act and the European convention on human rights as the most compelling reason in favour of a new Bill of Rights. That was exactly one of the themes in the speech made by the hon. Gentleman; the public do not seem to own the constitutional settlement in our country and do not understand that it is theirs and for them. It should be for the people, not for the Government. Some of those in the majority favouring a Bill of Rights felt that a Bill could usefully define the scope of some rights more clearly and adjust the balance of those rights.

Two commissioners dissented from the majority view. They concluded that neither the commission’s two consultations nor the commission’s own deliberations had identified any real shortcomings, either in the Human Rights Act or in the way in which it is applied by the courts. They also pointed to an overall lack of public support for a Bill of Rights in the responses received to the two consultations that the commission held. They were concerned that any move to a UK Bill of Rights would lessen the rights protection that is currently available. They were also concerned that developing such a Bill of Rights would be the first step on the road to the United Kingdom withdrawing from the European convention on human rights.

With two dissenters, but a much larger majority, the commission could not reach agreement on all its conclusions, and therefore, it put back to the Government issues and places that they should consider for future action. All commissioners agreed that any debate on a UK Bill of Rights had to be fully alive to the sensitive issues of devolution—you will appreciate that as a Plaid Chairman, Mr Williams, as I do very clearly, as someone with Welsh, Scottish and English blood—and the current state of devolution settlements, particularly with the referendum in Scotland later this year, means that we should wait until we know what the outcome of that is. Starting to talk about UK Bills of Rights when we do not know the future of the UK would be unwise. Of course, the Government are fully committed to encouraging people in Scotland to vote in favour of staying in the United Kingdom and I add my small voice to that plea.

Human rights are intricately woven into the existing devolution settlements. Debates are ongoing, including in Northern Ireland, where there has been a huge debate on human rights issues, and in Wales and Scotland, so doing anything now would not be appropriate. We are not far from being on the other side of the referendum decision, and therefore, the hon. Gentleman’s request that we put the issue back on the agenda is perfectly timely. We have the revolution—sorry, devolution, or independence referendum in September. We might have a revolution some time, but that is not in my brief and is not planned anywhere, as far as I know. We then have the Magna Carta celebrations next year, so the debate is timely, and I am grateful that it is, as it were, the trailer for that.

It is also important to note that the commission’s findings revealed wide differences of opinion in different parts of the UK. Many respondents from Scotland, Wales and Northern Ireland argued that there was little or no call for a UK Bill of Rights. The commission’s final report says:

“As a matter purely of practicality all of us believe that, while we would not want to see an inhibition on further discussion…it would be essential to await the outcome of the referendum”—

in Scotland—

“before moving towards final decisions on the creation of a UK Bill of Rights for the obvious reason that it will only be after the referendum that the future composition of the UK will be known.”

The Government have publicly acknowledged the diligent way in which the commission discharged its terms of reference. They have thanked it and I repeat those thanks. The Government have publicly acknowledged that they agree with the conclusion that the time is not right to proceed with a Bill of Rights or changes to the current legislative framework for human rights, for the reasons set out by the commission.

We have agreed, in the context of the coalition agreement, that the obligations under the European convention on human rights will continue to be enshrined in British law. Whatever the different party views and individual views, that is the position agreed across Government and it will not change during this Parliament. Although political parties have expressed views on policy directions that they may want to consider in the future, the coalition agreement does not set out any plans for major changes to the human rights framework before the election. That may be disappointing, but it gives the hon. Gentleman, his party, his Committee, my party and other parties the opportunity to warm up the debate. I can trail the fact that at our party conference in York next month we will be debating these very issues, and I am sure that the Conservative party will be doing so soon, because a document is apparently in preparation. The Labour party will certainly have the matter on its agenda too. Therefore it will not go away and nor should it. I hope that as a result we have the opportunity to reach the British public with these issues.

Let me end by turning to a little-remarked aspect of the commission’s terms of reference. The commission was invited to

“consider ways to promote a better understanding of the true scope of these obligations and liberties”

arising from the European convention. In chapter 10 of its final report, it noted that few respondents to its consultations had made submissions on that aspect of its terms of reference. As for discharging that part of its remit, the commission noted that its major contribution was the publication of its report. It hoped that putting the report before the public would get the debate going and encourage people to respond. The report sets out in some detail the background and history of our human rights framework, to promote an understanding of the context for the current human rights debate.

However, the commission also noted with disappointment —I echo this loudly—that the issues in the debate

“are often conveyed in polemical and sometimes inaccurate terms.”

I believe that that is unarguable. Colleagues will all have read much—bad things and possibly some good things—about human rights, but media reporting is often blighted by myths. I call on the public to look not at the headlines in the tabloid press about what human rights mean, but at the judgments of the courts, the articles of the convention and the contents of this debate. I hope that our debate has helped to make people look at the real issues and the real benefit of human rights and not the froth and the politics. Misleading and mischievous headlines serve only to obscure the good that human rights protection can do.

Human rights are not about bowing down to frivolous demands. They are about common-sense decisions affecting people’s rights when coming into contact with the power of the state. I share the hon. Gentleman’s view that we need to strengthen the power of the citizen and the power of the legislature against the Executive, and the Government share that view too.

