House of Lords
Wednesday, 20 November 2013.
Prayers—read by the Lord Bishop of Birmingham.
Prisons: Prisoners with Children
To ask Her Majesty’s Government what plans they have to record whether or not an individual remanded in custody, or sentenced to prison, has any children.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I declare an interest as a vice-president of Barnardo’s.
My Lords, our reforms to transform rehabilitation to bring down reoffending rates will see the introduction of an unprecedented through-the-gate service. Under these plans, we are developing a basic custody screening tool that will be completed by prison staff for all sentenced offenders and remand prisoners. As part of that process, we will record whether an offender has any children.
My Lords, Barnardo’s and other leading children’s charities have found that children of prisoners are a very vulnerable group. They are twice as likely to experience depression, mental health problems and drug and alcohol abuse, and to live in poor accommodation. Many go on to offend and yet these children are unlikely to be offered any targeted support. Barnardo’s found that the courts keep no record of them and that there are no requirements to identify them to children’s services. Will the Government create a statutory duty for courts to identify defendants who have dependent children and agree that, by collecting those data, they will be better placed to detect vulnerable children with a parent in prison and ensure that they get the support they need from children’s services?
My Lords, I am not sure that I can give the guarantee of a statutory function for the courts but our reforms for probation will mean that the important function of advising the court prior to sentencing —which will outline the offender’s personal circumstances, including dependants—will remain with public sector probation services. Our reforms to transform rehabilitation will also introduce through-the-gate services for those given custodial sentences.
I appreciate the point that my noble friend makes; it is a worrying factor that many of the young people who come into the criminal justice system are themselves children of offenders. We should certainly be looking at ways to break that circle and trying to make sure that these children are helped away from a life of crime.
My Lords, in replying to a debate on this matter on 12 November, the Minister offered a meeting and I certainly look forward to that. I have since read his remarks from that day. When an elderly or disabled person’s carer is sent to prison, the cared-for person often suffers the most as, in many cases, the courts do not even know that they exist. Although I accept that there is the safety net of pre-sentence reports in certain circumstances, when bail is denied there is no pre-sentence report and the court may not know that there is a cared-for person around at all. The consequence is that the cared-for person becomes an unintended victim. How are we going to stop that?
My Lords, I appreciate very much the point that the noble Lord is making, and I look forward to meeting him and the Prison Advice and Care Trust. In some ways, it is amazing that we are in the 13th or 14th year of the 21st century and that we find these gaps in our care provisions. I often think that it is not that the state does not care but that we are not yet good enough at connecting bits of the state so that people do not fall through the net. As part of the exercise of bringing forward this basic custody screening tool, I hope that by bringing in the expertise of organisations such as PACT we will be able to make sure that people do not slip through the net in the way that the noble Lord suggests.
My Lords, perhaps I may press the Minister a little further. When a court is aware of a child whose parent is imprisoned and that child is in a vulnerable state, will he ensure that the court refers the child to the proper care of the local authority or a charity in the region where that child is living?
I go back to what I would expect to be common sense in these areas. Courts already have a duty, in every case, to take account of any mitigating factors, including that the offender has primary care responsibilities for children or other dependants. However, it is important that the presence of such dependants is brought to the attention of the court. Again, I can only emphasise that the direction of travel we are going in is to try to make sure that the prison and court authorities are aware of their responsibilities and that they link up with the supporting organisations needed in these cases.
Are the Government formally evaluating novel schemes, such as that at Doncaster prison, which aim to maintain the bonding between a parent and a child—particularly a new-born baby? The parent’s reoffending rate is lower, bonding takes place and the parental duty is learnt while the person is in prison, rather than it being destroyed during their incarceration.
Yes, my Lords, we are following the Doncaster experiment. Last month, I announced a new approach to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families, which is important not only for new-born babies but throughout childhood.
My Lords, 17,000 children a year are affected by their mothers’ imprisonment. Given that the Government plan to close two women’s prisons, which means that there will be only 12 women’s prisons in England and Wales and which will lead to much longer journeys for those visiting their mothers and, often, to catastrophic breaks in the relationship between mother and child, will the Minister confirm that the mother and baby unit at Holloway prison is not subject to closure?
I am not aware that there is any plan to do that but, if there is, I will write to the noble Baroness. However, such decisions are taken for operational reasons in the region. I have visited the Holloway unit and I know that it is valued because while it is not the most modern prison, it is close to people’s homes. The noble Baroness says that we are closing two women’s prisons, but the major complaint about those prisons which we plan to close is that they are a long way from anywhere, never mind not being close to home. We are developing the custodial estate so that women will be in the prison closest to their home. We have found from all the research that that is the factor which women in prison want. With that, coupled with the rehabilitation reforms and through-the-gate care for women, we hope to be able to address a number of the problems that the noble Baroness is concerned about.
Sentencing Council: Guidelines
To ask Her Majesty’s Government what sentencing guidelines are issued by the Sentencing Council to advise judges on the choice of the imposition of either consecutive or concurrent sentences on persons guilty of multiple offences.
My Lords, the Sentencing Council issued the Offences Taken into Consideration and Totality guidelines in June 2012. They state that a concurrent sentence would be appropriate where,
“offences arise out of the same incident or facts”,
“there is a series of offences of the same … kind”.
A consecutive sentence would be appropriate where,
“offences arise out of unrelated facts”,
or where the offence,
“qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum”.
I thank the Minister for his reply, but does he not agree that perception is everything? The Sentencing Council admits that:
“Concurrent sentences are sometimes thought to mean that an offender is getting away with some offences”.
Why, indeed, should an offender convicted of, say, causing death by dangerous driving, driving while disqualified and driving while uninsured not serve separate consecutive sentences for each offence, so that justice can be seen to be done? Is the Minister aware that justice is not served when the system seems to operate like a supermarket: “Commit one crime and get another one free”?
My Lords, I appreciate that sometimes the way in which sentences are reported can cause that reaction—but the courts are required to impose a sentence that reflects all the offending behaviour in every case, for both single and multiple offences. With concurrent sentences, the guidelines make it clear that the courts should normally aggravate the primary sentence to reflect the additional offences. These guidelines are about ensuring that the courts apply those principles consistently.
My Lords, how frequently, if at all, has such guidance been given since the inception of the present rules? If so, in what circumstances has that arisen?
My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,
“it would be contrary to the interests of justice to do so”.
What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.
My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?
Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.
To ask Her Majesty’s Government which Minister first authorised GCHQ’s Project Tempora; when that happened; and why they did not disclose the existence of Project Tempora to the Joint Committee on the Draft Communications Data Bill.
My Lords, I hope that your Lordships will understand that it would not be appropriate to discuss the specifics here. However, I can say that GCHQ and all other security and law enforcement agencies operate within a strict legal and policy framework, as set out by my right honourable friend the Foreign Secretary in the other place on 10 June.
I thank my noble friend for the Answer that she was required to give. In a democracy, wholesale untargeted state intrusion into the private lives of all the people, such as Project Tempora, is unacceptable unless it has the informed consent of the people via their Parliament. However, Parliament has not been informed and has not given its consent to Tempora; nor has the Cabinet, the National Security Council or even, it seems, the ISC. Will the Government acknowledge that the much vaunted oversight of the security services has failed spectacularly, as underlined last week by the feeble public performance of the ISC? When will the Government at last join the global debate about limiting state surveillance of its innocent citizens?
The noble Lord makes an important point but I assure him that secret does not mean unaccountable. We have a system where any intrusion of the sort to which he refers has to be necessary, proportionate and carefully targeted. We have a number of oversight mechanisms, including political and judicial, the commissioners and of course Parliament through the Intelligence and Security Committee.
My Lords, when Malcolm Rifkind was recently interviewed on television, he seemed to suggest that the ISC, which he chairs, knew of Tempora but not by that name. If it did, would one not have expected it to have perhaps recommended a tightening up and clarification of the law?
I hope that the noble Lord will appreciate that these are not matters into which I can go in any detail at the Dispatch Box. I cannot go into any detail of what the Intelligence and Security Committee was or was not aware of. It would be inappropriate for me to comment on how the noble Lord interpreted the comments made by my right honourable friend Malcolm Rifkind. I hope that the House appreciates that I am incredibly frank and robust when I appear at this Dispatch Box. In fact, probably much to the annoyance of my officials, I go beyond what is normally in the brief, but this is not one of those occasions on which I can comment on these matters.
My Lords, my noble friend mentioned how important accountability is but there is a very unfortunate issue here: Menwith Hill is Little America, albeit that it is in the north of England. Ever since 1994, Parliament has been asking for, but never receiving, any information about what goes on at Menwith Hill. I appreciate that there have been several visits by the ISC, although I gather that they were very uninformative. How can my noble friend imagine that that situation will become more accountable when that place is accountable only to the United States Government?
I go back to what I said at the outset. Accountability in relation to these sensitive matters takes a number of different formats. We have laws in this country which are completely compliant with the Human Rights Act and which set out the parameters and the remit of the intelligence services. Some of the highest politicians in this land—the Foreign Secretary and the Home Secretary—have to sign off on each and every warrant presented before them. We have parliamentary accountability in the form of the Intelligence and Security Committee. Again, it would be inappropriate for me to comment on what its views were after its visits. We also have the tribunal, where individual cases can be presented.
My Lords, will the Minister confirm that GCHQ was candid to the Joint Committee on the Draft Communications Data Bill about the unclassified aspects of what it can and cannot do in collecting communications metadata, and candid with the Intelligence and Security Committee about the classified aspects of it?
The noble Lord makes an important point. The Intelligence and Security Committee conducted a thorough review of the Draft Communications Data Bill. This was done at the same time as a review by the Joint Committee. It is right that it is the role of the Intelligence and Security Committee, rather than other parliamentary committees, to look at sensitive information.
My Lords, of course the Minister cannot go into details on these very sensitive matters. We all accept that. However, for the life of me, I do not see why she cannot answer a straightforward Question about which Minister authorised the project and why the existence of the project was not disclosed to the Joint Committee on the Draft Communications Data Bill. These are not sensitive issues. They are pure matters of fact, surely capable of being answered.
It is interesting that the noble Lord interprets it in that way but I think he would also accept that it would be inappropriate for me to comment on intelligence matters, which includes any comments on the project.
Will the Minister take back what is troubling so many of us, which is that there has not been an acknowledgment yet by the Government of the need for a major discussion about the way we exercise oversight? It is not just the issue of accountability; it is also because of the almost terrifying fact that something like 60,000 files were available to some 800,000 people. This is supposed to be secret, even top secret. It is a nonsense and dangerous from that point of view, as well as the accountability. Please can she tell her colleagues in government that we need a full discussion on the accountability and the way we are doing it, because at the moment it is not working.
I assure the noble Lord that these discussions are taking place, although not necessarily in the format he would like. Indeed, only this morning I had a round table with a number of NGOs and human rights activists who work in the area of freedom of expression on the internet and how that overplays with these kinds of allegations. These conversations are ongoing, and part of the appearance of the three intelligence chiefs at the Intelligence and Security Committee meeting was to do with that. I think the noble Lord would also accept that this is about perception —that leaks and the kind of information we have seen create a sense in the mind of the public that something is not quite right. It is wrong therefore for us to in any way play up to that by starting to comment on individual intelligence matters.
My Lords, the Regulation of Investigatory Powers Act is plainly inadequate to deal with the situation caused by the advances in interception technology. Does the Minister accept that there is now an urgent need for full and proper post-legislative scrutiny of RIPA?
I probably should just refer the noble Lord to the 2012 annual report of the Interception of Communications Commissioner, which was published on 18 July this year. In it he said that RIPA had weathered well and the system of oversight it laid down has been, he believes, effective.
My Lords, does the Minister accept that we all agree that GCHQ and the intelligence and security services do very important work to protect us from many threats but that effective democratic oversight is absolutely vital? With no disrespect to my noble friend Lord Lothian—I call him my noble friend—or indeed the noble Lord, Lord Butler, recent events have shown that the Intelligence and Security Committee, as currently constituted, is not really effective. Can the Minister give us some assurance that, in the new structure of the Intelligence and Security Committee that we are considering, we will have a robust membership accountable to both Houses of Parliament?
The noble Lord will be aware that the role of the Intelligence and Security Committee has been up for discussion. I will ensure that his views are fed into that.
Gibraltar and Spain
To ask Her Majesty’s Government what is their response to the European Commission’s monitoring report on cross-border traffic between Gibraltar and Spain.
My Lords, I am afraid that you have the McNally and Warsi show today.
We welcome the fact that the Commission has put Spain on notice and has made recommendations to the Spanish Government to improve the functioning of the border, which, if implemented, will reduce delays. We have published the Commission’s letter to the UK and Gibraltar and we encourage Spain to do likewise. Chief Minister Picardo has welcomed this and has confirmed that Gibraltar will act on the Commission’s recommendations.
My Lords, I am grateful to the Minister for her reply and to the Prime Minister for his strong support for the Gibraltarians. Will the Minister accept that, having visited Gibraltar at the invitation of the Gibraltar Government this month, and as a former governor, I can confirm without any doubt that border delays by Spanish authorities in the past few months have been not only disproportionate but a deliberate abuse of human rights and freedom of movement on a scale that would be totally unacceptable in any other part of the European Union and in which local Spaniards as well as Gibraltarians are suffering?
Will the Minister also accept that an average of five Spanish incursions a day into British-Gibraltar territorial waters could at any moment lead to a serious incident? Therefore, will the Government now demonstrate by deeds and not just words that we will exercise our responsibilities to Gibraltarians against this Franco-ist style intimidation by taking appropriate legal action now, by ensuring the Commission’s recommendations on broader traffic are implemented speedily by Spain, and by giving the new governor and commander-in-chief adequate resources to uphold British sovereignty?
I thank the noble Lord for that further question. Of course, he comes to these matters with great expertise and experience from his involvement with Gibraltar. We are not surprised at the Commission’s conclusions in relation to border issues there. Of course, the border operated more smoothly than normal when the Commission was visiting. But I agree with the noble Lord that there are huge challenges and there continue to be huge delays at the border. We remain confident that Spain has acted, and continues to act, unlawfully.
I hear what the noble Lord says about action, but although all our options are on the table, we feel at this stage that it is best to pursue this matter through diplomatic means. It was for that reason that, after a further lengthy incursion, the ambassador was summoned to the Foreign and Commonwealth Office yesterday where we made our views clear to him.
My Lords, does my noble friend agree that the fact that the date and time of the European Commission’s visit to Gibraltar was advertised in advance means that it was not exactly the sort of spot check that could have revealed some of the worst practices that were carried out during the summer months and which affected the people of Gibraltar, Spanish workers and tourists alike? Have the Government queried that method of procedure with the Commission?
My noble friend makes an important point. That is why I said that we were not surprised that when the Commission visited things were much better than normal. It was not just a question of delays and inconvenience; it was concerning in terms of delays to ambulances, for example. It was therefore a real threat to individuals’ lives.
We are heartened to hear that the Commission intends to return. It may well be that a return without a lot of notice may be the right way forward.
My Lords, it is good to be reminded that Britain played a significant part some years ago in helping to secure for Spain membership of both NATO and the European Community. When that was taking place, I was able, with the assistance of my opposite Spanish number, Fernando Moran, to secure a foundational solution to the long-existing Gibraltar dispute. There was a signature on agreement for the reopening of Spain’s land border with the colony, which had been closed as long ago as 1969 by General Franco.
Those agreements laid the way for a proper solution of the sovereignty of the colony. At that time, Anglo-Spanish relations were greatly enhanced by that understanding. By 1988, each of the two monarchs was able to make a state visit to each other’s country, and Margaret Thatcher herself paid a successful visit to Madrid. With all of that sensible conduct of removing the historic obstacle, is it not now time for the Spaniards to be reminded of their undertaking?
My noble and learned friend makes an incredibly important point. He is right—there have been long periods of good co-operation and real progress on this issue. Indeed, until 2011 the trilateral process—the forum for dialogue between the UK and Spain, with Gibraltar as an equal partner—worked incredibly well. It is sad that, after the election of the Spanish Government in December 2011, Spain withdrew from that process. We have offered ad hoc talks as a way of moving this matter forward but eventually we would like to see a return to that trilateral process.
