House of Lords
Monday, 18 November 2013.
Prayers—read by the Lord Bishop of Birmingham.
Armed Forces: Territorial Army
My Lords, first, I am sure the whole House will wish to join me in offering sincere condolences to the family and friends of Warrant Officer Class 2 Ian Fisher of 3rd Battalion The Mercian Regiment, who was killed on operations in Afghanistan recently. My thoughts are also with the wounded and I pay tribute to the courage and fortitude with which they face their rehabilitation.
Independent figures published last week show that 4,880 personnel left and 3,250 joined the Army Reserves in the 12 months to 30 September. These pre-date the recruitment campaign that started in September to grow the Army Reserve from a trained strength of 19,000 to 30,000 by 2018, with improved training and equipment. There are IT teething problems, which we are addressing as well as undertaking aggressive action continuously to improve the recruiting process.
My Lords, I endorse the opening words of my noble friend and add my support to them. With regard to the Question, given the future importance of Reserve Forces in the British line of battle, will he ensure that all vigour is applied to the recruiting campaign and that, in particular, the new terms of service for Reserve Forces are not so onerous as to put people off?
My Lords, I am very grateful to my noble friend for his support. We are making the offer more attractive to both reservists and employers and encouraging ex-regular personnel to join. This is supported by significant additional investment—£1.8 billion over 10 years across training, equipment, paid leave, pensions, and welfare and occupational health support. The Army has already run one Army Reserve recruiting campaign, which resulted in a great many expressions of interest, and is currently running another with up to 900 soldiers conducting outreach activity at local and regional level.
My Lords, I rise first to associate these Benches with the condolences expressed by the Minister and, particularly, to share his thoughts about the wounded. The Minister has refused on three successive occasions over the past few months to give an undertaking that the decline in the size of the Regular Army will not proceed until the increase in the trained Army Reserve is secured. Now we have figures—incomplete figures—about how this is going, but it does not seem to be going well. The data should be available and open. This should not be a clandestine experiment. Will the Minister commit to publishing all the figures? Does he share my concern that the Government are not meeting their targets and that the untrained strength of the reserves has gone down year on year? This does not bode well for his 2018 target or the future of the British Army.
My Lords, I do not share the views of the noble Lord. The recruit partnering programme is not failing. We are getting the most capability for the taxpayer from the resources available. At the same time as growing and transforming the reserves, we are changing the way that we recruit for both regulars and reserves, along with our commercial partner Capita. These are two large-scale change programmes, which are yet to reach full maturity. We are working with the relevant contractors, namely Capita and ATLAS, and all MoD stakeholders to identify any problems, iron them out, mature the programmes, and deliver as committed.
My Lords, would the Minister like to say what signs there are of the preparedness of business, particularly SMEs, to release people to be reserves since this policy has been in force, given that many of those small businesses in particular have become very lean over the past three or four years?
My Lords, the Ministry of Defence has made redundancies on the basis of increased numbers in the Reserve Forces. If the reservists are not there, the public is bound to ask who is doing the job of defending Britain and Britain’s interests. What is my noble friend the Minister’s comment on that?
My Lords, our Regular Forces will continue to furnish the highest readiness front-line defence and reaction forces, although these may be supplanted from time to time by individual reservists, but there are many areas in which the reserves can and do provide vital capability, such as medical and intelligence. They will continue their contribution in these fields, but we also expect to see them playing an increasing role in the provision of combat forces. Army Reserve units will be paired with regular units, which provide the same capability, and that will happen across the whole range of capabilities.
My Lords, is the Minister aware that young men from Grenada have been recruited into the Army, have been accepted and have come over here at their own expense to be trained in the Army? Within weeks of them being here, the Army said that the policy had changed and that those young men had to go back to Grenada, with no recompense. It is a very poor island, and sending recruits back who have spent money coming here, have started their training and have been dismissed in this way is giving a very unkind message to the islands, which supported this country during the two world wars. I hope at least that the Government will see their way to reimbursing those young men.
My Lords, I reassure the noble Baroness that we welcome Commonwealth reservists. As announced on 11 July, to fulfil their reserves commitments they are required to have indefinite leave to remain in the UK prior to joining. However, I will look into the point that the noble Baroness raised.
My Lords, does the Minister agree with me that the Chief of the General Staff is doing a very good job in trying to manage the process of reducing the Regular Army by 20% while building up the strength of the reserves against a very difficult financial background? We are only three or four months into a five-year programme. On the question asked by the noble and gallant Lord, Lord Boyce, on small and medium-sized enterprises, has consideration been given to waiving national insurance charges for those enterprises as an incentive to employers to take on members of the reserves?
My Lords, I agree with the noble Lord that the Chief of the General Staff is doing a very good job. I have considerable briefing on the question that the noble and gallant Lord and the noble Lord raised on SMEs and national insurance. It will take me some time to find it—but I will write to the noble Lord. We have always expected there to be a dip in the level of the reserves before they increase as we are changing the fitness requirements and deployability of the force. To reassure the noble Lord, a target of 30,000 trained Army reservists is well within historical norms. We had 72,000 trained reservists as recently as 1990.
My Lords, is not the real problem that we are spending far too little on defence? At this moment, we have HMS “Daring” doing a grand job in the Philippines, but it is one of only 19 destroyers and frigates.
Is it possible to put more money into the cadet forces? They do a wonderful job by taking youngsters off the streets, looking after them, encouraging them and growing them; and 30% of them end up as NCOs in our forces.
Public Interest Immunity Certificates
My Lords, public interest immunity, or PII, certificates are ministerial instruments used in legal proceedings where the disclosure of sensitive material would cause a real risk of serious prejudice to an important public interest. Although applications for PII have been made in criminal fraud cases since 2010, I am not aware of any PII applications relating to fraud cases that involved ministerial PII certificates.
My Lords, is not the noble and learned Lord’s Answer relevant virtually only to the case of Asil Nadir? Is it not ridiculous, and a mockery of British justice, that Asil Nadir came back to this country with all the evidence to clear his name, and that the Serious Fraud Office sought to hide behind more than 35 public interest immunity certificates? The SFO used the international status of the Turkish Republic of Northern Cyprus to avoid going there to examine the books although, 20 years previously, it had already been told by the administrators for Polly Peck that the audited books were in order. Is this not a contradiction of British justice?
My Lords, I readily acknowledge the determination with which the noble Lord has pursued these matters. As I have previously indicated to him, it is a long-standing convention that applications for PII certificates are neither confirmed nor denied. Indeed, I gave the noble Lord a Written Answer earlier this year in which I set out the reasons for that.
Immediately before coming into your Lordships’ House, I inquired about the status of the Turkish Republic of Northern Cyprus. It is my understanding that these issues were raised during the trial of Asil Nadir and that Foreign and Commonwealth Office officials were examined on the matter. As a matter of general law, the use of a PII to prevent disclosure of sensitive material does not render any trial unfair. Whether materials are or are not disclosed is not a decision for Ministers or for the prosecution; it is the decision of the trial judge. The trial judge will not allow a PII claim to stand if to do so would render the trial of the defendant unfair.
Does my noble and learned friend agree that the PII ministerial certificates should be used sparingly, if only because they are made without anyone representing the interests of a defendant being present? That places a great burden on the trial judge, who has to second guess what the defence is likely to say on certain issues. It also means that the defence is unable to answer allegations which can easily be made, but which may be incorrect.
My Lords, as I indicated, in the case of criminal fraud trials since 2010, I am not aware of any case where a ministerial PII certificate has been advanced. I acknowledge that PII certificates are more commonly used in civil cases, and I accept my noble friend’s point, that that should proceed only after very careful consideration.
My Lords, I think that that goes slightly wide of the question asked by the noble Lord, Lord Maginnis. From Written Statements which have been made in the other place by the Attorney-General, and which I have placed in your Lordships’ House, I know a number of steps have been taken recently to improve the operation of the Serious Fraud Office. However, I will ensure that the comments made by the noble Lord are drawn to the attention of my right honourable and learned friend the Attorney General.
Housing: Underoccupancy Charge
My Lords, the impact of the removal of the spare room subsidy on the stability of communities will be assessed over the next two years as part of the independent evaluation currently being undertaken by a consortium which is being led by Ipsos MORI and which includes the Cambridge Centre for Housing and Planning Research and the Institute for Fiscal Studies.
My Lords, I thank the Minister for his reply. Good social housing requires stable communities where neighbours look out for each other. That is one of the differences between social housing and the scattered private rented sector. How will half a million disabled families cope without their neighbours’ support because they are forced to move by the bedroom tax? How will frail elderly relatives cope when their middle-aged children who care for them have to move away because of the bedroom tax? Ministers quote the changes to the private rented sector in 2008 but those changes were not retrospective, whereas these are, and that is what is so wrong. Will the Minister undertake to ensure, as a transitional arrangement, that the bedroom tax applies only to new lettings and will he lift the bedroom tax for existing tenants and help us to maintain stable communities on which our civic life is based?
I am sorry; I meant 523,000 people. That is a quite substantial reduction. While we do not yet have evidence of how people are responding to the policy—we will get that through our study—it is suggested that some behavioural changes are taking place. It is interesting that the numbers not in employment came down by 10% between May and August.
My Lords, clearly there are issues with housing. There is a great deal of overcrowding. There are various figures for this but between 250,000 and approaching 400,000 homes are overcrowded, and there are long waiting lists. Also, the economic signals seem odd. The provision of single-bedroomed homes falls very far short of demand, with 61% of people wanting, or meeting the size requirements for, one-bedroomed accommodation.
My Lords, has the noble Lord seen a report in one of my local newspapers, the Haringey Independent, where one Di Alexander, who chairs a housing association and happens to be the father of the Chief Secretary to the Treasury, said that the bedroom tax,
“is particularly unfair in that it penalises both our tenants and ourselves for not being able to magic up a supply of smaller properties”?
Has the noble Lord also seen the report of the Chartered Institute of Housing on the pilots of capping benefits in the London Borough of Haringey? It points out that,
“2,300 children live in households whose income has been capped”,
“instability in education, increasing tensions within the home, sudden relocation and loss of social and educational opportunities or networks”,
which, it says, is extremely serious. Will he comment on the fact that, according to that study, the cost to local authorities and others of achieving a saving of £60,000 per week was £960,000 over just a four-month period? Does that really make sense?
My Lords, it is simply too early to reach judgments about how the introduction of the benefit cap and the removal of the spare room subsidy bed in. The kind of savings that we were looking for from those policies seems to be being borne out by the very early initial figures that we are now seeing.
My Lords, does my noble friend have the latest figures for the use by local authorities of housing discretionary payments? The last time I looked at this, local councils were not using that money to help people in the short term. I would be grateful if he could update us on that.
Again, my Lords, it is hard to reach definitive conclusions. We now have £180 million for discretionary housing payments for this year, including £20 million that is by demand, to be bid for. So far, we have had just 13 bids in for that money. Last year, some discretionary housing payment money was returned. We are monitoring this extraordinarily closely to make sure that councils are able to deal with their hard cases.
My Lords, there is a body of research showing the importance to families in poverty of local social networks to help them get by in poverty and even get out of poverty. Will the Minister explain how weakening those social networks through the bedroom tax contributes to the Government’s anti-poverty policy and the big society?
My Lords, there is a misunderstanding here about the nature of the provision of a lot of social housing. Some 61% of people in social housing are single: they are not the families envisaged. Those are the people, by and large, who are affected by the removal of the spare room subsidy. We are looking at that very closely indeed.
My Lords, will the Minister say what protection there is for the frail elderly, perhaps living on their own, or the sick or disabled, who do not know their way around the system and do not understand that they can appeal against any decisions that are made?
My Lords, I emphasise absolutely that this policy deliberately excludes those who are retired—pensioners. The reason for that is that it is very tough to ask older people to make the kind of changes that are possible for younger people to make, so it is in that sense a flow measure. We are trying to get people to move down to appropriately sized homes—if they cannot afford to stay in their larger homes—when they are capable of doing so.
My Lords, I think most Members of the House believe that it is desirable for people to have the size of accommodation that they need and to free up accommodation for those many families with children about whom the noble Lord, Lord Harris, spoke. However, I have been told that one of my suggestions—about having a lodger—could prove to be very difficult to act on, because some local authorities will not allow you to have a lodger. Can the Government do anything to ensure that all local authorities will allow people who wish to have a lodger to do so?
My Lords, I am grateful for my noble friend’s point. There is a bit of confusion around about sub-tenancies as opposed to lodgers. My understanding is that most housing associations and local authorities will accept lodgers. We have been carrying out an exercise in communication to ensure that people are thoroughly aware of that option.
My Lords, the Minister has repeatedly said in the past that the implementation of the bedroom tax was only “what the last Labour Government did”. However, my noble friend Lady Hollis has exposed that, because there was no retrospection when we brought out those regulations. The Minister has also complained that the last Labour Government did not build enough one-bedroomed houses or other suitable houses. In that case, why impose hardship, pain and suffering on thousands of disabled people as a result of the bedroom tax?
Unemployment: Youth Unemployment
My Lords, we are providing young people with the help they need to get back to work through Jobcentre Plus, the youth contract, the Work Programme, traineeships and apprenticeships. Our approach is working. Over the past year, the number of JSA claimants aged 18 to 24 has dropped by 84,800. We have also made £55 million available to cities for them to develop new and innovative ways of reducing long-term youth unemployment.
I am sorry that the Minister does not seem to share my deep concern about the problem of youth unemployment. Is he aware that 21% of young people aged between 16 and 24 are currently out of work? Does he know that long-term youth unemployment has more than quadrupled in the past 10 years? Some 115,000 18 to 24 year-olds have been out of work for two years or more. Whichever parties are in government in 2015, they will have to tackle long-term unemployment. We have tried to tackle this problem over the past 10 to 20 years. We must tackle it together and we must share the concern. If we cannot share the concern, is it not time to put our differences aside and to work together to resolve this nightmare situation for thousands of our young people? Will the Minister lead us in arranging some measure of co-operation?
My Lords, the short answer is no. The policies of the previous Government were extraordinarily expensive. The Future Jobs Fund was introduced by the previous Government. At the time, I was in the department as an independent adviser, and that shocked me somewhat. It cost £6,500 for each job and half the people were back on benefits at the end. That is more or less the same performance as the work experience programme, which costs only one-20th.
I agree that the figures about which my noble friend is so concerned are a real concern and have been for a long time. I look at the figures for the unemployed and inactive youth. In 1997, it was 1.1 million youngsters. By 2010, after the longest boom in our history, it had risen to 1.4 million. Under this Government, in the worst recession since not the 1930s but the 1920s, it has come down 89,000 to 1.2 million. That is the way in which to have proper policies to handle the structural problem of youth unemployment.
My Lords, will the Minister publicly offer advice to young people who are unemployed and living in regions which this Government seem to be bypassing? They cannot move to where they are offered employment because of the constrictions on property that they could afford to rent if they were in work due to the Minister’s self-confessed lack of suitable one-bedroomed accommodation. This Government are fostering a north-south divide and the anger of the young in the north has to be heard to be believed.
My Lords, clearly, it is important to see mobility among the young who are looking for where there is work. However, it is as important for them that they equip themselves to do work, which can be done through work experience, training and apprenticeships. We are putting enormous efforts into getting those programmes right.
Is the noble Lord misleading the House to a degree in quoting the figures? He referred to figures from 1997 which included and counted 16 to 18 year-olds who were unemployed, not in education and not undertaking any training. Now, because the Government no longer pay any benefits to 16 to 18 year-olds, there are literally thousands and thousands of people—the department does not know how many—who are not in employment, not counted and not included in the figures. What are you going to do to follow them?
My Lords, I am counting inactive people in the figures I am using, which are the best ones available. Clearly, under the previous Government many people were put in government training schemes and were not counted. We can play with numbers as much as we like but I am not playing with numbers—I am giving a very clear, long-term run of the most important set of figures on how we handle the structural problem of youth exclusion from the labour market.
My Lords, it is said that on a clear day some people in this Palace can see as far as Croydon. Will the Minister raise the sights of this House and get it to look as far, perhaps, as Greece or Italy, where the promise that unemployment could be solved by huge amounts of public debt has led not only to disaster but almost to despair? Does he accept that burying a future generation of our children in huge public debt is not only inept and does not solve the problem but, frankly, is immoral?
My Lords, my noble friend underlines our problem in his question. We have got to get this economy out of the mire of running a deficit of more than £100 billion every year so that it is rebalanced and we are economically self-sufficient within this generation. If we are not and we go on borrowing to the extent that we can, the people who pick up that tab will not just be our children but our grandchildren and our great-grandchildren. That is not something we should want to leave to future generations.
Age-Related Payments Regulations 2013
Motion to Approve
Categories of Gaming Machine (Amendment) Regulations 2014
Motion to Approve
Armed Forces (Remission of Fines) Order 2013
Motion to Approve
Anti-social Behaviour, Crime and Policing Bill
Committee (2nd Day)
Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.
My Lords, perhaps I may encourage colleagues who are seeking to leave the Chamber to do so without walking in front of the noble Lord, Lord Greaves, wherever possible. At the moment he is waiting very courteously to begin moving the first amendment. It is a courtesy of this House that we do not walk in front of the speaker, and noble Lords should leave by the other end of the Chamber.
Clause 1: Power to grant injunctions
19A: Clause 1, page 1, line 5, leave out “10” and insert “12”
My Lords, Amendment 19A stands on its own. I should first apologise to the House for not being present for Second Reading. As this is the first time that I have taken part in this Bill I should, in line with the Code of Conduct, declare various interests that I know are going to come up. I am a member of Pendle Borough Council and its executive and vice-president of the Local Government Association. I am also a member and vice-president of the Open Spaces Society and a member and patron of the British Mountaineering Council. I will declare any other interests as they crop up.
The amendment is unusual for a first amendment on a Bill because it deals with a specific point rather than a general one that might lead to some general discussions, but there are amendments that are coming up fairly quickly where those general discussions can take place on the principles behind this part of the Bill. We are talking about the proposal to abolish ASBOs and introduce injunctions for the prevention of nuisance and annoyance. The proposal is that injunctions of this nature can be taken out against people from the age of 10 upwards. There was some discussion at Second Reading, which I read with great interest, about whether the age of 10 was appropriate or whether it was too low. The amendment provides an opportunity for some probing and consideration of that at this stage of the Bill.
It occurred to me that it might be useful to look at my party's policy on this matter. That could be a fairly original thing for someone in your Lordships’ House to do, but in any case I thought that it might be helpful. I discovered that we had agreed a policy paper within the past two years, Taking Responsibility: Policies on Youth Justice. Under the heading “More appropriate treatment of Young People in the Justice System”, it talked about the age of criminal responsibility. These are civil injunctions so, unlike ASBOs, they are not part of the criminal system—although as noble Lords pointed out at Second Reading, any young people involved in the system might not recognise a great deal of difference between the two.
The policy states:
“Liberal Democrats recognise that children aged under 14 often know the difference between right and wrong and have personal responsibility for their actions but that courts are not the appropriate way to deal with them”.
We are not talking about the wider youth justice system: we are dealing with what is in front of us. The paper went on to suggest that it would be better if there were specially trained panels to deal with young people of this age, similar to those in Scotland,
“with the emphasis on measures including restorative justice”,
and community sentencing. It continues:
“Panels would be expected to provide consequences which were proportionate, sought to reduce reoffending and provide amends to the victim as well as addressing any welfare needs the child had”.
They would also mean that,
“immature acts of youth do not result in a lifelong criminal record”.
Some of the principles behind this are embodied in the idea that the injunctions for the prevention of nuisance and annoyance—IPNAs, as I suppose we will have to call them—will bring in. The document went on to talk about the age of criminal responsibility across Europe, which varies, although the UK currently has the lowest ages in western Europe—10 in England and Wales and, at that time, eight in Scotland, although there is now new legislation in Scotland.
We need to protect our children from making mistakes and should not expect vulnerable children to make judgments and decisions that many adults struggle with. The UN Committee on the Rights of the Child has recommended that the age of criminal responsibility in England and Wales should be raised to at least 12, and Liberal Democrats believe that it should be raised to 14. That is our party policy. We are looking at the proposals for the new IPNAs with that background, particularly where ASBOs have not been terribly successful. This paper points out that the breach rate for teenagers has been over 60%, and I believe that it is now around 68%. Clearly this policy is working neither for the young people involved nor for the local communities. If people go back and breach their ASBOs, the anti-social behaviour is not being adequately dealt with. The paper suggests:
“Other unacceptable behaviour should be tackled through positive measures such as Parental Control Agreements and Acceptable Behaviour Contracts (ABCs) which specify the new behaviour which is required. This is an approach which works”.
I am aware that the Government intend this to happen, and that there should be a series of actions that take place in relation to unruly young people and to those who go over the border into criminal activity, and that to deal with a problem an injunction should not be slapped on straightaway. There should be a series of preventive actions and interventions, working with the parents and attempting to get successful acceptable behaviour contracts. These work much better than ASBOs do at the moment, when you get to ASBOs. In too many places ASBOs have been taken as a quick means of dealing with problems. The direction of thinking and government policy is to be applauded. Later on, there are amendments down about resources. Whether there will be the resources there to see it through everywhere is a different matter, but I am not dealing with that at the moment.
My amendment puts forward a compromise suggestion. It takes the view that these injunctions ought not to be used for children at primary school. The age of 12 means that by the time they have got to secondary school and moved up a stage into the more adult world the injunctions can be used. Below that, while they are still at primary school, they are possibly not appropriate. This is clearly a judgment, but I put this amendment forward as a means of probing what the Government intend for these very young children and presenting the opportunity for debate in Committee this afternoon. I beg to move.
My Lords, my noble friend has rightly referred to the series of actions that the Government are proposing in the new regime. Like him, I welcome the fact that the new injunctions will not be criminal. I think he said that this distinction in the eyes of young people may not be as great as it is to us. Does he agree that that is particularly the case with the widespread powers that the court has on breach of such an injunction?
On this amendment, may I make a point that may come up time and again? This is on the place of guidance, as used by all those who will be involved in the new regime. Guidance is one thing. It is important and has a significant place in the way any measure is applied. However, guidance is only guidance. If an issue is really important, it should not be left to guidance and therefore, while it may or may not happen, it should be a matter for the legislation itself. I am glad that my noble friend has raised this issue right at the start of today.
My Lords, I speak as vice-chair of the All-Party Parliamentary Group on children and young people in care and leaving care. Half of young people in custody have experience of care: they have been fostered or have been in residential care. Many of those unfortunate young people, who are in that position principally because they have been abused by their families, are also likely to get tangled up in the law and in the situations with which we are concerned here.
I begin by putting two questions to the Minister. First, there has been concern in the past that the assumption relating to media reporting when dealing with children is reversed in these circumstances. One of the tabloid newspapers published a string of photographs of children and their addresses some time ago. This was a few years ago and perhaps things have moved on, but I would be grateful to the Minister if he could write to me on where things stand with regard to publicising the names and photographs of such children.
My second question relates to youth services. We all know that the devil makes work for idle hands. With the cuts that have come about, youth services have taken a very heavy blow. Research has shown that where there have been summer activities for young people, the crime rate among young people reduces. We need to think about the positive things that we can do as well as the negative things—the stick and the carrot, if you like—when we discuss this issue. What guidance and advice on protecting youth services are being offered by central government to local authorities at this difficult time? In particular, what advice is being offered to the new PCCs, which have a lot of resources and which could perhaps funnel some of them towards supporting youth services? I was very gratified to hear recently how much support the Government are giving to mentoring young people in the criminal justice system and in schools. That information would be helpful.