If we can look beyond the sometimes skewed perceptions, we see that the Human Rights Act is a measured piece of legislation when understood and used properly. It can be a force for good. It brought a lady suffering from Alzheimer’s disease who had been moved to a care home far from her family back closer to them, so that they could continue to visit and care for her. It was instrumental in returning a young man with autism and severe learning difficulties to his father after their local authority decided to keep him in respite care for a year against his father’s wishes.

Those are the issues that matter and that motivate the hon. Gentleman, me and other Ministers in the Government, so I am grateful that he has brought the debate to the forefront of our minds. I hope that I have conveyed how important the Government believe it is that human rights remain a foundation stone in our legislative framework. I do not think, and the Government do not think, that we should take any steps that lessen existing protections or that move us from the Government’s agreed position, set out in the coalition agreement,

“that these rights continue to be enshrined in British law”.

This is not the end of the development that started with Magna Carta and continued through the Bill of Rights. The hon. Gentleman must, with his Committee, continue to press the issue. I will do so inside Government and I hope that Government will continue to uphold these rights and ensure that we are seen as the country in the world that stands for them most clearly and where they can be exercised most specifically by the public.

That is the Government’s case in response to the hon. Gentleman’s very timely debate. Diolch yn fawr, Mr Williams.

Shrewsbury 24 (Release of Papers)

Simon Hughes Excerpts

Thursday 23rd January 2014 Commons Chamber

[The Minister of State, Ministry of Justice (Simon Hughes)]

I congratulate sincerely the hon. Member for Blaydon (Mr Anderson) on initiating the debate and the Backbench Business Committee on agreeing to it. This is exactly the sort of issue that we should debate, and I respect entirely the views expressed on a very important matter, which, at its heart, is about the freedom to see documents even though they relate to events 40 years ago.

I am aware that the Government have been noticing this campaign’s growing momentum over the years. This is the first debate on this issue that Parliament has had in either House. Questions have been asked and letters written, but we have never had a debate, so I am very pleased and honoured to reply to it.

I am very conscious of my responsibility, and I am grateful to the hon. Member for Hammersmith (Mr Slaughter) for his kind words of welcome. I am a Justice Minister, responsible for freedom of information and the National Archives. I believe in justice. In our Department, we want maximum freedom of information, and we want maximum revelation in the National Archives of documents that have been in the public domain. So I am very clear about where we should be going and what the principles are.

I do not see it as my job to be here to defend the Government in the 1970s or any political party. That is not part of my brief.

[Mr Ian Davidson (Glasgow South West) (Lab/Co-op)]

Oh yes it is.

[Simon Hughes]

No, it is not. I am here to deal with an issue that, if I may just make the obvious and, I hope, only party political point, was not dealt with differently by Labour or Conservative Administrations—a point that has been accepted by colleagues around the House.

[Several hon. Members]

rose—

[Simon Hughes]

I shall be as quick as I can, and if colleagues will accept—

[Chris Williamson]

Will the Minister give way?

[Simon Hughes]

No, I want to try to be helpful, and out of respect for the hon. Member for Blaydon, let me, please, unusually for me, be uninterrupted; I want to respond to as much as I can.

May I tell the hon. Member for Liverpool, Walton (Steve Rotheram) and other colleagues that, not just as the Member for Bermondsey and Old Southwark, I completely understand the issue to do with health and safety and decent wages generally and in the building industry in particular? I have campaigned on this issue. I understand the dreadful health and safety record in the past. Strong trade unions, particularly in the building industry over the past 40 years, were hugely important in ensuring that wages and conditions were better, which, thank God, they are now. I pay tribute to those who were part of that effort.

At the end of this episode, there were convictions for affray, unlawful assembly and conspiracy to intimidate. They are serious offences. They have led to people going to prison. I will return in a second to how the justice issues may be addressed. I know about the intensity of people’s views. I know about the efforts made to get the petition to the current number of signatures. I am clear what people hope I can say.

The Government are, of course, committed to transparency. We are agreed that as much information as possible should be in the public domain. The public would expect that, and the principles of the Freedom of Information Act, enacted by the Labour Government and now fully in force, are ones that we are expected to implement.

Most of the papers that relate to the Shrewsbury 24 are already available in the National Archives for public inspection. Of the records that date back to 1972, over 90% are available. Only 625 documents, I am told, are not yet publicly available—[Hon. Members: “Only.”]—across the Government, in relation to that year. The only material held by the Cabinet Office that is not available and that is the information at the heart of this debate is one report and three paragraphs—one in each of three separate documents—which I shall return to later.

[Yasmin Qureshi]

Will the Minister give way?

[Simon Hughes]

No. If I have time a bit later, I will, but I am trying to make sure that all the information is on the record.

There has already been a decision, taken in principle by the Labour Government and implemented by this Government, to reduce the age at which historical records are made available. The period is coming down now from 30 to 20 years. [Interruption.] No “buts”. In parallel with that, we are reducing the maximum duration of the exemptions from disclosure from 30 to 20 years. That has started this year, and the period will also reduce, so that people in future will not have to wait as long to see records. So those are good changes, but let us be specific about the matters that relate to the request for these papers today.