My Lords, the events of the last couple of weeks—the fishing boat incursions, the border restrictions and the events yesterday with the Spanish naval vessels—demand of all sides of the House that we are very clear that the rights to their choice about nationality rest with the people of Gibraltar. That should be said, and said clearly.
I wonder if there is a view in the Government about whether the EU—of which, after all, both we and Spain are members—could help create some mutual modus operandi which would be beneficial to Gibraltarians while recognising their rights to their own nationality as they seek it. These diplomatic efforts need a place of focus. We can surely provide it.
I hear what the noble Lord says. We have made this offer of ad hoc talks, which we think is probably the first stage where these discussions could take place. We are not entirely convinced that for some of the areas where the EU feels that it has competences where Gibraltar is concerned, it does indeed have those competences. As I said earlier, it would be right to return to the trilateral process where Gibraltar was an equal party to those discussions.
With the leave of the House, I will repeat a Statement made in the other place today by my honourable friend the Minister of State for Business, Innovation and Skills.
“Across this House, since the great recession of 2008, concern has been repeatedly raised about access to finance, particularly for the smallest companies. The contraction in support for small and medium-sized business lending following the financial crisis led to a sharp drop in the growth of lending to and support for small businesses to finance growth.
All Members will recognise the story of the constraints facing aspiring entrepreneurs when it comes to accessing finance. These problems were a consequence of an overreliance on bank finance compared to international competitors, a hollowing out of business lending units in the big banks, too much concentration in our banking system, followed by the biggest banking bust ever faced in this country and the biggest bank failure in the world in 2008.
A calamity of this scale cannot be addressed by a single policy, so we have engaged since 2010 on a comprehensive programme of bank reform: splitting retail from investment banking; requiring greater capital; introducing a tax on leverage; introducing much stronger requirements to check that the people running banks are fit and proper persons, so we do not get the likes of Fred Goodwin and Reverend Flowers sitting atop our banks in the future; and we are introducing criminal charges for those who behave negligently in charge of big banks.
Those changes are part of a wider drive to change the culture of banking so that our banks serve the economy, rather than the other way around, but these reforms alone are not enough. To help companies access finance, we have introduced the first British business bank, have doubled the seed enterprise investment scheme and are expanding the enterprise finance guarantee schemes. Last year, we introduced start-up loans of up to £25,000 per founder, although more typically about £6,000, to help budding entrepreneurs access the seed capital to make their idea a reality.
Britain has for too long been a home of great ideas that are then commercialised and developed elsewhere. We want British business men and women to take brilliant British ideas and turn them into blossoming British businesses. The first start-up loan was made in September 2012, and from the start, growth exceeded expectations. More than a third of loans go to BME entrepreneurs, and more than a third to people previously unemployed.
In June this year, the Prime Minister announced that start-up loans would no longer be restricted to young people, so the age cap has been removed altogether. We are now seeing strong growth in the number of people over the age of 30 being helped to realise their full entrepreneurial potential with the mentoring and financial support of the programme. In August, we introduced specialised support to finance ex-military service personnel who want to start their own business within the start-up loans scheme.
I am pleased to announce that today we have made the 10,000th start-up loan. Mr Allen Martin, a Royal Navy engineer from Truro, is the 10,000th loan recipient of the programme. Allen joined the Royal Navy in 1991 as an engineer and mechanic. Working with helicopters, search and rescue, and commando forces, he served for 22 years in Bosnia, Kosovo, Iraq and Afghanistan. Having been medically discharged, Allen knew that he wanted to start his own business, so he applied for a start-up loan and founded Eclipse Property Cornwall. It will manage properties on behalf of landlords, renting them out and offering part or full management. Allen Martin has benefited from both the extension of start-up loans to all ages and the specialised support for our ex-service personnel.
Given the success of this targeted approach within the full age range, we are now going even further. I can tell the House that we are committing a total of £151 million to the scheme this year and next, with a goal of backing 30,000 new businesses by 2015. From 1 January, the Start Up Loans Company will specifically target priority groups: entrepreneurs over 50, NEETs and new mothers ready to return to the workplace, seeking the ability to manage their own time and commitments on their own terms.
Age UK estimates that one in five of those over 50 now work for themselves—a growing trend that accounts for the fact that 70% of the businesses that they start will last more than five years, compared with 28% of those started by young entrepreneurs. With the added support of mentors who understand modern media and marketing, new retail platforms and communications channels, start-up loans can help bring even more of those in that age group success. That is why I am tasking them to find the specialist providers who will make start-up loans a perfect fit for the older entrepreneur.
For NEETs, I know that Members across the House have seen just how valuable and popular these loans are proving in tackling youth unemployment. Working with the new enterprise allowance, start-up loans will now give specialist support to those who have been away from the workplace for a long time, who need strong and committed mentors with an understanding of what it is to start from a very low base. The Prince’s Trust has already demonstrated just how effective this approach can be, and much more can be done to create a targeted offer that creates the right conditions for those businesses to survive and thrive within the safe environment of start-up loans.
Finally, new mothers are also turning increasingly to self-employment. According to Mumpreneurs UK, self-employment for women is rising at three times the rate for men. So far, 37% of start-up loans have gone to women, and we want to do more to increase this. We will introduce specialised support for mothers seeking to start their businesses, juggling childcare and seeking flexible ways to turn business ideas into reality.
With a record business creation of 400,000 new businesses each year, record jobs, and a record 4.9 million companies in the UK, Britain is once again becoming an entrepreneurial beacon of the world. Our future prosperity rests on the entrepreneurial aspirations of the British people. This Government will not rest in our drive to support those who want to work hard and get on”.
My Lords, I commend the Statement to the House.
My Lords, I thank the Minister for repeating the Statement made in the other place. I would also like to place on record the thanks of the House for the work that has been done by James Caan and the Start Up Loans Company to support people in setting up their businesses. It would be good also to record our congratulations to Allen Martin, the 10,000th recipient of start-up loans. Mr Allen is one of the first ex-servicemen to benefit from the Start Up Loans Company and we wish him well with his new venture.
Small businesses are the lifeblood of our economy. The £50 million that has been lent to 10,000 new entrepreneurs is an important token of that enterprise spirit that we know runs deep in this country. However, as we examine the performance of start-up loans in the context of the broader picture for the economy and small businesses, and the support available to start up, we agree with Mr Caan that there is still much work to be done. A key lesson from the start-up loans programme in so far as we have the results is that access to finance schemes is only as good as the infrastructure that supports them, and relies on a wider system of business support, mentoring and signposting. This is the very fabric of support now lacking in so many parts of our country in the absence of Business Link, after the abolition of the RDAs and with the deliberate impoverishing of local government, which had a good record on this issue under the previous Government.
This is borne out by the statistics that we are welcoming today. In every recession, there has been an increase in business start-ups. People faced with a flat job market and low demand for their skills will often look to create their own job by setting up a business. Desperation is not a bad motive for launching a firm, but does the Minister agree that where business support networks are strongest, as they are in London, it is noticeable that that is where there have been far and away the most loans to date? The statistics on the start-up loans scheme that the Government have released today suggest that some regions are missing out. Some 15% of the population live in London while 36% of the loans issued have been in London, and almost half in London and the south-east. Only 5% of the start-up loans have been issued in the north-east and 5% per cent in the south-west.
Can the Minister explain to your Lordships’ House why the scheme has not been delivered in a more consistent way across the country? What will he do to boost business support in the areas that are receiving the least of the start-up loans money? Will he comment on the fact that the successful Business Link scheme has not been replaced by anything meaningful to provide support not just for start-ups but for developing small firms around the country?
Is the Minister aware that James Caan is on record as saying that the support and mentoring available under the scheme was a more important part of the success of the programme than the loan itself? While providing finance to start-ups is important, mentoring also plays a crucial role in helping businesses get off the ground. Does the Minister share my concern that just 17% of those contacting the Government’s new mentoring portal did so in order to find a mentor? Can he do more in this area?
Start-up businesses need to have affordable premises. Given that many businesses now pay more in business rates than on their rent and that business rates have gone up by £1,500 on average in this Parliament, will the Minister say whether the Government will back Labour’s plans to cut and freeze business rates to help start-ups and save 1.5 million businesses across the country an average of £450? A cost that places burdens on new start-ups is rising energy costs. Under Labour’s energy price freeze, start-ups and other businesses will save over £5,000. Why do the Government refuse to take action to help reduce the crippling costs that start-up businesses face?
Alongside the start-up loans scheme, the Government announced the start-up spaces scheme to great fanfare almost two years ago. We were told then that over 300 government offices would be available for start-up businesses to use as premises, but to date just one has opened. Can the Minister explain why the scheme has not been delivered? Is it because the Government have not kept their promise to make the spaces available to start-ups? According to the statistics released by the Government today, almost two-thirds of start-up loans have gone to men. Given the failings that we have seen under this Government with the Aspire Fund that was set up to help women entrepreneurs and that made only five investments in 2011-12 compared to 127 in 2009-10, what steps are Ministers taking to ensure that there is more support available to women entrepreneurs?
Finally, providing help and support for start-ups is important, but thousands more small businesses across the country are struggling to get the finance that they need after the failure of the Government’s Project Merlin, credit easing and funding for lending schemes. According to the Bank of England, net funding to businesses has fallen by £14 billion in the past 12 months. While the £50 million that has been provided through the Start Up Loans scheme is welcome, it is but a drop in the ocean compared with the Government’s failure to get banks lending.
I failed to get an answer to the question I put to the Minister yesterday, so I encourage him to answer it now. It was about the British Business Bank, not RBS. My main point was that last week we learnt that the bank, announced in September 2012, had finally made its first investment of £45 million to two financial institutions: Praesidian Capital Europe and BMS Finance. I asked the Minister: when we will see funding flowing to the small and medium-sized businesses that need it, and when do the Government expect the British Business Bank to reach its target of £10 billion?
My Lords, the noble Lord asked about lending 37% or 40% to London and not throughout the whole region. A large number of SMEs are based down south and up north, but it is for the whole region. To address this issue, we started a marketing campaign at the beginning of this month to make people aware of the different schemes available under the guarantee scheme. LEPs are now playing an important role in the regions in helping SMEs and making them aware of the different schemes available.
With regard to the business rate, it is currently frozen until April 2014 and the noble Lord must wait for the Autumn Statement in two weeks’ time to hear what the Chancellor has to say about it. We accept that it is a major issue for a large number of SMEs. Energy costs are being looked into by the Government at the moment. The British Business Bank has started. It consolidates a number of schemes within the Government. It will play a major role in lending new money. So far within those schemes we have private sector money and government money to the tune of £2.4 billion. The Government have injected a further £1 billion to do more lending to SMEs. The British Business Bank will play a vital role in helping SMEs and making businesses aware of the different schemes available within the Government. I hope I have covered all the questions asked by the noble Lord. If I have not, I will be very happy to write to him.
My Lords, I remind the House of the benefit of short questions to the Minister in order that he can answer as many as possible.
My Lords, the shortfall in business investment is the biggest problem facing the economic recovery. I welcome this announcement of increased support for small business loans but recognise that it is one of many channels required to stimulate investment in small business. I have three questions. Are the Government sure that enough is being done to mentor, support and help networking for business people to take full advantage of these schemes and are they doing their best to make these schemes as simple as possible? Are technical and further education colleges being made the focus for small business development and for courses on how these loans can be used and how specific small businesses can take advantage of them? As well as technical and further education colleges, universities should be involved in this as well. Are the banks, particularly the state-regulated banks, being pressurised to redevelop their local and regional systems and get back to their historic original role of helping local businesses?
My Lords, on business investment, I am pleased to say that there is a return of consumer and business confidence in the economy. Bank lending to businesses is going up. In fact we had a large increase in gross domestic lending to businesses in the past 12 months, a lot more than we had in the early part of 2012. Although net lending has dropped compared with the peak of 2008, it has just started to increase, so there is some business confidence and that will help business investment, which will help our growth. As I mentioned yesterday, our growth forecast has gone up from 0.6% to 1.4%, which is good news. With regard to bank lending, we have a large number of schemes. Once again, we are marketing very strongly awareness of these schemes, which will enable a number of businesses to borrow money and grow further.
My Lords, I speak as someone who started a business with exactly the same sum of money as Mr Martin raised so I am aware of the great difficulty in raising money for start-ups. To have a scheme such as this, which facilitates a new business, is really encouraging. I understand that 30 new businesses a day are being created by this scheme. Does my noble friend agree that not only is this wonderful for new businesses but the success of the business growth fund means that, as these businesses flourish, it is not just relief from debt and loans but equity injection which are being provided to enable these businesses to flourish and succeed?
My Lords, it is pleasure to answer my noble friend’s question. He brings with him a wealth of experience both in business and in corporate finance. The business growth fund is a welcome initiative, with five or six clearing banks putting together some £2.5 billion to lend money to new and growing businesses. I imagine that it will do a very good job for special and medium-sized businesses, which can borrow money on the basis of venture capital. Therefore, we welcome the initiative. The good news is that not a penny of taxpayers’ money is involved in the growth fund.
My Lords, perhaps I may bring the Minister back to the third point made by the noble Lord, Lord Stoneham. Is it not the case that, the way that banks have been operating in recent years, the pendulum has swung from golf course lending to computer program lending and there is no balance between the two? Surely there has to be a regional and more local focus to understand the persons and the nature of the business for which funding is being sought. Is it not the case that the standard approach of banks of using the same computer system, whichever bank you go to, has to be broken up? The banks should focus more on localised issues, including pension funds such as local government officers’ superannuation funds. They should be encouraged to use locally collected money to benefit local business.
The noble Lord makes a very important point. When I ran an SME I had easy access to my branch manager. To borrow money was not that difficult and the turnaround of applications was very quick. I agree with the noble Lord that we need to focus at regional as well as at local level. What is now happening is that a large number of clearing banks have a central office which does underwriting through computers. I am sure that servicing the customer at a local level will become more important. The good news is that we have brought competition into the banking world. Aldermore, Metro Bank and Cambridge & Counties all have branch managers, so a large number of SMEs can deal directly with the branch manager rather than having an application going to the central level. With the demand for money and banks hungry to lend more, I am sure that, given time, banks will surely set up a branch manager network. That was a successful model in the 1970s and 1980s.
My Lords, I congratulate the Government on the start-up loans scheme. It is an excellent initiative and I am delighted that the Minister, a fellow entrepreneur himself, is answering these questions from personal knowledge. I started a business from scratch. I know how difficult it was to raise those first few thousand pounds. To get my first overdraft of £7,500 was amazing. I see that the sums involve an average of £6,000. The average start-up loan is up to £25,000. I hope that the Government will increase that figure because the bigger it is, the better the start-up. I notice that the Prince’s Trust is one of the delivery partners. Can the Minister confirm what the effect of this scheme has been on the Prince’s Trust, which has done excellent work in this area over the years? Is it actually giving out more money as a result of start-up funds in the scheme or less? Secondly, what are the Government doing to help the people who get these loans go on to get the further funding that they need? This is only the start. The Government’s small firms loan guarantee scheme is excellent. How many of these start-up loan recipients have gone on to government-guaranteed schemes, which are absolutely essential? Finally, are the Government encouraging this group of entrepreneurs to network in the future, creating environments and events that these people can attend so that they become a community and the Government can identify the high-growth companies which will be creating the jobs that will power this economy ahead?
My Lords, we will remove the age limit. The limit on lending is £25,000 for a period of five years, at a 6% interest rate. We will look at this over a period of time once we have looked at the success of the scheme. The scheme is proving to be successful. There are a few examples, which I have in my folder here, of people who have traded very successfully, done well and gone to the clearing banks to borrow more money to make sure that their businesses grow. The people who participate in the Prince’s Trust are actively encouraged and are quite often mentored free of charge to help them set up their own businesses.