I am sorry to speak for so long but I should like to make just one point. Many of these young men—boys, I should say—grow up without a father in the home. We know that two-thirds of black boys in the United States grow up without a father in the home. According to the OECD, the level of lone parents in this country is even higher than that, so many boys here are growing up without fathers in the home. The risk is, and my experience shows this time and again, that such young men feel a sense of guilt. They are not rational in trying to understand why their fathers are not interested in their lives. They think that it is something that they did that caused it. I can think of an occasion when I was with a group of looked-after children in Parliament. Somebody popped their head in to ask a question, suggesting that somebody might have done something wrong, and there was an immediate look of guilt among them—“What have we done wrong? What are we to blame for?”. You hear from adults who have had such an experience that they are ridden with guilt and feel negative about their lives, even about the good things in it. The risk is that, by having a low age of criminal responsibility or by introducing these measures for people of such a young age, the state is coming along and saying, “Yes, there isn’t anything good in you. We will put your photograph in the local newspaper. You will be described as a bad person”. In that, we are reinforcing what their parents have told them and what their experience has been.
I remember as a boarder at school becoming particularly attached to my housemaster, who was with me for several years. When he moved on to be the headmaster of a new school, for several weeks I would ask myself before going to bed at night, quite unreasonably, what I had done to him that was driving him away. I felt guilt for driving him away. I cannot stress enough that my experience points to such a sense of guilt in these young people. Yes, they must be made to feel responsible; no, they should not be allowed just to be called victims. There are sanctions available but I worry that there may be a perverse outcome if we keep the age as currently proposed in the Bill. I look forward to the Minister’s response.
My Lords, 10 days ago, a number of us debated in this House the Second Reading of the Age of Criminal Responsibility Bill, introduced by the noble Lord, Lord Dholakia. I commend some of the things that were said then about the ability of children of the age of 10 to comprehend fully all the businesses of the criminal justice system when they were motivated against them. During the debate I cited the fact that the well known 10 year-olds Thompson and Venables, responsible for the murder of Jamie Bulger, were said by the psychiatrist involved in the case to have a developmental age of four.
You cannot expect a child with the developmental age of four to be able to comprehend exactly what is involved in the criminal justice system, whether it is an injunction, which does not carry a criminal record, or an anti-social behaviour order, which does. I am glad that the noble Lord, Lord Greaves, introduced age very early in this Bill, because all the way through we ought to have at the back of our minds that we are talking about anything to do with children of the age of 10.
We are way below the United Nations recommendation that the age of criminal responsibility should be nearer 15. We are way below what happens in Scotland and countries such as China. I am not sure that it is civilised to throw the criminal justice system at children of 10. Therefore, while I am glad that the intention is not that the injunction should carry a criminal record, we ought to take seriously the question of whether 10 is an appropriate age to start whatever process we have, because within society there should be other ways of doing it. I know that these are not very satisfactory at present, but let us not forget the conditions in which a lot of these children live their lives. I have always thought that it was unfortunate that Mr Blair, in his famous statement about being,
“tough on crime, tough on the causes of crime”,
rather lost sight of being tough on the causes. It seems to me that we have to get to grips with the causes, as much as anything else, when we propose the injunctions and so on that we are talking about.
The other thing that concerns me is that we have here a Home Office Bill that talks about children, while in the Moses Room we have the Children and Families Bill, which also talks about children. We learn there that the Department for Education is not actually the key organisation in the development of children initially, but the Department of Health. Then we find that the Department for Work and Pensions has a role to play in all this, as, of course, does the Department for Communities and Local Government. Therefore all sorts of initiatives are going on, all aiming at the same thing, which lack co-ordination. I feel that there ought to be a Minister of child development in the Cabinet Office, responsible for pulling all these threads together, otherwise we will go charging off in a lot of directions, which will be unco-ordinated, and the casualties will be the very people whom this Bill claims to protect.
My Lords, perhaps I might follow my noble friend Lord Ramsbotham on an issue which I raised at Second Reading: the position of the court granting an order. I raised the question of whether there was anything in the Bill that provided for rules to be made requiring the court to make sure that the individual understood the order that was being made, bearing in mind the consequences if the injunction was to be breached.
I think I am right in saying that nothing in the Bill requires rules to be made to deal with that matter, but will the Minister tell us whether the guidance deals with the position of the child in court? Obviously, the guidance deals with the steps preliminary to taking this action against the individual. However, if the age of 10 is to be adhered to, it is extremely important—for all the reasons that the noble Lord has given—that the individual fully understands the consequences of the order, as well as the need to obey it.
If there are no provisions in the Bill about rules to be made, it comes back to the guidance and the responsibility on those who are guiding the individual to ensure that the order is fully understood, and that there is a reasonable prospect of the child fulfilling what he or she is required to do.
My Lords, is not part of the problem that the Government are trying to sweep away a whole range of different responses to anti-social behaviour and replace them with what is essentially a single measure, at least as far as the individual is concerned, and that therefore there is no gradation? There is no way to modulate what is done or provide a specific response to individual circumstances. That seems to be what is causing this problem. If there were some gradation, there might well be measures that it would be appropriate to take against children of the age of 10 or 11, who have an understanding of when they are behaving outside societal norms. However, there would not be the same level of sanction implicit in breaching an injunction.
Part of the difficulty with all of the amendments which your Lordships will be considering today is that we are left, essentially, with one type of measure to deal with a multiplicity of problems. That is why trying to find the right balance as to how best to be effective against those problems is one difficulty. Because the Government have decided simply to do away with all the existing arrangements and replace them with one simple measure, we will face that difficulty.
My Lords, first, I welcome the fact that we are having this debate, because the injunctions were clearly the major issue raised at Second Reading. I think that most noble Lords who contributed to that debate raised this issue.
However, I start by saying that the late scheduling of today’s Committee sitting is rather unfortunate. There will be noble Lords who would have wished to table amendments to today’s debate but who, given that the sitting was scheduled only on the last sitting day before Recess last week, may not have had the opportunity to do so. The noble Lord, Lord Ramsbotham, made the point that we now have a clash with the Children and Families Bill, which is also in Committee as we speak. I suspect that, given the nature of the subject before us today, many noble Lords who are in that Committee would also wish to contribute here. My final plea is that this time yesterday I was in Argentina, and I arrived in the UK only a few hours ago. I promise not to do my Eva Peron impression on this issue—although perhaps in passion if not in length. The scheduling is unfortunate, and I hope that the Minister will take that message back. I would not want noble Lords who have a contribution to make to this debate to be unable to do so.
The noble Lord, Lord Greaves, has done us a service with his amendment, and I am also eager to probe the Government’s thinking on this issue as well. I am certainly not against children and young people being held responsible for their actions; we defined that principle in anti-social behaviour orders. We have had some debate today about the criminal age of responsibility for young people, but the amendment and the Bill are not really about that. They are about whether a young person aged 10 is likely, on the balance of probabilities, to cause annoyance or nuisance to anyone. I am not a parent, but my experience of 10 and 11 year-old children is that they inevitably cause nuisance and annoyance to somebody at some point. I do not know whether the Bill is an appropriate vehicle to make that kind of behaviour subject, on the balance of probabilities, to such an injunction. I find that somewhat strange and I would like the Minister to develop his thinking and explain why the Government think that it is appropriate.
I can think of numerous examples where 10 and 11 year-olds would cause nuisance and annoyance: persistently kicking a ball at a fence, breaking that fence or causing disruption in the neighbourhood. That is the very point that my noble friend Lord Harris made: the Government are trying to squeeze a range of interventions into one which, inevitably, will not be appropriate in every case.
I wonder, if a complaint is made about a young person aged 10 or 11 causing nuisance or annoyance, how the police are going to investigate to see whether it is appropriate that such an injunction be placed on that young person. The JCHR made the point that there is no requirement whatsoever in the Bill to judge what is in the best interests of the child before such an injunction is imposed. It would be helpful if the Government would explain their thinking why it would be appropriate to issue an injunction when a 10 or 11 year-old may cause nuisance or annoyance.
Perhaps the noble Baroness can help the House. Section 1 of the Crime and Disorder Act 1998, passed by the previous Government, permitted local authorities to apply for ASBOs in respect of persons aged 10 or over, subject to conditions. Does the party opposite have a changed view now, in view of the amendment?
We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.
My Lords, I am grateful to my noble friend Lord Greaves for tabling this amendment, because it does seem to be a good place to start. The issue has certainly triggered a lot of arguments from colleagues, if I may say so. We have set this age of 10 because that is the age at which children are currently deemed capable of being responsible for their actions under the criminal law. My noble friend showed quite clearly that this is something that has been enshrined in legislation for some time, but I emphasise that the focus of the injunction is to nip issues and problems in the bud.
Many of us agree that the move away from automatic criminalisation of young people is a step in the right direction; noble Lords have backed the Government’s decision to move in that direction. Breach of an injunction does not result in a criminal conviction, giving the young person a chance of reform with a clean slate. This is not the case with anti-social behaviour orders, where breach is a criminal offence; this change has been widely welcomed by, among others, the Home Affairs Committee in another place. In addition to the injunction, positive requirements can be used to help address the causes of a young person’s anti-social behaviour, to help them to turn their life around before that behaviour escalates to something more serious.
We have also built in requirements for the local youth offending team to be involved at different stages in the process, to allow for the proper and thorough consideration of the needs of the young person. This goes far beyond what was required for the anti-social behaviour order. Furthermore, on the recommendation of the Home Affairs Committee, we have limited the maximum period of an injunction to 12 months where it is issued against someone under the age of 18, whereas the minimum duration of an ASBO is two years. Twelve months will provide agencies with sufficient time for them to work with other agencies to address any underlying issues driving anti-social behaviour. It strikes the right balance between providing victims with the respite they need and sending a strong message to young people that anti-social behaviour is not acceptable.
My noble friend Lady Hamwee emphasised the importance of the guidance. We have published draft guidance for front-line professionals and I hope that noble Lords will take time to have a look at it. I think they will find that it complements what the Bill seeks to do, and it is a very important document. It is available on the Home Office website, but if those who want a hard copy let me know, I will ensure that one is sent to them. It will be relevant to the youth offending teams and, in relation to Part 6 of the Bill, to police and crime commissioners; again, my noble friend mentioned how important the role of the PCCs could be. We are consulting on the draft guidance at the moment, and we would welcome comments from noble Lords on what it should include.
The noble Earl, Lord Listowel, asked about reporting restrictions. We are going to come to that issue; it is in this early part of the Bill and will be debated as we have amendments down to discuss it. Amendment 21A has been tabled by my noble friend Lady Hamwee. I hope that the noble Earl will be able to be involved in that debate.
The noble Lord, Lord Ramsbotham, mentioned that the House is of course considering the Age of Criminal Responsibility Bill, introduced by my noble friend Lord Dholakia. He also questioned the risk of a lack of co-ordination across government. I hope—indeed, I have had private conversations with the noble Lord about this—that all this legislation is of a piece. It is designed to address the failure of Government to get on a child-focused agenda. The IPNA in particular is part of our Home Office legislation to reinforce child focus, and victim focus, in the same legislation so that we successfully tackle anti-social behaviour.
The noble and learned Lord, Lord Hope of Craighead, mentioned the question of the guidance and whether courts could be included in it. In theory, court rules could cover this, provided that the relevant rule-making committees agreed. We will consider the utility of this, as well as whether guidance could play a useful role here. I look forward to hearing from the noble and learned Lord on this issue.
If I may say so to the noble Baroness, Lady Smith, the timing of this particular day’s business, which I think all noble Lords will have found themselves swotting up on a little more earnestly than they might otherwise have done, was agreed through the usual channels, and indeed I understand from my colleague that the proposal was welcomed by the opposition Chief Whip, although I was not in the Chamber at the time.
I emphasise to the noble Baroness that the IPNA is not the only means of addressing anti-social behaviour by children. We have made it clear in the draft guidance that the police, local authorities and others should consider a non-interventionist basis in the first instance if they can do so. The Bill also provides for more serious cases at the other end with the criminal behaviour order, so there is a flexible response to the phenomenon. As I said earlier, the youth offending teams—
My Lords, perhaps I could save the Minister some time. Following on from those two questions, it is comforting to hear that this is not as strong a method as I had been concerned about. Much of what the Minister has said has been reassuring. However, if one draws children into the support of the youth offending teams, they might say, “I am with all those others who are involved with the criminal law now if the youth offending teams are with me”. Does the Minister understand that concern? I hope that that relates to what the noble Lord was asking
That follows on from where I was in my argument. The engagement of youth offender teams is key to this issue. They welcome the opportunity of intervening earlier—pre-offending, one might say—because one of the deficiencies of the current system is that the remedy lies in an anti-social behaviour order, which is a rather heavy hammer with which to deal with the problem. This is much more nuanced. I cannot answer the noble Lord in specifics because I am not thinking quickly enough on my feet. However, I hope I have reassured him that the early stages of anti-social behaviour are likely to be dealt with informally, as they would be at present. The injunction method gives a framework for remedial activity, particularly with a young offender, but we should remember that IPNAs apply to others as well as young people.
I am grateful to the noble Lord for attempting to answer the point. The amendment deals specifically with young people. Before we come to Report, could the noble Lord write to me and other noble Lords setting out, in more detail, his thinking on the circumstances which will lead to an IPNA for a young person when everything else has failed? What does he see as being the consequences of a breach? It sounded to me as though the consequence was a referral to a criminal behaviour order and the youth offending team process. I am not suggesting he try and answer now: he clearly wants to have the information in front of him. However, it would be helpful to the Committee to have that information.
The penalties, set out in Schedule 2, include up to two years’ detention for children of 14 or over, but only in exceptional cases. The noble Lord has invited me to write to him on this issue and I am very happy to do so. I hope he also has the opportunity to read the guidance because that will help in his understanding of how the IPNA is meant to operate on the ground, in particular cases, and will help inform him just as much as my letter will do.
I am sorry to intervene on the noble Lord, but I asked a question about Article 3 of the UN Convention on the Rights of the Child and the comment made by the Joint Committee on Human Rights that this Bill has no requirement to consider a child’s best interests, their specific needs or learning difficulties. Why does the Bill have no reference to that?
That will be the subject of a later amendment, but I can reassure the noble Baroness that, as a legal process is involved, the courts have to take into account the human rights of anybody who is before them. It is not for the Bill to make that explicit: it is a matter of practice within the courts.
My Lords, I am very grateful to the Minister for the care with which he is responding to these questions. I would be grateful if he would drop me a line about the advice the Government might offer the new police and crime commissioners on funding youth services. It is so important that children have something to do with themselves. At this very difficult time, youth services are being cut right to the bone. Therefore the new police and crime commissioners have a lot of resources that they can choose to focus wherever they please; if some of those went to youth services that would be very helpful.
To respond to the noble Earl, 38 of the 41 police and crime commissioners listed anti-social behaviour as one of their major priorities in their crime plans, so the subject is at the top of the list. Certainly one would hope that as well as dealing with the consequences of anti-social behaviour, that could be converted into preventive action. I beg to ask my noble friend to withdraw his amendment.
My Lords, I am grateful to the Minister for trying to withdraw my amendment before I do, but he is a bit too enthusiastic. I am grateful to all noble Lords who have taken part in this discussion, which has been useful. It has shown that there is not quite as much clarity about how the youngest children in particular—10, 11 and 12 year-olds—will be dealt with in the new system. I hope that perhaps the Government might find ways to be clearer about that as the Bill proceeds. I am sorry that the noble Baroness, Lady Smith of Basildon, had to dash back from Argentina. Since she took up her responsibilities on the Opposition Front Bench I have admired her contributions to this House. I never quite thought of her as Eva Perón, but perhaps she can sing to us as well—that may be a thrill in store.
The Minister said that the Government are replacing ASBOs, which are a “heavy hammer”, with a more nuanced approach. The noble Lord, Lord Harris of Haringey, pointed out that they are doing this by sweeping away a whole range of means that perhaps on the face of it ought to provide a more nuanced approach and a greater choice of measures in each case, and replacing it with one. The crux of the matter—whether this injunction will work for young people and for people generally—depends on whether it is sufficiently flexible. The Minister referred to the draft guidance that has been published. For much of the anti-social behaviour parts of the Bill this draft guidance is still very skeletal. The part of this draft guidance that deals with the new injunctions and the way in which they might be the end of a series of actions is one of the better parts, although it can no doubt be further improved.
In particular, as far as these very young people—10 and 11 year-olds—are concerned, it is crucial that the measures and the intervention are there to prevent them ever getting to the juvenile court for an injunction. In my experience of kids in my area who have had ASBOs, once they are given one, for most of them the system has failed. There will be the same sort of thing with the IPNAs. Once kids are hauled up before a system of justice and have these things imposed on them, perhaps without sufficient support to make sure that they adhere to them and do not breach them, for most of them the system has failed at that stage. They are far from being rescued from a life of difficulties and crime—they are rather being set on the road towards it. That is my experience of people in our area. We all hope that this new system will be better for them.
Having said that, I am very grateful for the Minister’s careful comments, which set the Committee off to a good start as far as the anti-social behaviour parts of the Bill are concerned. I ask the Government to think again whether 10 is the right age for this. In the mean time, I beg leave to withdraw the amendment.
Amendment 19A withdrawn.
19B: Clause 1, page 1, line 6, leave out “two” and insert “three”
My Lords, in moving Amendment 19B, I shall speak also to Amendments 20E and 22Q in the same group. The relationship between the new systems and statutory nuisances might appear a slightly obscure subject but I do not think it is obscure. It is fundamental to how it will work on the ground and to the workability of the measures in the Bill. Amendment 20E introduces a third condition for using IPNAs—injunctions for the prevention of nuisance and annoyance—which is that they do not cover the same ground as existing statutory nuisance powers.
Amendment 22Q leaps forward a little in the Bill to community protection notices, which are a parallel measure that the Bill introduces, again sweeping away quite a number of former powers into one power to prevent local nuisance such as litter, dog nuisances or whatever it may be. This states:
“A community protection notice may not be issued if the conduct constitutes a statutory nuisance under any other enactment”.
With these amendments I am trying to probe the relationship between the new measures and statutory nuisances, but also perhaps to probe the relationship between IPNAs and community protection notices. It is not entirely clear to me in what circumstances one might be appropriate and in what circumstances the other might be appropriate. It would help if the Minister could clarify that.
The Explanatory Notes to the Bill, I should say in passing, are of a considerably higher quality than some of the Explanatory Notes we get to Bills, which simply churn out the wording of the Bill in a slightly different way. The Explanatory Notes to this Bill make a real effort to explain what is behind the Bill, previous legislation, what it is replacing and the logic behind the proposals. Therefore, I should like to congratulate whoever in the Home Office wrote these. I do not usually congratulate the Home Office on anything, but on this occasion I do, very much.
It sets out some of the most common statutory nuisances:
“Noise … Artificial light … Odour … Insects … Smoke … Dust … Premises”.
We can all think of occasions when the troughings, or whatever they call them in the rest of the world, are leaking with water down the downspouts and covering everyone who goes past. The list goes on:
“Fumes or gases … Accumulation or deposit”—
which gives rise to all sorts of images—
“Animals kept in such a manner or place as to be prejudicial to health or a nuisance”,
and, indeed, any other matters in enactment.
These are clearly problems, or nuisances, which it is also intended that the new community protection notices should cover at least to a degree. The Explanatory Notes say that the community protection notice is intended to,
“deal with unreasonable, ongoing problems or nuisances which negatively affect the community’s quality of life by targeting the person responsible”.
Specifically they will replace litter notices, some dog legislation and so on.
Part 3 of the Environmental Act 1990 places a duty on a local authority to investigate complaints of statutory nuisance from people living within its area. There is clearly an overlap here. The question I ask is: will the use of an IPNA or a community protection notice preclude later prosecution for a statutory nuisance if the investigations reveal, or the officers concerned come to the view, that there is indeed a statutory nuisance involved? Will the community protection notice be overridden or withdrawn if it is found that there is a statutory nuisance, or is there a choice? Will it be a pragmatic decision on the ground at any given time, or can the two go hand in hand? Can a CPN or an injunction be proposed and be going through at the same time as a prosecution for statutory nuisance is taking place?
On the relationship between an IPNA and a CPN, an IPNA will be available if,
“conduct is capable of causing nuisance or annoyance”—
a phrase that is becoming familiar to all of us. A community protection notice will be available if,
“conduct is having a detrimental effect, of a persistent or continuing nature”,
“quality of life of those in the locality”.
That conduct also has to be unreasonable. I am not sure what the difference is between those, but clearly there will be instances, if people are making a persistent nuisance of themselves in a public place, when an IPNA will be appropriate. However, if it is in a street or a place where people live and is causing nuisance to neighbours and the local community over time, how will the local authority or other appropriate authorities decide which to use?
Quite often, when I have dealt with environmental health issues and environmental health officers, there has been a problem. They have said that there is a real nuisance taking place, perhaps with water coming through from the house next door—but it is not a public but a private nuisance, and the remedy for the owners or residents is to go to the civil courts, which, of course, most cannot do under any circumstances. Will CPNs or IPNAs be available for that kind of nuisance when it is coming from one house to another, one on one, or will they still be ruled out because the nuisance does not affect enough people in the area? I beg to move.
My Lords, I have amendments tabled later on community protection notices and how statutory nuisance is to be dealt with, but I use this opportunity to ask the Minister a couple of questions.
In the Commons, the Government took out the exclusion from community protection notices of statutory nuisance—it was in Clause 40(5)—saying that they had established a technical working group including representatives from the police, the Chartered Institute of Environmental Health and the Chartered Institute of Housing to draft clear guidance as to what to use when. I should declare an interest. I am a vice-president of the Chartered Institute of Environmental Health, which is why it has come to me on this issue. It has told me that it was asked for a comment at one point but that it is not aware of the technical working group. Can the Minister explain to the Committee what is happening in that area?
The institute’s concern is about confusion over who should do what, whose responsibility it should be and whether, in the case of some nuisances, those who might have powers to deal with them are likely to have the technical knowledge. The point was made to me that you can tell what litter is, but it is not always easy to tell when noise is a statutory nuisance, because so many conditions and criteria surround it. I would be grateful for some help and news, which might shorten our debate later—although, of course, it might not.
My Lords, I thank my noble friend Lord Greaves for his amendments and my noble friend Lady Hamwee for her comments. It is interesting that she talks about noise. In one’s own personal experience, what is music to some is noise to others. I think we shall be returning to this.
With regard to the amendments to the new injunction, it is our view that they could make the actual process much slower and more bureaucratic—akin to the orders that we seek to replace. It would not help professionals deal with anti-social people and, more importantly, would not help victims who have to endure the perpetrator’s behaviour.
The new injunction is designed to be used quickly and, in many cases, preventively, to stop problem behaviours before they escalate. These problem behaviours will not always relate to a statutory nuisance. Therefore, to include an additional condition which suggests that statutory nuisance should be considered every time would, in all likelihood, result in some social landlords or police forces being unable to act quickly to protect the victim. We expect social landlords and police forces to work in partnership with local councils to deal with shared problems, such as anti-social noise nuisance. If social landlords and police forces felt obliged to seek advice from the local council’s statutory nuisance team before every injunction, this could delay the process of the application unnecessarily, and lead to victims suffering even more. Moreover, this new third limb of the test could open up the process to prolonged and costly legal challenges, as respondents sought to argue that their conduct amounted to a statutory nuisance.
The same is true of my noble friend’s amendment to Clause 40. As he will be aware, we had originally excluded statutory nuisance from situations in which a community protection order could be issued. However, after discussing the matter at length with environmental health officers and other professionals, we discovered that this exemption could result in an undesirable scenario. Some perpetrators might use the appeal mechanism to go unpunished via either the statutory nuisance or the breach of the community protection notice.