The current law is, and the consistent practice has been, that under section 34 of the Public Records Act 1958, public bodies are allowed but not required to retain records after they would usually be required to be transferred to the National Archives—so, after the old 30-year period, which is reducing. Retention is allowed where it is necessary for administrative purposes or for “any other special reason”.

Since 1967, when Lord Gardiner was Lord Chancellor in the Labour Government, all Lord Chancellors—five Labour, five Conservative—have been satisfied that where the transfer of security and intelligence records would prejudice national security, they can be retained on the “other special reason” basis. That approval is recorded in an instrument, signed by the Lord Chancellor, which is more commonly referred to as the security instrument.

The current approval that governs security and intelligence records was, as colleagues have said—the right hon. Member for Delyn (Mr Hanson) referred to it—given by the right hon. and learned Member for Rushcliffe (Mr Clarke) when he was Lord Chancellor on 19 December 2011. That does indeed last until 2021. That is public; it has been on the website. However, these papers are due to be reviewed by the Cabinet Office for their security and sensitivity every 10 years, as all other papers are, and they will fall to be reviewed next year, in 2015. I should like to tell the hon. Member for Blaydon respectfully that I suggest that he and his colleagues, who have a rightful interest in their being revealed, address that office and that deadline, and I will personally take an interest in this issue in the time up to next year, when they fall to be reviewed for their security.

What are the specific documents? One is a Security Service report, and the other three are single paragraphs, each of which has been redacted from letters and memorandums. The first was in a letter from the director general of the Security Service to the Cabinet Secretary dated 10 January 1975, which is public apart from one redacted paragraph. It refers—it is not a secret—to the fact that the assessment was that there was Communist party activity in relation to the campaign. The second was in a minute dated 13 January 1975 from the Cabinet Office to No. 10, which has been released apart from a single paragraph. The third was in a minute from No. 10 to the Cabinet Office dated 15 January 1975.

[Chris Williamson]

Is the Communist party a banned organisation then?

[Simon Hughes]

Of course it is not. I am just saying what the revealed documents have said, and they are in the public domain. The Ministry of Justice has no relevant information retained. I do not know whether any other Departments have retained any. I am not privy to that information, but I am clear that four pieces of information are retained by the Cabinet Office and are open to review next year.

As hon. Members know, under the Freedom of Information Act people can request that information. They then, in particular, have to confront the question as to whether it is covered by the exemption in section 23 of the Act. The application was refused in this case. It went to the Information Commissioner and he decided on 2 July 2008 that the four documents do relate to the intelligence agencies and therefore fall within the scope of the exemption. The exemption is designed to protect

“Information supplied by, or relating to, bodies dealing with security matters”.

The view of the Government has always been—all Governments have said—that to provide details of the national security risks that might be posed by the release of information of this sort would be detrimental to the purposes of the exemption set out in the Act. So that is the view of the Cabinet Office, but these things will be reviewed next year. The Lord Chancellor has asked me to say that he has personally looked at these documents and come to the same view. I know that that will be disappointing and frustrating to people, but the position is that those documents cannot therefore be revealed now.

However, one other matter is very important. There is currently a legal challenge to the convictions, and the case went to the Court of Appeal. Miscarriages of justice are not matters for the Government to consider; they are matters for the Criminal Cases Review Commission—ultimately, for the courts. The hon. Member for Blaydon set out the arguments for a miscarriage of justice review, and I understand them. The cases of at least some of the Shrewsbury 24 have been referred to the Criminal Cases Review Commission and it is currently assessing that set of applications. It has the power to require, when it is reasonable, that any information held by any public body in relation to any case under review can be retained for, and produced to, it, irrespective of confidentiality. The Commission therefore has, potentially, the access to information of the highest sensitivity, including material withheld by the Cabinet Office—the Commission has the power to see that. My understanding is that the Commission has asked for this information. It is currently considering the application for a review, with this information before it. If the Commission sends a case to the courts, the courts have the power to see the information, and I would entirely expect them to be able to do so.

There are two routes ahead, and they include the point made by the hon. Member for West Bromwich East (Mr Watson). One is the review that is coming up next year by the Cabinet Office. The second is the miscarriage of justice review, which is currently actively being pursued. I hope that colleagues understand that I am, at the moment, unable to change the position that Governments have adopted over the years, but there are ways in which this matter can be reviewed again. I accept that. That is proper and appropriate, and therefore the efforts of the hon. Member for Blaydon, and those of the petitioners and colleagues, are not in vain.

Oral Answers to Questions

Simon Hughes Excerpts

Tuesday 17th December 2013 Commons Chamber

[Damian Green]

I am afraid the hon. Gentleman is massively out of touch with the sector that deals with victims if he expresses those views. When we launched the victims code, it was welcomed by a wide range of our partners in the voluntary sectors, including Victim Support and the National Society for the Prevention of Cruelty to Children. The victims code is a significant step forward from the old impenetrable code that the previous Government put forward, and it has been welcomed by those who know most about the sector.