My Lords, the noble Lord expressed a hope that banks may be persuaded to return to their former glory, when they operated at local level and were very much available for local businesses. Will he tell us what the Government intend to do to make that a reality? The reality is that in many areas the banks have loads of money to shell out. I recently purchased a new kitchen. At the end of the exercise, after having decided how much I was going to spend, I was asked, “But aren’t you going to take the interest-free loan?”. I had no intention of taking the interest-free loan for 12 months, but it was offered to me, so I took it. Therefore, Barclays has stumped up all the cash, which has immediately gone to the German manufacturer that produced the kitchen. There had been no question at all about any difficulty in paying. Interest-free loans are being offered all over the place. Perhaps we should have a look at what is happening with interest-free loans, where the money that comes through interest-free loans goes, who the beneficiaries are, and why the banks are not lending it to our SMEs and to our real start-up people, who we need.
My Lords, it is not under the Government’s control to insist that banks have branch networks or branch managers at branches throughout the country. However, given time, with competition being put in place, this will happen—they will have no choice. If they really want to lend money and understand the local business and local businessmen, they will have to have a local branch network. On interest-free loans, I do not have information in my briefing but I will be very happy to write to the noble Lord on where that money comes from and how someone is able to give interest-free loans. Perhaps the people who sold those goods to the noble Lord are offering the loan themselves from the profit they made from the goods that were sold. However, I will certainly write to the noble Lord.
My Lords, I applaud these steps that are being taken to encourage new businesses. I hope that some of them might go into making kitchens so that the noble Lord opposite might be able to buy British in the future. However, other noble Lords have remarked that it is important that companies should have access to advice as well as to money. Does the Minister agree that the Government inherited so many different advice schemes that the forest is impenetrable and that no entrepreneur has time to wade through it? Surely the sensible thing to do is what I believe the Minister is doing, which is first of all to simplify the advice schemes that are available.
I thank the noble Baroness for her question. Yes, we inherited a large number of different schemes and advice schemes from the previous Government. We have looked at them and have come up with new ones as well. However, these schemes are all being consolidated under the new British Business Bank. I hope that it will be able to deliver good advice to its customers.
My Lords, does the Minister agree that while loans are quite a good way to start a business, what you really need is some equity? With all the money borrowed it is hard work starting a business, and very few of us do that. This is an area where I know he agrees with me. Would he like to describe what steps we are taking to encourage equity investment in some of these small start-up businesses? We used to have something called 3i, which was a very potent and useful source for small businesses, and there are various government schemes. However, they have more or less lost themselves. When we both sat on the committee on small businesses and exporting we discovered that we are unique in Europe in that so many of our small businesses—indeed, businesses of any size—are financed by bank lending. Businesses in most other countries are financed much more largely by equity investment. Can the Minister describe what, if anything, is being done to encourage this?
My Lords, equity finance becomes very attractive and desirable to a large number of medium-sized businesses, but equally to small businesses that want to grow. We have a number of government schemes on equity finance but we also have a new set-up called equity growth funding run by HSBC and four other clearing banks. That is really helping. In fact, they had their first case up north under that scheme. That £2.5 billion available to lend on an equity basis will make a huge difference to a number of SMEs, but we have government- backed schemes as well on equity finance.
Anti-social Behaviour, Crime and Policing Bill
Committee (3rd Day)
Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.
That the House do again resolve itself into a Committee on the Bill.
My Lords, may I raise a point about the further consideration of the Bill today? At 6.03 pm yesterday, we received quite a lengthy letter from the Minister with amendments that I am told are to be debated today. Is it appropriate to receive amendments at such late notice for debate the following day?
My Lords, as with the Opposition, we have also seen all the amendments and have been working through them. They have been tabled and agreed for debate; that is the programme that is scheduled for today. I know that the noble Baroness appreciates the challenges of the number of amendments we have on this Bill, and we wish to make progress.
I am sorry. I understand the need to make progress. The Minister will know from the amendments we have tabled and our contributions to this debate that we agree with him in seeking to make progress. I am, however, questioning whether it is right to table amendments and notify some Members of your Lordships’ House—not all—at 6.03 pm for debate on the following day. That seems completely inappropriate. As we are speaking, I am trying to go through all the amendments to ensure that we have a response and can fully consider them. This House prides itself on scrutiny, but this does not leave us the opportunity to scrutinise adequately these amendments tabled by the Government.
Again, I say to the noble Baroness that anyone who has been in the previous days of this Committee would not doubt for a moment that the House has been very careful in its scrutiny of the Bill. That is reflected in where we currently are in the progress of the Bill. As I said, these amendments have been tabled and we, as the Government, have looked at them. We look forward to the debate and the scrutiny that will take place of them.
Clause 12: Power to exclude person from home in cases of violence or risk of harm
21D: Clause 12, page 7, line 5, at end insert “, and
(c) the respondent is aged 18 or over”
My Lords, I will also speak to Amendment 21G. The first of these amendments takes us to Clause 12, which is the clause giving power to exclude a person from his home in the case of violence or the risk of harm. This power can be included in an IPNA—in the injunction—if two conditions are fulfilled. The first is that the anti-social behaviour giving rise to the application for the IPNA amounts to violence or the threat of violence and the second is that there is a significant risk of harm from the respondent. My first amendment provides for a third condition, namely that the respondent is aged 18 or over. It seems to me a very severe sanction to exclude anyone from his home. I accept that this power is to be in response to a “significant risk” or behaviour, but if it is so significant as to justify such an action, are there not other courses of action that might be open to be taken? It is not required by the statute to link any of these provisions with a course of treatment or rehabilitation, as one would hope to see in many cases, and particularly that of young people.
The Bill is quite properly focused on the victim; we see that not just in the drafting of the Bill but on almost every page of the draft guidance, with which your Lordships have been provided. But I suggest to the Government that while excluding somebody from his home may mean the immediate protection of the victim, the longer-term protection must be rooted in addressing the victim’s long-term behaviour. Of course, excluding somebody from his home does not mean that he will not meet the victim somewhere else. So I am particularly concerned about this in the case of young people. I wonder, too, what the local authority response would be. Would it have obligations if a person under 18 found himself suddenly homeless?
In the Commons, the Minister referred to the guidance, making it clear that,
“the exclusion power will be used only rarely, but that the court will pay special attention to whether it is proportionate”.—[Official Report, Commons, 14/10/13; col. 543.]
That applied especially to the respondent’s Article 8 rights. It is one thing to issue guidance to local authorities—and I do not, of course, speak for the judiciary—but it is another matter to issue guidance to the courts. I have very considerable doubts as to whether it is right as a response to an IPNA, in the absence of something else justifying this, to allow this at all. I am hoping that there must be some explanation as to whether this cannot be done through any other relevant measure.
Amendment 21G is also about under-18s. I accept that suggesting that there may not be an injunction unless the police have talked to the respondent and his parents or guardian to discuss the behaviour and the respondent has been given an,
“opportunity to enter into an agreement as to future good behaviour”,
sounds a bit “Dixon of Dock Green”—perhaps a bit “Evening, all”. But it comes not from that but from provisions in the Republic of Ireland, which have been drawn to my attention—and from a concern previously expressed by the Home Affairs Select Committee in the Commons, whose report recommended that the legislation should not permit IPNAs to be used against young people unless supportive and informal interventions have failed. I can hear the Minister saying “guidance” to that.
In the Republic of Ireland, there is similar legislation but the courts are permitted to impose a behaviour order, which is their version of the IPNA and ASBO, against children aged 12 to 18 only after a senior police officer has held a meeting with the child and the parents or guardian, and when the child has been warned about behaviour and given the opportunity to sign a good behaviour contract—and, of course, to abide by it. I understand that in the past five years in Ireland the authorities have issued more than 2,000 behaviour warnings and 15 good behaviour contracts but only three behaviour orders to those under 18. I suggest that that is a successful way in which to go about the matter. I beg to move.
My Lords, I thank my noble friend Lady Hamwee for these amendments, which give me an opportunity to explain more fully how those responsible for young people and young offenders can work together. In Amendment 21D, my noble friend is right to highlight the impact that something like exclusion from the family home could have on a young person. It is worth reiterating here that the power to exclude is available only when a much higher test of violence or significant harm to others is met. As such, it is a power that is rarely used in the context of the current anti-social behaviour injunction and we expect that it will rarely be used with the new injunction. This is especially true with young people. There are a number of examples where young adults have been excluded from a family home because of the reign of terror they have created. However, I sympathise with the point my noble friend raises and I would like to consider it further, without commitment, ahead of Report. In doing so, I would want to consult with front-line professionals on this point.
Clearly, if the provision remained as it is and the court were to decide to exclude someone under the age of 18 from the family home, it would also have to consider what additional support, such as accommodation, would be necessary to make it possible. There would also be a duty on local authorities to consider what support they are obliged to offer to the young person in such circumstances. However, there may be situations where, for the benefit of victims, alternative accommodation —with other family members for instance—could be in both the young person’s interest and that of the community. I should add that there may be cases where a 17 year-old respondent lives alone and where exclusion may be an appropriate response to his or her threatening behaviour.
The local youth offending teams will also have a role in the process of applying for an injunction against a young person and will provide a balanced and considered input early on, so I am not persuaded that simply preventing exclusion in all cases where the respondent is under 18 is necessarily the right answer. That said, if my noble friend is content to withdraw this amendment, I will return to the subject on Report after further consideration.
Amendment 21G seeks to put in the Bill a requirement for agencies to use informal approaches against under-18s before resorting to more formal measures to stop or prevent their anti-social behaviour. Early and informal approaches can be successful in stopping anti-social behaviour committed by the majority of perpetrators, including young people. I agree that when dealing with young people, informal interventions should be considered first in most cases as they can help stop bad behaviour before it escalates. Our draft guidance reminds professionals of the importance of considering informal measures in the first instance. Informal approaches could include acceptable behaviour contracts or, as they are sometimes called, acceptable behaviour agreements. These contracts can be an effective way of dealing with anti-social individuals, especially where there are a number of problem behaviours. They can also be very effective at dealing with young people early, to nip problem behaviour in the bud before it becomes more serious.
However, more formal measures must be available in the minority of cases where informal interventions are not appropriate. I am reluctant to restrict professionals in the way the amendment suggests because they need to have the flexibility to respond in all situations. There are, however, safeguards to ensure that injunctions are used appropriately. Before an application against an under-18 is made, the applicant must consult with the local youth offending team. This will ensure that the youth offending team is involved at the earliest stage in the process. They can give their expert views on whether an informal intervention would be more effective in dealing with the anti-social behaviour, rather than the more formal power in the form of an injunction.
In addition, before an application for an IPNA against those aged under 18 is made to the court, the applicant must,
“inform any other body or individual that the applicant thinks appropriate of the application”.
We would of course expect this to include the young person’s parents or guardians. As I have said, we would expect that in most cases professionals will look to informal measures first, but these provisions act as a safeguard to ensure that they do not automatically move to seeking an injunction, and that the youth offending team is involved in finding a solution to the young person’s behaviour.
I hope that I have explained how the Bill will ensure that the needs of a young person will be assessed when agencies are considering applying for an IPNA against that young person. I hope, too, that my noble friend understands why I do not think it would be necessary to put provision for good behaviour warnings in the Bill. I hope that she will withdraw her amendment on the understanding that I will consider the matters she raised.
Perhaps I may briefly take the Minister back to Amendment 21D. He made a number of points to explain how in practice this measure will be dealt with in the case of people under the age of 18. I was looking at the draft guidance as he was speaking and some of the points that he made do not appear there. Certainly, the point is made that the power of exclusion would not be used often, as is the point about the high threshold and so on. However, for example, the Minister mentioned the function of the youth offending team but that is not mentioned at pages 25 and 26 in this chapter of the guidance. I can see a value in the continuing duty of the youth offending team when dealing with young people who are excluded from their home, but it would be helpful if that were to be put in the draft guidance. Will the Minister undertake to look at the guidance as well as the drafting of the Bill when dealing with the point that the noble Baroness raised?
We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.
My Lords, we, too, will look at the guidance in the light of the debates. I say that as a promise rather than a threat—and I hope it is interpreted in that way.
My first amendment—as are so many amendments at this stage—is to some extent probing. I thought that the Minister made my case rather better than I did. I am glad that he will be consulting. I would not expect him to move forward on this without talking to the front-line professionals. I make just one comment on what he said: accommodation with other family members is unlikely to be available unless it was there without the need for an order. I am just thinking about the way that family dynamics work. As regards both amendments but particularly the second, I, too, will look at the guidance again and hope to provide some useful input to ensure that what the Minister describes as a longstop is a very long longstop. I beg leave to withdraw the amendment.
Amendment 21D withdrawn.
Clause 12 agreed.
Clause 13: Tenancy injunctions: exclusion and power of arrest
21E: Clause 13, page 7, line 16, at end insert “or with any other person”
My Lords, we have tabled amendments 21E and 21F to seek to clarify the effect of changes made to Clause 12 on Report in the House of Commons. As I understand it, the effect of those changes is that the ability to exclude a person who is the subject of an injunction under Clause 1 from the place where he or she normally lives in cases of violence or risk of harm can now apply across all tenures, including owner-occupiers, and not just the social housing sector, as I think was originally proposed. Will the Minister confirm whether that is now the case?
If Clause 12 now applies across all tenures equally, what powers are now given under Clause 13 that apply only to someone with a tenancy agreement but do not apply to someone normally living in owner-occupied property who is also the subject of an injunction under Clause 1? One would have assumed that all tenures were now being treated equally but I take it that Clause 13, by its very wording, does not apply to a person in owner -occupied property. If there is still a difference in the powers available under Clauses 12 and 13, depending on the form of tenure, will the Minster say what those differences are and why they are necessary? Will he also say whether Clause 13 applies to the private rented housing sector or to just the social housing sector? Presumably the private rented housing sector is now covered by the changes made to Clause 12, so if a private sector housing tenant is not covered by Clause 13, in which ways does it mean that someone in social housing accommodation is being treated differently from someone who is a private sector housing tenant and who is also the subject of an injunction under Clause 1?
Amendment 21F would give local authorities extra flexibility in tackling anti-social behaviour in the private rented housing sector when private landlords refuse or are unwilling to act. It would be helpful to have the Minister’s comments.
Finally, under Clause 12, the injunction may exclude the respondent from the place where he or she normally lives. Under Clause 13, the tenancy injunction may include a provision prohibiting the person against whom it is granted from entering or being in any premises or any area specified in the injunction. What is the reason for the difference in wording apparently based on form of tenure?
My Lords, I totally understand the noble Lord’s concern that anti-social behaviour powers in this Bill should be, as far as possible, tenure-neutral. He is quite correct that this came up during the debate in the other place and Clause 12, which provides for exclusion, is now tenure-neutral following amendments made on Report in the Commons. Of course, it is of no consequence to the victims of such behaviour that the perpetrator is a tenant of social housing, in the private rented sector, or is indeed an owner-occupier. What matters is that action can be taken.
Clause 13 makes special provision for tenancy injunctions so as to preserve the powers in housing legislation. For the most part, the housing injunction can be used in the same way as an injunction to prevent nuisance and annoyance. However, it makes the express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person and this constitutes a breach of the tenancy agreement. Such behaviour could be committed by a visitor or lodger, for example. Front-line professionals have demonstrated through discussions held that they value this power and that is why we have retained it.
I assure the noble Lord that we are satisfied that Part 1 already enables the police, a housing provider or a local authority to apply for an IPNA to prevent a person allowing, inciting or encouraging someone else to engage in anti-social behaviour. It can be used in this way not only against tenants in the social and private rental sectors, which are the sectors that these amendments are concerned with, but against owner-occupiers. Given that, we do not need to extend the tenancy injunction provisions to cover a wider category of persons, as these amendments seek to do.
I also assure the noble Lord that Clause 13 applies to anyone who has a tenancy agreement with a local authority or a social landlord, so it does not cover the private rental sector.
Based on the assurances that I have given in terms of the extension and the provisions that were discussed in the other place, I hope that the noble Lord is content to withdraw his amendment.
I am still not entirely clear what the position is in the light of what the noble Lord has said. As I understood it, he seemed to be at some pains to say that the content of Clause 13 is also covered by Clause 12 because the police, or somebody making the application, would have the powers to make that application in respect of somebody in the private rented sector, or presumably even an owner-occupier, who was,
“allowing, inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”.