My noble friend Lady Hamwee is correct that the Opposition Front Bench raised such concerns in Committee in the Commons. Having considered the matter further, the Commons was content to make this change on Report. So I ask my noble friend to accept my assurances that we continue to work closely with statutory nuisance experts, to ensure that the guidelines reflect the important rule that the regime plays in protecting communities from behaviour that is a nuisance or prejudicial to health. In addition, I assure my noble friend Lord Greaves that the issue of a community protection notice, or the granting of an injunction by the court—which was a specific question he asked—in no way discharges the local authority from its statutory duty to serve an abatement notice where behaviour meets the required threshold.
I say to my noble friend Lady Hamwee that our draft guidelines already deal with the interface between statutory nuisances and the new powers in the Bill. I can reassure her that we continue to engage with environmental health practitioners on how this guidance can be further developed in advance of the commencements.
My noble friend Lord Greaves also asked about the choices available. There is no choice as to whether a local authority serves an abatement notice for statutory nuisance. It must serve one if it is satisfied that a matter is a statutory nuisance. He referred to the Explanatory Notes. There is a good example in there that is illustrative of what may be a nuisance, but not a statutory nuisance. A dog bounding over a fence, or through a hole in a fence, can be a nuisance. Recently, I experienced that with my young son, aged 20 months. Suddenly, a dog scurried under a fence, and appeared next to him. It was certainly more than a nuisance to his father, who was far more startled, whereas the dog was just being playful. In those cases, the first and most sensible thing for anyone who is trying to be a good neighbour to do is to talk their neighbour and see if the matter can be resolved locally. Where such behaviour persists, a non-statutory injunction is not appropriate, and a sensible solution is required before putting it on to a more serious basis.
Let me reassure my noble friend Lady Hamwee once again that the Government continue to talk to experts in the field. Based on my explanation, I hope that my noble friend will withdraw his amendments.
My Lords, I have found the Government’s answer to these amendments a bit less satisfactory than their answer to the previous group. We will get on to community protection notices later but I think that the last example that the Minister put forward was a good one. It provided a good reason why CPNs may be a very important and useful new power compared with what currently exists: they will not relate specifically to one thing, such as litter, dogs or whatever, but will be a general power based on whether an anti-social nuisance is taking place.
If I may say so, the other examples that the Minister gave show that the people here who are preparing these things and explaining to us how they will work do not fully understand how things work on the ground, if they work well. Noble Lords seem to think that the police and social landlords operate in one little area and that the local authority is something quite different. Where these things work well, those different groups work together on these issues all the time. The first people to go and investigate the noise may or may not be the police and it may or may not be the social landlord. However, most people who experience anti-social behaviour do not live in social housing. In my experience and, I think, that of many people, most people who experience anti-social behaviour live in private tenanted accommodation, and therefore social landlords are not relevant. The people who turn up to deal with the noise nuisance may be local authority officers. In my part of the world, there is a scheme in which the local authorities work together. They have an out-of-hours service whereby, even at three o’clock on a Sunday morning, somebody will answer the telephone and try to do something about it.
Therefore, if things work well, they work well because people on the ground from those three agencies, as well as from other agencies that may exist locally—some of them voluntary—work together in that way. That is why I think that saying that, on the one hand, there will be the council and the environmental health officers with their statutory nuisance abatement powers and, on the other hand, there will be everybody else with these powers is not quite how it is going to work. I hope that it will work but locally everything has to be much more flexible than the Minister seemed to suggest.
The guidance is going to be crucial but, as it stands, I do not think that it is adequate in this area. I am aware that work is taking place to improve it but, when it comes down to it, the idea that local authorities will stop the police or a social landlord going ahead and taking action because they may be investigating and they have other powers is just not how it works. In any case, even a local authority may have a statutory duty to serve an abatement notice if it is satisfied that a statutory nuisance is taking place, but in practice that is not how it works. In practice, a local authority will always go down the route of contacting the people involved, as well as the landlord, and attempting to resolve the matter without serving a notice. If it does serve a notice and the matter gets to court because people appeal against the notice, then, if the local authority has not gone out of its way to resolve the matter, the court will send it back and say, “You’re not having this. Go and do it properly”.
Having said all that, if they are willing, some further discussions on this matter with the Government in the mean time would be very helpful. I beg leave to withdraw the amendment.
Amendment 19B withdrawn.
19C: Clause 1, page 1, line 7, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”
I shall also speak to Amendments 20A and 20D, which are grouped with Amendment 19C. I speak on behalf of the noble Lord, Lord Dear, who regrets that he is unable to be in his place today.
I think everybody agrees that anti-social behaviour is a very real problem and that the authorities have to be able to prevent innocent people having their lives made a misery by it. There can always be improvements to whatever system is in place. However, most of us—if not all of us—also agree that civil liberties are also precious, and freedom of expression is particularly so, as it is often through the expression of ideas that society is changed for the better. These three amendments are tabled with the aim of helping the Government to get the balance right between the two. Many of the people who spoke at Second Reading on this Bill—and many, many more who have written to and lobbied Peers on all sides of this House—feel that Clause 1, as presently drafted, has got the balance wrong.
A law to tackle anti-social behaviour must surely be precise, targeted and given proper safeguards. If not, it would be capable of undermining fundamental human freedoms; it would be likely to distract the authorities and swamp the courts, hampering the tackling of genuine social problems effectively. As it stands at the moment, Clause 1 creates what we are already calling here IPNAs: injunctions to prevent nuisance and annoyance. The very wording exposes the main problem in the present drafting, because you cannot actually outlaw nuisance or annoyance by all people and in all places. The concept of both of those things without a proper definition is vague and, above all, subjective.
We are talking here about a change of law that will apply to any person in any place, public or private. Clause 1(2) says that injunctions can be sought by a whole range of bodies and individuals in relation to conduct that is merely,
“capable of causing nuisance or annoyance to any person”.
That pretty much covers all human life: there is no human activity, I suggest, that does not annoy someone somewhere. This test has been borrowed from the context of housing, which involves neighbours and people living in close proximity who cannot simply move out or look the other way or pay no attention. The present test is very carefully restricted to conduct affecting the housing management functions of the relevant landlord. It is quite another thing, however, to apply it to the high street, the park, the sports stadium, the countryside at large or Parliament Square. It risks being used against every single one of us for something we do, have done or might do in the future—protestors; people with noisy children playing outside; people preaching in the street; people canvassing; people ringing church bells; pet owners; carol singers; clay-pigeon shooters; and even nudists, whom I have to say have written to me and a number of other noble Lords in very considerable numbers, concerned that they are likely to be targeted as people who are “capable of causing … annoyance”. However, it is not just those groups: it is all of us who are potential targets of this imprecise, all inclusive drafting.
We live in a crowded island; nuisance and annoyance are inevitable consequences of our lives which demand a degree of give-and-take and tolerance. Legislation must be targeted, or our courts will simply be clogged with the trivial and vexatious; real serious nuisance and actual serious annoyance will go unchecked. They will simply not get a look-in and the IPNA will become discredited.
The IPNA is intended to replace, among other things, the ASBO, which a magistrate, at present, can make if two conditions are met. The first is if somebody has acted in an anti-social manner, which is defined, very sensibly, as,
“conduct which caused or was likely to cause harm, harassment, alarm or distress to one or more persons not of the same household as him or herself”.
The second condition about which they have to be satisfied is,
“that such an order is necessary to protect relevant persons from further anti-social acts by him”.
The range of bodies which can apply for an ASBO is narrower than that for an IPNA, which obviously reduces the number of applications and the scope for abuse.
The IPNA is applicable to everyone but, most importantly, there is a vast difference between the thresholds of the two. Instead of targeting harassment, alarm or distress, Clause 1, as I have already said, catches any behaviour by any person that is capable of causing nuisance or annoyance. Each of us in this Chamber probably passes that threshold several times a day in the eyes of someone or another—in refusing to give way at Question Time or by talking for too long or too often. That is quite apart from outside this Chamber—snoring loudly in the Library or not putting newspapers back after reading them—or before we leave this House and venture into the outside world.
Clearly, there are other tests in Clause 1 but that it could at its base level encompass the most ordinary activities of human life is breath-taking. Further, instead of having to prove necessity, as under the ASBO, the courts for the IPNA application will operate the ordinary civil court test for injunctions; that is, deciding where the balance of probabilities lies. ASBOs currently are handled by the magistrates’ court, which must be convinced beyond reasonable doubt—in other words, the criminal standard of proof. But IPNAs are to be handled by the civil courts, which need to be convinced only on the balance of probabilities—the civil standard of proof—that a person has engaged in the alleged conduct.
Under Section 1(5) of the Crime and Disorder Act, where an ASBO is sought the individual has a defence if he can show that his conduct was “reasonable in the circumstances”. But, as yet, there is no reasonableness defence in Clause 1 of this Bill, although I see that the noble Lord, Lord Faulks, has a suggested amendment on the Marshalled List. Therefore, IPNAs have a far lower threshold with fewer safeguards, making them much easier to obtain than an ASBO. That is of course the Government’s intention. They want to reduce the present evidential burden, about which some have complained, and to speed up the court process.
There are strong arguments that most of the anti-social behaviour which the public worry about is caught by existing criminal law offences, such as criminal damage, public order and harassment laws. It is also said that it is not the lack of laws but the lack of political will and, I have no doubt, funding on the part of those responsible for enforcing those laws which renders them less effective than they should be. There are undoubtedly problems of court delays and not just with ASBO applications. However, the solution to that is surely not to remove civil liberty safeguards. Ironically, by making IPNAs easier to obtain than the old ASBOs, there is a real prospect that Clause 1 will slow courts down even further by clogging them with large numbers of IPNA applications. Some local authorities—notably Camden, which has a serious anti-social behaviour problem and has had considerable success with ASBOs—have expressed fear that this rebranding, as they call it, will not in the end prove an improvement.
In tabling these amendments, our concern is not with the Government’s attempts to make improvement to the present process for dealing with this sort of behaviour, which has broad support, but with proposing to do so effectively by placing injunctions on free speech and free movement without a court needing to be properly convinced of the need or the seriousness. If Clause 1 retained the definition of Section 1 in the Crime and Disorder Act, the current level of concern would simply not exist.
As it stands, a huge range of people and organisations from all parts of the political spectrum have already voiced serious disquiet. The Commons Home Affairs Committee said that Clause 1 is “far too broad”. The Joint Committee on Human Rights said that the nuisance and annoyance test,
“is not sufficiently precise to satisfy the requirement of legal certainty required by both human rights law and the common law”.
The noble Lord, Lord Macdonald, the former Director of Public Prosecutions, who unfortunately cannot be in his place today, has provided a most helpful legal opinion from the coalition Benches, in which he says of “nuisance and annoyance”:
“The phrase is apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law … In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights”.
He also criticises the lack of a necessity test and describes the safeguards as “shockingly low”.
Even the Association of Chief Police Officers, which broadly supports the IPNA thinks the threshold is unrealistically low and advocates a return to the harassment, alarm and distress test and the addition of a necessity test, both of which would be achieved by our amendments. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch and countless other organisations and civil liberty groups, ranging right across the spectrum from the Christian Institute to the National Secular Society, have expressed their deep concerns about Clause 1. The three amendments tabled by the noble Lord, Lord Dear, and me seek to address their main concerns; there are other lesser ones. First is the standard of proof, which we say should be beyond reasonable doubt. Secondly, there is the absence of a necessity test, and, thirdly, the nuisance and annoyance threshold should be put back where it is at present with harassment, alarm and distress.
First, on Amendment 19A, the current ASBO legislation is applied by a magistrates’ court granting civil orders. When ASBOs were considered by the Judicial Committee of this House in 2002, it was held that the criminal standard of proof should determine whether anti-social behaviour had occurred. Given the huge impact such an order can have on an individual’s life and bearing in mind that an IPNA can make positive as well as negative requirements, we believe this standard must be retained. As the noble and learned Baroness, Lady Hale of Richmond, said, also in the Judicial Committee of this House, in 2008:
“There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof”.
We say this is one of them.
Secondly, the necessity test needs to be retained. The requirements of necessity and proportionality are enshrined in human rights law and it is important for them to appear in the Bill to reduce the risk of trivial applications and to help avoid unnecessary and disproportionate orders. Thirdly, in Amendment 20D the words “just and convenient” reflect the standard civil test and appear in the Bill. We believe that the higher test required by human rights law—“necessary and proportionate”—should be in Clause 1.
It is crucial that police, local authorities and the many other bodies which can apply for IPNAs can see for themselves in the statute the test that the court will be applying. This will focus minds and, we hope, reduce speculative, vexatious and inappropriate applications. Amendment 20A returns to the threshold test currently in use, “harassment, alarm and distress”. There is a real danger that if the currently proposed, worryingly low threshold is retained, we will create a situation every bit as bad as that under Section 5 of the Public Order Act, where the “insulting words” limb of the offence was used to silence unfashionable or politically incorrect speech. Noble Lords will remember that this House voted overwhelmingly and contrary to the direction of all party Whips to strike “insulting words” out of that legislation a year ago.
The present Clause 1 has united religious groups concerned with street preachers, children’s groups concerned about playground noise, and protest groups concerned that the temptation to seek IPNAs against inconvenient protesters, whether they be anti-frackers, anti-HS2ers, gay rights groups, Occupy or even the Countryside Alliance—in which I have an interest—will prove irresistible to people in authority. To take a test that works in one narrow set of circumstances, as the Government have done here, and try to apply it to the world at large is a recipe for unleashing a wave of unintended consequences. These three amendments are modest proposals that I hope will bring some real improvement and would not lead to the outrage that many have expressed about the current drafting. I beg to move.
My Lords, I had not intended to speak on this part of the Bill, so I am afraid that I have not done as much homework as I should. For many years, however, I have protested against using the civil law to do the work of the criminal law, because it leads to problems when you adopt that approach. For that reason I have always been uneasy about ASBOs. For example, it was years before it was decided—if it has now been decided—whether the standard of proof on ASBOs is the criminal standard or the civil standard but as near the criminal standard as makes no difference. So I shall not be sad to see the back of ASBOs.
Part 1 of the Bill deals with injunctions. Injunctions are a civil procedure. Therefore, on the face of it, one would expect to see the civil standard apply. When the question comes to whether the respondent is in breach of the injunction, the criminal standard applies under paragraph 1 of Schedule 2. That seems a sensible approach. With regret, therefore, I cannot support the noble Baroness’s Amendment 19C, but I am happy to support her other amendments.
My Lords, we are considering the powers to grant injunctions under Clause 1, but it is important to consider the other provisions in Part 1, particularly Clause 4, which specifies those who can apply for injunctions, including local authorities, housing providers, the local chief of police and various other agencies but excluding individuals.
The anxiety that has been generated by Clause 1 is understandable. This anxiety has been excellently analysed by the noble Baroness, Lady Mallalieu, but it needs to be closely examined to see whether it is justified. The Minister told the House at Second Reading that draft guidance had already been published for front-line professionals and referred to particular parts of that guidance. At page 24, it is specified that,
“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.
The jurisdiction to grant an injunction is given to the High Court or the county court, or the youth court in the case of a respondent aged under 18. The court has to be satisfied first that the respondent is engaged in anti-social behaviour and secondly that it is just and convenient to grant an injunction for the purpose of preventing him or her from engaging in anti-social behaviour in the future.
We should not underestimate the inherent safeguards that are present in that procedure. The expression “nuisance or annoyance” is well established in the context of landlord and tenant law and it has been statutorily incorporated into various housing Acts. The expression was introduced with little controversy by the Anti-Social Behaviour Act 2003. There is now a wealth of case law applying this test, which is applied by judges up and down the country. The words by themselves might be thought of as attracting remedies where actions complained of are relatively trivial, but in fact, for “nuisance and annoyance” to pass the threshold, it has to be to be something pretty substantial.
By the same token, judges are not easily persuaded that it is “just and convenient” to grant an injunction unless the court is satisfied that it is equitable to do so. The expression “just and convenient” is well established in law and will mean that the courts hesitate before granting injunctions, unless the behaviour complained of is such that the court considers it fair to do so. If a court were to be too draconian—as to which there has been little evidence in the past—then successful appeals would follow.
The provisions of Part 1 allow for a range of requirements to be included in injunctions, including if necessary a power of arrest. The terms of an injunction will of course depend on the particular facts of a case. Similarly, a power of arrest will be attached only if the seriousness of the allegations merits the exercise of such a power. A point made cogently by the Law Society in its briefing on this part of the Bill is that injunctions are used in the case of noise nuisance as an alternative to possession proceedings. They result in the person or their family staying in their homes, but with restrictions as to their conduct rather than their having to be evicted.
With respect, there seems to be a number of difficulties about the proposed amendments as explained by the noble Baroness, Lady Mallalieu. They would essentially create a criminal regime—there is a criminal offence later in the Bill—for low-level anti-social behaviour, in that before an injunction could be granted there would have to be proof beyond reasonable doubt. This would mean that hearsay evidence could not realistically be used. Witnesses are often afraid of the perpetrators of anti-social behaviour and give their complaints to a housing officer who can then present evidence. One should not underestimate the misery that can be experienced by residents of, let us say, a block of flats where one of the occupants is determined to make the rest of the occupants’ lives a misery. The amendment would probably necessitate seriously frightened residents having to give evidence and be cross-examined. It is much more likely that they would simply refuse to do so.
In our anxiety to ensure that civil liberties are preserved we should neither lose sight of the victims of anti-social behaviour nor underestimate quite what a scourge it can be. I understand entirely what lies behind this amendment and the concern expressed by a number of noble Lords that essential freedoms could be at risk if the powers under Part 1 were used too enthusiastically. However, I feel that the really substantial amendments here will emasculate the right to obtain an injunction under Part 1 and result in a failure to protect those who are the victims of anti-social behaviour. Nevertheless, by way of acknowledging the very real and sincere concerns that a number of people or groups have about Clause 1, I propose in my amendment, which I will outline shortly and is supported by the Joint Committee on Human Rights, that a degree of objectivity be imported into the definition of conduct capable of causing nuisance and annoyance. That amendment, which I will be submitting, would help, but I am afraid that I am against these amendments.
My Lords, I find myself in the difficult position of agreeing with much of the excellent speech by my noble friend Lady Mallalieu and much of the speech just made by the noble Lord, Lord Faulks. The reason for that is the mess that this Bill is. The reality is that the original concept of anti-social behaviour orders was introduced because of a real, prevalent problem in many parts of this country. The problem outlined by the noble Lord, Lord Faulks, is that of people whose lives were being made a misery by the actions of others, but because they were often frightened, or did not think that it was appropriate or possible, they would never bring those matters in a formal complaint and would be very reluctant to give evidence. That is why the test was lowered from the criminal standard of proof.
Those in this House who have been elected members, whether at local council level or who have been Members of Parliament, will have had brought to them cases of inter-neighbour disputes that have gone on for years. You tell them, “Keep a diary, keep a list” and so on, and they come back two, four or six weeks later with a completed list, none of which would be sufficient if we were still operating under the old system of a criminal standard of proof. That is why the previous Government introduced anti-social behaviour orders. I do not think that anyone suggests that anti-social behaviour orders have all worked perfectly, but they made a real difference to the lives of very many people. The reason was that we were changing the way in which those actions could be brought and lowering the standard of proof.
The problem with what the Government are doing is not that they are trying to simplify the system or make it better but that they have swept away what has over time developed and then moved to this system of applying for an injunction, or IPNA. By changing the test to one of nuisance and annoyance, they have opened up the prospect of a lower standard of proof being applied in far broader areas. We can all add to the list of things that cause nuisance and annoyance. While it is true that Clause 4 limits the list of organisations which might apply for an IPNA, it does not deal with the circumstances in which there will be very powerful local lobbying about much lower levels of nuisance and annoyance. The regime will be applied to local authorities; it will be applied to local housing providers—and an interesting question is what a local housing provider is. Is it somebody who happens to rent out one room? In which case, can they apply willy-nilly for IPNAs against all and sundry in the local neighbourhood? I am sure that this issue has been addressed in the guidance but that I have just not read it yet. There will be all sorts of cases where people raise matters which at the moment would not qualify for the ASBO procedure.
The reason why we are debating this amendment is that the Bill has created these anomalies. It would be clearly obnoxious for injunctions to be issued in respect of trivial matters on the basis of this lower level of proof. Equally, we are in danger, for those very legitimate reasons, of throwing away all the progress that has been made in the past few years by reverting to the criminal standard of proof. I think of my time as a local councillor and my time on the London Assembly, where much of my constituency work related to anti-social behaviour issues. The difference that it made for the local authority or for the housing association to be able to pursue these matters as they were able to under anti-social behaviour legislation, provided relief for many people. That is not to say that there were not problems or that some places were not more reluctant and so on. I shall propose an amendment later which states that there should be some coherent planning locally as to what the arrangements should be for pursuing IPNAs in a particular area and that there should be an anti-social behaviour strategy in local areas, but we will come to that later. However, the important point is that, because the Government have made such wholesale changes and have then tried to force them into the single IPNA process, we are in danger of sacrificing the civil liberties or well-being of many people who were protected by the regime of anti-social behaviour orders.
My Lords, we are all grateful to my noble friend Lady Mallalieu for raising these matters. She has spelled out her concerns and anxieties about what might be unintended consequences. We should always pause and think, particularly with regard to Amendment 19C, when a standard lower than the usual criminal standard is sought to be imported. I am always nervous of including any test other than the usual one in a criminal court. The noble and learned Lord, Lord Lloyd, has done a good service to us here in spelling out—and I am sure that he is right—the two parts of the procedures: civil, in order to obtain the injunction, then the usual criminal one, where there has been a breach or an allegation of a breach. This should reassure those of us who are anxious—and I was anxious when I first read it—of importing any lower standard.
I appreciate the remarks of my noble friend Lord Harris, who has dealt with this in part. I invite the House to stand back and try to deal with the mischief that we are concerned with of unacceptable behaviour in closely-knit communities. For more than 40 years, I represented an industrial constituency with large housing estates. People would come to my surgeries—as they did with my noble friend Lord Harris, who was in a slightly different capacity but with the same problem—and ask: “What can we do? We have been to see the housing manager, the police and everyone we can think of and nothing happens”. Time after time, we were impotent.
Far more frequently than would be admitted, the problem was that people were not prepared to come forward and give evidence, because they had to live in that community after the event. That is the crux of it. We are dealing with a real mischief. This is a small change to what we might expect of a standard of proof before any sanctions are imposed, but there are well-hallowed precedents for doing it in this way. Provided one maintains the usual criminal standard for a breach of it, then I for one am satisfied with Amendment 19C.
My Lords, do the Government expect more or fewer people to be arraigned before the courts for injunctions under this new system, compared with people given ASBOs? Have they made an assessment of that? This is important because, we hope, the number of people who are given the new injunctions or who at the moment are given ASBOs, are a minority—quite a small one—of people who cause some kind of low-level anti-social behaviour in the sort of communities that the noble and learned Lord has been talking about.
Do the Government have an assessment of how the new system will affect the numbers who get to the end of the road and have one of these badges—if that is what they are—put upon them? Secondly—I thought about this while listening to the noble Lord, Lord Harris of Haringey—the fundamental thing is: what level of resources are on the ground to deal with these problems and to prevent people getting either the new injunctions or ASBOs? The harsh reality is that in many parts of the country at the moment, that resource is going down.
In my area, what people might think of as a crime and disorder partnership—we call it a community safety partnership—has been extremely successful in the towns and wards of the borough. One meeting that I try to go to each month as a ward councillor is called a PACT meeting—police and communities together. It is a group of residents who meet police and councillors in the ward each month to talk about these problems: local crime and particularly disorder and anti-social behaviour. It works. Sometimes, a handful of people turn up. Then, when something erupts in some of the streets, a lot of people turn up and it provides a focus for dealing with these problems. However, it requires the local police to have the time and resources to take part in such activity. It also requires the local authority’s anti-social behaviour staff to be there and to be prepared to get involved at the case, area and street levels. If it is in an area of social housing, it involves the social housing providers as well. Other people get involved as well.