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

The one thing victims want most is to know that the perpetrators of the crime are brought to justice. Can the Minister assure us that we are doing enough to ensure that associates of the offender, or people who saw something, have the ability to report what they saw without fear of recrimination? If necessary, they can do it confidentially to start with.

[Damian Green]

That would be good police practice. One thing we are doing with the code is ensuring that the guidance that goes out to the police from the College of Policing will be improved to fit with the victims code. In other parts of the criminal justice system, both with the Crown Prosecution Service and the courts themselves, the code will make a difference in all instances and will enable victims to feel more confident.

EU Charter of Fundamental Rights

Simon Hughes Excerpts

Tuesday 19th November 2013 Commons Chamber

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

Following the constructive response from the Secretary of State about how the coalition agrees on many of the issues under the justice remit, may we also get agreement that, although there are differences between us over whether the Human Rights Act 1998 was a proper tool for implementation, this country cannot remain in the Council of Europe unless we continue to subscribe to the European convention on human rights, which we have done for many decades? There must also be a consensus across the House that the European Union charter of fundamental rights should not extend to impose itself across our legislative process, and that has been our understanding from the beginning of its implementation.

[Chris Grayling]

That is very much the legal view of the Government at this moment in time. Were we to discover that that was not to be the case—the law has had a habit of moving around in recent years—I hope that all parties would come together and say that it is not acceptable and put in place measures that would prevent it from happening.

Oral Answers to Questions

Simon Hughes Excerpts

Tuesday 12th November 2013 Commons Chamber

[Damian Green]

It is simply not the case that there will be cuts in funding to London. As I have said, nationally, we are increasing funding considerably. Our current estimate is that, under the current indicative budget, London will receive more funding than is estimated to be spent under current Ministry of Justice funding arrangements. We are determined to continue to provide quality services to victims of crime both in London and in the rest of the country.

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

It is accepted that there will be more money overall but, from all the figures, it looks as if Greater London, which has more than one in four of all victims of crime and more than one in five of all crime referrals to victim support, will receive a much smaller percentage. Is the Minister willing to accept an all-party group of London MPs to put the case for victims to be funded properly?

[Damian Green]

I am always very happy to meet my right hon. Friend and London colleagues from both sides of the House. Indeed, I met the Deputy Mayor for Policing and Crime to discuss the subject yesterday, so I am well aware of the situation. I repeat that there will be more money for London than there is under the current arrangements.

Anti-social Behaviour, Crime and Policing Bill

Simon Hughes Excerpts

Tuesday 15th October 2013 Commons Chamber

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

As the hon. Gentleman will hear if I have a chance to say a word, I am very supportive of what he is arguing for and of the amendment that his hon. Friends have tabled. With respect, though, I would like to correct something that he said. The opinion that he just quoted was that of the Joint Committee on Human Rights—not the Westminster convention, or whatever he called it—which is making exactly the argument that he is putting to the House.

[Jack Dromey]

I am grateful to the right hon. Gentleman for his intervention; he is of course right.

We support a rigorous and fair justice system, but it must ensure that where a serious miscarriage of justice has happened, innocent people receive fair compensation for all that they have suffered, which, in the more extreme cases, can involve years of their lives. If a miscarriage of justice has taken place, it is the justice system’s mistake, and it should be its job to put it right, not to make it harder for innocent people to do so. If—God forbid!—we ever saw a repeat of what happened with the Birmingham bombings and the subsequent convictions, it would be absolutely unthinkable that those people would not be entitled to compensation.

I very much hope that the Minister will respond constructively to the amendment and our representations. We intend to support the amendment in the other place, where we believe that further detailed scrutiny should take place, because the Government have got it wrong and we must put that wrong right.

--- Later in debate ---

[Jeremy Corbyn]

Absolutely. I recall that campaign very well. Although I was not centrally involved in it, I certainly supported it.

The question really goes back to the Minister. I intervened on him during his opening remarks to give him a chance—a double chance; not double jeopardy, but a double chance—to provide us with good reasons why he is introducing a provision that we, along with Liberty and many others, believe will fundamentally undermine much of what has been achieved through the Criminal Cases Review Commission and by the ability to overturn miscarriages of justice.

Justice can go wrong. The media can get it wrong. There can be a campaign of vilification that gets it wrong. We should not be too holier than thou in this country as we already have a considerable number of people held indefinitely under immigration law, and we have anti-terror laws that I believe are highly questionable in many ways when it comes to justice. I hope that the Minister will explain in his reply exactly how a serious campaign on a miscarriage of justice case would be dealt with in the future and how many more people could indeed be locked up for a long period for offences that they did not commit and could not have committed.

If amendment 95 is not accepted—I support the suggestion of my hon. Friend the Member for Birmingham, Erdington that the whole of clause 143 be deleted—I hope that the House of Lords will look at the provisions in forensic detail. Many of those who did such incredible work, including Baroness Helena Kennedy, in representing these causes and cases over many years, sit in the other place and I hope they will ensure that this legislation is fundamentally changed so that we recognise that mistakes can happen, that terrible injustices can take place and that unless we provide the opportunity and ability to remedy them, they will happen again and again and again. That is very dangerous in any democratic society.