I think that that is what the noble Lord was seeking to tell me. That wording appears in Clause 13 in relation to tenancy injunctions but it does not appear in Clause 12, although the Minister is seeking to say that that is what Clause 12 actually means. Therefore, if owner-occupiers and the private rented sector are covered by Clause 12, why do we need Clause 13 to put in different wording for a tenancy injunction when the noble Lord is apparently seeking to say that that is already covered in Clause 12?
In my contribution, I drew attention to Clause 13(3), which says:
“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,
so it clearly covers premises other than where the person normally lives, but the subsection goes on to say that it could also apply to,
“any area specified in the injunction”.
Do the terms of Clause 13(3) apply also to owner-occupiers and the private rented housing sector or are we treating differently people in the social housing sector who may have one of these injunctions and who it is proposed should be excluded? Are the people concerned in the three different types of tenure all being treated equally or is there something different in this for the tenant of social housing accommodation? If there is no difference and it is all covered by Clause 12, why do we need a separate Clause 13?
I repeat that as far as the first clause is concerned, the intention is to be tenure-neutral. As I said, we have considered the discussions that took place on Report in the House of Commons and have made appropriate amendments. I also repeat that the specific purpose of a tenancy injunction is to capture behaviour where a tenant has breached, or it is anticipated that they will breach, their tenancy agreement by engaging, or threatening to engage, in anti-social behaviour. We have tried to cover all elements in both clauses. As I have said before, it does not matter to the victim whether the perpetrator is a tenant of social housing or in the private rented sector. What matters is that action can be taken, and Clause 12 covers that.
With great respect to the Minister, I do not think that he has explained why Clause 13 is necessary. He keeps saying that Clause 12 is tenure neutral. If it is tenure-neutral, it covers social housing tenants as well as those in the private rented sector and owner-occupiers. Therefore, why do we need Clause 13? He refers to Clause 13 relating to anti-social behaviour, but Clause 12(1)(b)(i) also refers to anti-social behaviour. It also refers, in subsection (1)(b)(ii), to,
“a significant risk of harm to other persons from the respondent”.
The Minister has not addressed another question that I asked. Clause 12 refers to,
“excluding the respondent from the place where he or she normally lives”,
but in Clause 13, which covers tenancy injunctions, a prohibition can apply to,
“any premises specified in the injunction (including the premises where the person normally lives)”.
I therefore repeat that the provision envisages that the scope can extend beyond the premises where the person lives. There is also a phrase about preventing a person,
“from entering or being in … any area specified in the injunction”.
Is the Minister saying that the terms of Clause 13(3) are also included in Clause 12? He cannot have it both ways. He cannot say that Clause 12 covers all forms of tenure and then say that he still needs Clause 13.
I can only repeat what I have already said: Clause 13 makes special provision for tenancy injunctions so as to preserve specific powers in housing legislation. In this case, it also makes an express provision for a tenancy injunction to be made in some circumstances where the tenant allows, incites or encourages anti-social behaviour by another person. This constitutes a breach of their tenancy agreement. As I said earlier, such behaviour could be committed by a visitor or a lodger. The reason for Clause 13 is that front-line professionals value this power. That is why we seek to retain it.
Why is it not equally important that the provision about,
“inciting or encouraging any other person to engage or threaten to engage in anti-social behaviour”
should apply to the private rented housing sector, and to owner-occupiers? Is the Minister saying that only somebody in social housing might incite or encourage others to engage or threaten to engage in anti-social behaviour, and that that would not apply to the private rented sector or to owner-occupiers? Of course it applies there, too. This is not tenure neutral. If it were, Clause 13 would not be needed.
My Lords, either I am failing to comprehend totally what the noble Lord is saying, or vice versa. I am listening very carefully to what he is saying, but, rather than repeating myself, I think it would be in the best interests of making progress if I wrote to him about this. I hope that he has been reassured by some of what I have said, and by the commitments and assurances given by the Government. On that basis, I again ask him to withdraw his amendment.
Obviously, I accept that the Minister will, without any commitment, have another look at this and write to me—which presumably will require him to reflect on everything that has been said before his reply is signed and sent. On that basis I will withdraw the amendment. However, I put to him again this simple question: if he is arguing that Clause 12 is tenure neutral, why does he need Clause 13? I beg leave to withdraw the amendment.
Amendment 21E withdrawn.
Amendment 21F not moved.
Clause 13 agreed.
Clause 14: Requirements to consult etc
Amendment 21G not moved.
Amendment 21GA had been withdrawn from the Marshalled List.
21H: Clause 14, page 8, line 8, at end insert—
“( ) Within a year of this section coming into force, the Secretary of State shall review the length of time taken by consultations under this section with local youth offending teams.”
We acknowledge that there was broad support for the requirement that the youth offending team be consulted before an injunction under Clause 1 is sought against somebody under 18. However, there appears to be no timescale for the consultation with youth offending teams, and as a result there could be—not necessarily will be—delay. For that reason, the time taken for consultation with local youth offending teams should be reviewed. That is the purpose of the amendment. Surely we need to keep an eye on how long the process is taking and to check on whether there are hold-ups when the legislation comes into force.
I appreciate that the Government’s view is that the necessary consultation with the relevant youth offending team will take place with a proper sense of urgency and should not be unduly delayed by protracted consultations. A clear commitment to a review would further strengthen that position and make clear the need to carry out such consultation expeditiously. That is what those who may be victims certainly wish. In the light of the statement in the draft guidelines that the consultation requirement does not mean that the youth offending team could veto the application, will the Minister say what would constitute consultation being completed? Does the person applying for an injunction have to have received a response from the youth offending team for consultations which have been completed? If the response is that the youth offending team is not in favour of the injunction, would discussions have to continue before the terms of Clause 14(1)(a) had been met?
Would a failure by the youth offending team to respond at all within a certain timescale mean that consultation could have been deemed to have taken place? If so, what would the Minister consider a reasonable minimum period for a response? Would a failure to respond by a youth offending team within a certain time be grounds for an application without notice under Clause 5? Could the youth offending team oppose an application for an injunction under Section 1 for someone under the age of 18 in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?
My Lords, I have Amendment 21J in this group. Consultation can mean a lot of things and sometimes mean different things to different people, depending on what they want it to mean. I have pretty much given up tabling amendments which add, to “consult”, “and have regard to the outcome of the consultation”, having been told quite frequently that of course that must be implicit. However, I have met times when the consulter has not recognised that.
We heard from the Minister on my previous amendments that local authority social services have a role when someone under the age of 18 is involved as the respondent or potential respondent to an IPNA. My amendment would insert a reference to,
“the local authority for the area where the respondent resides”,
meaning of course the social services part of the local authority. I am seeking consultation, without trying to define it, of the local authority as well as of the youth offending team.
My Lords, I thank the noble Lord and my noble friend for their amendments. This group again relates to the balance that needs to be struck in ensuring that the appropriate consultation takes place, but relates specifically to cases involving young people under the age of 18.
Amendment 21H is concerned with the duty on applicants for injunctions under Part 1 to consult with the local youth offending teams in the case of under-18s. Crucially, that consultation must take place before the application is made to the court. That is an important change to the process where young people are concerned. Therefore, youth offending teams will help to ensure that the prohibitions in the order are appropriate and understood by the young person, and that any positive requirements are tailored to meet his or her needs. As we all recognise, as do I from my time in local government, youth offending teams are an important and established part of the youth justice system. They are well used to working with young people in these sorts of circumstances.
The noble Lord raised the issue of consultation. This would be an ongoing process and I would expect the consultation with the youth offending team to take place swiftly for the benefit both of the victims and of the communities that require protection. One of our primary objectives in reforming the response to anti-social behaviour is to speed up that response and I would not expect this consultation requirement to prevent that.
I share the sentiments of the noble Lord. Like him, I want to ensure that this legislation is effective. As was the case under the previous Administration, it is standard practice to undertake post-legislative scrutiny—as he is well aware—three to five years after Royal Assent. It is of course open to us to undertake a review sooner should there be a case for doing so, and I expect the Government to be held to account in the House through the usual parliamentary channels. Based on this, I am therefore not persuaded that there is a case for a statutory duty to undertake a review of this requirement, as in the amendment.
Amendment 21J, tabled by my noble friend Lady Hamwee, seeks to add a further consultation requirement to ensure that the local authority is consulted in each case where a young person finds themselves the subject of injunction proceedings. It is, of course, open to the applicant to inform the local authority. In the case of someone under 18, it is highly likely that they would. However, there may also be occasions where this is not necessary and it is certainly not the Government’s intention to tie the hands of the police or social landlords in these cases. As such, I believe that this kind of duty is better served by guidance. As my noble friend Lord Taylor has already said in response to earlier amendments —and as I have said previously in Committee—in light of the debates in your Lordships’ House we are going to review the guidance that will be issued.
As I have said, we are trying to make the new powers as streamlined as possible and that is why we have included a general duty to inform relevant agencies, rather than prescribing consultation. The requirement to consult the youth offending team on applications against young people is the only exception. We believe that this recognises the particular and vital role that local youth offending teams play, and we want to ensure that they are fully involved at an early stage in the process. While it may be appropriate to inform other agencies, we recognise that sometimes there is an urgent need to act to stop anti-social behaviour and to protect victims.
In closing, I return to the issue of consultation. The statute book contains many duties to consult and we leave it to the good sense of the police and other bodies to consult youth offending teams. Of course, anyone who has experience of youth offending teams will expect them to respond in a timely manner. I hope, in the light of the explanations and assurances that I have given, both the noble Lord, Lord Rosser, and my noble friend will be content not to press their amendments.
My Lords, is my noble friend aware of whether the Local Government Association has been consulted—sorry to use the term again—on this provision? It seems to me that the Government should have been talking to it about whether it would want a statutory role. I take his point about occasional urgency but it is always open to a local authority to say, “This is urgent. You had better get on with it”, or, at the other end of the spectrum, to say, “We have no comment”. If he is not aware of what talks underlay the provision as we see it now, perhaps he could let me know after today’s sitting.
In direct response to that, I can say that representatives from the LGA and other organisations have attended meetings with my noble friend with regard to this Bill. I again reassure her that, as the guidelines are reviewed, I am sure that the LGA will be making representations and will be part of that process.
I certainly will withdraw my amendment but can the Minister respond to two of the questions I asked? Can the youth offending team oppose an application for an injunction under Section 1 for someone aged under 18 and can it oppose it in court? Will the court hearing an application for an injunction under Section 1 have to be told the outcome of the consultation with the youth offending team and the view of the youth offending team?
The youth offending team cannot actually veto an application. If it objects to a particular application, we expect further dialogue to take place on what it has submitted, but that does not mean that the process should be dragged out unnecessarily.
I accept that the team cannot veto it, but my question was: if it does not agree with it, can it oppose it in court? When the thing goes to court, will it be necessary for the court to be told of the outcome of the consultation of the youth offending team and the view of the youth offending team?
This is a specific issue. As I said, I would expect that the court would consider all consultations that had taken place and advice that had been received in considering this element. Certainly, the intention in providing for these orders would be that the youth offending team had a central role. It would also be represented in court. If there were an occasion where the team felt strongly enough, yes, the short answer is that it would be represented at the court hearing if it thought that its issues were not being considered in the right way.
I thank the Minister for his response to the question and I beg leave to withdraw the amendment.
Amendment 21H withdrawn.
Amendment 21J not moved
Amendments 21JA and 21JB had been withdrawn from the Marshalled List.
Clause 14 agreed.
Clauses 15 and 16 agreed.
Clause 17: Children and young persons: disapplication of reporting restrictions
21K: Clause 17, page 9, line 28, at end insert “against a respondent who is aged 16 or over at the date of commencement of the proceedings”
My Lords, my amendment is grouped with the debate on Clause 17 stand part and Amendment 22DA in the name of the noble Lord, Lord Ramsbotham. Within the past few minutes, he has sent me a note asking me to apologise to the Committee. Like many of us, his anticipation of what would happen, and when, was rather thrown. He said that he had an impossible diary today with long-agreed speaking engagements outside the House. However, in case the Minister thinks that that lets him off the hook from attack from that quarter, the noble Lord has primed the noble Earl, Lord Listowel, to speak on his behalf on his later amendments. The noble Lord said that he would not dream of considering voting before Report anyway, although I think one might add “ … ” to that.
My amendment is to Clause 17. I have not sought to delete the clause from the Bill because I wonder whether it might be possible to discuss a compromise. I am aware that this is a delicate issue on which there has already been quite a lot of focus. The clause provides that Section 49 of the Children and Young Persons Act 1933—it has a long pedigree—is not to apply to proceedings on IPNAs. That section restricts reporting of proceedings in which children and young persons are concerned. That provision restricting reporting also has an exception within it. Is that exception not sufficient for the Government's purposes? The exception is that if the court is satisfied that it is in the public interest to do so, it may dispense to any specified extent with the requirements of the section. Is that not sufficient? That is Section 49(4)(a). Section 49(5) provides that the court can similarly dispense with the requirements of the provision if it is appropriate to do so for the purposes of avoiding injustice to the child or young person.
We have talked on a number of occasions about one purpose of the ASBI being to avoid criminalising young people, whom we hope to divert from a criminal career—not to consolidate a criminal career. Given the way in which reporting would be likely to happen, this provision would criminalise the young person and have a very unfortunate long-term impact. “Naming and shaming” is not a term I like to use—it means stigmatising and putting a negative label on the young person. There must be a very high risk of perpetuating the problems which an IPNA should be looking to nip in the bud.
We have also talked about positive re-engagement and rehabilitation. I question whether not imposing reporting restrictions would be a deterrent. Is there any evidence that it might be? There are also, of course, safeguarding concerns. This had not occurred to me, but I am told that professionals consider that there is a risk that children who are identified as having been involved in anti-social behaviour may engage in risk-taking behaviour or be more susceptible to being groomed. This is very much in our mind at the moment.
In all, it seems to me that the risks, quite apart from the concerns that have been voiced by the Joint Committee on Human Rights and the Local Government Association, are too big. Perhaps the Minister can tell the Committee what lies behind this; what evidence the Government have that this is the right way to go; what assessments have been made to evaluate safeguarding risks, and whether the Government have kept in mind the impact on a child’s rehabilitation. I beg to move.
I add just a short point to what the noble Baroness has said. When one looks at the draft guidance at page 26, one can see what the Government are thinking of here. The point is made that making the public aware of the perpetrator and the terms of the order can be an important part of the process in tackling anti-social behaviour. One can follow the thinking behind that proposition. When one reads on, however, one sees that there will be circumstances in which either the police or the council may decide not to publicise the fact that an IPNA has been made. It seems to me that the power—or the discretion, perhaps one should say—to decide whether or not publicity should be given is being taken away from the court and given to the police or the council. Will the Minister explain why that is being done, bearing in mind the point that the noble Baroness has made about the discretion which exists within Section 49?
It is a very big thing to take away from the court the power to restrict publicity, bearing in mind the reach of the whole of Part 1, which is what we are concerned with, including Clause 5, which permits an application for an injunction to be made without notice being given to the respondent. The court would have no power to stop the press if they happened to be there reporting what had taken place. It would be a very serious matter to go as far as the clause goes without a full explanation why exercise of discretion is being taken away from the court and being given to the police or the council, who are not answerable to the court for what they do.
My Lords, I speak from personal experience of dealing with the previous regime under ASBOs. There was a tendency among some local authorities to publicise how many ASBOs they had been granted by publishing a rogues gallery of photographs of people against whom ASBOs had been granted. This was done for political purposes, not to pursue the ends of justice. Some young people thought that having an ASBO against them—or, in this case, an IPNA—was a badge of honour that they could show off to their mates. They were young people with a juvenile attitude. It almost encouraged them to breach the ASBO because their picture had been publicised and they had local notoriety. There is a danger that this provision could make what was a very unhelpful situation under the previous regime even worse.