In our part of the world, that system is being slowly withdrawn for purely financial reasons, as the police cannot afford to devote the resources to it that they have done. If the police are given a choice between relatively high-level and low-level crime, they will put more resources into high-level crime. They might also be given a choice between low-level crime and local disorder or the preventative work where the local neighbourhood teams go round to talk to people, getting to know the patch and its lads and lasses who are hanging around on the streets and might get into bother. The police might find diversionary activities for them, if they have the resources. If that is going on, the system will work, but once that is withdrawn, then all the IPNAs, ASBOs and anything else in the world will not solve the problem. The numbers will increase, because the numbers who get to that level will increase, but the problems on the ground will get worse.
My Lords, I want to make one brief point which follows on from that made by the noble Lord, Lord Greaves. At Second Reading, the Minister made a lot of the breach rates for ASBOs; he said that they were about 60%. The point that I made in my Second Reading speech was that, in my experience as a sitting magistrate, breach rates have declined over the past few years as ASBOs have been more appropriately introduced. I have checked my recollection with my colleagues and I think that they would agree with my comments. Why does the Minister think that breach rates will decline when he is proposing through IPNAs to reduce the burden of proof to a balance of probabilities, and to address nuisance and annoyance rather than “harassment, alarm and distress”? Those two changes are very likely to lead to an increase in the number of breaches, which seemed to be a fundamental point in his seeking to replace ASBOs. I know that later in this Committee there will be a proposal to run the two systems in parallel, which seems a sensible way forward while the IPNA is bedded in.
My Lords, in principle I am very keen on the idea that Governments should lay down what should happen and leave the how up to local areas to decide, because there will obviously be different local conditions. I remember that fairly soon after the ASBO was introduced, there was considerable concern about what great differences there were in how it was being introduced in different parts of the country. It was shown that there was something of a postcode lottery in it. I suspect that we have heard less and less of that over time because people have got used to the ASBO.
One reason for that is because the ASBO was quite tightly defined; the definition of what amounted to an ASBO was there. What concerns me about the injunction is that I agree with the Joint Committee on Human Rights that,
“conduct capable of causing nuisance or annoyance to any person”,
is insufficiently precise. I fear that if there is no more precision in this initially, we shall have exactly the same as we had with the introduction of the ASBO: there will be a postcode lottery. If the injunction is to be enforced properly—I support the idea of it not being a criminal activity—there is a need to sharpen up the precision to prevent that and to give better guidance to the local authorities who will have to enforce it.
My Lords, this has been an interesting debate. All speakers have sought to be helpful to the Minister, perhaps seeking to protect the Government from themselves by this amendment—they were certainly not trying to be a nuisance or annoyance in identifying so many difficult issues that arise here. So I do not expect to have an IPNA taken out against us but, on the balance of the judgment that is in the legislation before us, I suppose we should wait and see. This debate strikes at the very heart of the issue, and the contributions that we have heard today reflect the balance of opinion at Second Reading.
The noble Baroness, Lady Mallalieu, made a very powerful case and addressed a number of the concerns that were raised, including the concerns of those who have argued against the amendment. Like the noble and learned Lord, Lord Morris of Aberavon, I spent a number of years as an MP, although not as many as he did. Anti-social behaviour was then and remains a very serious issue. I recall that many of those dealing with the problem welcomed ASBOs, despite some of the failings and problems we have heard about, and I think that ASBOs have improved with time and experience. The test of “harassment, alarm and distress” was rightly a higher bar than we see before us today, because it recognises the seriousness of the issue, but it also recognises the penalties for breaches of the order. That is an important point to make in the context of this debate.
I find it very interesting that, in the Second Reading debate and again today, the anti-social behaviour orders gained support from distinguished Members of your Lordships’ House with expertise in law, policing and the magistracy. There were criticisms, and I still have some criticisms about the implementation of anti-social behaviour orders and measures. There are those who do not understand how seriously and dreadfully victims of anti-social behaviour are affected. Unless you have suffered yourself or have spoken to people who have been through that totally debilitating experience, it can be hard to understand how that constant, unrelenting pressure of harassment, intimidating behaviour or excessive noise can leave people terrified of living in their own homes and very distressed. I remember one lady who I spoke to at great length on many occasions. She was so distressed by what some might regard as kids mucking around, but very seriously so, that she was terrified to live in her own home. We are now seeing ASBOs being more appropriately used and we have seen a reduction, as we have heard, in their breaches.
We have also heard that there can be injunctions for anti-social behaviour under housing legislation and that the test of causing nuisance and annoyance already exists, but that is in very limited and specific circumstances. The noble Baroness, Lady Mallalieu, made that very clear in her comments. Anti-social behaviour injunctions were brought in in 2003 and have been used sensibly and wisely since then. Today, we have all had correspondence from housing associations—in many cases, very similar letters—explaining why they want to retain the power they have and explaining the benefits they have been able to bring to their tenants, in many cases, very vulnerable tenants, because of those powers. Their letters highlight a problem referred to by the noble Lord, Lord Harris, a few moments ago, and by others; a problem which the Government have created by trying to rationalise the number of orders, procedures and interventions that can be taken against anti-social behaviour. Clearly, housing associations with very vulnerable tenants welcome the powers they have, but these are not appropriate for every single case of anti-social behaviour. We are not against all forms of injunctions but we are against making this test—on the balance of probability, for nuisance and annoyance—the test that should be applied in all cases where somebody complains about something that they consider to be anti-social behaviour.
In some cases there has been a misunderstanding that only small areas are covered; perhaps only social housing estates or council estates. In fact, anti-social behaviour, and certainly the test that the Government wish to apply, of nuisance or annoyance, is much wider spread than that. In many cases, injunctions to prevent nuisance and annoyance can involve similar and indeed wider matters than those raised in current ASBO applications. They can address relatively minor issues involving nuisance neighbours and minor disorder. Because as an order an ASBO can represent a serious slight upon the reputation of a respondent, as well as carrying serious consequences for breach, it is completely inappropriate for something of that seriousness to have a lower standard of proof to apply.
We should also note that ASBOs can impose only prohibitions. These injunctions could include positive requirements, and I welcome that, but of indefinite duration, which would be the equivalent to or more serious than many community sentences that we see people getting at present following criminal convictions. That raises the question of whether those procedural guarantees in the criminal process protected by Article 6(3) of the European Convention on Human Rights and the criminal standard should therefore be applied in this legislation.
There is also enormous concern, as we have heard, that although this low and pretty vague test that has been applied by the Government does not automatically bring a criminal sanction, it can lead to imprisonment and detention orders, including for under-18s. The test is not the original behaviour but the breach of the injunction, but it is a long leap from “nuisance and annoyance” and the balance of probabilities to someone receiving a detention order. As we have heard today from your Lordships’ House, that is something that causes enormous concern. The IPNA test is far too low. We are in danger of seeing behaviour that ought to be accommodated and dealt with in a far more reasonable and appropriate way becoming subject to injunction.
I refer to a comment that was made by the noble Lord, Lord Dear, who referred to this in his powerful Second Reading speech; I have gone back and looked at the points that he raised, and I share his concerns. His point was that the vagueness of the definition in the legislation and in the guidance could lead to courts making decisions that will vary. The draft guidance says:
“On the balance of probabilities, the respondent has engaged or is threatening to engage in conduct capable of causing nuisance or annoyance to any person”,
“The court considers it is just and convenient to grant the injunction to stop the anti-social behaviour”.
We are going to find that decision being left to the courts to make, and cases will be taken to court far more readily because there is such a low level in the test. We will find practitioners taking those cases to court and waiting for the court to make a decision.
The Government have created a problem here but there are a number of suggestions, including the amendments today, that could help to address it. I hope that the Minister has taken careful note and will come back with a positive response.
My Lords, I hope that I am never anything but positive. As I made clear at Second Reading, the provisions of the first six parts of the Bill, which deal with anti-social behaviour, are about protecting victims of anti-social behaviour. It was good to hear noble Lords across the House recognising that that is what lies at the heart of what we are trying to achieve here. It ensures that police, local authorities and all those other agencies that are listed in the Bill can, where necessary, take swift action to bring respite to both individual victims and communities. The noble Baroness, Lady Mallalieu, is right: the central purpose of the new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates. It is essential for the threshold to be set at the right level for that to happen.
The amendments seek to retain the key features of the anti-social behaviour order that the Government are seeking to replace. I understand the arguments and the concerns that a number of noble Lords have expressed about the test of the new injunction and I have seen the legal opinion given by my noble friend Lord Macdonald of River Glaven, but I am sure it will not be a surprise that I am going to explain why we do not agree with these amendments and why I do not agree with my noble friend.
I fear that the effect of these amendments would be to weaken the effectiveness of the new injunction in providing relief to victims and communities. Amendment 19C seeks to replace the lower, civil standard of proof—on the balance of probabilities—with the higher, criminal standard of proof beyond reasonable doubt. Amendment 20A seeks to replace the “nuisance or annoyance” test for the IPNA with the anti-social behaviour test of “harassment, alarm or distress”. Finally, Amendment 20D seeks to revert from the requirement that it must be “just and convenient” to grant an IPNA to the test of “necessary and proportionate”.
As I have said, our reforms are about putting victims first. This means giving front-line professionals the right powers to protect victims and communities effectively from anti-social behaviour. The IPNA has been designed as a purely civil power which can be obtained quickly through the courts, to protect the public and stop an individual’s behaviour escalating.
It may interest noble Lords that the test of nuisance or annoyance was introduced in the Housing Act 1996 and subsequently amended by the Anti-Social Behaviour Act 2003 to extend to conduct capable of causing nuisance or annoyance. This test is used for the anti-social behaviour injunction. It is well recognised by the courts; they know it and are familiar with it. They apply it on a daily basis when deciding whether to grant injunctions to stop or prevent anti-social behaviour.
The term is also used in a number of other statutory contexts. For example, in Section 13 of the Criminal Justice and Police Act 2001 which relates to alcohol consumption in designated public places; in Section 9A of the Housing Act 1988 in respect of proceedings for possession; in Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982 in respect of street trading consents; and in Section 142 of the Highways Act 1980 in respect of obstruction of highways. I could go on, but I have already demonstrated, with this list, that “nuisance or annoyance” is a widely used, statutory term that is understood by both front-line professionals and the courts.
It is therefore not surprising that the Law Society fully supports the use of the test in Part 1. Its recent briefing says:
“The Society strongly suggests that the test is retained and that judges are allowed to exercise their discretion and considerable experience in dealing with these matters. The test is already familiar to the courts and other partners working with families and offenders”.
That this is a well established test has been true for some time. When it was being considered in your Lordships’ House in 2003, the noble Lord, Lord Bassam—who was then Home Office Minister and is now Opposition Chief Whip, but who is unfortunately not in his place at the moment—made a similar point. He said:
“‘Nuisance or annoyance’ is a well-established legal test which the courts are perfectly comfortable to use”. [Official Report, 23/10/03; col. 1791]
That was true then and it is true now, which is why the Government believe—as the previous Government did—that this is the right test to use. To retain the test that applies for the ASBO, as these amendments seek to do, would increase the evidential burden on front-line professionals who are working hard to protect victims and deter perpetrators. It would hinder them in providing respite to victims and communities more quickly. That this will be the consequence of these amendments has been put clearly in the briefing submitted to your Lordships by the Social Landlords Crime and Nuisance Group, which says,
“we consider that these amendments are unnecessary and would, if carried, lead to unintended consequences and seriously disadvantage victims. They would also have significant adverse financial and other resource implications for agencies”.
In relation to the amendment in the name of the noble Baroness, Lady Mallalieu, to apply the criminal standard of proof, their briefing note goes on to say:
“Raising the burden of proof to beyond reasonable doubt will effectively remove the ability to use professional evidence or hearsay, something which conflicts directly with the core purpose of the Bill, to deliver better outcomes for victims. To do so will make it extremely difficult to prove matters to the criminal standard without the victim giving evidence first-hand”.
These are telling points, which were reinforced by the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon. They were also shared by the Chartered Institute of Housing, which also published a briefing note for your Lordships.
The central purpose of this new injunction is to nip problems in the bud and intervene before anti-social behaviour escalates to more serious levels or to criminality. That is in the interests of victims and perpetrators. To wait until these higher tests can be met would stop professionals from taking formal court action where it is necessary and from acting when there is more chance of the perpetrator addressing the underlying causes of their behaviour.
As to fears that injunctions will be handed out like confetti to stop children skateboarding or playing football in the street, or to silence street preachers giving public sermons, I can only quote again from the Law Society, which said:
“The Law Society supports retaining the legal test for the Injunction to Prevent Nuisance and Annoyance … as currently drafted in the Anti Social Behaviour Crime and Policing Bill. We do not agree with those who claim the test is too weak and should be strengthened by imposing conditions such as ‘seriousness’ or ‘malice’. Some are worried that the test is too weak and could result in preachers, buskers and even carol singers finding themselves subject to an injunction but the Law Society do not agree with this interpretation”.
Neither do I. The Law Society would not support these provisions if it had concerns that they would or could be used to stop children playing or people exercising their legitimate rights to freedom of assembly or freedom of expression.
I fully share the noble Baroness’s desire to ensure that these powers are used reasonably and proportionately. Significant safeguards are already provided for in the Bill, not least that an injunction must be authorised by a court. I am ready to consider further whether it would be appropriate to provide in the Bill that the court must consider, in the light of all the relevant circumstances, that it is reasonable to grant an injunction. I therefore urge noble Lords to listen to the Law Society and to the front-line professionals who are telling us, loud and clear, that these amendments are not necessary and would significantly weaken the provisions in the Bill.
If this amendment was made, it would make no difference at all to children doing the normal playful things that children do or to street preachers sermonising on the high street. However, it would make a real and detrimental difference to the victims of anti-social behaviour, who would not get the quick respite they need from those who make their lives a misery. The amendment loses sight of the victims of anti-social behaviour, who should be our first consideration. For that reason I urge the noble Baroness to withdraw it.
My Lords, before the noble Baroness does that, will the Minister answer the question that I asked? Do the Government believe that by significantly reducing both the level of the test and the level of proof required, there will be more IPNAs than there are ASBOs at the moment, and if not, why not?
I apologise to my noble friend for not answering his question. I was asked two questions—the noble Lord, Lord Ponsonby, also asked one. I was in a hurry because I am aware that we have a busy day. However, I can quote from the published impact assessment:
“The estimated volume of Crime Prevention Injunctions issued is assumed to follow the orders they replace with increase of 5 per cent in comparison with the baseline. It is not thought that there will be a large widening of availability due to the lowering of the threshold of proof, as this is only lower than the ASBO and not the ASBI which forms the majority of estimated applications for the Crime Prevention Injunction”.
I turn to the matter raised by the noble Lord, Lord Ponsonby. Positive requirements in the IPNA will help people to address the underlying causes of their anti-social behaviour. We believe that this will reduce breach rates in future.
My Lords, I thank the positive Minister for his response, but I am bound to say that if that was positive, I would like to hear him in a negative mood. However, I thank him for the crumb of comfort in relation to a possible amendment on reasonableness. I also thank all those who have taken part in the debate.
A number of noble Lords referred to the Housing Act and the reasons for the much reduced requirements for an ASBI, the injunction allowed under that Act. The reason—as we all understand it, and as others have said—was the very great difficulty of persuading people in close-knit communities to give evidence against their neighbours and people they knew out of fear. That was the reason for the particular wording of that Act, which a number of noble Lords referred to and said worked perfectly well in that context. However, in each context where that lesser definition has been used there have been very clear statutory limits on the circumstances. What the Government are proposing to do now is to open that definition and apply it to everybody in all circumstances. They are apparently going to allow what must be an imprecise and subjective test to hold sway, and not in any way in the circumstances to which the noble and learned Lord, Lord Morris of Aberavon, and others referred, of close neighbours and fear.
The guidance, which was referred to not by the Minister in his winding-up speech but by others, also troubles me. Although there is already guidance in draft, and no doubt more is being prepared, there should be, whatever guidance comes later, clarity on the face of the Bill. While it is reassuring to hear that trivial matters are not going to be taken up and pursued, that is not something that anybody looking at the Bill itself can be confident about. The Bill should contain clear definitions. It should contain the important guidance—what has to be proved—but at the moment it does not.
There is no question of a Division in the House tonight but I say to the Minister that this is undoubtedly a matter to which we will return at a later stage. I very much hope that in addition to being positive he will be—as we know he is on other matters—fair and open-minded, that he will be prepared to hear further argument between now and Report and that, on reflection, he himself will table some amendments that reflect and go some way to meeting the anxieties raised tonight. With that in mind, I beg leave to withdraw the amendment.
Amendment 19C withdrawn.
House resumed. Committee to begin again not before 6.18 pm.
Commonwealth Heads of Government Meeting and Philippines
My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a statement on the disaster in the Philippines and the Commonwealth meeting in Sri Lanka. Ten days ago a category 5 super typhoon brought massive destruction across the Philippines, where the city of Tacloban was devastated by a tidal wave almost two and a half metres high. The scale of what happened is still becoming clear, with many of the country’s 7,000 islands not yet reached or assessed. But already we know that more than 12 million people have been affected, with more than 4,400 dead and more than 1,500 missing, including a number of Britons. This disaster follows other deadly storms there and an earthquake that killed 200 people in Bohol last month. I am sure the thoughts of the whole House will be with all those affected, their friends and their families.
Britain has been at the forefront of the international relief effort. The British public have once again shown incredible generosity and compassion, donating £35 million so far, and the Government have contributed more than £50 million to the humanitarian response. In the last week, HMS “Daring” and her onboard helicopter, an RAF C17, and eight different relief flights, have brought essential supplies from the UK and helped get aid to those who need it most. An RAF C130, a Hercules, will arrive tomorrow and HMS “Illustrious” will also be there by the end of this week, equipped with seven helicopters, water desalination and command and control capabilities. Beyond the immediate task of life-saving aid, the people of the Philippines will face a long task of rebuilding and reducing their vulnerability to these kinds of events. Britain will continue to support them every step of the way.
I turn to the Commonwealth, and then to the issues in Sri Lanka. The Commonwealth is a unique organisation representing 53 countries, with one-third of the world’s population and one-fifth of the global economy. It is united by history, relationships and the values of the new Commonwealth charter, which we agreed two years ago in Perth. Britain is a leading member. Her Majesty the Queen is the head of the Commonwealth and His Royal Highness the Prince of Wales did our country proud acting on her behalf and attending last week.
As with all the international organisations to which we belong, the Commonwealth allows us to champion the values and economic growth that are so vital to our national interest. At this summit, we reached important conclusions on poverty, human rights and trade. On poverty, this was the last Commonwealth meeting before the millennium development goals expire. We wanted our Commonwealth partners to unite behind the ambitious programme set by the United Nations High Level Panel, which I co-chaired with the Presidents of Indonesia and Liberia. For the first time, this programme prioritises not just aid but the vital place of anti-corruption efforts, open institutions, access to justice, the rule of law and good governance in tackling poverty.
On human rights, the Commonwealth reiterated its support for the core values set out in the Commonwealth charter. Commonwealth leaders condemned in the strongest terms the use of sexual violence in conflict, an issue championed globally by my right honourable friend the Foreign Secretary. We also called for an end to early and forced marriage and for greater freedom of religion and belief. We committed to taking urgent and decisive action against the illegal wildlife trade ahead of the conference in London next year. Britain successfully resisted an attempt to usher Zimbabwe back into the Commonwealth without first addressing the deep concerns that remain about human rights and political freedoms.
The Foreign Secretary and I also used the meeting to build the case for more open trade and for developing our links with the fastest growing parts of the world. The Commonwealth backed a deal at next month’s World Trade Organisation meeting in Bali that could cut bureaucracy at borders and generate $100 billion for the global economy. Before and after the summit in Sri Lanka, I continued to bang the drum for British trade and investment. I went to New Delhi and Calcutta in India before heading to Sri Lanka, the third time I have visited India as Prime Minister, and I went from the summit to Abu Dhabi and Dubai where Airbus agreed new orders from Emirates and Etihad airlines that will add £5.4 billion to the British economy. These orders will sustain and secure 6,500 British jobs, including at the plants in north Wales and Bristol, and open up new opportunities for the Rolls-Royce factory in Derby.
The previous Labour Government agreed in late 2009 to hold the 2013 Commonwealth meeting in Sri Lanka. That was not my decision, but I was determined that I would use the presence of the Commonwealth and my own visit to shine a global spotlight on the situation there, which is exactly what I did. I became the first foreign leader to visit the north of the country since independence in 1948. By taking the media with me, I gave the local population the chance to be heard by an international audience. I met the new provincial Chief Minister from the Tamil National Alliance, who was elected in a vote that only happened because of the spotlight of the Commonwealth meeting. I took our journalists to meet the incredibly brave Tamil journalists at the Uthayan newspaper in Jaffna—many of whom have seen their colleagues killed, and have themselves been beaten and intimidated.
I met and heard from displaced people desperately wanting to return to their homes and their livelihoods. As part of our support for reconciliation efforts across the country, I announced an additional £2.1 million to support demining work in parts of the north, including the locations of some of the most chilling scenes from Channel 4’s “No Fire Zone” documentary.
When I met President Rajapaksa, I pressed for credible, transparent and independent investigations into alleged war crimes. I made it clear to him that if these investigations are not begun properly by March, then I will use our position on the UN Human Rights Council to work with the UN Human Rights Commissioner and call for an international inquiry.
No one wants to return to the days of the Tamil Tigers and the disgusting and brutal things that they did. We should, I believe, show proper respect for the fact that Sri Lanka suffered almost three decades of bloody civil conflict, and that recovery and reconciliation take time. But, as I made clear to President Rajapaksa, he now has a real opportunity, through magnanimity and reform, to build a successful, inclusive and prosperous future for his country, working in partnership with the newly elected Chief Minister of the Northern Province. I very much hope that he seizes this opportunity.
Sri Lanka has suffered an appalling civil war, and then of course suffered again from the 2004 tsunami. But it is an extraordinary and beautiful country with enormous potential. Achieving that potential is all about reconciliation. It is about bringing justice and closure and healing to this country, which now has the chance, if it takes it, of a much brighter future. That will only happen by dealing with these issues and not ignoring them.
I had a choice at this summit—to stay away and allow President Rajapaksa to set the agenda he wanted, or to go and shape the agenda by advancing our interests with our Commonwealth partners and shining a spotlight on the international concerns about Sri Lanka. I chose to go and stand up for our values and do all I could to advance them. That was, I believe, the right decision for Sri Lanka, for the Commonwealth and for Britain. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I am grateful to the noble Lord the Leader of the House for repeating the Statement made by the Prime Minister in the other place.
Our thoughts are with the people of the Philippines as they struggle to deal with the devastation of Typhoon Haiyan. More than 12 million people have been affected by the typhoon—more than 4 million of them children. Nearly 3 million have lost their homes, and more than 4,000 are believed to have lost their lives, including a number of British citizens. The pictures we have seen are of terrible devastation. As so often happens when disaster strikes anywhere in the world, the British people have reacted with remarkable compassion and generosity. I am sure that, like me, this House is proud of the way in which our nation has responded. So far £35 million has been donated by the British public through the Disasters Emergency Committee.
I also pass on thanks from these Benches to our forces on HMS “Daring” and HMS “Illustrious” for the work that they are doing to help with disaster relief. I commend the leadership of the Prime Minister and the Secretary of State for International Development in providing £50 million in aid. We need to see the same from other countries, as the UN appeal has only a quarter of the funds it needs. Can I ask the noble Lord the Leader of the House what actions the Government are taking to encourage other countries to commit and free up resources as quickly as possible to the Philippines?