[Simon Hughes]

I apologise to you, Mr Speaker, to the Minister and to colleagues because I had to slip out briefly at the beginning of this debate, albeit for what I hope are appropriate reasons. I had to meet a press deadline to pay tribute to one of our party members—not a parliamentarian, but a man called Stan Hardy who had been a great campaigner on these sorts of issues. He died last Thursday at the ripe old age of 93. Not just Liberal Democrats or liberals but Labour and Conservative colleagues in London and beyond recognised Stan as a doughty campaigner for civil liberties as well as for the rights of the under-privileged.

It is always a pleasure to follow the hon. Member for Islington North (Jeremy Corbyn) on these sorts of issues, and I join my hon. Friend the Member for Cambridge (Dr Huppert) in paying tribute to his doughty campaigning throughout all the time he and I have been together in the place—now more than 30 years in both our cases. The hon. Gentleman’s amendment, supported by his hon. Friends, is designed to deal with a wrong in this Bill that I hope we can remedy.

There is a difference between amendment 95, tabled by the hon. Member for Islington North, and amendment 184, tabled by the hon. Member for Aberavon (Dr Francis) and me. We argue for our amendment in our own right, but also on behalf of the Joint Committee on Human Rights. Amendment 95 would amend clause 143, taking out from line 26 the words

“the person was innocent of the offence”

and inserting the words

“no reasonable court properly directed as to the law, could convict on the evidence now to be considered.”

The Joint Committee’s collective view was that we would do better to remove clause 143 as a whole—exactly the issue for which the hon. Member for Birmingham, Erdington (Jack Dromey) argued. I have been here long enough to remember and to have supported numerous campaigns to deal with miscarriages of justice, many of them very unpopular for the reasons we have all identified. Having looked at the issue again, I honestly believe that the removal of the clause would be the better way to deal with the problem. There are technical problems with amendment 95, so I strongly commend to the Minister the amendment to remove clause 143.

Finally, I shall not press the Joint Committee’s amendment to a vote, but we feel strongly about this issue as a Committee. I am sure the Minister knows that we will listen respectfully to what he says, but I hope he can be helpful and confirm that the principle of the Government’s proposal—that the provision should apply

“if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent”—

will be changed because that is not the test that should be applied to deal with miscarriages of justice.

[Mark Durkan (Foyle) (SDLP)]

I, too, rise to speak to amendment 95, to which my name is attached, along with that of the hon. Member for Islington North (Jeremy Corbyn).

As the right hon. Member for Bermondsey and Old Southwark (Simon Hughes)and others have said, the history of serious cases of miscarriages of justice should bear very heavily indeed on all Members. I include in that the cases that were fought, promoted and championed against very difficult headwinds here in Parliament by Members of all parties. I recall Conservative Members like the late John Biggs-Davison and others championing those cases alongside Labour and Liberal MPs—but little thanks did they get for it from sections of the media and others.

My own predecessors and party colleagues in Parliament fought on those issues at that time. I remember working in John Hume’s office writing all sorts of letters to the Home Office. Of course, we were told that new facts and new evidence did not qualify as new facts and new evidence. Perhaps that issue still applies to clause 143. Even if amendment 95 were accepted, the question of what counts as a

“new or newly discovered fact”

still arises, although I hope that the wording of the amendment, which would provide that

“no reasonable court properly directed as to the law, could convict on the evidence now to be considered”,

would help. There were historical arguments about whether new evidence was indeed a new fact or a material consideration, and I would not want to legislate to produce more circular arguments or obfuscations like that for the future.

Clause 143 is pernicious. It seeks completely to reload the basic, long-standing presumption of innocence until proven guilty. It basically provides qualification of the notion of a miscarriage of justice, suggesting that when someone has suffered what most people would call a miscarriage of justice and when their conviction has, on subsequent judicial appraisal of relevant evidence, been overturned, they should still not be able to proclaim their innocence. There is an insinuation that if they were previously convicted, they are innocent and entitled to compensation as innocent only where they can prove that they are innocent “beyond reasonable doubt”.

For the people affected, many of their convictions will have taken place many years previously and they will be in no position to marshal all the evidence that could necessarily prove their innocence beyond what someone would call a reasonable doubt. Nobody has to meet that criterion at their proper and due initial trial, so why should anybody have to do that to receive compensation after a conviction has been overturned? Compensation is not the only issue here because it is not the monetary value that motivates the fundamental objections to this proposal.

Before I became a Member in 2005, I worked on the cases of the Guildford Four and the Maguire Seven when they still needed and wanted a full and proper proclamation of their innocence, not least because many sections of the media and others were retelling the slur that these people had somehow secured just a technical acquittal. Their conviction was quashed, but the insinuation remained that they were not really innocent. That problem arose from issues surrounding compensation and other factors.