My Lords, I endorse that and remind the House that when ASBOs were first considered under previous legislation, that worry was aired at some length in this Chamber. Things could go either way. Either you could have it as a badge of honour or it could be a mark that affected a young person or child’s life considerably. Either way, publicity had little to offer that was positive or helpful.
My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.
The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.
It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.
I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.
As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.
My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.
There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.
Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.
However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.
It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.
My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.
I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:
“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”
Those are wise words indeed, but will the Minister confirm that my noble friend Lord Bassam was speaking about anti-social behaviour in terms of harassment, distress and alarm, and not an IPNA, which is to cause nuisance and annoyance?
The noble Baroness will know that an IPNA can be applied also in cases where there may have been harassment, alarm and distress, so although nuisance and annoyance is the test for an IPNA, it is not the absolute or exclusive text.
This clause would apply to those who have committed a breach of an IPNA by causing nuisance and annoyance. Would that be correct?
The noble Baroness is quite right, but what we are seeking to do is to enable the IPNA-based process—at the discretion of the court, which I must emphasise to noble Lords, and in conjunction with the advice of the youth offending team—to determine whether this is the best way of dealing with this young person.
I hope that my noble friend will stick hard to this, because one of the issues that most affected one in a very long life as a constituency Member of Parliament was the number of people whose lives had been made absolutely intolerable by activities of this kind. It is important that we stick to this in the way in which he has proposed.
I thank my noble friend for those encouraging words. I feel that we are right on this issue and I suspect that all noble Lords will know that, with discretion on this matter resting with the courts, there will be proper evaluation of the issues before any decision is made. I would expect any court to take full account of the nature of the behaviour before deciding whether to impose such a condition. I might add that the Home Affairs Select Committee considered this point during the pre-legislative scrutiny of the draft Anti-social Behaviour, Crime and Policing Bill. In its report on the draft Bill, the HASC said,
“we are happy to leave the decision not to name a young person to the discretion of the judge”.
We agree that this is appropriately a matter for judicial discretion for all respondents under 18, whether older or younger than 16.
For these reasons, I am confident that the reporting of under-18s will be carefully considered and used only in circumstances where it is necessary. I hope that I have been able to put this particular issue into context and that my noble friend will withdraw her amendment.
I come back briefly to the point about discretion. Of course it is right that the court will have discretion as to whether to grant an injunction. In the case of an application made without notice, the clause is perfectly clear; it gives wide discretion to the court as to what to do. My concern is that if the court decides to make an order, where is its discretion if you remove the provision in Section 49 to restrict the publicity that is given to it? It is that element of discretion that I think concerns the noble Lord, Lord Ramsbotham, and the noble Baroness. There are two discretions here. One is certainly there, very properly, in the way that the whole of Part 1 is drafted as to whether orders are to be made. It is the particular point about the discretion as to whether publicity should be given that is of concern.
My attention is drawn by my noble and learned friend Lord Walker to paragraph 123 of the Explanatory Notes, which indicates that, even though you are getting rid of Section 49, you are left with the discretion under Section 39 of the same Act. Paragraph 123 states:
“However, section 39 of that Act does apply to these proceeding and gives the court the discretion to restrict the publication of certain information in order to protect the identity of the child or young person, for example: his or her name; address; school, etc”.
Therefore, with great respect to the Minister, his answer lies in Section 39.
I am most grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am sorry if I struggled to get the place name right but I am delighted that he mentioned this point because I just received a note saying that Section 39 of the 1933 Act gives the court the discretion to impose reporting restrictions.
My Lords, I, too, was a little confused when the Minister referred earlier to Section 39, which the noble and learned Lord just mentioned. This will require some reading. The point, of course, is entirely right. It is how the court has discretion as regards publicity. I do not at all challenge the point on the injunction. I am very grateful to the noble and learned Lord, Lord Hope, for reminding the Committee that our courts are essentially public; that is where the concern comes from.
The Minister talked about the status quo. That confused me, because I thought that I was arguing for the status quo. He said that the status quo was good, but he challenged my amendment. I cannot see how we will not return to this on Report. However, I beg leave to withdraw the amendment.
Amendment 21K withdrawn.
Clause 17 agreed.
Clauses 18 to 20 agreed.
22: After Clause 20, insert the following new Clause—
“Part 1ALittering from vehiclesCivil penalty for littering from vehicles
(1) A littering contravention in relation to a vehicle occurs when a person inside the vehicle acts in contravention of section 87 of the Environmental Protection Act 1990 (offence of leaving litter).
(2) A civil enforcement officer may impose a civil penalty if a littering contravention under subsection (1) has taken place.
(3) The registered keeper of the vehicle shall for the purposes of section 87 of the Environmental Protection Act 1990 be treated as knowingly causing the littering contravention whether or not he gave any instructions for this to be done and shall be the recipient for a civil penalty under subsection (2).
(4) A civil penalty is not payable under this section by the owner of a vehicle if that vehicle is—
(a) a public service vehicle, within the meaning of the Public Passenger Vehicles Act 1981;(b) a hackney carriage licensed under the Town Police Clauses Act 1847 or the Metropolitan Public Carriage Act 1869;(c) a vehicle licensed under section 48 of the Local Government (Miscellaneous Provisions) Act 1976 (licensing of private hire vehicles);and the person acting in contravention under this section is a passenger in that vehicle.(5) The amount of a civil penalty under subsection (2) is to be specified in regulations.
(6) The procedure for imposing a civil penalty on a person and for recovery of costs is to be set out in regulations.
(7) The regulations must, in particular, require the responsible authority to give the person written notice specifying—
(a) the amount of the penalty, (b) the reasons for imposing it, and(c) the date by which and manner in which it is to be paid.(8) Regulations may—
(a) give a person on whom a civil penalty is imposed a right to appeal against the decision to an adjudicator;(b) specify the grounds on which a person may request an appeal;(c) specify the time within which a person must request an appeal;(d) make provision for and in connection with the appointment of adjudicators;(e) make further provision about appeals (including provision as to the powers available on an appeal).(9) The registered keeper of the vehicle for the purposes of this section shall be taken to be the person in whose name the vehicle was registered under the Vehicle Excise and Registration Act 1994 at the time of the contravention.
(10) A civil enforcement officer under this section must be—
(a) an individual employed by the responsible authority, or(b) where the authority has made arrangements with any person for the purposes of this section, an individual employed by that person to act as a civil enforcement officer.(11) A vehicle for the purposes of this section is a motor vehicle as defined in section 185(1) of the Road Traffic Act 1988.”
My Lords, in proposing the new clause in Amendment 22 to provide a new civil penalty for littering from vehicles I seek to insert part of my Private Member’s Bill, which was extraordinarily enthusiastically endorsed by the House, excluding the Minister from Defra, at Second Reading on 19 July. Eight speakers from all sides of the House were good enough to come in on that summer Friday to support it. Since then I have received two placebo letters from Ministers, one from my noble friend Lord De Mauley and the other from my noble friend Lord Taylor. In a sense, they both said the same thing. They both say—this is more or less a quotation—that the Government share my frustration with the problems of roadside litter. I suggest that Governments are not elected to share the frustration of electors. They are elected in the hope that they will deal with the cause of the frustration. We want action rather than words, and I am offering a rather simple form of action to help them.
I wish to replace the criminal offence of littering from vehicles, which does not work, with a civil offence, which would work. The criminal offence does not work because it is necessary to prove who threw the litter from the vehicle. My civil offence would make responsible the keeper of the vehicle from which litter is thrown. It would impose a small fine, which he or she could pass on to whichever person in the vehicle threw the litter, in exactly the same way as if somebody borrows my car and parks it where they should not I get the parking fine. That is not a criminal offence, and it is the right way to do it.
My noble friend Lord De Mauley, in his letter to me dated 16 September, rather surprisingly suggested that:
“Such an approach clearly raises questions of proportionality and civil liberties”.
I would have thought that it did the reverse. He goes on to say:
“Littering is an unnecessary and antisocial behaviour … Littering from vehicles, particularly moving vehicles, is a dangerous form of littering”.
He gets quite excited, because he goes on to say:
“The maximum fine which can be imposed on an individual convicted for littering is £2,500, which is clearly large enough to have an immediate effect on the financial situation of many individuals. Moreover, criminal convictions can result in higher insurance premiums or, in some cases, refusal of insurance. Unspent criminal convictions, including those for littering, also of course show up on any criminal record check carried out by a prospective employer, and must also be declared when applying for visas for travel to certain countries”.
That is a bit of a sledgehammer; I believe that my rather modest little proposal would be effective. The point about the sledgehammer is that not only is it not actually used, but it really is virtually impossible to use it. I hope that the Government, after this long period that we have waited—we have been discussing this for some while—could take some action.
My noble friend Lord Taylor wrote a very nice letter to me, in which he says:
“I recognise that it can be difficult for local authority enforcement officers to identify the offender when littering takes place from a vehicle, but providing for a civil penalty to be issued to the registered keeper … would … risk sending a message to the public that littering from vehicles is less serious compared to other littering”.
Yes, of course it is less serious. My noble friend Lord Goschen is about to introduce an amendment about the much more serious matter of fly-tipping. There is no comparison.
All these things are a matter of degree. We are fortunate in having several noble and learned former Law Lords in the House; I hesitate to say anything about the law because one knows nothing about it compared to everybody else here, but surely, proportionality and all that is very important. That is why I am hoping that the Government will recognise that something should be done about this problem.
Recently, my honourable friend Mr Dan Rogerson was given a new responsibility for the waste portfolio in the Government. He wrote to the waste sector saying that the Government was going to focus on,
“the essentials that only Government can and must do”.
He is putting forward,
“a limited programme of work on waste prevention, focusing our attention on the areas where action is clearly for Government”.
That fits in rather well with what I am proposing.
Since I have taken an interest in these matters, I have been on the close look-out when I have travelled. Certainly, in three countries in Europe this summer, in Arizona in the USA and last week in Hong Kong, I was very struck by how astonishingly clean they all were compared to Britain. It is really rather shocking that not only are we the way we are, but the Government are not enthusiastically supporting the measure I am suggesting or—which I would be perfectly happy with—proposing something better. I hope it will happen. I beg to move.
My Lords, I support my noble friend Lord Marlesford’s amendment, which largely reflects a Private Member’s Bill that the House discussed a while ago. It seems an eminently sensible measure and I look forward to a similarly positive and supportive reply from the Minister. My Amendment 22AA, which is grouped with that of my noble friend, deals with a different issue at the other end of the waste scale: it is to do with fly-tipping.
Fly-tipping is the deliberate, planned commission of a criminal act by the illegal dumping of waste. This is a crime which blights rural areas, including the one in which I live; if I therefore have an interest, I am more than happy to declare it. The scale of the situation is scarcely credible. In 2012-13, according to statistics produced by Defra, there were 711,000 incidents, or crimes, at approximately 2,000 per day. I do not believe—and perhaps my noble friends can correct me if I am wrong—that that includes fly-tipping on private land, and private farmland in particular, which is an increasing phenomenon. That is a great deal of criminal activity but, in the same statistics pamphlet that the department has produced, there is an equally startling statistic. In the same period, only 2,200 prosecutions were undertaken. Another way of looking at it is that only crimes committed approximately on the equivalent of one day per year were brought before the courts. The odds are nowhere near sufficient to deter either the one-off or the serial offender.
There are two clearly related issues to tackle. The first is about investigation and prosecution, and the second is about the severity of the penalties. On the former, police and local authorities must be encouraged to investigate properly and not to take the easy way out, which is all too often to say that these people must be caught in the act. We realise that that is highly unlikely. But this is a crime that uses vehicles—the ultimate traceable tool—and which typically leaves behind a good deal of evidence. I would appreciate to hear from the Minister what efforts are being made to improve the detection rate, which is lamentably lame on this crime.
In their report Government Review of Waste Policy in England 2011, the Government stated that they would,
“introduce stronger powers to seize vehicles suspected of involvement in waste crime”.
My Amendment 22AA does exactly that. I would like to support the Government and stiffen their resolution to introduce and, as importantly, to deploy this measure. Could the Minister update the House as to where the Government have got to in their deliberations in bringing forward their own orders? I am only a humble amateur politician, if one can call oneself that in this House. The Government may already have brought forward these regulations, or may be about to do so—or they may want to use my amendment to save them a bit of parliamentary trouble. I am not proud, and I am not concerned how it is done, but I am concerned that it is done.
If these criminals faced the serious prospect of losing their vehicle for committing this offence, it is my contention that we could drastically reduce the prevalence of this extraordinarily common crime. The Government have done a lot of good work in this area, and there has been a welcome reduction in some areas of the commission of this offence. Local authorities tend to react very quickly to clear away the waste, provided that it is not on private land, in which case it is not their responsibility. The police and other bodies, in particular the Environment Agency, are very supportive. The National Fly-tipping Prevention Group has played an important role in the co-ordination of responses. But now we need a more vigorous response, and we look forward to the Government taking the lead on this issue.
My Lords, I support my noble friend Lord Marlesford on his amendment, but I wish also to make a small criticism of it—that it is lacking in focus. While it deals with the issues of litter very effectively, it does not go far enough in addressing the issues of offensive behaviour in cars and other moving vehicles, which is increasingly prevalent among young people.
I cite the example of recent Saturdays, when we have had the rugby at Twickenham. I have made endless attempts to convince my wife that rugby is a respectable pastime and not the equivalent of being found in bed with a supermodel on a Saturday afternoon, as she has often thought—although, given the way in which England have played recently, it is a good alternative. However, I persuaded my wife to come to Twickenham with me on each of the last three Saturdays and she was totally horrified at the sight of the school buses coming down the road full of children indulging in a pastime which is, I believe, called mooning. I am not going to explain it to your Lordships because we are in mixed company, but the sight of some 40 children mooning simultaneously is not a pretty one. My wife is a youth justice officer and as she watched the police motorbikes zooming past these kids, giving them a friendly wave, she said: “We have a law against this sort of thing. Why are they not being brought into court? I would put them away for a year if I got them.”
There is an omission in the amendment tabled by my noble friend in that it does not deal adequately with the bad behaviour that can come out of vehicles and interfere with others. That was one example, but there was another this week of which your Lordships should be aware. In its wisdom, the Times—I am sorry that the noble Lord, Lord Finkelstein, is not here to take down this message—is pursuing, to a ludicrous degree, the cause of cyclists to the point where they are creating a new and separate society in London, in which cyclists think they have a superior law and control over everybody in a motor car. This is going to lead to some catastrophic accidents very soon. On three mornings, driving up the A3 in the Balham and Clapham area, I have seen cyclists put their cycles up against the central reservation—not the line where the bus lane is—stand in the middle of the road with a camera and defy you to run them down while they photograph you doing it. That is what they are longing for. We need to have that sort of behaviour excluded because it is going to lead to their demise and our prosecution: it is ridiculous. I support the amendment, but it needs to go a little further.
My Lords, one step at a time. I am going to let my noble friend’s suggested change to the amendment pass by for the time being. However, I have a great deal of sympathy for both these amendments. I will concentrate on my noble friend Lord Marlesford’s amendment. I have now moved from my home in a national park, but I have always been horrified by the casual way that, in one of the most beautiful valleys in the countryside, people throw drink containers out of the windows of their cars as if that was a normal and natural thing to do. I am almost equally horrified—frustrated, indeed—by the attitude described by my noble friend as coming from Defra. I am not entirely surprised that it comes from officials: I am horrified that it has come in the form of letters from my noble friends who I have always regarded as thoroughly practical, sensible and wise people. I hope that my noble friend Lord Taylor will show that I am right in that respect when he responds to this debate.
The condition of our roadsides is really appalling. It is a very long time since I served in Lady Thatcher’s Government, but I well remember her returning from an overseas trip and expressing horror and consternation at the state of the road from Heathrow to London given the litter that was there, compared to the roadsides she had observed in the places she had been visiting. This was, I am afraid, one of the occasions when she did not do anything and here we are, 30 or more years later, and nothing effective has been done.