It is also the case that serious damage sustained to airports, seaports and roads continue to present major logistical challenges for the emergency response. Can I ask the Leader of the House what steps are being taken to ensure that humanitarian relief is reaching those in very remote and isolated areas who have been worst affected by the typhoon?
Turning to the Commonwealth Heads of Government Meeting, I welcome the conclusions of the communiqué on development, global threats and challenges, and programmes promoting Commonwealth collaboration. I am pleased that Britain was steadfast in its attitude towards Zimbabwe's membership of the Commonwealth and I back what the Prime Minister had to say about trade. Indeed, the welcome orders for the airbus are a shining example of the way in which jobs and trade benefit from European co-operation. The Commonwealth is—and, we believe, should remain—a vital institution that helps to protect the interests and promote the values of its united and diverse membership. At its best, the Commonwealth summit gathers together 53 countries seeking to promote common values, including democracy, accountability, the rule of law and human rights.
This House is united in its abhorrence of terrorism and in recognising that what happened in Sri Lanka, particularly towards the end of the conflict in 2009 when tens of thousands of innocent civilians were murdered, totally failed the test of those values. It was for that reason, at the 2009 Commonwealth summit, that the last Labour Government blocked the plan for Sri Lanka to host the summit in 2011. As the current Foreign Secretary told the Foreign Affairs Select Committee:
“The UK made clear … during the 2009 CHOGM … that we would be unable to support Sri Lanka’s bid to host in 2011”.
Delaying the hosting of the summit until 2013 was intended to allow time for the Sri Lankan Government to show progress on human rights, but that has not happened. Indeed, the situation has got worse, not better. When he attended the summit in 2011, the Prime Minister could have acted precisely as the Labour Government had done in 2009.
I should like to put one or two questions to the noble Lord the Leader. First, the Deputy Prime Minister said in May to the other place that,
“if the Sri Lankan Government continue to ignore their international commitments in the lead up to the Commonwealth Heads of Government meeting, of course there will be consequences”.—[Official Report, Commons, 15/5/13; col. 634.]
Can the Leader tell the House what those consequences were?
Secondly, at the summit on Friday, the Prime Minister called for the Sri Lankan Government to initiate, by March, an independent inquiry into allegations of war crimes. However, by Sunday, President Rajapaksa had already appeared to reject this. The UN human rights commissioner called two years ago for an internationally led inquiry and we have supported that call. Is not the right thing to do to commit now to build the international support necessary for that internationally led inquiry?
Thirdly, after this summit, President Rajapaksa will be chair of the Commonwealth for the next two years, and that includes attending the Commonwealth Games. Can the Leader say whether during the summit the Prime Minister had any discussions with other countries about whether the President was an appropriate person to play that role?
Finally, the Prime Minister of Canada and the Prime Minister of India decided not to attend the summit. In explaining his decision, Prime Minister Harper said:
“In the past two years we have ... seen ... a considerable worsening of the situation”.
While I naturally accept the good intentions of the Prime Minister, I wonder whether Prime Minister Harper and Prime Minister Singh were not right to believe that the attendance of Heads of Government at the CHOGM would not achieve any improvement or prospects for improvement in human rights within Sri Lanka.
The legacy of human rights abuses in Sri Lanka is in contradiction to the good traditions of the Commonwealth. We believe that we cannot let the matter rest. Britain must do what it can to ensure that the truth emerges about the crimes that were committed so that there can be justice for those who have suffered so much. When the Government act to make that happen, we will support them.
My Lords, first, I thank the Leader of the Opposition for her support for the action that the British Government have taken so far to provide help in the Philippines. I noted in particular the support that she gave for our troops and the work that they are doing, and for the generous response of the British public in providing charitable help. I think that, as the noble Baroness said, other countries will need to do more to make sure that the commitments that have been made are honoured. The Government will work, through the Foreign Office and DfID, to try to make sure that they fulfil those commitments and follow the kind of lead that the British Government have taken.
The noble Baroness was also right to emphasise the importance of humanitarian relief reaching the remote areas, where there is obviously a particular problem. I hope that HMS “Illustrious”, with its helicopters, will help to deliver aid more readily to such areas, along with the United States carrier in the area, which is providing more capacity for lifting and for getting aid to those remote places. The noble Baroness is right to remind us of that. I was glad of the support that she gave for the communiqué and the commitments in it, and I am grateful for her support for the stance that the British Government took on Zimbabwe.
I turn to some of the noble Baroness’s specific questions and the Prime Minister’s decision to go to this CHOGM. In essence, he went for two reasons, and I happen to think that he was right to do so for both. The first was to lend his support and encouragement for the general work that the Commonwealth as a whole is trying to do to take forward its agenda on the development of human rights and so on. The second, as he has argued very forcefully and, I think, convincingly, was to bring more pressure to bear and to shine a spotlight on the awful things that appear to have happened in Sri Lanka.
I am not sure how he would have been able to prosecute that case if he had not been there. To take what is perhaps a trivial example, we would not have been having this discussion and this Statement today if Britain had chosen to sit on her hands. Therefore, I think that it was the right decision. If one looks at the political and media coverage to date, the profile that the summit has achieved over the past few days is far greater than would have been the case if my right honourable friend had not been there.
On the other specific questions that the noble Baroness asked me, the Prime Minister pressed the case for an independent, credible and transparent inquiry to start by March. We will continue to build on the work started at CHOGM to maintain pressure on the Sri Lankan Government for that independent inquiry to get under way. The Prime Minister was absolutely clear that, if that does not happen, he will use his good offices through the UN to press for an international inquiry. That obviously remains a possibility should progress not be made.
Regarding whether President Rajapaksa is an appropriate person to be chair-in-office, the noble Baroness will know that the whole basis on which the Commonwealth proceeds is by consensus. There is no precedent at all for the removal of a member state from the chair-in-office. As it happens, there is no formal role for the chair-in-office following the CHOGM other than chairing the Commonwealth Foreign Ministers meeting in September. The Commonwealth is effectively run by the Secretary-General and not by the country that happens to be in the chair. As I said, there is no precedent for removing a member state. The decision was effectively taken back in 2009 and, given that it is an institution that proceeds on consensus, there was no prospect at all of that being unravelled.
However, I come back to the point that lay behind the noble Baroness’s final question concerning whether it was right for the Prime Minister and the British Government to be represented there, as opposed to the stance that a couple of other countries took. For the reasons that I have already given, I contend that it was the right decision both for the Commonwealth and for shining a spotlight on the situation in Sri Lanka.
Does my noble friend accept that, despite the perfectly understandable concerns about human rights issues in Sri Lanka, the visit of the Prime Minister, my right honourable friend Mr Cameron, did a huge amount of good both in focusing on the issues and, indeed, in helping to promote trade and investment with a rapidly expanding pattern of economic dynamism throughout the modern Commonwealth? Does he also accept that the words of His Royal Highness Prince Charles, who said that the Commonwealth was a means of bringing a “touch of healing” to a troubled world, were extremely apposite? Does he therefore conclude that the mugwumps, including the Financial Times and the British Labour Party, who argued that the Prime Minister should not go look pretty silly?
Will my noble friend also explain to the noble Baroness that at Perth in 2011 there was absolutely no chance of reopening the Colombo decision, because it had been settled at the 2009 meeting, which was attended by Gordon Brown, the then British Prime Minister? It was agreed that there should be a postponement but that the decision for 2013 should be locked in. It is all very well after the event saying that somehow the decision should have been reopened. It could not have been; it was settled in Trinidad in 2009. Will he explain that to the noble Baroness opposite? I think that those opposite are experiencing some embarrassment that they suggested that Mr Cameron should not go when it was obviously wise for him to do so. He did a lot of good for us, for the Commonwealth and, indeed, even for Sri Lanka.
I obviously agree with my noble friend about the contribution made by the Prime Minister, particularly as far as the point about trade is concerned. There is about £250 billion worth of trade every year between Commonwealth countries, and any progress that we can make to encourage that to be taken forward can be only for the good. As for my noble friend’s request to explain to the noble Baroness, Lady Royall, certain events that happened in 2009, I do not think that I could do any better than my noble friend.
My Lords, given what the Minister has said to the House about the response of both the public and the British Government to the people of the Philippines, does he not agree that, in the light of the long disputes that have taken place between China and the Philippines, this would be an admirable opportunity to draw China in to the relief operations? Does he further agree, given the response that was made to China at the time of the Szechuan earthquake, that these catastrophes can be times, to use a phrase used elsewhere in the Statement, for healing and reconciliation?
When discussions took place about the reference to the Human Rights Council of the atrocities that occurred in Sri Lanka, did any discussion take place of the model used in South Africa of a justice and truth commission to examine what took place as an opportunity for both sides to come to terms with the depredations that have occurred there?
On the first point, I agree with the noble Lord that these awful events could provide an opportunity for a little bit of healing. I hope that other nations will take part in providing help to the Philippines. As far as the detail of the conversations is concerned, I am not sure which parallels or analogies were raised. I am sure that it was the case, however, that some of our experience in Northern Ireland—the difficult times that we went through and the lessons that we learnt in trying to make progress there—were raised and would have been apposite. If there is anything further that I can find out for the noble Lord, I will certainly let him know.
My Lords, the Minister was right to say that the core values of the Commonwealth are set out in the charter: human rights and democracy. Does he not at least agree that those aspirations become much less credible when, for the next two years, the lead country in the Commonwealth will be Sri Lanka? It is not just a formal matter: Sri Lanka will also chair the Commonwealth Ministerial Action Group, which deals with penalties against those who default. Here is a major defaulter being in charge of judgment against the others.
The Minister will see that a number of Commonwealth countries were mentioned in the communiqué: Belize, Cyprus and so on. Why was there no mention of overseas territories such as Gibraltar and the Falklands, when surely one could look for some Commonwealth solidarity in such important matters as Gibraltar and the Falkands? Did the Prime Minister in any way try to influence his colleagues to show solidarity in respect of these two very important overseas territories?
My Lords, on the first point, no one is claiming—I am not—that making progress on human rights across the Commonwealth is a straightforward process. I think, however, that it helps that the charter that was signed in March has that commitment. The nature of our meetings is that we just have to keep pushing forward and trying to make progress. I do not claim that it is straightforward, but I claim that Britain being there—flying the flag for those values, arguing for them and shining a spotlight on the case of Sri Lanka where some of them are in question—was the right thing to do. As for the noble Lord’s specific question about Gibraltar, I do not have any information readily to hand, but if there is something that I can dig out for him, I will happily do so.
On the Philippine tragedy, I agree with the Leader of the House and the Leader of the Opposition that the response of the British public to this disaster has been truly heartwarming and really generous. I also commend the Government and the Armed Forces for the efforts they are making to add to the relief of that terrible tragedy.
On the Commonwealth meeting, does my noble friend agree that it was not only unfortunate, but almost inevitable, that the coverage of this conference was dominated by conditions inside Sri Lanka itself? In order to avoid that happening again, would it not be a good idea if the heads of Government were to make it clear among themselves and to the Secretary-General that future heads of Government meetings will only be held in those Commonwealth countries that abide by what he called the core values of the Commonwealth charter? Does he agree that if that policy decision were made in advance, that in itself would help the promotion of human rights and democratic values throughout the Commonwealth?
I am grateful to my noble friend for his comments on the Philippines. On the Commonwealth conference, I would argue that going to Sri Lanka—and I obviously understand the points he makes about the anxieties that many people have about the situation there—will enable us and the rest of the world to have a greater focus on the problems there and help to address them. Therefore, while I understand the general point he made about wanting to work to ensure that all Commonwealth countries abide by basic human rights, in this case, having the CHOGM there has helped to take forward the case of the human rights of those people, particularly those living in the north of the island.
My Lords, I think that the Prime Minister was right to go to Sri Lanka; it is much better to confront difficult issues than to duck them. It is equally important, however, that now that the issue has been confronted, the confrontation should continue. Will the Leader of the House say a little bit more about how the Prime Minister intends that the pressure on Sri Lanka over human rights be continued in the year or two ahead? Was there support for that pressure from within the Commonwealth itself?
At the moment, I am not able to add any specific information as to the next steps that will be taken. This was the beginning of a process initiated by the Prime Minister in Sri Lanka just a few days ago. He made clear, for instance, the need for an independent inquiry to say that if there are not steps taken and some progress made by March, the next step would be an escalation through the UN, pressing for an international inquiry. Other steps have started: the establishment in August, for example, by the Sri Lankan Government of a commission into the disappearances. That would be another initiative—another piece of work—that we would all want to observe to see what progress is made. There will be a number of strands that we will need to observe as the months go on, but what I can certainly say is that, having been there and seen for himself the situation in the north of the island—the first head of a foreign Government to go there for 65 years—my right honourable friend will do everything he can to keep up the sort of pressure for which the noble Lord is calling.
My Lords, may I repeat the point made a few moments ago by the noble Lord, Lord Steel, and ask for a more positive reply? It is possible—this should be outside of party politics here—that in future, any chairman of such a conference must abide by the charter of the Commonwealth. Surely he could take that suggestion back to the Prime Minister. Secondly, perhaps the Minister could tell me whether he agrees that Britain, along with other Commonwealth countries, could do a lot more to advance the rule of law in Sri Lanka for both communities and particularly in relation to the protection of journalists, who are very much at risk at the moment? I declare an interest as the chairman of the Good Governance Foundation.
On the point made by the noble Lord and my noble friend Lord Steel, I am sure that people will learn from some of the decisions taken in the past. As has already been alluded to, a lot of the decisions about where these things will take place are made many years out. The Commonwealth is an institution which proceeds on the basis of consensus, so the notion that Britain alone is able to determine these things clearly is not the case. I understand the noble Lord’s point about the need for continuing an emphasis on the importance of human rights. I did not mean to imply any negative response to that. I very much agree with the importance of that which has been encapsulated in the Commonwealth charter.
I believe we would all share the noble Lord’s concerns about the situation that has been affecting journalists in Sri Lanka. Partly for that reason, my right honourable friend the Prime Minister was very keen to have journalists with him on his visit to the north. Again, he has made clear that the eyes of the world will be on Sri Lanka, in particular the way in which journalists there are treated in the wake of that visit to make sure that proper standards are upheld.
My Lords, I thank the Government for this remarkable reminder of the generosity of the British people and DEC, and for the commitment of “HMS Daring” and other support. “HMS Daring” of course is connected with Birmingham, the most landlocked city in Britain. Perhaps I may ask the Leader of the House about not just the emergency phase, which is so important, as regards food, water and shelter, but the recovery phase in disasters such as this where we are looking for housing, infrastructure and livelihood. In looking further ahead than just the natural response to the ghastly situation, will he take into account two matters? One was raised by the Philippines climate change commissioner, Yeb Sano, at the UN Climate Change Conference in Warsaw. He said, “Typhoons such as Haiyan”—
or Yolanda as it is called in the Philippines—
“and its impacts represent a sobering reminder to the international community that we cannot afford to procrastinate on climate action”,
and that the emergency response should look into the much more serious long-term effects of these kinds of climate changes.
The second matter is the understanding that is growing in the use of quick aid into resilience. For example, Tearfund investigated the Government’s expenditure in Malawi. It noted that for every £1 spent, £24-worth of infrastructure, resilience, and the ability to cope not just with ordinary difficulties but with disasters can be achieved. Will the Government please take into account these longer-term matters so that we are stronger when the next time comes?
The right reverend Prelate makes an extremely wise point about the long-term future. I am grateful for what he says about the short-term response, although, as he rightly says, a lot of that is down to the natural generosity and human feeling of the British people in terms of their charitable response. The Government are glad to have been able to play their part alongside them in increasing the amount of aid that they have made available.
The right reverend Prelate is obviously also right that there is a difference between the short-term crisis response and what one can do longer term. As he has said, DfID was working with the Philippine Government prior to the emergency on some of the issues which he mentioned which come from climate change. Certainly, helping those countries invest in homes and infrastructure that in future would be better able to support some of these natural disasters is the wise thing to do. I am sure that through the work of DfID, the Government will continue to reflect on that.
As chairman of the all-party group I welcome enormously that the Prime Minister went to Colombo. Is my noble friend aware that the reaction from the nearly 500,000 Sri Lankans living in the UK, whether they be Sinhalese, Tamil or Muslim, has not been at all positive? My e-mail has virtually collapsed because people are deeply concerned at the way in which the Prime Minister raised, in their view, an unbalanced view of what progress had been made, particularly the manner in which it was delivered to the President of Sri Lanka? I have to say that I partially share that concern.
As we move forward, which is the key to all this, does my noble friend, as he sits in the Cabinet, recognise that it has been only four years and that in those four years there is peace? There are no bombs and you can go where you like. You do not have to have your cards with you and there are no checkpoints. That is enormous progress in four years. After all, we took nine years to get rid of rationing. Even as one of those who suffered from the bombing in London, we did not succeed in producing an ideal situation within four years.
Perhaps I may bear on the House for a moment; two dimensions are involved. First, we now know the number of people who disappeared, of whom, sadly, some 600 were children, who I suspect are child soldiers. We now know that. There is a commission. I think that it would be great progress if the International Committee of the Red Cross were to join that commission, because it has helped in producing the numbers.
Secondly, we now have established the numbers who were killed. We know from the Tamil teachers who did the audit that the number is somewhere around 9,000, which is a number that we can handle. Will my noble friend please give maximum encouragement to the processing of those 9,000 to make sure that we find out exactly who they were?
My Lords, I certainly accept the point. The Prime Minister was very clear in his Statement that one cannot disassociate oneself from the awful history of Sri Lanka over the past 30 years and the history of bloodshed and civil strife that it has gone through. That having been said, I do not accept that the Prime Minister made his case to the President of Sri Lanka in an unbalanced way. There is quite a lot of contention around figures of the sort to which my noble friend refers. That is precisely why my right honourable friend the Prime Minister stressed the importance of having a credible transparent and independent inquiry to get to the bottom of what happened during the closing phases of the civil war and then addressing the situation so that it is possible on that basis to move forward with reconciliation to a shared understanding of what the future might be like. Until that has happened, it is very hard to work out how there can be reconciliation that will last.
My Lords, it is clearly good that the Prime Minister’s visit to the north had the impact that it did in the wider world and among the Tamil community in the north. Will the Leader of the House tell us anything about how this was reported elsewhere in Sri Lanka, where perhaps sympathies were rather different? It is important that there is impact there as well.
I fear that I have not seen any other coverage of how it was reported in Sri Lanka. Obviously my friends at the Foreign Office and so on will have done. I am sure that they spend their days doing that and other productive things. Oh dear, I can feel that my briefing is now going to dry up on me.
On the point that some of the world’s press were able to go there, I saw the transcript of the press conference that my right honourable friend the Prime Minister gave on, I think, the Saturday morning, which had representatives of the press from both Sri Lanka and the rest of the world. That gave the opportunity for a wide range of people to report honestly and openly on what went on.
My Lords, perhaps I may ask the Minister to be a little clearer about what the Government are going to do to persuade the Commonwealth to take action to mitigate the very real damage that will be done to the credibility of the Commonwealth and the charter signed only this year, with all its emphasis on human rights, if the Government of Sri Lanka are to carry on representing the Commonwealth in international forums for the next two years. The Prime Minister did a good job, and I congratulate him on all his work on behalf of human rights in Sri Lanka on his visit, but it is clear that the regime has ignored him, just as it has ignored all representations in the past and clearly intends to ignore all such representations in the future. It is crucial that the Commonwealth takes such action to mitigate the damage that this regime will do to the credibility of the Commonwealth. What will the Government do about that?
I will be brief because I think the essence of that question was raised by the noble Baroness, Lady Royall of Blaisdon. It is something that the whole Commonwealth is going to have to do. The noble Lord asks what the British Government are going to do. We are only one of 53 members and the institution operates by consensus.
My earlier answer was that we will seek to work through that body by emphasising at every possible opportunity, as we did again in Colombo, through the Commonwealth charter, that these values are important and need to be upheld. I do not have a magic wand to wave, much as I would like to, because I share the views expressed by the noble Lord, Lord Wills. I cannot say that we can simply do A, B and C and that it will all work in the way that we would like.
Wales: Commission on Devolution in Wales
My Lords, with the permission of the House I will repeat a Statement made by the Secretary of State for Wales in the other place:
“This Government have already committed over £2.25 billion to new infrastructure that will benefit Wales, directly or indirectly. We are spending almost £2 billion to modernise the rail network, including electrifying the Great Western mainline to Swansea and the railways serving the south Wales valleys. We are investing £250 million to build a new prison in north Wales that will create up to 1,000 new jobs and require a supply chain that will bring an estimated £28 million a year more into the local economy. We have also committed £57 million to bring superfast broadband to Wales, a key element of a modern infrastructure network. Alongside this, Hitachi’s investment in new nuclear at Wylfa Newydd is a great opportunity to create jobs and drive economic growth across north Wales.
Earlier this month, I confirmed in a Written Statement to this House that we will enable the Welsh Government to use their existing borrowing powers to start work as soon as possible on the sorely needed upgrade to the M4 around Newport, tackling the congestion that my right honourable friend the Prime Minister described as,
‘a foot on the windpipe of the Welsh economy’.
Today, in making our full response to the Silk commission’s recommendations, the Government are unveiling a new and extensive package of financial powers that will be devolved to the National Assembly for Wales and the Welsh Government.
I would like to commend my right honourable friends the Chancellor and the Chief Secretary to the Treasury, and Jane Hutt, the Welsh Minister for Finance, for the positive and collaborative approach taken in agreeing this package of powers. It demonstrates the strength of the United Kingdom and the flexibility and adaptability of devolution within our union.
The Silk commission made 33 recommendations, 31 of which were for the Government to consider. Today we are accepting, in full or in part, all but one. We are devolving many new financial powers to the National Assembly and the Welsh Government, potentially giving the Welsh Government control over more than £3 billion of tax revenue, with commensurate levels of borrowing.
We are providing the Welsh Government with additional tools to invest in the areas they are responsible for, to enable them to upgrade Wales’s infrastructure and help quicken the pace of economic growth. It will facilitate the improvement of Wales’s deteriorating road network—not only the M4, which I mentioned earlier, but also the other key Welsh trans-European route, the North Wales Expressway.
The devolution of tax and borrowing powers will also make the Assembly and the Welsh Government more accountable to the people of Wales who elect them. Since devolution the Assembly and the Welsh Government have been accountable only for how they spend taxpayers’ money. They will now become more accountable for how they raise it.
The Government’s response to the Silk commission’s first report builds on the announcement made by the Prime Minister and the Deputy Prime Minister earlier this month and sets out in detail the devolved financial powers we are giving to the National Assembly for Wales.
We will give Welsh Ministers borrowing powers so that they can invest in the capital infrastructure I described earlier. We will devolve landfill tax and stamp duty land tax in Wales, ensuring that the Welsh Government have an independent funding stream to pay back the money they borrow. We will provide for a referendum to take place so that people in Wales can decide whether some of their income tax should be devolved to the Welsh Government. Subject to the approval of the people of Wales in a referendum, we will deduct 10p from each of the main UK income tax rates in Wales, with the Welsh Government able to set an unrestricted Welsh rate of income tax for all Welsh taxpayers. This is consistent with the system being introduced in Scotland, and will increase the accountability of the Welsh Government while avoiding significant risks to UK revenues that would result from different Welsh rates for each band.
We will also fully devolve non-domestic business rates raised in Wales, so that the Welsh Government budget benefits more directly from growth in Wales. We will enable the National Assembly for Wales to create new taxes with the UK Government’s consent and devolve the tools to manage these new powers. A cash reserve will be created that the Welsh Government can add to when revenues are high and utilise when revenues are below forecast, and we will provide the Welsh Government with limited current borrowing powers to deal with shortfalls if their cash reserve is insufficient.