I recall being asked by Gerry Conlon, a friend of mine and one of the Guildford Four, if I could get a direct and clear statement of apology and a proclamation of the innocence not just of himself but of his late father, Giuseppe Conlon. I was also asked the same by Sarah Conlon, Gerry’s mother and Giuseppe’s widow. It was plain that Gerry Conlon wanted that clear proclamation of their innocence for his mother, that his mother wanted it for Gerry, and, of course, that they both wanted it for Giuseppe.

--- Later in debate ---

[Damian Green]

I will come to the Adams case in a moment, if the hon. Lady will be patient.

Many disappointed applicants seek judicial review of the Secretary of State’s decision, because they do not fully understand its basis or because the case law is unclear. In practice, very few such claims succeed, and they place a significant burden on the applicant involved and on the taxpayers who have to fund them. Therefore, the purpose of clause 143 is to restore the law to the pre-2011 position and to make the definition of a miscarriage of justice more consistent, clearer and easier for the public and potential applicants to understand. That is fairer than using an obscure and confusing definition, or continuing to work, as we have to now, with a definition that is subject to unpredictable change. We are firmly of the view that the provision is compatible with our international obligations and the convention rights. I am conscious that we are in discussions with the Joint Committee about that and that we hold different views on the matter.

[Simon Hughes]

Although this issue is being dealt with very carefully, there is clearly a difference of view, and the hon. Member for Islington South and Finsbury (Emily Thornberry) made the case for the legal justification. Rather than just have a battle at the other end of the building and a lottery of an outcome, will my right hon. Friend undertake to facilitate a meeting of all those interested in both Houses with members of the relevant Committees so that we can hear evidence and try to do the job properly, and see whether the Government have adopted the right position or we need to do something else? I would far rather we got it right and were really clear and all signed up than we had a maverick outcome that satisfied very few or nobody.

[Damian Green]

I am happy to continue to engage in the discussions that the Departments have been having with the Joint Committee or anyone else, but I regret to say that I am not sure that having a meeting at which a definitive view could be arrived at would be possible, as that would be subcontracting the right of Parliament to be that Chamber—that is the purpose of this House and the other place, and I do not think it is constitutionally right to try to subcontract that to a meeting of experts.

The nub of Members’ complaints about clause 143 is that it is in some way incompatible with the presumption of innocence—I do not think I am traducing hon. Members in saying that—and that is the issue we need to address. Of course the Government recognise the fundamental constitutional importance of the presumption of innocence and we would not introduce legislation that cuts across that. We consider that article 14.6 of the International Covenant on Civil and Political Rights, to which section 133 of the Criminal Justice Act 1988 gives effect, provides only for compensation to be paid to those persons whose convictions have been overturned because a new fact shows that they did not commit the offence. In the Government’s view, that is the proper definition of a miscarriage of justice. Compensation should not be payable where the basis for the conviction being overturned does not demonstrate the applicant’s innocence.

The hon. Member for Islington South and Finsbury (Emily Thornberry) brought up the European Court of Human Rights. We are aware of its decision on this issue and we have written in some detail to the Joint Committee on Human Rights about it. However, we continue to consider that this provision would not interfere with a person’s fundamental right to be presumed innocent until proven guilty. We take firm support for this view from the Supreme Court in the Adams case, which held unanimously that the presumption of innocence is not infringed by the current arrangements for compensating a miscarriage of justice. In our view, the proposed change does not alter that analysis. As the European Court acknowledged, more than an acquittal is required to establish that there has been a miscarriage of justice. Through clause 143, we are determining where that line should be drawn.

Under clause 143, there is no requirement for a person applying for compensation for a miscarriage of justice to “prove” their innocence. What is determinative is the fact on which the conviction was overturned. So, for example, if a person’s conviction is overturned because DNA evidence comes to light showing they could not have committed the offence, it is only right that they should be compensated. Following the coming into force of clause 143, they will, as now, be eligible for compensation.

The proposed new test for determining eligibility for compensation does not require the applicant to demonstrate his or her innocence; it focuses on the new fact. When the Grand Chamber of the European Court of Human Rights recently ruled in the case of Allen that the presumption of innocence is engaged when deciding whether to pay compensation for a miscarriage of justice, the Court made it clear that states were entitled to conclude that more than an acquittal was required. This clause will enable us to say, for the first time in statute, what beyond an acquittal is necessary for there to have been a miscarriage of justice. It introduces for the first time some certainty in the process.

I should say in response to a point made by the hon. Member for Islington North (Jeremy Corbyn) that the clause will have no impact at all on the very valuable work being done every day by the Criminal Cases Review Commission, and nor will it change the basis on which a conviction is overturned.

--- Later in debate ---

[Ann Coffey (Stockport) (Lab)]

I want to say a few words on new clause 34. I thank the hon. Member for Monmouth (David T. C. Davies) for giving me his views on it, but I think there might have been a misunderstanding.

The new clause would change the law to make the use of racist or other abusive language in a dwelling house an offence when it was directed at a policeman. I was recently contacted by a serving police officer from my constituency who was present when a colleague from the Greater Manchester police was called a “nigger” in a private house. Under section 4A of the Public Order Act 1986, no offence is committed if the “harassment, alarm or distress” takes place inside a dwelling house—that is, somebody’s house or flat. I was surprised by that because, like many people, I was under the impression that racist abuse was an offence wherever it was committed. However, this is not the case. I was shocked to hear that somebody could not be charged with the offence because it took place in a dwelling against a police officer pursuing his duty.