My noble friend described the comments from a Minister about the strength of the legal system and how, if you have a tough law and all the awful penalties he described, people were likely to take notice of it. I have to tell him that it is not only the hooligans and the ignorant who ignore the law. I well remember, when I was still a Member of Parliament for Pembroke, the president of my association—who had himself fought three parliamentary elections and was a distinguished local magistrate—telling me of driving back over the Preseli Hills from a magistrates’ meeting in Haverfordwest. He was horrified because someone in the car in front of him was throwing papers out of the window every few hundred yards. After he had driven for 10 or 20 miles and the confetti had been scattered along the roadside for a considerable distance, he decided to stop to see what the litter consisted of. He stopped, picked up the litter and discovered that it was the minutes of the magistrates’ meeting that he had just left. There you had a magistrate leaving a magistrates’ meeting who was so terrified of the law which my noble friend has described that he was taking no notice of it at all.
We have a very practical suggestion from my noble friend and it does not deserve the casual and rather absurd way that it has been treated so far by Defra. I hope that the Minister, if he cannot accept the amendment in exactly its present form, will tell the House that he will be prepared to discuss this whole matter in much more detail with his department in the hope that we can make some belated progress on this urgent problem.
My Lords, this is the first time that I have intervened on the Bill. I should declare an interest as leader of a London borough council; indeed, it is the council that I now learn is the world’s centre of mooning. I should apologise to Lady James of Blackheath for the offence that was caused. I will try to avert my eyes when I next go to Twickenham.
I express my immense support for my noble friend Lord Goschen and his amendment. He is exactly correct to point out the scourge of fly-tipping and I hope that the Government will be supportive. Equally, I am extremely supportive in principle and in practice of my noble friend Lord Marlesford’s amendment. I am going to anticipate what I fear the Minister might say about it, in the hope of averting the risk that he will push it aside. There are issues of policing that local authorities would have to face with this. It is not as easy to identify a car from which a piece of paper has been thrown as it is to find a parked car of which you can take a photograph and stick it on the web, so that the person who has parked the car can see the offence that they have committed. The proposed process imitates the process for dealing with a parking offence, and will still have issues of proof and so on attached to it. I am sure that the Minister may well be tempted to say that. None the less, I am sure that there are ways in which, with a will, these kinds of problems could be overcome. I hope that my noble friend on the Front Bench will take it forward in a positive spirit.
I should add to what my noble friend Lord Crickhowell said about motorways, where the situation is appalling. Last time I went up the M1, I saw the astonishing investment by the Highways Agency in having ridiculously exaggerated numbers of cameras at the first few junctions. Millions must have been spent on them, the side notices and so on. Yet along the side of the road, totally neglected, were piles of litter. Something ought to be done by the Highways Agency to prioritise investment and deal with this problem, which is a terrible advertisement for our country along its main highways and which a small local authority is not by itself competent to deal with.
My Lords, I find myself in complete agreement with the noble Lord, Lord Marlesford, and the noble Viscount, Lord Goschen, on this issue. It should not have been a surprise to your Lordships’ House that when we debated the Private Member’s Bill of the noble Lord, Lord Marlesford, there was enthusiastic—indeed, passionate—support for the objectives he put forward. If one talks to the public at large, they regularly raise the state of the streets and pavements, and the impact that has on their community. That is why both these amendments are so relevant to this Bill.
Noble Lords may be aware of the “Panorama” programme that my noble friend Lady Bakewell presented a few weeks ago, in which she was able to show the cumulative impact of litter on anti-social behaviour in a local community, and the pride otherwise taken by that community in how it looked and about whether that litter was cleared. At Second Reading, we were very pleased to support the Private Member’s Bill. I am not going to suggest, nor is the noble Lord, Lord Marlesford, suggesting, that every word in it was perfect; we would have welcomed the opportunity to debate it further in Committee. But if the Minister were able to take it away and look at the objectives that it is seeking to achieve, that would be very welcome.
On the issue of fly-tipping, one of the problems has been that so many local authorities have been forced into the position of cancelling their door-to-door collections of larger and bulkier items. While some people have tried to make alternative arrangements, some think it is easier to dump it in the car, drive somewhere and tip it out. Local farmers—and local authorities, as the noble Lord, Lord True, said—speak about the increasing costs that they incur in having to deal with fly-tipping and litter.
I have never been subject to mooning on the motorway—I am not quite sure whether that is within the scope of the amendment—but if an area looks bad then behaviour becomes bad as well, which is of great concern to many people on private and public housing estates across the board. I hope that the noble Lord can take away the serious sentiment that, by dealing with litter and fly-tipping, we would improve our communities and make them better places to live.
I could not agree more with the noble Baroness about the importance of behaviour regarding the environment. All noble Lords would join in that sentiment. I do see this as an ongoing debate on how Parliament, the Government, and communities as a whole can deal with what is manifestly a big problem. I am grateful, therefore, for the opportunity to debate these issues through the amendments tabled by my noble friends Lord Marlesford and Lord Goschen. My noble friend Lord Marlesford has come back on this issue following his Private Member’s Bill and the amendments that he made to previous legislation on similar grounds.
I shall address his amendment first. I know that littering from vehicles is something that he feels about passionately. I have been in the House when he has raised this issue previously and I also know that many noble Lords share his concerns, as I do myself. I consider it a source of considerable annoyance to see the roadside littered—if I may use the word—with discarded litter, discarded by people who do not seem to care about the visual and other impacts on the environment and other people’s neighbourhoods. Therefore, I come from a position of saying that littering should be treated seriously. My noble friend Lord Crickhowell is absolutely right. It is simply unacceptable to drop litter. Littering from vehicles can also present a danger by distracting or even injuring other road users or by obstructing the highway. Littering is anti-social and this is an anti-social behaviour Bill. It demonstrates disrespect for the community and it incurs costs for the taxpayer. In many communities, a lot of litter collecting is done by voluntary community groups. In my own area, the local civic society takes on responsibility for clearing up irresponsibly discarded litter. The Highways Agency spends around £10 million a year clearing litter and this often involves closing lanes, which also causes delays to other road users.
As my noble friend explained, his proposed new clause seeks to make it easier for local authorities to fine people when littering is witnessed from their vehicle. My noble friend feels that more people must be punished for this anti-social behaviour and that, if more people were or could be punished, fewer people would commit the offence in the first place. The Government are at one with my noble friend’s intentions. However, as my noble friend Lord De Mauley advised my noble friend Lord Marlesford during the Second Reading debate on his Littering from Vehicles Bill earlier this year, we do not believe that the approach he proposes is likely to contribute significantly to the resolution of this problem, and I think that I owe it to the Committee to try to explain that.
At present, because littering is a criminal offence, we advise local authorities not to issue fixed penalty notices for littering unless they are confident that the evidence against the offender would stand up if the case went to court. It is, of course, for local authorities to satisfy themselves about this and to assess the strength of each case on its merits. The amendment would also mean that, as a matter of law, the registered keeper of a vehicle could be punished for an offence committed by someone else, such as a passenger, or a family member who also had the use of the vehicle. The amendment makes clear my noble friend’s intention that the registered keeper should be held liable whether or not they gave instructions or allowed the contravention to take place. People who are innocent of any offence would therefore have either to pay the fine or take on further inconvenience and expense in challenging it, while the actual offender would go unpunished. It is hard to see how this approach is going to change offenders’ behaviour if someone else bears the punishment for their wrongdoing. In law, fairness and proportionality are crucial in gaining public support for the use of fines to punish this type of behaviour, but under the amendment an innocent party might be punished for the crime of another.
I accept that there is a place for keeper liability when it comes to the enforcement of traffic-related offences, but it is a very big step to extend this principle to other categories of offences. Government guidance on the use of fixed penalties is very clear that people should be fined only when it is proportionate and in the public interest to do so, and fining the registered keeper for any littering offence committed from their vehicle, regardless of their guilt, is neither fair nor proportionate.
Enforcement is the issue, and I agree with all noble Lords who have spoken that we want the message to the public to be loud and clear: littering is a crime. However, the amendment would distort that message by essentially decriminalising littering from vehicles, and at the same time it would create a legal anomaly. Littering while standing on the pavement would remain a crime, but dropping the same litter from within a vehicle would be treated as a civil offence. That risks sending the wrong message—that littering from vehicles is not really so serious.
More importantly, we also doubt that this proposal will achieve my noble friend’s desired aim, as it relies on the offence being witnessed. Its effectiveness would be limited by the number of enforcement officers available to the local authority, and they cannot be everywhere all the time. It will not be of any help when the offence takes place in an isolated area, in the dark or at such speed that the vehicle registration cannot be recorded. In some cases, CCTV may help, but even CCTV has limits as to the level of detail that it captures.
When my noble friend raised this proposal in the context of the Localism Bill in 2011, the then Minister, my noble friend Lord Shutt, responded:
“It makes sense to learn the lessons from the application of that approach in London before moving to wider legislation”.—[Official Report, 10/10/11; col. 1370.]
I know that my noble friend Lord Marlesford feels that the powers under the 9th and 10th London Local Authorities Acts have been in force in London for a year and that we should therefore have had time to assess their operation by now. However, the current evidence suggests that these powers have not been widely used. It has taken a long time for the boroughs to put in place the necessary appeals system and paperwork. Barely a handful of civil penalties have been issued so far, and the new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour—
I am grateful to my noble friend. He is giving one lot of statistics but does he have any statistics relating to the number of occasions when criminal prosecutions have been effectively brought for the same offence anywhere in the United Kingdom?
I apologise to my noble friend because I do not have such figures. I am not quoting any figures here; I was saying that I understand that only a handful of civil penalties have been issued. I shall certainly write to my noble friend if I am able to obtain the answer for the number of littering crimes that have been committed. As I said earlier, enforcement is the issue. The new threat that registered keepers will be fined does not seem to have made much of a difference to the behaviour of the general public. After this debate, it would be interesting for me to talk to my noble friend Lord True about his experience in his borough and to find out how useful he has found these provisions under the London Local Authorities Acts.
The lesson we have learnt so far is that the evidence does not support this approach as being so effective in tackling the problem as to justify rolling it out on a national scale. While we share my noble friend’s sentiment and respect his persistence, we cannot support this amendment and I hope that he will withdraw it.
We have heard a number of speeches. My noble friend Lord James of Blackheath sought to get to the bottom of several issues, but we doubt that my noble friend’s proposal will assist us in dealing with the problems mentioned by many of the speakers in this debate.
I now turn to the amendment from my noble friend Lord Goschen. He alluded to a number of matters on which I can now inform the Committee. This amendment brings to our attention the problem of fly-tipping. Like littering from vehicles, this is another example of individuals having little care or concern about the impact of their actions on the environment.
I am pleased to be able to reassure my noble friend that there are currently seizure and disposal powers in respect of vehicles used for illegal waste disposal. These are set out in Section 6 of the Control of Pollution (Amendment) Act 1989 and they apply in Scotland, England and Wales. However, we will be improving on these powers when we commence provisions in the Clean Neighbourhoods and Environment Act 2005 to repeal and replace them.
The new, wider powers relate to the seizure of vehicles used or about to be used in the commission of offences under Section 33 of the Environmental Protection Act, which relates to the unauthorised deposit of waste and includes fly-tipped waste, under Section 34, which imposes a duty of care to ensure that waste is transferred to an authorised person, and under Regulation 38(1) or (2) of the Environmental Permitting (England and Wales) Regulations 2010, which require waste operations to be carried out in accordance with a permit. It will also make it easier for local authorities and the Environment Agency to exercise their powers—for example, by removing the need for a warrant before seizure and for the retention of the vehicles pending investigation or completion of court proceedings.
The new, wider powers also provide for the forfeiture of seized vehicles following convictions for offences under Section 33(1) of the Environmental Protection Act or Regulation 38(1) of the Environmental Permitting (England and Wales) Regulations. The new Environmental Protection Act powers have already been commenced in relation to Wales and are in the process of being commenced for England. The related secondary legislation is in the process of being drafted and finalised. Subject to the normal clearance procedures, these powers are due to be brought into force as early as possible in 2014. Given that the powers sought by my noble friend’s amendment already exist and are in the process of being improved, I do not think the amendment is necessary and I hope that he will feel able not to press it.
My Lords, it really is not good enough to say, as my noble friend has said, “We can’t do everything, so we should do nothing.” If we took what he said literally, absolutely nothing would happen this side of the election. That is not an impressive record for any Government to stand on. I wish one of the legal experts would intervene, but I do not believe that it would be seen as disproportionate or unfair for the keeper of a vehicle to face a small and moderate civil penalty fine of about £80 for having a vehicle from which litter is thrown if that would act as a deterrent.
My noble friend said that nothing is happening in the London area at the moment, but I understand that two London boroughs, Wandsworth and Redbridge, have agreed to pilot the new legislation. One of the problems is that only the Government can ensure that legislation is effective, and they clearly have the responsibility to resolve one particular legislative anomaly: local authorities can contact the DVLA for information on a registered keeper only when it is suspected that a criminal offence has occurred. There is no reason why the amendment could not be redrafted so that, even for a civil offence, local authorities could get the details of the keeper if rubbish had been seen to be thrown from a vehicle. There is nothing undemocratic, unfair or disproportionate about that.
In fact, I would say that my proposal is a great deal more proportionate and effective, because if it were accepted, something would be happening. At the moment nothing is happening and the Minister is saying that absolutely nothing will happen. If the public listened to what is said in the privacy of your Lordships’ Chamber, I am not sure that they might not go out with joy. They would not, perhaps, do as my noble friend Lord James suggested, but they might feel, “Well, this is the moment when we can throw out any bits of paper, because we’ve not only been told that nothing can be done about it—because it can’t be proved that it was us—but we’ve also been told that the Government have absolutely no intention of doing anything about it”. The message seems to be that if we cannot be the cleanest country in Europe, let us ensure that we are the dirtiest. I reject that. I shall, of course, withdraw the amendment, but I shall expect to have talks with my noble friend and I hope that something will be brought back on Report. I may well then test the opinion of the House. I seek leave to withdraw the amendment.
Amendment 22 withdrawn.
22A: After Clause 20, insert the following new Clause—
“Corporate anti-social behaviour order
(1) It is an offence for a corporate body to act in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons.
(2) In this section “corporate body” has the same meaning as in Part 12 of the Corporation Tax Act 2009 (see section 1005 of that Act).
(3) The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed under subsection (1).”
My Lords, this is a probing amendment on a subject not too dissimilar from the issue raised by the noble Lord, Lord Marlesford. Our new clause is about corporate anti-social behaviour. Other than the community protection order, which includes the power to close premises that cause severe problems associated with anti-social behaviour, the Bill’s emphasis is not on the corporate but on the individual.
Too often the public feel, sometimes justifiably, that although they as individuals have to obey the law or be taken to task, companies seem not to be targeted until things get very serious and action is taken that could lead to their closure. A corporate anti-social behaviour order would be targeted at actions by a corporation or company that are deliberately socially harmful, and cause harassment, alarm or distress at a local rather than a national level. It would not target legitimate businesses or business activities—even businesses that some might regard as unpalatable. For example, there is a lot of talk about payday loans, and some people do not like gambling. The order would not focus on business activity, and there is no intention to comment on business activities that may cause distress at a national level; it would be used only where local disregard for the public and for the environment could cause harassment, alarm or distress.
The purpose of such an anti-social behaviour order would be preventive. It could identify low-level behaviour and seek to prevent it increasing in frequency or becoming more serious, as is often the case. Some of the examples I shall give tie in with the comments about litter in the previous debate—examples such as takeaways and other businesses that fail to deal with rubbish outside their premises, or premises that are unnecessarily noisy. I remember, when I was a Member of Parliament in the other place, dealing with a business in a residential neighbourhood. It had to have delivery vehicles coming and going—but at 5 am, did those vehicles really need to leave their engines running, causing considerable distress to those who could not sleep, or were woken first thing in the morning?
There could also be a pre-sanction stage, with an acceptable behaviour contract, to deal with problems. I think that such a provision would be welcomed by businesses that do their best to deal with such problems, but find themselves up against other companies that cut corners and do not fulfil their obligations to local communities. An anti-social behaviour order for local businesses would complement the community protection order by offering sanctions targeted at businesses, which might be used before more serious action that could lead to closure of the business was taken.