I was pleased that Carwyn Jones, the First Minister of Wales, welcomed the Prime Minister and Deputy Prime Minister’s announcement earlier this month. This package of powers gives the Welsh Government additional tools to invest in Wales to rejuvenate the Welsh economy, which has languished behind the rest of the United Kingdom for far too long. It will make the Assembly and the Welsh Government more accountable to the people they serve, and place important taxation levers in the hands of the Welsh Government which, if used wisely, can help make Wales a more prosperous place. This is a once-in-a-generation opportunity for Wales. I hope that the Welsh Government will rise to the challenge, and look beyond the M4 to invest wisely, and strategically, across the whole of Wales. I will place a copy of the Government’s response in the Library of both Houses and I commend this Statement to the House”.
I thank the Minister for her Statement today and for outlining the UK Government’s response to the recommendations of Silk part 1. On this side of the House we welcome the Statement and the UK Government’s acceptance of the majority of the Silk commission’s recommendations. I thank Paul Silk and his fellow commissioners for their excellent work, which is continuing into next year as they prepare for the next phase of their report.
These additional powers give the Welsh Government the tools they need to stimulate the Welsh economy and to support the creation of jobs. Amid all the talk of constitutional settlement, we must remember that it is how these powers are used that matters. On our side, no one is seeking more powers simply for the sake of it—they are important because of how they can be used to support the living standards of the people of Wales. The people of Wales have been hard hit by this Government’s policies, with real incomes down by £1,700 a year, energy bills rocketing, public services under pressure and welfare cuts hurting the most vulnerable. It is therefore critically important that Wales has borrowing powers which are afforded to other devolved Administrations in Scotland and Northern Ireland, as well as to local authorities, to enable it to invest in infrastructure. This is particularly important given the huge cuts to the Welsh Government’s budget. The capital budget will shrink by a third over this Parliament as part of a £1.7 billion cut to the overall budget.
The M4 relief road is the most immediate concern—not to politicians but particularly to businesses, which depend on fast, reliable roads to get their goods to market. But we also need to invest in other transport projects across Wales and in our schools and hospitals. Will the Minister first clarify exactly when she expects that a package will be in place to support the development of the M4 relief road? Will she also tell us the process by which the level of borrowing will be agreed?
The Government have previously indicated that devolution of minor taxes such as stamp duty and landfill tax is a sufficient independent income stream against which the Welsh Government can borrow. But today’s response suggests that it will also be contingent on income tax revenues. Will she confirm whether that is the case and how much borrowing will be released once minor taxes are devolved prior to any ability to vary income tax?
We welcome the devolution of a number of smaller taxes. These will give the Welsh Government a number of additional levers to support the Welsh economy and the revenue stream needed to trigger borrowing powers. Both the original consultation carried out by the Silk commission and the additional consultation over the summer clearly showed widespread support for the devolution of stamp duty. Prior to the introduction of these new tax powers, the method for calculating the offsets to the block grant will need to be agreed. Will the Minister give us some detail on the process for agreeing these offsets?
Our position has always been that we support the proposal on income tax laid out by Silk, which my honourable friend in the other place the shadow Secretary of State for Wales has called the triple lock. It allows for the ability to vary income tax rates subject to: first, the referendum; secondly, a period of assignment to ensure that Wales is not worse off; and thirdly, a fair funding settlement. That remains our position. We are pleased to see that the idea of a sunset clause, which was previously suggested on the timetable for a referendum, has been quietly dropped.
Of major significance today is that the Government have rejected the recommendation by Silk that the Welsh Government should be able to vary the bands independently. Will the Minister give us more detail on why the Government rejected this recommendation? Are the Government concerned about the potential introduction of a progressive tax? That would be particularly ironic given that the only tax rate that the UK Government have sought to lower is the additional rate of income tax for those earning more than £150,000 a year. As we all know, there are not many of those in Wales.
On fair funding, the Government clearly believe that last year’s joint statement with the Welsh Government meets the recommendation laid down by Silk. The statement said that both Governments would review relative levels of funding for Wales and England in advance of each spending review and, if convergence is forecast to resume, to discuss options to address the issue in a fair and affordable manner. Will the Minister tell us what these possible options are and what would trigger action as a result of these discussions? Will she also give us more information about the nature and timing of these discussions?
The Welsh Secretary of State, David Jones, this morning urged the Welsh Government to hold a referendum soon. He said that his party would campaign for a yes vote in order to cut taxes by 1p or more. Will the Minister clarify if this is the position of the Liberal Democrats as well? If so, will she clarify what services in Wales would be cut in order to make up the shortfall in tax receipts?
I repeat my thanks to the Minister for the Statement. I welcome the UK Government’s acceptance of the majority of Silk’s recommendations. These measures are a real step forward for Wales and for the Welsh Assembly and I would be grateful if the Minister could address my queries on the detail of when and how the recommendations will be implemented.
The noble Baroness has given me a large number of questions to answer and I will do my best to cover all the major points. I take issue with her opening comment that the Government have accepted the majority of the Silk recommendations. Although technically that is the case, I feel that it is a pretty large majority to accept 30 out of 31 recommendations. “The overwhelming majority” is the way I would put it.
The noble Baroness makes the point that the Welsh economy is lagging behind the rest of the UK. It has lagged behind the rest of the UK for many decades. It is a matter of great sadness to me as someone who lives in Wales that it has fallen further and further behind the rest of the UK. This is not a recent thing since the coalition Government came to power: it is something that has existed for far too long, and the coalition Government, in making this series of announcements today, are determined to give the Welsh Government and the National Assembly for Wales the tools with which to do the job—the tools with which to repair the Welsh economy and ensure that it becomes fully efficient and effective again.
On the timing for the M4 financial package, our intention, as with everything else in this series of announcements, is to ensure that it can be put into practice as soon as possible. Early borrowing powers will be put into practice very rapidly. The Welsh Government are currently undertaking a consultation on a possible route for the M4 relief road and it is clearly going to be some time before any kind of actual building on the ground will take place. But I promise the noble Baroness that the tools will be in the hands of the Welsh Government in plenty of time to undertake that. It is the Government’s intention to ensure that that legislation is passed in this Parliament if at all possible. We intend to set about that with all speed.
In relation to the question on the level of borrowing that the Welsh Government will be able to undertake, clearly, as with prudence in one’s household budget, the level of borrowing that one can undertake must be related to the potential for revenue raising—your potential income. There will be one level of borrowing possible for the Welsh Government with the minor taxes, but there will be a much higher level of borrowing if the Welsh Government and the Assembly go forward with a referendum and the people of Wales vote yes on that. The timing of the referendum is firmly in the hands of the Welsh Assembly and Welsh Government, and that is appropriate.
The noble Baroness asked about the model for income tax devolution. The Government have taken the view that the Scottish model is appropriate. It has been welcomed in many quarters and therefore it is a good model to follow in this case, particularly as Wales has a very porous border and people move all the time across the border—very much more than they do between Scotland and England. There was concern that the model of income tax put forward in the Silk commission report could lead to an imbalance in terms of tax receipts.
Finally, the noble Baroness referred to the October 2012 joint statement. She asked what would be the trigger for reviewing funding for Wales. The trigger would be agreement that convergence was occurring again. At the moment, there is divergence. It is estimated and, I believe, agreed by both the Treasury and the Welsh Government that it is likely to be at least 2017 before convergence occurs again. The Liberal Democrats have always been in favour of a very high level of devolution and I strongly welcome, as does my right honourable friend the Secretary of State for Wales, the fact that I am able to make this Statement here today.
My Lords, I welcome the general thrust of this important Statement, based as it is on the Silk commission’s recommendations. To understand the import of the Statement it is necessary to read the accompanying paper that has been placed in the Public Bill Office. Paragraph 2.6 emphasises the enormous importance of,
“an integrated economic and fiscal union”,
and of the need to make sure that:
“Any changes to the funding of the Assembly and the Welsh Government must be consistent with maintaining the integrity of the system”.
There is nothing in the decisions announced by the Government that threatens that integrity. I refer to paragraph 2.12 of the document: the Government were particularly wise, in taking their decisions about income tax, to recognise that any distortion,
“of the redistributive structure (or progressivity) of the income tax system … could potentially be detrimental to the UK as a whole”.
The paragraph goes on:
“While the impacts are uncertain … this would be unprecedented in the United Kingdom”.
The Government are wise for the reasons that my noble friend has given. Perhaps I should declare an interest. I now live only 500 hundred yards or so from the border. The truth is that a great many people live close to the border and therefore the issues that she addressed are important. It is also very important that the issue of taxation should go to the Welsh people for a decision in a referendum. I welcome that.
I have a final question. There is emphasis again in the paper that has been laid before both Houses about the need to strengthen the institutional arrangements. The Welsh Government are going to have a major task in managing these new responsibilities. Has any estimate been made of the cost that will fall on the Welsh Government, and therefore on the Welsh people, of the institutional changes that will be needed?
I thank my noble friend for his support on this issue and for underlining the importance of this Statement. I am proud of the record of the coalition Government: we have already, through our facilitating the referendum on increased full legislative powers for the Welsh Assembly, enabled one step forward on devolution to be taken. Today’s announcement heralds a second giant step forward for devolution. While expressing full confidence in the model of devolution throughout the United Kingdom, however, the Government have been concerned that we should not in any way undermine the union. It is important to bear that in mind.
My noble friend referred to the need to strengthen institutional arrangements. I cannot give him an estimate of the cost, because that strengthening is largely a matter for the Welsh Government. It is essential that they go ahead with this rapidly. I am aware that they are already in the process of strengthening their financial arrangements for establishing a Treasury function within the Welsh Government.
The Minister understands that I support the thrust of the Silk report and the response of the Government, but can I press her on the way in which she is blindly following Scotland in insisting on the introduction of a lock-step rule whereby all three rates of income tax can only be varied in tandem, without the right to vary one rate independently of the other? In other words, if the Welsh Government wanted to bring down the top rate from 45 pence to 40 pence—an 11% reduction—there would have to be a 25% reduction in the standard rate of income tax, making such a choice totally impossible. Does she understand that the Holtham and Silk reports rejected such a lock-step approach? This not only denies the voters the choice of policy, but also flexibility to the Welsh Government and binds them into a straitjacket of relativities imposed on them by Westminster. Why do a Government who claim to support greater tax-varying flexibility in theory refuse to deliver it in practice?
I am disappointed that the noble Lord, who has given a great deal of thought to this matter, has not been able to welcome the vast majority of the Government’s response. I take issue with the idea that we are blindly following Scotland. There is no blindness about this. The Treasury has made its decision on this, based on the evidence that it took in relation to the specific situation in Wales. I have already referred to the significance of the very porous border between England and Wales, and to the fact that so many people live close to and cross it on a daily basis. That was borne in mind by the commissioners at the Silk commission when they produced their report, and the Government have had to take that into account as well.
My Lords, I thank the Minister for her Statement, and Mr Paul Silk and his fellow commissioners for the work that they have done.
In general, I welcome warmly the new powers for the Government of Wales, particularly borrowing powers, which are badly needed. But first, as the income tax proposals require a referendum, do I understand it correctly that the Welsh Ministers will campaign for a yes vote for all the tax powers proposed? Secondly, can the Minister clarify a problem that I have already raised with her at Question Time? Will the borrowing powers to be used for the upgrading of the M4 around Newport and other major road improvements in Wales be financed solely from the new powers of taxation, or will some funding still come from the Chancellor of the Exchequer, and if so how much?
I thank the noble and learned Lord, Lord Morris of Aberavon, for referring to borrowing powers. As we discuss tax-raising powers, we should not overlook the significance and importance of borrowing powers, particularly as they will enable us to be fleet of foot and ensure that the Welsh Government get the money that they require.
The noble and learned Lord asks how Welsh Ministers will be campaigning in a referendum. I cannot speak for Welsh Ministers. They must make up their mind—they are members of a different party and Government from me. However, it seems fairly unlikely that a referendum would be called if they were going to campaign against it, but it is not impossible.
I am unable to give the noble and learned Lord a detailed answer on the precise funding model for the M4. That still has to be worked out. The devolved responsibility for infrastructure means that the burden of the repair and construction of roads in Wales falls on the Welsh Government to a very large extent.
My Lords, it is all very well saying that you are going to vote yes for a referendum. Would my noble friend the Minister be good enough to say who is going to frame the question which is to be put to the Welsh people? It has been noticeable that the First Minister, Mr Carwyn Jones, has not been overanxious to commit himself to timing for a referendum. Can we take it that the legislation will ensure that a referendum will be held and will not be deferred until some replacement for the Barnett formula has been found? In the 13 years of the previous Labour Government, they were unable to do that, despite all the pleas that were put to them at that time. Will my noble friend confirm that this referendum will go ahead with a proper question, within a reasonable time and with the Welsh Assembly having the power to determine precisely when?
I thank my noble friend for raising two new issues, the first relating to the question for the referendum. The Government’s response on this has laid great emphasis on how well we believe arrangements worked for the previous referendum on full legislative powers. In that case, the matter was very much in the hands of the Welsh Government and Welsh Assembly in consultation with the UK Government. However, there was a very important role for the Electoral Commission, whose advice was taken and was pivotal. I hope that the Welsh Government will lead the call for a referendum and that the situation in Wales will enable them to lead that call relatively soon. It is important that the Welsh Government feel that they are in a position strongly to call for a referendum, because the UK Government believe that the joint statement of October 2012 meant that there was agreement between the two Governments on the way in which future funding for Wales would be dealt with.
My Lords, the document accompanying the Statement states:
“The precise levels of capital borrowing will … depend on the outcome of the income tax referendum”.
Twenty years ago when I chaired Gwent finance committee, I borrowed £37 million from the European Investment Bank and paid it back on time. If a county council had such borrowing powers 20 years ago, why cannot the Welsh Government now be trusted to borrow to invest according to their own assessment of their ability to service that debt, rather than wait upon a referendum?
The noble Lord makes an excellent point; I, too, was a councillor a long time ago. We should bear in the mind that councils raise a significant amount of funding via what we nowadays call council tax. Therefore, their level of borrowing depends on their level of tax receipts. The UK Treasury is proposing exactly the same model for the Welsh Government.
My Lords, while applauding those impactive and genuine matters of devolutionary significance which are contained in the Statement, may I tempt the Minister to a wider consideration? Does she not agree that in so far as fundamental constitutional changes in the United Kingdom are concerned they should be planned and administered on a comprehensive, and not a piecemeal or haphazard, basis? In other words, once the Scottish people have given their verdict on the issue of independence, a powerful body of the wise, the good and the great should be set up to consider, first, the relationship of the House of Commons to the House of Lords and vice versa and, secondly, the relationship of Westminster government to devolved authorities, whether they be two or three in number. Does she agree that that is the only way in which we can avoid the humiliating debacle of what was called an attempt to reform this place two years ago?
The noble Lord maintains a keen interest in constitutional issues and I have a similar interest in them—I do not always share the same prescription or viewpoint, but I have a similar interest. It is important that once the changes that we have proposed today have worked their way into legislation and the referendum on Scottish independence is dealt with, whatever the outcome, those people who look at constitutional issues start looking forward again. I have always espoused this rather neat and tidy approach to the British constitution, but that is not the way in which it has developed.
In welcoming this enhancement of devolution, I particularly welcome the improved prospect that we now have for the construction of the M4 relief road, which when it is opened will be of great benefit to quality of life and economic development in Newport and south-east Wales.
Perhaps I may press the Minister further on the points rightly raised by my noble and learned friend Lord Morris of Aberavon and my noble friend Lord Touhig on the funding of infrastructure. The Statement seemed to suggest, entirely implausibly, that, as a result of these changes, the land of Wales would flow with milk and honey and that the Welsh economy would be rejuvenated. Surely she recognises that the substantial cost of investment in transport and other infrastructure needed in Wales can be met only in limited part—I would say in small part—by the revenues from the minor taxes that are to be devolved and the limited borrowing powers that are proposed for Wales. Surely devolution should not mean an opportunity for the Treasury to be off the hook and for the important infrastructure needs of Wales to continue to be neglected.
I know that the noble Lord is very conversant with the problems of the M4, and in the Newport area in particular. I am glad that he has welcomed the contribution that these changes will make to alleviating them.
The early part of the Statement set out the contribution that the UK Government have made to infrastructure in Wales, in particular railway infrastructure. The noble Lord needs to bear in mind that when an issue has been devolved the funding is devolved as well. If there are flaws in the devolution settlement in Wales, we have to look back to the Government of Wales Act 2006 and the original devolution settlement at the end of the last century. It has possibly been difficult in the past for the Welsh Government to deal with major infrastructure projects, which is exactly why we say that, as well as devolution of minor taxes, there needs to be a referendum to offer the people of Wales the opportunities given by the devolution of a portion of income tax.
Given that the current settlement has been recognised as inadequately taking into account the high number of older people in Wales who are not economically active and the demands that those with multiple comorbidities put on health and social care, and given the widely acknowledged poverty of infrastructure of roads and other forms of communication, particularly IT and telephones, will the Government undertake to review the funding settlement that followed the Act so that, during the transition phase, there can be some correction in the perceived deficit in core funding to Wales?
I remind the noble Baroness of the October 2012 joint statement in which the Welsh and UK Governments acknowledged the procedure that would be followed in future if Welsh funding were again to become unfair in terms of further convergence. The settlement has been set out very clearly in that joint statement, so it is important that she bears that in mind for future reference.
Anti-social Behaviour, Crime and Policing Bill
Committee (2nd Day) (Continued)
20: Clause 1, page 1, line 8, after “conduct” insert “that might reasonably be regarded as”
My Lords, we return to considering Part 1 of the Bill, in particular IPNAs. I have already addressed the Committee about my views generally on Part 1, which support the Government, and I have no need to repeat them. However, I acknowledge that concern has been expressed both within the House and outside that the test for what is,
“capable of causing nuisance and annoyance”,
could be regarded as subjective. This would, potentially at least, result in a court ordering an injunction on the basis of some perceived nuisance and annoyance which, looked at objectively, should not be constituted as one.
In fact, the words “nuisance and annoyance”, which have, as we have heard, a considerable pedigree both in terms of the common law in reviewing breach of covenant cases, and in a number of Housing Act statutes, have been considered by a number of judges to carry with them a degree of objectivity. I would expect that they would not be viewed entirely in subjective terms, were a case to reach court. In fact, I very much doubt that either the agencies which were to seek an injunction under this part of the Bill or the courts would come to a different view in any particular case as a result of the insertion of these additional words. However, they would serve to allay some of the anxieties that have been expressed about anti-social behaviour being too subjective a concept, and the amendment should ensure that both the agencies and the court stand back and view the behaviour objectively before deciding whether it can properly be described as,
“capable of causing nuisance and annoyance”,
and whether it is “just and convenient” to grant an injunction. This added safeguard will, I suggest, fit reasonably into the structure of the Bill without weakening the protection that it provides for communities and individuals who are so often beleaguered by anti-social behaviour.
I noted that during the course of the debate, my noble friend the Minister indicated to the noble Baroness, Lady Mallalieu, that he was considering importing the word “reasonable”, as I understand it, into Clause 1(3) in relation to the “just and convenient” element of the judge granting an injunction. I respectfully suggest that the word “reasonable” might be better imported as a description of the relevant behaviour, rather than be imported into the discretion that a judge has in whether or not to grant an injunction. The judge would regard himself as being reasonable in any event when deciding whether it was “just and convenient” to grant an injunction. With respect, I would suggest that it would be better included further on in Clause 1. I beg to move.
My Lords, I have three amendments in this group. Let me take the last one, Amendment 20H, first. I have lifted the wording from the Crime and Disorder Act 1998, and it would provide that the court disregards,
“any act of the defendant”—
I have said “defendant”, although I should have said “respondent”—
“which he or she shows was reasonable in the circumstances”.
That follows neatly from the comments which have just been made, and I agree with what my noble friend said about that. I used the term “defendant” when I tabled the amendment because we think of the respondent as a defendant. This provision would allow the respondent to defend himself or, if you like, respond to the allegations. This goes to the behaviour which my noble friend has just mentioned.
My first amendment would insert the word “a”, and turn “nuisance” into “a nuisance”. This enables me to ask whether “nuisance” in this context is wider and less specific than “a nuisance” in the Housing Act. My second amendment, Amendment 20C, is to leave out “or annoyance” and is not only for the reasons which other noble Lords have given during the course of the afternoon as examples of conduct that each of us undertakes which our colleagues might regard as annoying—in my case probably putting down too many amendments. It is also to understand the distinction between nuisance and annoyance.
I have noticed during the course of the afternoon that many noble Lords have talked as though the clause referred to causing “nuisance and annoyance”. In fact, it is “nuisance or annoyance”. I am sorry to be picky—or, as my noble friend Lord Greaves would accuse me of being, legalistic—but these words are important.
My Lords, I shall speak to Amendment 20GA, which is tabled in my name and that of the noble Baroness, Lady Hollins, and is coupled with this group. It seeks to address concerns that the Bill does not adequately take account of the likely impact which these new provisions will have on people with a learning disability. The amendment says:
“Consideration should be given to people with a learning disability in the issuing of an injunction to ensure they are not discriminated against”.
It may not be the most elegant English, finishing with the word “against”, but I think the gist is generally understood. I should also declare my interest as vice-president of Mencap Wales.
As we heard in the debate on the previous bank of amendments, the Bill introduces civil injunctions to prevent nuisance and annoyance—IPNAs as they are called. These may be imposed if the court considers it “just and convenient” to prevent anti-social behaviour. The Joint Committee on Human Rights, in scrutinising the Bill, highlighted that this is a lower test than the test of necessity, as required by human rights law. Furthermore, it considered that the new IPNA definition of anti-social behaviour is broad and unclear.
This has set alarm bells ringing with Mencap and others who work with people with a learning disability, fearing that this will lead to IPNAs being used inappropriately. As many know, people with a learning disability are disproportionately likely to be victims of anti-social behaviour. Mencap's report Living in Fear found almost nine in 10 people with a learning disability had experienced bullying, harassment or some form of anti-social behaviour.
The root of this, of course, is attitudinal and is based on the value that we as a society place on disabled people. In some people's eyes they are different and sometimes regarded, sadly, as dangerous. This was brought into sharp focus by the recent murder of Bijan Ebrahimi. Bijan was a disabled man picked upon for being different on his estate in Bristol. He suffered from low-level harassment before being accused of being a paedophile. He was questioned by the police, who found him innocent, but unfortunately by this point rumours had begun circulating that he was a child abuser and two days later he was brutally murdered.
My concern is therefore that a lower threshold for IPNAs, together with a murky definition of anti-social behaviour, will result in these new injunctions being used out of misunderstanding, fear and ignorance of people with a learning disability, and of behaviour that might be associated with their impairment. It could also lead to a rise in vigilantism and will do nothing to improve people’s understanding of the needs of disabled people.
There is also a fear that victims may in turn be branded perpetrators. For example, a person with a learning disability might be continually verbally abused by a neighbour. What if that victim is at the end of his tether and snaps, so to speak, at the neighbour? Such behaviour might in turn result in an IPNA being placed on that individual. The Bill sets out examples of certain prohibitions and requirements in Parts 1 and 2, and the amendment would include consideration of learning disability at this juncture. Such a step, if backed by robust guidance, would undoubtedly go some way towards meeting these concerns. I hope that the Government might look at this area further, not least because I understand that no equality impact assessment of the Bill has been carried out to date. I look forward to hearing the Minister’s thoughts on these matters.
My Lords, Amendment 20 was recommended by the Joint Committee on Human Rights in its fourth report—a committee on which both my noble friend Lord Faulks and I serve. Amendment 20 is a modest compromise and adds an element of reasonableness or objectivity, giving the test more rigour, and will aid the authorities and other agencies. It will enable them to better explain their refusal to act on behalf of some people who just have different views on what they should have to tolerate from their neighbours and other people in the neighbourhood. I agree with my noble friend Lord Faulks that at this earlier stage, the test should have a reasonableness requirement, as it is at this stage that the officials of the authorities outlined in Clause 4 have to consider that behaviour.