My amendment would make it an offence to use racist or other abusive language against a police constable who was present in a dwelling in the execution of his duty. The police officer from my constituency described attending a property where two men were aggressively arguing. One was very drunk and called one of the police officers a nigger. The officer described seeing her colleague abused and she told me, “I was quite horrified he had to endure this kind of abuse. I felt very frustrated and helpless that we could not charge the offender with any offence.” I am sure that this is by no means an isolated case and I suspect that other professionals such as social workers and health visitors have also been subject to racist abuse when visiting a person at their home address. It does not seem right to me or, I suspect, to the public that if the police officer had been called a nigger in the street, an offence would have been committed, but none was committed because it happened inside a house. I hope the Minister will feel able to consider the amendment that I propose.

[Simon Hughes]

I shall be very brief as we are short of time, and I know that my hon. Friend the Member for Cambridge (Dr Huppert) also hopes to catch your eye, Madam Deputy Speaker.

I draw the attention of the House and those watching our proceedings to amendments 178 to 181 and 183. I do that not just in my own name, but on behalf of the Joint Committee on Human Rights, which examined the issue as part of its consideration of the Bill. The Joint Committee is disappointed that the Government have not yet published in full their responses to their consultation on schedule 7. These are controversial issues. Of course, we need anti-terrorist legislation and there is always a balance to be worked out between the civil liberty of the subject and the powers of the authorities.

We believe, however, that it is very important that legislation distinguishes between the conventional powers to stop, to search, and to question, which can be exercised without reasonable suspicion, and more intrusive powers, such as those of detaining and taking biometric samples, for which the Committee believes the Government have not yet made a persuasive case. The Joint Committee recommends introducing a reasonable suspicion requirement for the more intrusive powers under schedule 7. I know that some argue that schedule 7 should go altogether. That is not the position of the Joint Committee nor, coincidentally, is it the position of my party, which debated this at our conference in Glasgow a few weeks ago and took a view that there should be amendment broadly along the lines set out by the Joint Committee.

The issue came to prominence, as the House will remember, in August, when Mr David Miranda was stopped at Heathrow when coming into this country on his way back home to Brazil and was detained for nine hours under the anti-terror laws. There were protests by the Brazilian Government and widespread concern about whether the powers were used extensively. We hope we can persuade the Government to take the position of the Joint Committee on Human Rights, but we will not seek to divide the House this afternoon, hoping there might be a chance not just for my hon. Friend, but even for the Minister to respond to our concerns.

[Dr Huppert]

I shall do my best to be brief to allow the Minister time to respond to the debate.

I welcome Government new clause 11. It is right to extend powers to PCSOs, allowing them to issue fixed penalty notices to cyclists riding without lights. I am a huge champion of cycling. I was delighted when the House passed a motion to get Britain cycling. One of the banes of my life in that context is cyclists who do not obey the rules of the road. Anything that we can do to get people to cycle safely and legally will make it easier for those of us who want to extend facilities for cyclists. There are sensible ways forward. In Cambridge we have been using a “lights instead of tickets” campaign to make sure that people get their lights. I welcome the new clause as a sensible step forward.

I shall spend most of my time talking about schedule 7 to the Terrorism Act 2000, to which I have tabled a series of amendments. There has been particular controversy recently, as my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) mentioned, because of the detention of David Miranda, the partner of The Guardian journalist working on the Edward Snowden leaks. This has led to the Independent Police Complaints Commission taking the Met to the High Court over failure to address complaints and how schedule 7 is used. This is a very broadly written power. It should not be a surprise that it has expanded from its original use in Northern Ireland in the 1970s to become worse and worse as illiberal Governments have made it even heavier.

It seems to me that it is not right for people who “look like terrorists” to be detained. That is exactly what happens under schedule 7. StopWatch has done a huge amount of work on this. Last year there were 64,000 schedule 7 stops—a huge number. Twenty-seven per cent. of those stopped for under an hour were Asian, much more than their proportion in the community, and 77% of those stopped for more than an hour were from ethnic minority populations. We should not consider that acceptable. StopWatch cites some chilling quotes from one man Glasgow who said that

“the first thing you ask your friend is . . . not how was the holiday, it’s did you get stopped and what did they ask you?”

If we are setting up a power that creates huge concern in the Muslim and ethnic minority populations, that will separate people from the bulk of our country and is deeply alarming. The Equality and Human Rights Commission and David Anderson QC have also commented on how damaging that is.

This is a matter that Liberal Democrats have been concerned about for a long time. It is not just about David Miranda, who has the support of The Guardian. It is also about people who are detained routinely. That is why my party has debated this and why I tabled a range of proposals. There are many concerns about schedule 7. One option would be to get rid of it. There are alternative powers in section 47A. I hope the Minister will comment on that. There are other options that we have looked at. I would like to see us committed to David Anderson QC’s proposals to limit the scope of schedule 7. The Government should introduce provisions to that effect in the other place.