A corporate anti-social behaviour order would be business-friendly, because it would nip the problem in the bud and give the business the opportunity to deal with it before it faced far more serious action. It also gives the opportunity for preventive measures; I am thinking particularly about littering and noise pollution. At the moment the legislation focuses on individual behaviour—that is where the community protection order comes in—rather than on the actions of companies. It is a preventive measure, designed to be more effective, more helpful and more friendly towards business. It could also lead to better engagement between businesses and the local authority, which would have a reason to hold early discussions about problems that could arise and how it would deal with them, and also to better relations with local residents, by nipping any such problems in the bud before they get too serious. I beg to move.
The noble Baroness raises an interesting point. I have been wondering about other examples, and the one that immediately came to mind was the noise of aircraft coming into Heathrow in the middle of the night, which is a big issue in my area—but perhaps the order is not intended to be as extensive as that.
I have a serious question for the noble Baroness, which is whether it is appropriate for criminal offences to be created by regulations. That is in effect what subsection (3) of the proposed new clause would do, as it states:
“The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed”.
I appreciate that this is a probing amendment, so I do not want to be too tedious about it, but that struck me as a point of principle that one might want to consider.
My Lords, the Government are often accused of not listening. I listened with great interest to the previous debate, initiated by my noble friend Lord Marlesford, and as I went over to the Box I noticed a piece of litter on the floor. I acted promptly and handed it to the doorkeeper—so there is some hope of instant action on the part of the Government.
I am grateful to the noble Baroness, Lady Smith, for tabling her amendment with the proposed new clause and raising an important point. I agree with her that, where businesses act in a way that is likely to cause harm to others, they should be held to account. However, the Government feel that a corporate ASBO is unnecessary. We believe that we have drafted the new powers in such a way as to be flexible enough to deal with this eventuality.
For example, the new community protection notice, which we will discuss when we come to Part 4, can be issued against a corporate body. If that corporate body is persistently acting in an unreasonable manner and having a detrimental effect on the quality of life of those in the locality, it can be held to account through the new notice. While the community protection notice replaces litter and graffiti notices, it can be used for much more, including noise and other behaviours. What is more, breach is a criminal offence and, on conviction, a business could be fined up to £20,000. It is a power which provides real teeth.
Will the Minister indicate whether unincorporated bodies will be caught by the provision, or would that require additional legislation?
I believe that the clause as drafted could apply to an individual or an organisation. When we discuss that wording, it will be clarified. This applies to an individual or an organisation—which incorporates the issue raised by the noble Lord. In addition, where the use of business premises has resulted, or is likely to result, in nuisance to members of the public or disorder nearby, the new closure powers that we are introducing, to which the noble Baroness referred, will be able to close a premises immediately. The police and/or local authorities can act quickly where a business acts anti-socially. Again, breach is a criminal offence with the potential for a significant fine.
It is also worth saying that sometimes it may be a particular individual who is the root cause of the anti-social behaviour—for instance, the business owner or a store manager—and not the business as a whole. In those circumstances, the police, council or others listed in Clause 4 could apply to the court for an injunction against the individual on the test of nuisance or annoyance. Hopefully that would deal with the issue and, while breach in this case may not be a criminal offence, it could still result in a large fine or even a custodial sentence.
In putting forward this amendment, the noble Baroness said that it was a probing amendment to seek clarification. I hope that on the basis of the example I have given, by drawing the attention of noble Lords to the fact that we will be discussing this issue under Part 4 and with my explanation, she will feel able to withdraw her amendment.
My Lords, I am grateful to the noble Lord for his explanation. I am not sure whether it will be helpful to probe the matter further when we get to community protection notices, because they deal with individuals. If there is a persistent litter problem in certain premises, it would not be possible to have a community protection notice against every individual. My worry with his other proposal, the closure of premises, is that it would deal with the problem by closing the business. Often, it might be better to take preventive action with the corporate body, the business, to prevent closure and to deal with the problem, rather than to act against individuals and then, if that does not work, close the business. I am trying to find a pre-emptive way to prevent the problem rather than deal with it once it had happened. However, I am grateful to the noble Lord for taking the point seriously. Perhaps we can return to it and discuss it further when we consider community protection. I beg leave to withdraw the amendment.
Amendment 22A withdrawn.
Amendment 22AA not moved.
Clause 21: Power to make orders
22B: Clause 21, page 11, line 38, after “satisfied” insert “beyond reasonable doubt”
My Lords, I will speak also to Amendments 22C and 22D. I hope that I can be quick with these. Amendment 22B seeks clarification as to the standard of proof required for a criminal behaviour order. Of Clause 21, the Minister said in the Commons:
“The draft guidance to the Bill makes it clear that we expect that the courts will follow existing case law from the House of Lords in relation to antisocial behaviour orders and that they will apply the criminal standard to criminal behaviour orders”.—[Official Report, Commons, 14/10/13; col. 543.]
He then said that an amendment similar to this was unnecessary. If guidance is needed on an issue as serious as the standard of proof, it should be in the legislation. The Joint Committee on Human Rights, which reported before Report in the Commons, said that that should be in the Bill.
Amendment 22C would import the test of necessity—as for an ASBO—to the making of a criminal behaviour order. Amendment 22D would import a test that we have already discussed in the context of an IPNA from the Crime and Disorder Act, which would provide that the court should disregard an act that the defendant shows is “reasonable in the circumstances”. That is linked to the standard of proof but is a separate issue. When we discussed a similar provision on Monday, the answer was that, for an IPNA the court must consider whether an injunction was “just and convenient”. That, of course, is not the same test as would apply to a criminal behaviour order. I beg to move.
My Lords, I need a little help on Amendment 22C. I heard what my noble friend said about applying a test of necessity. It seems that this potentially weakens the ability of the court by adding that it,
“is necessary to protect any person”.
The kind of practices with which we are dealing here can relate to manner and habit. It may not be that there is a proximate need to protect an individual from a specific act. It could be that I as a lawyer do not understand this, but it seemed to me that the court is surely best placed to decide. The broader definition, which does not add in the need to protect a specific individual against a specific act, seemed to me to be satisfactory. I was content with the drafting presented by the Government.
I certainly await with interest what the Minister has to say in response to these amendments. Subject to what he may say, at the moment it is not entirely clear why Clause 21(3) does not say that the court has to be satisfied “beyond reasonable doubt”. After all, other parts of the Bill lay down the standard of proof, whether that be reasonable doubt or the balance of probabilities.
The draft guidance on criminal behaviour orders, under the heading “Test” on page 29, states:
“If the court is satisfied beyond reasonable doubt”.
Therefore, one thinks that the term is in the draft guidance, although it is not considered important enough to be in the Bill. However, when one turns to page 30, under the paragraph headed, “The Test”, it states:
“For a CBO to be imposed, the court must be satisfied that … the offender has engaged in behaviour”,
et cetera. There is no reference to “beyond reasonable doubt”.
So there is one case where the draft guidance states “beyond reasonable doubt”, and on the following page it is not put in. On page 31, under “Standard of proof”, the guidance states:
“It is expected that courts will follow the reasoning in”—
the case of Clingham v Royal Borough of Kensington and Chelsea—
“and apply the criminal standard of proof”.
Therefore, in one version it is expected that that is what the court will do. The reference to the test on page 30 does not say anything about the court having to be satisfied beyond reasonable doubt. However, on the previous page—29–when reference is made to the test, the words “beyond reasonable doubt” are put in. There is an inconsistency in the draft guidance over the wording and there is no reference at all to it in the Bill. I think that the noble Baroness, Lady Hamwee, is making the point that it has to be beyond reasonable doubt.
I have a further issue with the criminal behaviour order. The draft guidance states:
“The prosecution, usually the Crown Prosecution Service … may apply for the CBO after the offender has been convicted of a criminal offence … The CBO hearing will occur after, or at the same time as, the sentencing for the criminal conviction. The CPS will rely on the police or council to build the case to be presented to the court”.
However, the following paragraph states:
“There is no scope for retrospective applications”.
Does that mean that if the application is not made at the same time as sentencing but is done after the offender has been convicted of a criminal offence, there could be a separate hearing into the criminal behaviour order, with the police or the council having to present their case to the court and prove it beyond reasonable doubt? Perhaps the Minister can confirm that if the application is made in that way, the case has to be proved beyond reasonable doubt.
How long after the offender has been convicted of a criminal offence can the application be made for the CBO—bearing in mind that the next paragraph appears to say that there is no scope for retrospective applications? Does that just mean that there cannot be a retrospective application in a case that has already been heard and dealt with? It would be helpful if the Minister could clarify how long after the offender has been convicted of a criminal offence an application can be made for a CBO. Is it envisaged that it will be heard on the same day? What happens if the conviction occurs at 4 pm? If the police and the council have built up a case to present to the court, do you then continue on that day with the case being presented for a CBO? Do you adjourn the proceedings? How long can they be adjourned for? It would be very helpful if the Minister, as well as responding to the issue about reasonable doubt, could tell us something about how the logistics of an application for a CBO will work in the light of what is in the draft guidance.
My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.
For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.
Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.
Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.
The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.
Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.
Indeed, I am partially satisfied and I will not repeat the argument I made about the distinction between IPNAs and CBOs for the purpose of Amendment 22D.
I am puzzled as to why, if the Government expect the criminal standard of proof to apply and then—it is not quite the same—say that it “will” apply, they are reluctant to spell that out. It is a new offence and I would have thought that it would be better to spell it out, but there we are.
I did indeed intend to raise the evidential burden regarding Amendment 22C. For something to “help” is a very low threshold. It is rather a small objective and achievement. I hope it answers the noble Lord, Lord True, if I say that I was linking it back to Clause 21(3) because Clause 21(4) refers to “such behaviour”. That behaviour is described in Clause 21(3) as having “caused” or being,
“likely to cause harassment, alarm or distress to any person”.
We are talking about a criminal order so it seems to me that it is proper for there to be a more exacting test. However, having said that, I am grateful to the Minister for the partial consideration and I beg leave to withdraw the amendment.
Amendment 22B withdrawn.
Amendments 22C to 22D not moved.
Clause 21 agreed.
Clause 22: Proceedings on an application for an order
Amendment 22DA not moved.
Clause 22 agreed.
Clause 23: Requirements included in orders
22E: Clause 23, page 13, line 18, after “must” insert “consider its proportionality and”
My Lords, in moving this amendment I will also speak to Amendments 22H, 22J and 22K. My noble friend Lord Greaves has Amendment 22KA in this group.
On Monday, when we were discussing the relationship between provisions in the Bill and statutory nuisance, I explained that I had been asked to raise the matter by the Chartered Institute of Environmental Health, of which I am vice-president. I will speak briefly to my amendments today, but I also ask the Minister whether we can discuss the matter before Report. The institute is clearly concerned about remedies such as the community protection orders and noise abatement orders being too similar for comfort. The institute talked to me about the potential for confusion and conflict and twin-tracking by different authorities and different professions. However, I assure the Minister that we are willing to contribute to the guidance around all this. We take the point that the guidance is still in draft form. We are concerned to get the legislation right, not just to rely on guidance where the legislation may in itself not be as clear as it might be.
Amendment 22NA would provide for a significant detrimental effect to trigger a community protection notice. Where there is a civil process, the de minimis principle would apply. It has been put to me that the alternative to dealing with this in legislation is for it to come out over time in case law, which would obviously have a cost implication.
Amendment 22ND would require a person in authority to assure himself that the conduct is not already subject to any other statutory control. As drafted, that person may think it appropriate as a discretion. This seems to be quite a weak protection against different agencies wasting each others’ time chasing the same end. What is most important is to avoid obstructing or contradicting action that has already been taken, such as an indefinite prohibition in an abatement notice.
Amendment 22NE would provide that no notice was served where it would be controlled under any other statute, which is again about conflict. Where the problem is noise, apportioning responsibility and sorting out a fair and effective remedy can take a lot of technical—
I am responding to this debate, so I am listening with great attention, but for a moment I thought I had lost my place. I must point out that we are discussing group 9, which starts with Amendment 22E. I believe that my noble friend is speaking to group 13, which starts with Amendment 22NA. My apologies for not intervening sooner, but I thought that I had lost my place. Perhaps she would like to speak to the earlier group.
My noble friend is absolutely right. I apologise to the Committee. There is such enthusiasm to move on today that I was moving too fast. I must give my noble friend an opportunity to accept or possibly reject my Amendment 22E. It would provide in Clause 21 that the court must receive evidence about suitability. There must be a proportionality element in the requirements provided in the orders. I may be told that this yet again is something that is dealt with in guidance.
Amendment 22G takes us to the duration of the orders. We are presented in the case of under-18s with a fixed period of not less than two years or an indefinite period. I suggest that there should be a limit for everyone, as there is for under-18s. The criminal behaviour order can include a lot of requirements and restraints, which could, if they go on indefinitely, have a disproportionate impact. To have something hanging over one’s head indefinitely could be a disincentive—you could give up hope of ever getting it right.
Amendment 22H would provide that reviews are not confined to under-18s, which continues more of that thought. Amendments 22J and 22K are consequential on that. I beg to move.
My Lords, Amendment 22KA is a modest attempt to help the Government to get their legislation correct. It refers to the review of criminal behaviour orders which has to take place under Clause 27. Clause 28(2) states:
“The chief officer, in carrying out a review under section 27, must act in cooperation with the council for the local government area in which the offender lives or appears to be living; and the council must co-operate in the carrying out of the review”.
Clause 28(4) states:
“In this section ‘local government area’ means—
(a) in relation to England, a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly”.
That definition is archaic and does not apply to the local government map of England as it now stands. It misses out large tracts where there are no districts and where there are unitary counties.
There are other parts of this legislation—under IPNAs and community protection notices, for example—that get it right and refer to counties where there are no districts. They clearly have to be added. My amendment adds this so that large parts of England are simply not missed out. Since the Bill refers at the moment to districts or London boroughs, I assume that the district or lowest level is meant. Where there is a unitary authority only—a county such as Cornwall, Northumberland or various others—that needs to be added. This is in the spirit of being as helpful as possible to the Government, as I always am.
I am very interested to hear the Minister’s response on all the issues that have been raised, particularly about the duration of a criminal behaviour order. This has already been stated. For those who reach the age of 18 there is a,
“fixed period of not less than 2 years, or … an indefinite period”—
then it says in brackets—
“(so that the order has effect until further order)”.
I am not quite sure what that means. What is the further order that is envisaged? It does not say, “until further notice” but “until further order”. Perhaps the Minister will clarify what that actually means.
As far as the order being allowed to go on for an indefinite period, the Minister has been quite eloquent during the passage of the Bill, telling us all about some of the existing provisions, how they are not working and how they are not having any effect. Bearing in mind that it says in the draft guidance that the criminal behaviour order,
“is aimed at tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court”,
then I suggest that if such an order has been in effect for five years but has not had any impact and has not managed to tackle the most serious and persistent offenders, it is unlikely that it will do so beyond five years.
On how long the order period should last, if the Minister is determined that the facility should be there for it to continue for longer than, say, a period of five years and to go on indefinitely, does he not think it appropriate that there is a proper review to justify the need for it to continue on the basis that one would have thought five years a reasonable time to show the effectiveness, or otherwise, of an order?
My Lords, I thank my noble friend Lady Hamwee for her explanation of these amendments and for sharing her thoughts about a group yet to come. It gave those of us on the Front Bench advance notice of what she might be saying, so I thank her profusely for that.
Amendment 22E seeks to require a court to consider the proportionality, as my noble friend said, of positive requirements for including them in a criminal behaviour order. Positive requirements are of course an important element of both the criminal behaviour order and the injunction to prevent nuisance and annoyance. As currently drafted, the Bill states that the court must receive evidence about the suitability and enforceability from the person or organisation that will be supervising compliance with the requirement. Proportionality will therefore routinely be considered by a court as part of this decision.
The Bill sets out clear limitations on courts when determining whether to agree any positive requirement proposed in the application. The court must not impose any requirement that conflicts with, for example, an individual’s religious beliefs, or interferes with their work or education. Ultimately the court will have regard to an individual’s human rights—for example, Article 8 rights—when deciding to include positive elements. Such qualified rights can only be infringed where to do so is necessary and proportionate in pursuit of a legitimate aim. Proportionality, therefore, is a relevant legal consideration for the courts.