As has already been outlined, reasonableness and proportionality are a requirement that the judiciary has to take into account when granting an injunction. This means that there will be reasonableness applied in the test by the officials and, of course, by the court rather than having a more subjective test by the officials and only later on encountering the reasonableness threshold. I spoke at Second Reading about the inordinate lengths to which witnesses have to go to collect the necessary evidence to get an ASBI or an ASBO. Merely adding after “conduct” the words “that might reasonably be regarded as” does not increase the evidence that has to be gathered and I therefore support this amendment.
My Lords, I will add a brief word to what has just been said in support of Amendment 20. The words “any person” at the end of Clause 1(2) are rather important; I would have thought that they make it all the more important that the words which the noble Lord, Lord Faulks, has suggested are put in. Without that, one would have the very difficult task as a judge of having to assess the evidence of one individual and deciding whether that individual is to be believed. If that individual says that he or she has been annoyed or suffered a nuisance, it would be quite difficult to say that the test was not satisfied. The reasonableness test is the one which would soften this and make it more realistic, and I would have thought that it was compatible with the general aim of the measure.
My Lords, if I sometimes tell my noble friend Lady Hamwee that she is being legalistic, that is a compliment since she is a lawyer and I am not, which means that she sees things that I do not. When it comes to the meaning of words, however, I take a straightforward, common-sense view. Words have meanings and we ought to try to stick to them, but sometimes words have different meanings. A word that may well have a respectable legal background in terms of its meaning may not necessarily mean what ordinary people in the street think it means. I think that that is why “annoyance” is causing a reasonable amount of difficulty in the Bill. It has caused many to ask, “Are we really going to have an injunction just because someone is being annoying?”. I take the view that it is a human right to be annoying to other people from time to time, because if it does not happen there will never be any progress. Perhaps that explains some things. The difficulty, however, is at what level annoyance becomes unacceptable. “Harassment, alarm and distress” are clearly degrees of annoyance but they go rather further than what people nowadays tend to think annoyance means.
In the representations that we have had on this there has been quite a concern among those who are used to ASBOs—civil liberties groups and so on—about the way in which the changes are being made, switching from ASBOs and apparently making it easier to obtain an injunction to prevent nuisance and annoyance, and about the possibility that the words “nuisance” and particularly “annoyance” are far too feeble. On the other hand, the housing associations which have been writing to us in the past two or three days are saying, “No, the existing ASBIs”—which are injunctions—“work very well and those are the words that they use”. They would be very concerned if the test was increased.
One reason for this is that you might live next door to somebody who says something foolish to you or wags their finger at you every time you go out in the morning. If it happens to you one time out in the street, and even if the person is going round doing it to lots of people, it really is no reason to serve an injunction on the person, however daft they may be behaving. But if it happens day after day or every time you go out of your house, it becomes a very serious matter. There is a considerable difference between repeated, annoying, low-level anti-social behaviour which irritates and harasses neighbours and is totally unacceptable in a residential context and the same behaviour out in the street. This is happening partly because, as the noble Lord, Lord Harris of Haringey, told us earlier, the Government are bringing lots of different things under the same umbrella.
However, what does “annoyance” mean? Being a fairly boring person and having it on the shelf, I looked in the Oxford English Dictionary, and I found four definitions. These are definitions of the verb “annoy”, but “annoyance” is clearly about annoying somebody. The first definition was “Be hateful to” or,
“Be a cause of trouble to”.
That is a fairly high level of unpleasant behaviour. The second was to,
“be troubled, irked or wearied by”,
which is a much lower level. The third was to:
“Cause slight anger or mental distress to or irritate”,
which seems a very low level. There was another, which was to harm or attack repeatedly, or harass, but it said that that was archaic and the illustration of it was, “A gallant Saxon who annoyed this coast”. Well, I am all in favour of gallant Saxons annoying the Yorkshire coast in the past, otherwise I might not be here, but that is clearly not relevant now.
To bring it up to date, the Merriam-Webster internet dictionary defines it as,
“to cause (someone) to feel slightly angry”,
which is clearly something that we ought not to be legislating about;
“to disturb or irritate especially by repeated acts”,
which might be; and,
“to harass especially by quick brief attacks”,
which probably is anti-social behaviour. That dictionary then said that “annoyance” may be,
“slight anger : the feeling of being annoyed”.
I thought “I’m giving up” but I looked further and it then said it was,
“a source of vexation or irritation”,
and then it defined it as a nuisance, so I thought, “We are going around in circles here”.
Annoyance actually has lots of different meanings, and for most people in this country today it is very low level. If we want it to be higher, the Government ought to make a real effort to define it in the legislation. It is assumed that the words “nuisance” and “annoyance” are in the law already and that everybody knows what they mean. I do not think that they do if the Government mean that they are a sufficiently high level to warrant injunctions against people.
My Lords, I think that I can be very brief at this point. I have sat in the noble Lord’s place, albeit in the other place, and one thing he will have in his file is a note on the amendment saying, “Resist”. May I tempt him not to on some occasions? Amendment 20 in the name of the noble Lord, Lord Faulks, seems eminently sensible and reasonable. It actually seeks to put some necessary clarification in the Bill. The Minister said he would look very sympathetically, and I hope he will, at Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins. There is a serious issue about people with learning disabilities. It does not mean that they are not capable of causing distress through anti-social behaviour, but the measures by which it can be addressed and dealt with have to take into account any special measures and any learning disabilities that an individual may have. I hope that the Minister can look favourably on both those amendments.
My Lords, I may be about to surprise the noble Baroness. Well, to some degree—modestly surprise her. With these amendments we return once again to the issue of the test. I understand the concerns that noble Lords have articulated. Some of the arguments are returning to this issue and it is very important that we debate them and get them clear in our minds. I shall start with Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins.
This amendment raises the important issue of the proper considerations which must be considered in applications for IPNAs under Part 1 against respondents with learning disabilities. The amendment may not be necessary, because I have already spoken at length about the test for the injunction and the two limbs of the injunction, but I reiterate that, in deciding whether to grant an injunction, the court will consider whether it is fair, reasonable and proportionate to do so. That is within the terms under which a court would consider any injunction. In doing so, the court will be aware of its obligations to prevent discrimination against any respondent and to ensure that a respondent’s human rights are respected. Of course, the court will also ensure that the respondent is capable of complying with the terms of the injunction—indeed, that is specifically mentioned in the guidance. If the noble Lord will look at that section he will find that it is referred to. It is all part of the “just and convenient” part of the test which goes along with the whole business of nuisance and annoyance as being a joint, two-limbed test.
Returning to Amendment 20B, my noble friend Lady Hamwee pointed out that the Housing Act refers to “a nuisance”, not simply “nuisance”. I can reassure her that the test for the new injunction is based on that used for anti-social behaviour injunctions in the 1996 Act. No difference is intended but one of the two usages had to be used in this case to provide that continuity. Similarly, in respect of Amendment 20C, the use of the term “annoyance” in addition to “nuisance” also derives from the Housing Act 1996. The two terms will take their ordinary meaning. The dictionary definitions we have heard from my noble friend Lord Greaves are very interesting, but there is a meaning in law, by precedent, which is clear to the courts and, indeed, the Law Society has made clear that it welcomes that definition. They are commonly used together and may cover a broader range of behaviours than either would alone. We see the benefit in retaining the familiar test that includes both; that was mentioned in previous debates.
My noble friends Lord Faulks, Lady Hamwee and Lady Berridge, and the noble and learned Lord, Lord Hope of Craighead, all made similar points about Amendments 20 and 20H, as, indeed, did the noble Baroness, Lady Smith. The amendment in the name of my noble friend Lord Faulks was, of course, one of those recommended by the JCHR. Both amendments seek to add an explicit test of reasonableness to the threshold for making an injunction. The Government are aware of the concerns about the test for the injunction under Part 1 and I listened carefully to those concerns expressed at Second Reading and again today. I agree that it is important that the courts consider reasonableness, fairness and proportionality in deciding applications for injunctions to prevent nuisance or annoyance. The courts will consider these factors as a matter of course as part of the second limb of the test—that it is just and convenient to grant an injunction—as I said in my answer to the amendment in the name of the noble Lord, Lord Wigley. However, the courts will be aware of their obligation to discharge their functions compatibly with the European Convention on Human Rights, an exercise which requires a consideration of necessity and proportionality. However, we will want to consider whether we have done everything necessary to ensure that this is so with the drafting of Clause 1.
That is not to say that we necessarily agree with the amendments as they are drafted. Both would revise the “nuisance or annoyance” test, and I have made it clear that we see the merit in keeping a test that is already familiar to the courts. However, we want to consider whether we can make it clearer in the legislation that the courts must be satisfied that it is reasonable to issue an injunction under Part 1. This is what the amendments seek to achieve and, in that sense, we are not very far apart on this issue, so I will reflect carefully on Amendments 20 and 20H in advance of Report.
In conclusion, the test for the new injunction is tried and tested, it has a long pedigree and I see no evidence that it has given rise to the difficulties that a number of noble Lords have suggested in this and previous debates. The previous Administration sought to recast and strengthen the “nuisance or annoyance” test for an anti-social behaviour injunction back in 2003. This House endorsed that strengthening and on this issue, as I have said before, I am happy to endorse the position then taken by the noble Lord, Lord Bassam. The police, local authorities and others will not act lightly in seeking an injunction. They and the courts must exercise such powers in a reasonable, fair and proportionate manner. As I have said, I am ready to take away Amendments 20 and 20H and explore, without commitment, whether it would be appropriate to introduce into the test an explicit reference to reasonableness. That point aside, for the sake of the victims of anti-social behaviour, who must be at the forefront of our deliberations on the Bill, I would be loath to weaken the effectiveness of the new injunction. I have no doubt that we will return to this matter on Report. I thank noble Lords for speaking to their amendments and I hope that they will be content not to press them.
My Lords, before my noble friend responds, of course let us all think about it, but may I put one further, supplemental thought in the Minister’s mind? He talked about the pedigree of the term “nuisance or annoyance”. If a lot of that pedigree comes from the housing context, then we need to be careful about transposing the words without the constraint around it. That may not be the right word, but we need to consider the reasonableness of the term if we are moving into a different context.
Perhaps I should rely less on the Housing Act and draw attention to other matters such as the abuse of alcohol in public places, for example, which uses a similar test, or the parking of vehicles on highways and the obstruction of highways, which was also mentioned by me in a previous debate. This does not apply just to housing matters; there are other issues that have used the test of nuisance and annoyance. I do not see the problem that my noble friend suggests.
My Lords, I am grateful to all noble Lords and noble and learned Lords who have taken part in this debate. I am grateful to the Minister for his reassuring noises; he has shown himself, as usual, to be a listening Minister. The expression “nuisance or annoyance” has a pedigree, as I think he said, in the housing context. It is almost a term of art, so widely has it been used over the years in the context of breach of covenant in common law, and it has found its way into statute.
Of course, a particular housing situation is not precisely analogous to anti-social behaviour. Nonetheless, there is a substantial accumulation of case law that the judges will understand and, I suggest, they will interpret it accordingly. I repeat what I said earlier: it seems that in any event the reasonableness is part of the judge’s task in deciding whether or not it is just and convenient to grant an injunction. Reasonableness will be the watchword, as will the obligations that the court has under the Human Rights Act.
Where I suggest it is important to import reasonableness, as the noble and learned Lord, Lord Hope, said, is at the stage of defining with some degree of objectivity the nuisance and annoyance so that neither the agencies nor the court are in any way diverted by simply having to accept a subjective interpretation of what counts as anti-social behaviour. I hope that the Minister will reflect on that. I appreciate that this does not in any way weaken the power, but it should reassure those who are naturally concerned about the potential for this power to be used oppressively, and that reassurance would be at least provided, I hope, by an appropriate amendment. With that, I beg leave to withdraw the amendment.
Amendment 20 withdrawn.
Amendments 20A to 20E not moved.
20F: Clause 1, page 2, line 4, after “respondent’s” insert “ethical or”
My Lords, I shall speak also to three other amendments in this group. The amendments are small but useful. The first two refer to IPNAs and the second two to criminal behaviour orders; otherwise they match each other. Clause 1(5) says about IPNAs:
“Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid … any conflict with the respondent’s religious beliefs … any interference with the times, if any, at which the respondent normally works or attends school or any other educational establishment”.
I want to add “ethical or” to the religious bit and “or training” to the educational bit, so that it reads “educational or training establishment”. The wording in the criminal behaviour order is almost identical, so the amendments are identical.
It is right that people should not have to give up religious beliefs or practices in order to comply with an injunction. There are some people who have strong ethical humanist views that might involve regular attendance at events each week that they would say were equivalent to religious events—they are clearly not religious so do not come under that definition—and it seems reasonable to include those. It is also possible that there may be genuine objections by some people to requirements in an injunction that require them to take part in otherwise excellent facilities or proceedings that are organised by religious groups or particular religious groups. It therefore seems that the word “ethical” ought to be there as well to cater for probably the very small number of people with humanist beliefs who would have these views.
When it comes to education and training, the question is: does “education” encompass training? The Government may say that it does but another part of the Bill, Clause 34(3) on dispersal orders, which we will no doubt come to some time or other when we are discussing the Bill, says:
“A constable may not give a direction under section 33 that prevents the person to whom it is given attending at a place which the person is … expected to attend for the purposes of education or training”,
or for other purposes. So one part of the Bill specifies education and training, but this part does not. Whatever the right wording is, it ought to be consistent between the two, and it is sensible for the benefit of avoiding doubt to put “education or training”. I beg to move.
My Lords, I shall speak to Amendment 20FA in my name. I appreciate that the noble Lord, Lord Greaves, is seeking to broaden the scope of the potential areas where it may be possible for the courts to limit the prohibitions and requirements of an injunction. I am going to raise some queries about whether or not any of this really makes sense. I do not disagree with anything that the noble Lord has said, but I wonder where we are going when we talk about religion in this context.
Noble Lords will remember that in 2001, 390,127 people put down on their census forms that their religion was “Jedi”. I wonder whether, for the purposes of excluding someone from requirements under one of these new injunctions, saying that you had to follow your religion of Jedi would enable you therefore to say, “I should be allowed to carry on exactly as I wish”. Similarly, are we including in religion Satanism or the proponents of animal sacrifice?
I pose these questions not because I seriously seek to know whether, when the Bill was being drafted, those drafting it were considering proponents of animal sacrifice or even those who consider themselves to be Jedi knights. I am, however, quite clear that I have come across plenty of people who behave in an anti-social fashion who, if they thought that there were some exemption from the requirements of an injunction, would suddenly pronounce that they had all sorts of religious beliefs, beliefs that a normal person—or to your Lordships here, if that is not the same—might consider was not really a bona fide religion. Is there a requirement now for the Government to define what they consider to be a religion? If there is such a definition somewhere, the noble Lord will have it to hand and explain it to me.
My second concern is that, even in an established religion which we would all recognise as bona fide, there are certain norms of behaviour. If, however, you pursue your belief in that religion with an excessive degree of zeal, does that excessive zealotry automatically mean that you can have exemptions from the requirements of an injunction? What is or is not reasonable in pursuit of your religion? We may get advice from one of the right reverend Prelates, although I suspect not.
Many years ago, meetings of the Tottenham Labour Party used to take place on Sunday mornings, next to a black church where the singing of hymns was extremely loud. The church was extremely well attended: far better attended—and probably more fun—than the meetings of the Tottenham Labour Party. However, what constitutes reasonable pursuit of your religious beliefs? For example, is it acceptable that, in pursuit of your religious beliefs, you decide to go into the common parts of an estate and pray extremely noisily every night at 2 am? Some people might claim that was pursuit of their legitimate religious beliefs, but is that reasonable in this context?
My final point is: even if this is the reasonable pursuit of a bona fide religious belief, does that pursuit have a disproportionate impact on other people? I pity the courts that have to interpret this and the local authorities or housing agencies trying to pick their way through it. I hope that, by tabling this amendment, we will get some elucidation from the Minister on what is intended by this phrase. I absolutely support and accept the principle that these injunctions should respect bona fide religious beliefs. However, we will have to define what a set of bona fide religious beliefs is, what the normal extent of practising those beliefs is and in what circumstances their normal practice has a disproportionate impact on other people.
My Lords, I say in response to my noble friend’s point about education and training, “Call me legalistic”. The noble Lord, Lord Harris of Haringey, is very bold in raising these important points. He used the phrase “bona fide” several times in his speech, as well as in the amendment. Followers of paganism would say that their religion was bona fide. As the noble Lord was speaking, it occurred to me that a call to prayer at a very early hour is very annoying to some people, but would one challenge that? He raises bold and brave questions.
My Lords, I refer to the report of the Joint Committee on Human Rights. The examples raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Harris, all seem to relate to the manifestation of somebody’s religious beliefs. The report states that the holding of religious beliefs by any individual is an absolute right under both the European convention and in international law, under Article 18 of the Universal Declaration of Human Rights. It is only the manifestation of one’s religious or humanist beliefs that can be restricted by a country on certain grounds, as defined in European and international law. Would the Minister please outline why the Bill, as currently drafted, only allows prohibitions and requirements to,
“so far as is practicable … avoid any conflict with the respondent’s religious beliefs”?
It should, surely, be the manifestation of those religious beliefs that the Bill is aimed at.
My Lords, in standing up and responding I feel like the Jedi knight next to the Jedi master. May the Force be with us all.
Amendments 20F and 22CA raise an important point in respect of the duty on the court to ensure, so far as is practicable, that any prohibitions or requirements attached to an injunction do not conflict with the manifestation—as my noble friend so eloquently put it—of the respondent’s religious beliefs. In line with the Equality Act 2010, reference to religious beliefs should go further than so-called “traditional” religious beliefs. I believe that this can be covered in guidance but I would like to go away and consider further the points made by my noble friend. We can return to the wording of this section if required. I hope my noble friend will accept my assurance that we will further consider this point and those made by the Joint Committee on Human Rights.
I turn to the amendment tabled by the noble Lord, Lord Harris. I support the words of my noble friend Lady Hamwee: he raised bold and challenging concepts. As I said, in response to an earlier amendment, what may be perceived as perfectly acceptable to one person may not be acceptable to another. The courts are used to considering a person’s religious beliefs and do not need to be told that they can reject beliefs if they are spurious. In addition, to try to second-guess what would, in the words of the amendment, constitute activities “that would normally arise” is very difficult given that two people of the same religion may have different ways of practising their faith. I am a Muslim and there are 73 different denominations within Islam. During Ramadan, the time of your fast can differ depending on where you are. One obviously prefers to be at a place where the fast closes as the sun sets rather than when the sun is set totally. That is a practical illustration from a faith which is widely recognised.
The crucial point here is that, in considering an injunction, the court must avoid, so far as is practicable, any conflict with the manifestation of a respondent’s religious beliefs. If that is not practicable because, for example, avoiding the conflict would result in the respondent engaging in further anti-social behaviour purporting to be religious practice, the court would not be prevented from imposing prohibitions or requirements that it considered appropriate. This is something we can safely leave to the courts; they are more than capable of assessing the bona fide status of a respondent’s religious practice without express provision and, indeed, we have recently seen examples of that.
Amendments 20G and 22CB, tabled by my noble friend Lord Greaves, raise another important point. As we have made clear, the injunction should be available to help turn a troubled person’s life around, especially when they are young and impressionable. As such, it would not be helpful for requirements or prohibitions to unnecessarily stop them engaging in constructive training.
However, what is considered as training by some may not be worthy of special consideration by the court and some will try to use this term to delay the court’s process. Where training is worthy of consideration it is likely to be linked to an educational establishment or even a formalised work placement and, as such, is already provided for in the Bill. My noble friend also raised the issue of different wording in different parts of the Bill. We recognise that Clause 34(3) imports the word “training” whereas Clause 5(1) does not. I will certainly reflect on those two variations and return to them as required.
For the reasons I have given, I hope that my noble friend Lord Greaves will withdraw his amendment and that the noble Lord, Lord Harris—notwithstanding the important issues that he raised—will not press his.
My Lords, I am very grateful for that helpful response from the Minister and I look forward to the results of his reflection. To my noble friend Lady Hamwee I say, I am never legalistic; I may sometimes be pernickety, but that is a bit different. I had great sympathy for what the noble Lord, Lord Harris of Haringey, said, and had great sympathy for him, having to go to his Labour Party meetings on a Sunday morning. However, that reminded me that in the old days, and perhaps here and there now, there were things called socialist Sunday schools. If lads and lasses were getting out of hand, I am sure that going to socialist Sunday schools might have helped them. I cannot see how it could have done so, but it might well have helped them at least to organise their lives. Therefore, the question of regular events—such as non-religious ethical meetings—is important. I am grateful for the Minister’s comments, and I beg leave to withdraw Amendment 20F.
Amendment 20F withdrawn.
Amendments 20FA to 20H not moved.
Clause 1 agreed.
House resumed. Committee to begin again not before 8.31 pm.
Central African Republic and the Great Lakes Region
Question for Short Debate
My Lords, I shall begin with the good news. The M23 rebels have been defeated militarily, so their only option is now the negotiating table. Towns in North Kivu, in the eastern DRC, are celebrating, and the UN has shown its capability, along with national Governments, to deal with an intractable conflict. The BBC reported that M23 officials in Uganda said that their fighters had retreated because government and UN forces had launched a joint assault. However, the UN has yet more work to do, as one of the newest threats to regional security now lies in the little-known country of the Central African Republic. A landlocked country, it lies at 180th out of 186 on the UN developmental index, bumbling along near the bottom but never getting the attention of being in the relegation zone. It borders Sudan, South Sudan, DRC, Chad, the Congolese Republic and Cameroon, is about the size of France and is rich in oil, timber and diamonds. After independence in 1960, there have been many coups and the notorious brief existence of a Central African Empire under Emperor Bokassa.
Why, then, would the world pay much attention to the latest coup, which happened on 24 March of this year? The Foreign Secretary expressed his concern the next day but his plea,
“on all sides to make every effort to show restraint and to respect human rights”,
was not heeded. However, not only are there flagrant human rights abuses, but the world needs to pay attention, as this time CAR has gone from coup to failed state. In August 2013, UN Secretary-General Ban Ki-Moon said that there had been a,
“total breakdown of law and order”.
Unicef goodwill ambassador Mia Farrow visited the weekend before last and one of her tweets stated:
“I see no evidence of any functioning government”.
Not only have I found the reports of Human Rights Watch, Amnesty and CAFOD invaluable, but I have also, through a UK charity, been receiving reports directly from CAR, from people on the ground, and it is their stories and pleas for help that led to this evening’s debate.
There is basically no security for the civilian population. The new President Djotodia is a militant Islamist and has no effective control outside of the capital Bangui and not totally within it. He used three groups of rebels, now known as the Seleka coalition, to gain power, and now those rebels are left to control sections of the country. Many of them, perhaps 80% or 90%, are foreigners, recruited from Chad or Sudan. The rebels have taken control of key customs towns and diamond mines. They have become the local police force, and most schools and hospitals are not functioning. I was told:
“At the end of August when there was a deterioration of the security situation in the Rabe and Boeing districts of Bangui the inhabitants went and occupied the runway at the International Airport, believing this to be the only safe place to go”.
This very weekend, Modeste Martineau Bria, the director of judicial services, was killed in the capital, Bangui, by Seleka rebels. The UN and all NGOs agree that these rebels loot, rape and pillage with impunity. Whole villages, such as the village of Bohong, 25 kilometres from Bouar, have been burned down. According to CAFOD, there are 40,000 internally displaced persons in Bossangoa, and 65,000 people have fled the country. Sometimes the rebels will spare lives in return for money, but often they rape, and resistance means execution—literally being hacked to death with a machete—said Thibault Ephrem to the Guardian newspaper in July.
