Police, Crime, Sentencing and Courts Bill (Fourth sitting)

Victoria Atkins Excerpts

Committee stage
Thursday 20th May 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

Q Mr Feeley-Sprague, you said in your evidence that the Bill criminalises an entire way of life in relation to unauthorised encampments. Under clause 61, which we are focusing on, an offence is committed only if one or more of the conditions mentioned in subsection (4), which include significant damage, significant disruption and significant distress to the owner and others, is satisfied. Why are those behaviours a way of life that needs to be protected?

Oliver Feeley-Sprague: I think in my answer, I said—if I didn’t, I should have—that it has the potential to criminalise a way of life. Some of the powers around returning to a site and seizing vehicles, when those vehicles might be your home, clearly do raise that prospect. I will repeat what I said about our experience as a human rights monitoring organisation: Gypsy and Traveller communities across this continent, across Europe, possibly even—

[Victoria Atkins]

Q Mr Feeley-Sprague, forgive me, but we are dealing only with England and Wales in this context. I just want to press you on that point: do you believe that significant disruption, significant damage or significant distress are behaviours that should be protected?

Oliver Feeley-Sprague: It depends on how you are defining that threshold of “serious”. I have seen little in the Bill that gives any indication of what threshold you are using to reach those determinations. It is true, as far as I am aware, that the Gypsy and Traveller community is one of the most persecuted groups in the UK, and they are persecuted across Europe.

[Victoria Atkins]

Q But this is not dealing with the whole of the Traveller community. As your colleague Professor Clark made clear, 70% to 80% of the Traveller community live in bricks and mortar, and therefore will not fall under this criterion of unauthorised encampments where significant damage, distress and disruption are caused. Can I ask the panel, then, what in their view is an acceptable level of distress for local residents to live under?

Gracie Bradley: I just want to echo what Olly said in respect of the fact that the threshold is not clearly defined. These definitions are vague, and they could potentially include a very wide range of issues. I would also add that the way the clause is drafted, it is not simply where significant disruption, damage or distress is caused; it is where there is a likelihood or a perception that it is likely to be caused. The offence can be committed by someone who is said to be likely to cause damage or distress. This is highly subjective, and may invite stereotypes and profiling based on the mere existence of an unauthorised encampment. Again, the issue is really about the breadth of the drafting, the lack of definition, and the fact that the mere threshold of likelihood may invite judgments that are based on stereotyping and profiling. That is what is really concerning about this clause.

[Victoria Atkins]

Q Sorry, but you have not answered my question. What level of distress do you deem to be acceptable for local residents?

Gracie Bradley: That is a difficult question to answer. I do not have a firm answer to that, but I think that if you are taking into account the distress of local residents, you also have to take into account the fundamental right of Gypsy, Roma and Traveller people to live a nomadic way of life. It is not an absolute in either direction, and when we are talking about a community that, as Olly has said, is one of the most persecuted in the country, we have to be really careful about introducing these really broad and vaguely defined measures that are likely to invite them to be stereotyped and discriminated against further.

[Victoria Atkins]

Q What level of damage would you be happy for local residents to live with?

Gracie Bradley: As I have already said, the issue is that we are talking about “likely to cause damage”. That is subjectively determined. There are some people who will be perceived as likely to cause damage; there are some people who, in another person’s mind, will not be. This is very subjective, and I do not think we can abstract it from the history of how people have been treated. I think Colin wants to come in.

Professor Clark: Yes, I can say something about this. In a sense, it is not even local residents; it is actually in the hands of the landowner or the licensee. That is one of the changes between, for example, the regulations in the law as contained in the Criminal Justice and Public Order Act 1994 and the current Bill—this is where there is a significant change. In the 1994 Act, it was the police who had that decision to make about when the action should be forthcoming. In this Bill, that right is given over to the landowner or the licensee, and in a sense it is up to the people who—to answer your question, Minister—own the land on which the Travellers are camped. The landowner would make a decision: “I now feel that this is disruptive, damaging and distressing, so therefore I will call the police and then issue the actions.” That is the issue at stake here.

I will just remind the Minister about the lack of movement on a national site strategy, around both permanent and transit sites and around the right number of pitches on those sites. A lot of these issues would go away and it would be far less expensive than a constant cycle of evictions. The economics of this, as well as the human rights aspects, are quite important.

[Victoria Atkins]

Q Professor Clark, I am sorry but that is an offence, so it will be for a court to decide, and of course for the police and the CPS to make decisions to investigate and charge. Is £50,000-worth of damage to a piece of land acceptable, in the panel’s view? Is that a cost a landowner should bear? That is a historical constituency case that I had.

Professor Clark: What is the context? Without context that is an impossible question to answer.

[Victoria Atkins]

Fly-tipping. A field was taken over by an unauthorised encampment and it cost £50,000 to clear it. Is that acceptable?

Professor Clark: There is legislation in place already to deal with fly-tipping, I believe. I do not think that there needs to be an enhancement of that legislation to the current law as it stands. There is legislation to deal with fly-tipping, whoever may cause it.