I have also proposed implementing proposals that my party made at our conference. They include getting rid of the principle that authorities can stop people without any suspicion at all, restoring the right to silence for those who are detained, and questioning to be recorded from start to finish. Restoring confidence and the basic principles of the rule of law to that process and making sure that data collected are not used inappropriately should be important in the case of David Miranda. I also propose a statutory principle of annual review and a sunset clause. The Government should look at these proposals and I hope they will take advantage of the process to make sure that that happens. I am glad that that is supported by the Joint Committee on Human Rights.

I would love to deal with the proposals made by the Opposition and their proposals to ban synthetic caffeine, but in the interests of time I will allow the Minister to respond.

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.

Oral Answers to Questions

Simon Hughes Excerpts

Tuesday 8th October 2013 Commons Chamber

[Chris Grayling]

I have had a number of discussions with the Justice Minister over the months. We have not specifically discussed our legal aid reforms, but I know he has similar financial challenges to ours. He has mentioned those challenges to me, and I know he is looking at how best to deal with them.

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

The Secretary of State knows how welcome his announcement was a few weeks ago, and how he listened to responses. Concerns remain, however, about the shortage of members of the Bar doing legal aid work in welfare law and the like, and about the fees currently proposed for remunerating them. Is he willing to look open-endedly at that fee regime to ensure that we have good lawyers who are able to represent people on legal aid in the future?

Transforming Legal Aid

Simon Hughes Excerpts

Thursday 5th September 2013 Commons Chamber

[Chris Grayling]

By the time all the changes we have introduced reach a steady-state point, the ratio will be roughly 50:50.

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

May I declare my interest as a lawyer and a member of the JCHR? I should also mention that I submitted a response to the consultation with some criticisms of the original proposals. I pay tribute to the Secretary of State for listening to the Committee responses and for responding, and also for producing a second consultation paper to which people can respond. It seems that the threat to the high-street lawyer and the specialist firm has been lifted, which is welcome, and also that the Secretary of State understands there are still savings to be made in time and cost in the legal system, which remain a scandal. However, may I just ask him to undertake to the House that the poor, those with special needs, the young, those who do not have English as a first language and those who may not be resident here normally but who have human rights issues of national and international importance will still have a legal system they can turn to in their hour of need?

[Chris Grayling]

I can give my right hon. Friend that assurance. I have listened to the representations made to me by members of the JCHR and privately by members of the judiciary about some of the more specialist situations—where people have been trafficked, where there is a child aged under 12 months, and other similar cases—and we have sought to identify cases where there are individual special needs that need to be met. That is reflected in the proposed changes—to the residence test, for example. When my right hon. Friend reads the detail of what we are proposing, I hope he will see that we have made modifications designed to reflect the concerns he and others have raised.

Oral Answers to Questions

Simon Hughes Excerpts

Thursday 5th September 2013 Commons Chamber

[Mr Vaizey]

My conclusion is that rural broadband speeds will increase considerably. We are on target to reach 88% of the country with superfast broadband by the end of 2015, and I fully expect us to reach 90% in early 2016. We will be reaching 10,000 homes a month by next month, and I fully expect that pace to continue.

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

May I remind the Minister that literally four miles from here, in Rotherhithe and Surrey Docks, in the capital city, there are still areas that are have woefully slow broadband, to the disadvantage of a very dynamic community? Will he look again to see whether we can speed up both BT and the programme so that the capital city, like the rest of the country, can have the broadband it needs to be the most efficient and effective that it can be?

[Mr Vaizey]

I will happily work to ensure that for the capital. There will always be pockets of slow broadband. I was interested to read recently about a couple from Cornwall who went to visit Google in silicon valley and found that the superfast broadband speed in the hotel was slower than it was in Cornwall, which is the result of our programme.

--- Later in debate ---

[Mr Speaker]

There is certainly scope for a one and a half hour debate in Westminster Hall on the matter, and quite possibly for a full day in the Chamber.

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

2. What plans the Government have to bring forward legislative proposals for equal pay.

[The Parliamentary Under-Secretary of State for Women and Equalities (Jo Swinson)]

From October 2014, employment tribunals will be required to order an equal pay audit where an employer has broken the law on equal pay. The Government’s “Think, Act, Report” initiative promotes greater transparency on gender employment issues. More than 125 companies are now supporting the initiative, representing nearly 2 million employees.

[Simon Hughes]

Given that most part-time workers are women, that most low-paid jobs are part-time jobs, and that the average hourly wage for a woman doing part-time work is less than three quarters of the hourly wage of a full-time employee, will my hon. Friend the Minister use her energy and effectiveness with her team to ensure that women in part-time work get a fair deal and equal pay as soon as possible?

[Jo Swinson]

My right hon. Friend is right to raise the issues of part-time and full-time employment. One problem identified by, among others, the Women’s Business Council, is that there is often a shortage of senior roles available on a part-time or job-share basis. The Government are taking steps to help to improve the situation by extending the right to request flexible working to everyone, which should help to ensure that it becomes more of a cultural norm rather than an anomaly purely for parents. I take his point and we will continue to work on that.