The rule of law has vanished. In the same report, in the town of Kaga-Bandoro, the town’s catholic priest recounts that many families are still in the forest or the bush and that people are dying without any assistance. He estimated that 60,000 of the region’s population of 130,000 were hiding in the jungle, living ferally in a malaria-prone region, with no clean water and where 11% of the population aged between 11 and 45 is HIV positive. If there can be a worse report, my stomach churned on seeing a photo sent to me, of an elderly lady with the caption:
“A lady forced by Seleka to eat human flesh”.
In August, the AU took over the small group of peacekeepers from ECCAS member states, namely Gabon, Cameroon, Chad, Congo and the DRC. Including civilian police and human rights monitors, this new force, MISCA, should be about 3,500-strong, but there are currently only 1,000 troops, and only Burundi has promised a further 500. Some estimates put the numbers of the Seleka rebels as high as 23,000, so how will the MISCA force be sufficient?
Will my noble friend please outline whether Her Majesty’s Government will support the transfer of MISCA to a UN-led operation, such as the one that has been so successful in the DRC? Can he also outline how the United Kingdom will vote in a Security Council decision at the end of the month?
The particular results of this coup also necessitate the involvement of the UN, not only the AU. This failed state for the first time has broken down along sectarian lines. The most recent reports by the BBC and the Guardian accept this, but early accounts contained warning signs. On Sunday 14 April, the Brethren church in the Cité Jean XXIII quarter was shelled during a worship service, leaving a number of people, including children, killed or seriously injured. Some of the children’s feet were amputated in the attack, but there was no comment from either the President or the Prime Minister.
After the coup in March 2013, a letter dated April 2012 began to circulate, whose authenticity President Djotodia has not denied. The letter, from him to the OIC, allegedly outlined his vision to form an Islamist republic from CAR, Darfur and part of Chad. Of course, much if not most of the Muslim population of CAR does not support the Seleka rebels or the president, but they are powerless to stop this dynamic.
Anti-Seleka rebels, called “anti-balaka”, meaning “anti-machete”, have now formed. The name says it all. Vicious reprisal attacks are now being reported against the Muslim and Fulani populations. Father Anastasio Roggero, a missionary who has worked in the CAR since 1975, said in an interview with Fides:
“We are in the heart of Africa, and the danger here that a centre of terrorism is set up is real, in my humble opinion”.
He did not need to be humble. As the UN director of humanitarian operations in CAR, Mr Jing, said:
“We are seeing the seeds of a profoundly dangerous development between communities … It’s a tinderbox that can ignite into something very, very big and very, very bad”.
A genocidal interfaith civil war is a risk, and needs to be averted. The religious leadership in CAR is trying to bring about reconciliation, and travels the country trying to talk to the anti-balaka rebels, and the four major Christian leaders signed the Bangui declaration, which includes a request for the UN, not the AU, to be involved in peacekeeping. However, will Her Majesty’s Government please outline their view on the alternative request in that declaration of the MISCA force being at least 10,000 strong?
Such conflict and insecurity of course means that there is a humanitarian crisis at the moment that affects the entire country. Subsistence agriculture is the primary livelihood for the majority of CAR’s population, and many were previously self-supporting, if not exporting food. However, due to fighting and looting of agricultural equipment and cattle, 1.1 million people face food insecurity, 1.4 million people are without access to clean drinking water and up to half a million people require urgent, immediate food assistance.
In July, the UK pledged £5 million, but the UN emergency appeal for the Central African Republic remains one of the most underfunded appeals. To date it has received only 42.5% of the £121.5 million that is required. So far, the UK’s prompt contribution amounts to just under 6% of the funds received. The UK is a leading humanitarian donor, so will my noble friend outline whether the amount of UK aid is going to be increased and whether aid is managing to get beyond the capital, Bangui? One further urgent priority is to secure the mineral wealth that is the future of this country. Will my noble friend outline what discussions Her Majesty’s Government are having with the French Government on the general situation in CAR and particularly in securing these mineral sites?
I find it so sad to hear my good friend Pastor Nims Obunge, who spent his teenage years in Bangui, remembering,
“the beauty of a peaceful city ... and the beauty of the people was reflected in their well crafted art and rhythmic music and dance ... I recall Bangui with the beaming smiles of local people”.
It will take a long process of reconciliation to get back there, but if the world acts now, it is possible. If it does not, CAR may become well known, like Rwanda, for all the wrong reasons. As UN Resolution 2121 makes clear, such genocide will be with guns, not just machetes.
My Lords, I am grateful to the noble Baroness, Lady Berridge, whose Question enables me too to focus on the human catastrophe and humanitarian emergency that continues to enfold in a country little known outside France—the Central African Republic. It is a country that has been unstable for most of the time since its independence from France in 1960 and its history is characterised by a callous disregard for human life. I am talking about what is clearly a failed state where there is violence, anarchy and little evidence of international attention, a country where for 10 years there has been civil war, relentless poverty and a succession of coups, which means that the population now show signs of deep trauma, and aid workers are being targeted.
The CAR has for far too long been a forgotten country suffering from a forgotten crisis. Now, at last, there are some signs of unprecedented attention, given in particular by my noble friend Lady Amos and, indeed, by the European Union Humanitarian Commissioner Kristalina Georgieva, who has both visited the CAR and has been at the vanguard of efforts to increase international awareness of the suffering of that country. People are starving. They are resorting to the eating roots and leaves of manioc plants. They rarely have access to clean water. There is no functioning health service. Malaria is a major killer, especially of children, accounting for 70% of paediatric deaths. HIV prevalence is the highest in central Africa and life expectancy is 48 years. Women have suffered rape, abduction, torture, mutilation and other crimes, all inflicted with impunity.
Last March the self-styled Seleka rebels seized power. There has been a state of lawlessness ever since with large-scale attacks on civilians. Looting and murder is widespread. The Seleka has failed to investigate or prosecute any of the abuses committed by its own members. The UN has now made a response. Adama Dieng, UN special adviser on the prevention of genocide, and John Ging of OCHA have recently briefed the United Nations Security Council after a harrowing visit to the CAR. Mr Dieng reported that Muslims and Christians were inciting violence against each other and expressed concern about this new dimension to the conflict. He did indeed speak of the possibility of genocide, in what he described as a “tinderbox” and a country where,
“the scale of suffering is among the worst in the world”,
and where a daunting host of problems impede delivery of humanitarian assistance.
The Security Council was briefed last December on the effects of the Seleka rebel offensive and there have been regular briefings since then, yet no effective action has been taken. Can the Minister explain why there has been such a failure to act? The CAR is not yet Somalia, but the signs of endemic instability are there and the UN High Commissioner for Human Rights is predicting a full-blown conflict unless urgent action is taken to establish the rule of law and give humanitarian access to people who have such desperate need. Could the Minister give an estimate of when exactly the proposed AU 3,600-strong peacekeeping force is likely to be deployed? Since the promise made last July, less than half the troops in that country have been deployed. Is it not clearly the case that this number is hopelessly inadequate in a country that is more than twice the size of France?
The CAR has huge mineral resources, as the noble Baroness said, including diamonds, gold, uranium and copper, and oil deposits have just been discovered along the border with Chad. This fact in itself is surely a compelling argument for taking more interest in the CAR. Naturally, Seleka leaders are now already benefiting from tapping into the lucrative extractive industry and are controlling the diamond mines. Another deeply worrying factor is that arms are flooding into the country. The flow of AK47s has now been followed by rocket-propelled grenades and heavy weaponry. The UK is the fourth largest European exporter to the CAR and is a key supplier of arms to the unstable region of central Africa, including Sudan and Chad. Now the Seleka rebellion has been boosted by heavily armed fighters and warlords from Chad. Would the Minister clarify the current UK position on sending arms to the CAR? What, for instance, is the justification for the export licences? Finally, what we should be doing this evening is agreeing that the people of CAR deserve to be offered the hope of a better future.
My Lords, I too, congratulate my noble friend Lady Berridge on securing this timely debate, in which I will confine my remarks to the escalating humanitarian crisis in the Central African Republic. While in Addis Ababa last week, I had a message from a journalist who lives and works in the Central African Republic. He said:
“It's very nasty down there. It smells of mass murder. Since Rwanda and our experience a bit earlier in Burundi, I have not been in such an eerie place”.
The CAR has been in a state of chaos since the rebel alliance known as Seleka seized power in March this year, as my noble friend mentioned. It ousted President Francois Bozize from power, replacing him with its commander, Michel Djotodia. Last month, Djotodia formally disbanded the rebels and integrated many fighters into the national army. The rebels linked to Seleka, however, have continued to launch attacks on scores of villages, prompting the emergence of local civilian protection groups.
Tarak Bach Baouab, humanitarian affairs adviser for Médecins sans Frontières, reports from the CAR that the situation is dangerously unstable. He states that the main problem is that the fighting has specifically targeted civilians. Rural populations had become used to being displaced in the bush during the bush war of 2004 to 2007. However, the latest cycle of violence is different, increasingly taking on a religious undertone. It includes the execution, for example, by armed men of eight people who became separated from a larger group as they fled by truck; and the targeted killing of villagers, which caused many others of the same religion to flee. In Bossangoa, at least 35,000 displaced people are living on a Catholic missionary compound, far exceeding its capacity, while 1,200 people are in a hospital, effectively turning it into a makeshift camp. One thousand people are seeking shelter next to an airstrip—as I think colleagues have mentioned—while 400 others have gathered in a school. They are mostly Christians, afraid of retribution and targeted killings by rival Muslim groups. Similarly, Muslim communities now also fear revenge attacks by Christian militias. People are abandoning their villages, which often end up being burned by either party to the conflict, terrified by the tit-for-tat killings.
Since October, violence and deadly clashes have been reported in Bouca and Garga in the north-west of the country and in Mbaiki in the south-west. Civilians, medical staff and humanitarian aid workers have all been subjected to physical aggression. Médecins Sans Frontières has witnessed the execution of a healthcare worker, as well as multiple attacks on humanitarian staff. The United Nations has warned that the CAR is spiralling down into genocide, and that the international community must intervene to stop armed groups from inciting violence between Christians and Muslims. UN director John Ging is quoted as saying:
“More than half the population is in need of assistance and the scale of suffering is amongst the worst in the world and getting worse”.
Diplomats are saying that the Security Council should eventually consider plans to deploy a peacekeeping force of at least 8,000 to 10,000 troops.
While in Addis Ababa with the Inter-Parliamentary Union last week, I discussed the CAR crisis with the chair of the African Union, Madame Nkosazana Dlamini-Zuma, and her deputy, Erastus Mwencha. Madame Zuma confirmed that an AU mission was being assembled, but stressed that it had to have the right mandate to be effective. Perhaps we should remember here that AU forces tend to do peacemaking not UN-type peacekeeping. Madame Zuma’s deputy was able to confirm that the UNSC had approved the deployment of some 3,000 to 4,000 AU forces, but stressed that this would be a long-term mission to take on and marginalise the rebel groups. He said that the AU troops would take on the governance and state-building roles, while being sure to maintain the role of the AU leadership.
Diplomats locally see the AU as the African response on African security issues, under the primacy of the UN. At a meeting last Wednesday of the AU Peace and Security Council, the UK confirmed a £5 million pledge in humanitarian aid, while the USA offered $25 million. The AU issued a formal Peace and Security Council communiqué of Wednesday’s meeting, calling on,
“all AU members States to contribute to the mobilization of the resources required for the successful deployment of”,
AU Forces. The council also requested that Madame Zuma initiated the necessary steps, while appealing to all member states and international partners to provide the necessary support to address the catastrophic situation facing the CAR. This is very positive language from the AU, but the question is whether it will result in the increasingly vital action.
There are serious questions that I hope the Minister will be able to answer. For example, as noble Lords have mentioned, will the French continue to take the lead in the CAR, as they did in Mali? Will the UK continue to play a subordinate role, limited to urging the AU to engage more and to supporting the French, while not becoming directly involved? Most importantly, will this be enough? The nature of the conflict is religious, Muslim against Christian. The cause is breakdown of government and governance, creating a vacuum of power. The solution is restoration of sound governance, underpinned by re-establishing security through deploying AU and UN forces of possibly 10,000 troops. To avoid a repeat of the horrors of the savagery and genocide of Rwanda and Burundi, the international community must act quickly and effectively.
I warmly congratulate the noble Baroness, Lady Berridge, on securing this debate, which addresses a deeply disturbing situation that has been largely off the radar screen in the international community.
I do not usually speak about countries that I have not visited, but I am moved to speak on the Central African Republic because people whom I know and respect and who know the region very well are so deeply worried. Also, I do have experience in nearby countries; the CAR sits at the heart of an arc of insecurity across sub-Saharan African, taking in Chad, Uganda, Sudan, South Sudan and the DRC. I have visited Sudan, South Sudan and Uganda many times, and I know their beauty and their potential as well as the current crises and horrors which are largely hidden.
As we have heard, the CAR is in the grip of conflict. The wave of violence that has swept from north to south since March has affected the entire population. Since the coup in March and the Seleka offensive, the CAR has descended from a long-term crisis of poverty into a complex humanitarian emergency, resulting from decades of abuse, pillage and corruption by previous leaders and regimes who ruined the country for personal gains. It is said that the diamonds that Emperor Bokassa gave French leaders and politicians could have fed and clothed the entire population of the CAR. The Djotodia Government came into power promising to reverse the collapse of the state, but the task is beyond them and the situation is getting worse. Consequently the population, which had expected drastic changes from the new rulers, started returning to pre-state socioeconomic frameworks and loyalties when their hopes failed to materialise. These local dynamics bred intense fratricidal fighting over shrinking resources, infrastructure, food and water.
Newly empowered forces are vying for power in the changing tapestry throughout the country through the use of arbitrary force. Almost the entire population of 4.6 million has been affected by violence and insecurity; 1.6 million people, one-third of the population, are in dire need of assistance as the humanitarian support system keeps collapsing despite great efforts by NGOs. The conflict has also taken on a sectarian aspect. Very little has been reported in the West, and what little we have seen portrays this as Christians versus Muslims, but that is not entirely the case as yet. The fighting that escalated along the sectarian fault line that runs across Africa from Uganda to Senegal and Gambia is the traditional struggle over water and land rights between the predominantly Muslim nomads and the predominantly Christian homesteaders. However, similar economic and religious conflict in Nigeria over recent decades has been exacerbated by Boko Haram into a self-avowed ruthless jihad against the local Christian population.
In the north of the CAR, a similar threat comes from Sudanese jihadist gangs seeking loot, young female slaves and rare animals; these are the same Sudanese militias who contributed to the massacres and enslavement of hundreds of thousands of women and children in South Sudan in the war that raged there until the peace agreement in 2005. Left unchecked, these Sudanese jihadists can transform the CAR conflict into another vicious jihad. As the Roman Catholic Archbishop of Bangui said, this violence was,
“something new. We haven’t experienced this before. Before we lived in symbiosis”.
Reports of violence and destitution are heartbreaking. There is an urgent imperative to reverse the country’s slide into chaos and to alleviate suffering. However, the international community can provide only a short-term remedy. The challenge lies in addressing the root causes of the myriad grass-roots conflicts, and in assisting the Government to implement a long-term national recovery programme to put the CAR on the right track to stability and growth. Ultimately, there should be no need for long-term large-scale foreign aid. The CAR is an extremely rich country. Land is fertile, water is plentiful, and there are immense quantities of oil, diamonds, rare minerals and ores which can provide wealth for funding the most ambitious reforms. Despite these resources, the CAR is suffering a horrendous humanitarian crisis. The urgent challenge is therefore to develop the resources in a way that will benefit the population. People will stop fighting over scarce resources once food, services, work and prospects for betterment of life are more easily available.
President Djotodia has promised to relinquish power in 2016, and has dissolved the Seleka rebel group that brought him to power; he has also promised to work with the international community on resource development and comprehensive social and economic reforms. His Government have expressed a commitment to human rights reforms, democratisation and credible, free and fair elections. He has also repeatedly committed his Government to implementation of such programmes in partnership with foreign corporations and the international community, and has accepted the need for close scrutiny to ensure accountability, but he has not had the opportunity to prove those offers and commitments. Will Her Majesty’s Government consider helping President Djotodia to put in place such development programmes and supervise their implementation? Will they also encourage, as appropriate, private businesses to formulate, audit and supervise comprehensive programmes where revenues could be devoted to the long-term development of the country to reverse the slide into humanitarian chaos?
Ultimately, the UK will also benefit from the ability to do business in the CAR, with the profit from ethical resource extraction by British companies. I hope that the Minister will be able to respond in ways which will bring hope to a people who are suffering such chaos, and who may be plunged into even greater suffering if the problems are not addressed appropriately and urgently.
My Lords, I warmly congratulate the noble Baroness, Lady Berridge, on securing this debate and on introducing it with such clarity of purpose. Those of us of a certain age will remember graphically the tragedy of the Congo, going all the way back to independence itself. This was followed by the Katanga breakaway movement and the instability there, and the subsequent tragedies made the entire Great Lakes region a terrible, open wound on our common humanity. As we know, that conflict, which began all those years ago, continues in a number of countries.
It is now some four months since the Parliamentary Under-Secretary at the Department for International Development, Lynne Featherstone, described the situation in the Central African Republic as, “the world’s forgotten crisis”. It is shameful that this crisis remains hidden from sight, and that the UN humanitarian appeal still seems hopelessly underfunded. Our inability to address this complex emergency and to provide adequate protection for civilians has seen this crisis spread far beyond the republic’s borders to destabilise a region already facing significant challenges. Other noble Lords have already made similar points in this debate. As the Catholic Archbishop of Burundi has recently noted:
“There is a terrifying, real threat of sectarian conflict”.
The noble Baroness, Lady Berridge, has already hinted at this.
The UN Secretary-General’s recent report to the UN Security Council warned that the human rights abuses, such as,
“arbitrary arrests and detention, sexual violence against women and children, torture, rape, targeted killings, recruitment of child soldiers and attacks”,
are becoming ever more common. The reports from the republic confirm all that has been said by the International Federation for Human Rights, which describes the human rights violations as “international crimes”. Nor can there be any dispute that Seleka is the main perpetrator of such atrocities—that point has been made by a number of noble Lords, including the noble Baroness, Lady Kinnock of Holyhead, in the debate already.
It would be helpful to hear from the Minister what progress is being made by the international community to place sanctions on Seleka leaders and warlords, including the freezing of their financial assets. What steps are the Government taking to respond to the allegations of sexual violence and rape? Not long ago, I was fortunate enough to secure a debate on the prevention of sexual violence in conflict. The Foreign Secretary’s Prevention of Sexual Violence Initiative and its team of experts ought to provide an excellent instrument to assist future prosecutions by the International Criminal Court. This is immediately germane to the conflict to which we are all referring in this debate. Measures such as these would surely go some way towards curtailing the level of violence which we are witnessing today.
It is not surprising that the violence and insecurity that now plagues this country has hampered the delivery of humanitarian aid. As a result, local faith groups and a few national and international NGOs are the primary responders. The Catholic development agency, CAFOD, reported last month that the church is one of the few organisations at present responding to the crisis, by sheltering displaced people, delivering humanitarian aid and addressing religious tensions. Its efforts, however, have been hindered due to lack of funds and problems gaining access because of the violence. Could the Minister assure us that the UK will recognise and strengthen civil society and faith-based groups’ capacity for action, and ensure that they may play a strategic role in the process of reconciliation and reconstruction?
I thank the Minister—a near neighbour of mine in West Yorkshire—for all that she has been saying recently across the Atlantic about religious freedom and strategies for coherence across communities. Most importantly, perhaps, this will assist in the avoidance of sectarian conflict and of the use of religion for political purposes.
Finally, I merely note that it is a tragedy that a country with such abundant natural resources, already referred to by other noble Lords, should be one of the poorest in the world, and subject to such political unrest and economic instability. It is to be hoped that the UN peacekeeping effort will take steps to secure the country’s mining sites, so preventing the republic’s current crisis from spiralling into a wider resource conflict, fuelled by all those greedy for power and greedy for more money.
My Lords, I too welcome this short debate and congratulate the noble Baroness, Lady Berridge, on securing it. I must declare an interest as chairman, at least until this summer, of the international medical aid charity, Merlin, which has been active in the Central African Republic since 2007 and in Goma and the eastern Congo since some years before that. It is now working closely throughout the world with Save the Children. I visited Goma and the eastern Congo a few years ago and the sense of insecurity there was palpable. Nowhere else in the world have I had to climb over sleeping soldiers with machine guns to get to the check-in desk in an airport.
Thankfully, there has been an improvement since then. The M23 armed group has been defeated—militarily at least—by government forces. However, given the history of the region, it would be naive to think that sustained peace will now break out, and that human rights violations and suffering will now end. So I hope that the Government will continue to put pressure on the Government of the DRC and on surrounding countries, notably Rwanda, to persist with the peace process and to prevent human rights abuses. The Government have influence—bilaterally and multilaterally—through the European Union, through the United Nations and through the African Union, which is an imperfect but increasingly effective and important organisation, and through human rights organisations. I hope that the Minister will confirm that the Government will continue to use their influence to put pressure on those organisations.
We speak less often in this House about the Central African Republic. As the noble Baroness, Lady Berridge, has said, it is a desperate country. It suffers from chronic instability, with coups, followed by widespread violence, anarchy and displacement. It is in the bottom 10 on the Global Peace Index. One noble Lord said that life expectancy is 48; I have heard that it is nearly 50. There is a one in 10 chance of dying in infancy or childbirth. There must be few more despairing places in the world in which to be born.
Does the Central African Republic matter to us? It does not matter hugely, either politically or economically, though instability anywhere in the world is dangerous to us all. However, poverty and deprivation and hunger and the fear of disaster matter to the British people, wherever they occur. We saw that some years ago in Ethiopia, and we are seeing it now with the response to the typhoon in the Philippines. So it is right that DfID should have a programme in the Central African Republic, and it is right that it should be to fund NGOs, such as Merlin and others, who can make a real difference to the lives of people who have very little hope and very little help. It is right, too, that aid should be offered with the flexibility that recognises that a hospital one day can be an empty shell the next, with the doctors, the patients and the nurses dispersed or working in the most primitive conditions but still needing the outside help that NGOs can provide. I commend DfID for the help that it is giving the Central African Republic at the moment.
Before I end, perhaps I may make some slightly broader points, and one or two which, I know, go slightly beyond the subject of tonight’s debate. First, we are debating some of the poorest and most conflict-prone countries in Africa. However, that is less and less typical of the continent as a whole. There are many examples of political stability and economic progress in Africa: South Africa, Nigeria—almost, anyway—Zambia, Ghana and others. We need to recognise that Africa is changing to respond to humanitarian disasters and conflicts when they occur but also to encourage economic growth in other countries.
Secondly, I want to stress the role that Britain has to play, as I have said, in the Great Lakes, in the Central African Republic and in other zones of conflict, zones of humanitarian disaster and zones of human rights abuse. This is, in the jargon, soft power at work. However, what matters here is our engagement and involvement where we can make a difference. Many noble Lords have spoken tonight about making a difference in the Great Lakes and about making a difference in the Central African Republic, and we can. Going a little more widely, as I said this afternoon in this House, in my view it was right for the Prime Minister to go to Sri Lanka and to highlight the human rights abuses there.
In my view, it would have been right, too, to send a representative to President Rouhani’s inauguration in Iran. It would be right now to reopen an embassy in Tehran rather than duck the difficult issues that the world faces or stay away from them. It would be better by far to engage with and confront the world’s problems, however difficult, and to use our still considerable influence, working bilaterally and through the international organisations to which we belong, to help to solve them in the Great Lakes region, in the Central African Republic or elsewhere.