When sites come into being in local areas, it is not uncommon for other people to notice that it is Travellers coming in and use that as an excuse to fly-tip their own business-related waste, and then blame it on the Travellers. That comes back to the points that my two colleagues made about the dangers of invoking racialised stereotypes here and apportioning blame, when it is not those individuals who are to blame. Again, this is where we need to be careful about the way in which we use language and how this Bill goes forward.

[Victoria Atkins]

Q All right. Mr Feeley-Sprague, do you want to add to that before I move on to public protest?

Oliver Feeley-Sprague: Anybody responsible for causing £50,000-worth of damage to somebody’s property is committing a crime and, absolutely, people should be protected from that. To echo what the other panellists have said, I think you need to be very careful about further minoritising the Gypsy and Traveller communities. To answer your question bluntly, any form of significant damage of that nature is a crime, whoever does it.

[Victoria Atkins]

Q Of course. On the public order provisions, does the Law Commission have a reputation for either not understanding human rights law or in some way working against the human rights law, of which we are very proud in this country?

Gracie Bradley: I am not sure that I understand what the question is getting at.

[Victoria Atkins]

Does the Law Commission have a reputation for not understanding human rights law, or for somehow wanting to diminish people’s human rights?

Gracie Bradley: Not that I am aware of. I suppose what you are getting at is that codifying public nuisance in statute was a recommendation of the Law Commission, which is correct. In 2015, it did recommend that codifying public nuisance should be done, but it did not consider the application of public nuisance to protest.

The Law Commission noted that its proposed defence of reasonableness would increase cases where a person was exercising their right under article 10 or article 11 of the convention, but they also noted that it is somewhat difficult to imagine examples in which this point arises in connection with public nuisance. The Law Commission absolutely did not propose a maximum custodial sentence of a decade.

[The Chair]

Would any of the other witnesses like to respond to that question?

Oliver Feeley-Sprague: Just to say that I agree 100% with what Gracie said. That is my reading of what the Law Commission concluded in 2015. There are very specific qualifications about article 10 and article 11 rights needing to be protected under any changes of the law. By my reading, this Bill does exactly the opposite of that, so we should be extremely cautious.

Professor Clark: I think the Law Commission is fully cognisant of the rights and responsibilities of a healthy democracy. It understands questions of human rights and citizenship. I would not dare to suggest differently.

[Victoria Atkins]

Q Good. I think that one witness this afternoon has mentioned the wording “serious annoyance”. Presumably you all accept that, in the context of public nuisance, that is a well-founded legal phrasing, which does not have the connotations that it may have in language outside of court; it has a very understood and settled meaning within legal definitions.

[The Chair]

One of you can respond to that, if you would like to kick off.

Professor Clark: I can. What was the question?

[Victoria Atkins]

“Serious annoyance” is a phrase that has caught attention. In the context of public nuisance, that is a phrase that has arisen over centuries—I think I am right in saying that—of legal development and does not necessarily have quite the flippant meaning that it may have in day-to-day life outside of a court of law.

Professor Clark: Okay. I understand now—sorry. I think this comes back to the point that all three of us have made on the issues around terminology and definitions, and the use of them, and the ability to exercise discretion. You would like to hope, and expect, that moving forwards such expressions would take on their proper meanings in a legal context, but applied fairly and applied justly.

Given the overall nature of the Bill and what I said earlier about the impreciseness of the language and terminology, certainly in the case of part 4 with regard to unauthorised encampments, I think that is why a lot of outside bodies and organisations and non-governmental organisations have question marks.

However, I will hand over to Gracie, who might be better informed than I am on this.

Gracie Bradley: I am happy to pick this up. We know the legal genesis of that definition of “serious annoyance”, but of course the provisions in the Bill do not confine themselves to “annoyance”. If we look at clause 54, we see that conditions may be imposed that appear

“necessary to prevent the disorder, damage, disruption, impact or intimidation”—

[Victoria Atkins]

Q Forgive me—sorry. It is specifically in clause 59; that is the public nuisance clause, as recommended by the Law Commission. That is why I used that wording. It is in clause 59, not clause 54.

Gracie Bradley: I was not saying that it was in clause 59; I was picking up on another clause in the Bill, which contains language that is vague and concerning. But I can leave it there, if you want to stick with clause 59; I do not have anything to add on that.

[Chris Philp]

Q I will be very brief. It is a question for Gracie. I want to pick up on a point that you made, Gracie, in relation to unauthorised encampments and article 8. You suggested that the legislation might infringe article 8. However, paragraph 2 of article 8 says that interference by a public authority is “justified”—because article 8 is a qualified right, as you know—in the interests of, among other things,

“public safety…the economic well being…the prevention of disorder or crime…or for the protection of the rights and freedoms of others.”

Of course, unauthorised encampments of this kind do infringe

“the rights and freedoms of others”.

Thereby, I would suggest, article 8 is not engaged. Moreover, the right to enjoy one’s property is made very clear, is it not, in article 1 of protocol 1, which says that people are

“entitled to the peaceful enjoyment of…possessions.”

So, given what I have just said about paragraph 2 of article 8, and about article 1 of protocol 1, would you care to reconsider your article 8 analysis in relation to this clause?

Gracie Bradley: No. I think that what I said was that under article 8 it would likely be an unlawful interference, and I would disagree with your analysis that if it is proportionate, article 8 is not engaged. If the right can still be engaged, and a limitation may or may not be proportionate—