Amendment 22G, which the noble Lord, Lord Rosser, focused on as well, would remove the ability of the court to grant a criminal behaviour order that lasted longer than five years. Of course, I understand the reasoning behind this. However, where the courts are dealing with the most anti-social individuals, they should have the option of imposing an order for a longer period. The courts, as I am sure all noble Lords will agree, will always consider the reasonableness and proportionality of a longer order before granting it. They will have access to relevant information about a particular case. We believe they are best placed to make a judgment about the appropriate length of an order. What is more, the offender has the ability under Clause 26 to apply to the court to vary or discharge the order at any time.
The noble Lord, Lord Rosser, sought clarification about the words “further order”. This refers to a further order of the court, not a further CBO.
Finally, I understand that Amendments 22H, 22J and 22K are designed to ensure that all orders are reviewed annually. As your Lordships are aware, we have ensured that this is the case for under-18s. We recognise the importance of frequent monitoring as a young person matures during the duration of an order. However, in respect of adults we have left the decision open to the relevant police force as to whether there should be such a review. In such cases where an individual is behaving in a way that is seriously anti-social, it may not be appropriate to review the case after 12 months, as this would be too soon and would simply result in an unnecessary burden on the police and courts. Again, we wish to make sure that such decisions are made by those on the front line who are best placed to assess each individual case.
I agree that this must not be a case of making an order and then forgetting about the respondent. We would expect the applicant to monitor it over time to ensure it is still valid. The CPS is able to review the order at any time and, if circumstances change, apply to the court to vary or discharge it. As we have already debated today, positive requirements that aim to address the underlying causes of anti-social behaviour are central to both the criminal behaviour order and the injunction to prevent nuisance and annoyance.
This is one of those areas where we should rely on the good judgment of the police to decide when a review is appropriate without including prescriptive requirements in the Bill. That said, as your Lordships are aware, we have published draft guidance for practitioners on the use of these powers and, having heard the debate today, we will again look at this and identify whether we can do more to promote good practice on this issue.
I turn to the modest, but always welcome, attempt by my noble friend Lord Greaves to help us along the way in some of the drafting of the Bill; when he speaks on issues of local government, it is with a great deal of experience and expertise. I assure my noble friend that he has raised yet again a very helpful and technical point on the definition of a “local government area” in Clause 28. We will of course return to this on Report, reflecting on his comments.
I am grateful for the Minister’s comments, but in order to save time on Report why does he not just accept the amendment now?
With all things legalistic and legislative, my noble friend will agree with me that it is important, as he himself stated, to get it right. Let me assure him that we will certainly take into account his insight and expertise in ensuring that in our drafting we correct any omission, if indeed that is the case.
I hope, based on the explanations I have given, that my noble friend will be minded to withdraw the amendment.
My Lords, I apologise again to the Committee for getting so confused over these amendments. I say to my noble friend Lord Greaves that he knows precisely why an amendment is not accepted now—because they never are, are they?
I remain troubled about the issues that I have raised. Proportionality seems to be more than a matter of human rights in the technical way in which we sometimes refer to them. An indefinite order period over five years is a very harsh response. As I understand it, there is no statutory requirement for review in the case of over-18s. There is a page, thereabouts, of provisions for reviews in the case of under-18s, but for the over-18s it is left to everyone’s good sense.
As I say, I remain troubled, but let us see where we might go when the little bits of this which will be further considered have been considered. For now, I beg leave to withdraw the amendment.
Amendment 22E withdrawn.
Amendment 22F not moved.
Clause 23 agreed.
Clause 24: Duration of order etc
Amendment 22G not moved.
Clause 24 agreed.
Clauses 25 and 26 agreed.
Clause 27: Review of orders
Amendments 22H to 22K not moved.
Clause 27 agreed.
Clause 28: Carrying out and participating in reviews
Amendment 22KA not moved.
Clause 28 agreed.
Clause 29: Breach of order
22KB: Clause 29, page 16, line 27, after “person” insert “over 18”
My Lords, in moving Amendment 22KB in the name of my noble friend Lord Ramsbotham, I shall speak to Amendments 22KC, 22NZA and 22NZB. My noble friend apologises to the Committee for his absence. He has a long-standing commitment and asked that I might present his case for him. There seems to have been a little confusion. His amendments were tabled late in the day and I, also late in the day, called for a clause stand part debate. I do not think that I will need to call for a clause stand part debate, given the useful amendments tabled by my noble friend. The amendments deal with Clause 29, on the breach of orders, and Clause 37, on offences. They would take minors out of both those clauses.
As an aside, several of my colleagues who would be interested in our debate are involved in the Children and Families Bill, as am I, and there has been confusion about the timing of that Bill, which may have been an obstruction to colleagues interested in the area of children to come to discuss this Bill. If the Minister has not agreed to this already, perhaps there may be an opportunity to meet with him and officials to discuss how this Bill affects children with those Peers who are particularly interested in the welfare of children.
Over the past few years, there has been a welcome reduction in the number of children in custody, as a result of the recognition by Her Majesty’s coalition Government that imprisonment is not an effective way to deal with children’s offending behaviour. As your Lordships will be aware, the new police dispersal power to tackle anti-social behaviour is introduced by the Bill. Children who breach the order and are convicted of failing to comply with the police dispersal order are to face a fine and/or up to three months in prison. I suggest that those sanctions are disproportionate, counterproductive, incompatible with children’s rights and risk reversing the positive downward trend seen in children’s custody numbers.
As a bit of background, currently, nearly seven in 10 children breach their anti-social behaviour orders. That is typically due to a lack of support, rather than wilful non-compliance. It is a much higher breach rate than for adults. Imprisonment is imposed as a sanction for juvenile ASBO breaches in 38% of cases, with an average sentence of just over seven months.
The purpose of the amendment is to remove imprisonment as a sanction for children when they fail to comply with a dispersal order. The amendments replace imprisonment with robust community alternatives. I have mentioned several times my concern about the guilt that many of those young people will carry with them. They will feel responsible for the failures in the family. I have spoken to young men who have made it their job to be at home when their father has returned home from the pub so that they can stand between their mother and their father at the time. I have already spoken about those boys who grow up without a father in the home. Of course, there are young men who are beaten by their father on a regular basis. Those young men feel responsible for having to stand up to their father and protect their mother, for being beaten by their father or for having their father absent from the home.
My wide experience of this is that children do not think rationally in those times. They tend to think that they are responsible for those failures. Being too harshly punitive of young children may be counterproductive. I spoke recently to a lawyer with several years of experience of working as a defence lawyer for such children. To get them prepared to stand up in the witness box and give a reasonable case, he would say to a child, “Look, Richard, I know that there is good in you. My partner, Margaret, knows that there is good in you. You can make the choice. You can do the good, the right thing or you can choose not to”. By speaking in those terms to the child, he gets the best from them.
My concern is that if we are overly harsh, if we imprison children, if we punish them too severely, they will be confirmed in their belief that they are bad to the bone, that they are responsible for all the bad things in their life and will go on to be a nuisance to society and cost society a large amount of money when they are later imprisoned. A further problem, to which I just alluded, is that once children get involved in the prison system, there are much more likely to get involved with it again. They will be returnees. I look to the Minister for some reassurance in his response.
The noble Earl has raised extremely important points, and I do not want to repeat arguments that I made on my earlier amendment about publicity, which also apply here. It is not only the noble Earl, who has massive experience, who makes these points. As I said earlier, so many organisations which have practical experience and great success in diverting children at risk of going down the route of a criminal career back to a better road, have suggested that such amendments should be made. We should take that extremely seriously.
My Lords, I support these amendments wholeheartedly. We are talking about punishment. Punishment must, as a fundamental, be appropriate, proportionate and likely to succeed. I suggest that the provisions have none of those things right. It is entirely wrong to have a sanction which involves the potential imprisonment, which is the ultimate sanction for breach of a CBO, of children between the ages of 12 and 18. A detention and training order, which is a possible likely outcome, can be given to such children for breach for a minimum of four months and a theoretical maximum of 24 months, half of which would in fact be intervention, supervision and the rest.
Children who fail to comply with a police dispersal order can also get up to three months. We are looking at a whole range of options to incarcerate young people. It has already been referred to tonight that children routinely breach ASBOs—about two-thirds of them do. Once they get into the world of breach, we are in very dangerous territory. All the successful work that we have seen and in which I have been closely involved with the Youth Justice Board has been to avoid the incarceration of children. This is simply because it does not succeed; the noble Earl has indicated why. In all cases, incarceration should be for the most dangerous, severe and violent behaviour. Those are the kinds of criteria that we should apply to anybody going to prison. In other words, the criteria apply to adults, too, but how much more do they apply to children?
We want a society that turns children away from crime and does not encourage them to stay in it. Down the years I have seen some good work in youth detention, but we know that detention harms children in the long term. It is counter-productive and on the whole confirms, as we have heard, a criminal future. With these long-term ASBOs, compliance over a long period is difficult. For young people around the ages of 12 to 18, up to 12 months is an impossibly long time. In my side of the criminal justice business, alternatives to custody for people who have got into offending behaviour have been the absolute driving force. The range and skills of what is now increasingly available in working with young people, children as well as adults, are producing the results that we need to see. We do not need to see children being drawn into the world of the criminal through detention. We should be looking at where we can develop and encourage alternatives to custody. Where restorative justice is also involved in that process, we have the best possible outcomes for the victims.
We keep being reminded that while we are looking at what we do with young people, whom we perceive to be such a problem, we are always thinking about the victim. There are ways and means of making a far more positive outcome for those who have been affected by crime if they can go through a restorative process. We should be looking at and developing this. This amendment proposes that, instead of incarceration, a youth rehabilitation order would be the constructive way forward. I urge my noble friend the Minister to look at these kinds of option very seriously.
My Lords, the noble Earl, Lord Listowel, made some interesting and useful points. We sympathise with the comments that he made and with these amendments. As the noble Baroness, Lady Hamwee, said, I do not want to repeat the comments made in the earlier debate on the amendments of the noble Lord, Lord Ramsbotham. However, I asked questions in that debate that the Minister did not answer, and similar questions apply in this debate.
The Minister will recall that I asked about the evidence base for the proposals brought forth by the Government. In that case, it was about what assessment had been undertaken to evaluate the safeguarding of the risk to children. He was not able to reply then and I am happy for him to write to me. The same questions apply here. They concern the evidence base on which the Government are bringing forward these clauses. A number of children’s and young people’s charities have contacted Members of your Lordships’ House with concerns about whether, in the clauses we are debating and in our previous debate, the breach of civil orders is against the rights of children and whether it would do more harm than good.
As I said then, I hoped that the Government have an evidence base on which they are bringing forward these amendments, but the Minister was not able to answer. I hope that he can on this occasion. One part of my question is about consultation around these proposals and the previous provisions. The second part of it is on the assessment that is undertaken to evaluate, in the previous case, the risk and, in this case, the effect of the Government’s proposals. Are the Government prepared to have a review period in both cases to see whether they have been effective and what changes should be made?
My Lords, I thank the noble Earl, Lord Listowel, for picking up the amendments of the noble Lord, Lord Ramsbotham, and presenting them in the way that he has. In replying, I am very happy to have a meeting with those Peers who are interested in the impact of the Bill and its provisions in general on young people. That would be useful. We have had some productive debates on the issue here in Committee. I hope that I have been and am able today to show that we see our role in seeking to prevent anti-social behaviour as one that tackles the difficulties that some young people have, and in rehabilitating and supporting them.
This brings us back to whether it is right for young people to face the full range of criminal sanctions when they act in a way that is seriously anti-social: I emphasise “seriously”. I understand the points that have been made by all noble Lords who have spoken: the noble Earl, Lord Listowel, my noble friends Lady Hamwee and Lady Linklater, and the noble Baroness, Lady Smith of Basildon. They have all expressed the importance of rehabilitation, especially in cases concerning young people. That is why it is so important that the injunction under Part 1 and the criminal behaviour order that we are discussing here can include positive requirements to help them turn their lives around.
Youth rehabilitation orders are often a fair and proportionate way to deal with a young person who has been convicted of an offence as an alternative to custody. Use of such orders is in line with the intentions of the Bill: that informal interventions and rehabilitative approaches should be used first and foremost, in particular, when dealing with young people. However, it is right that tough sanctions are available on breach.
Amendments 22KB and 22KC seek to restrict the sanctions on breach of a criminal behaviour order for under-18s so that a youth rehabilitation order must be made. Breach of a criminal behaviour order is an offence. There is no danger of this criminalising someone for the first time because an order can be made only once they have been convicted of a criminal offence. It is worth remembering that the criminal behaviour order is aimed at tackling the most serious offenders, and that by the time that it is breached an offender may already have failed to respond to positive requirements aimed at addressing the underlying cause of their anti-social behaviour. They may also already have had a youth rehabilitation order made in respect of their offending. We would expect the youth courts to do all they can to ensure their rehabilitation when considering the sanction for a breach. This may well be a rehabilitation order but it is right that they have the discretion to impose the most appropriate penalty in a given case, including a fine or, in the most serious cases, custody.
On the dispersal power, there needs to be an effective and serious consequence to breaching a dispersal order which is imposed by a police officer. Clause 37 provides the option to apply a fine or a prison sentence of up to three months. We expect the court to use these sentences appropriately and proportionately in accordance with sentencing guidelines. The three-month sentence is the maximum sentence available to the court and it may impose a lower sentence if appropriate, including a youth rehabilitation order if the offender is under 18. However, there may well be some young people for whom a fine or even detention is appropriate, and I would not wish to tie the hands of the youth courts which, after all, will have access to all the evidence and will be best placed to make a decision in individual cases.
I hope I have been able to reassure the noble Earl that the sanctions available on breach of the CBO and the dispersal power will help the courts. From the comments of the noble Baroness, Lady Smith, one could be forgiven for thinking that breach of an ASBO was not an offence subject to a maximum penalty of five years’ imprisonment, which is what the previous Government legislated for. This sanction applies to the ASBO and the sanction of imprisonment applies to young people as it does to adults. Like the previous Administration, we believe that tough remedies should be applied on breach where it is appropriate. It is for the courts to test what is appropriate, and the test for the CBO is analogous to that for the ASBO, as the noble Baroness would expect.
My Lords, I thank the Minister for his careful reply. I hear what he says and will take it away and consider it. I am concerned about looked-after children, who have often been so badly failed by their family. While the state is improving in its job as a corporate parent and the Government are doing good work in improving the consistency and quality of social workers, still so often the young people I meet are let down left, right and centre by the state itself by having too many different social workers and not being properly cared for in their residential care.
I am concerned that young people who will be caught by these measures will be troubling, but often very troubled themselves. They can be such a nuisance and so difficult to deal with that the risk is of a kind of unintentional ratcheting up of the response by the state until these terribly troubling—and terribly troubled—young people, who have often been very poorly treated in their own home, get punished by the state because their parents were not good enough for them. It falls to us to try to be as careful as possible to get a positive influence and impact on their lives.
For instance, in a children’s home, one might find that if a child is acting out in an aggressive and unhelpful way and if you have poorly trained staff, in the worst instances they will hit back at a child. They simply will not know how to respond. In the best establishments, one finds that the staff are really well supported and very thoughtful. They get in there really early on, before the child starts acting out, and prevent the escalation to where the police are called and the child gets reported and put into the criminal justice arena. I am being a bit longwinded here. It is so easy for Governments to ratchet up their response to these children because they are so difficult. One does not want to see a return to the past where we had the highest rate of juvenile imprisonment in Europe, which was a shame on this nation.
Perhaps I might intervene to reassure the noble Earl that what we are seeking to do with the Bill is to get early intervention of the type he is suggesting. When we are talking about CBOs, we are talking about people who have been convicted of a criminal offence. Our task must surely be to try to avoid people getting to that stage. That is why we are looking to build in early intervention and, even when criminality has occurred, to look at methods of rehabilitation as a vehicle whereby we can address the issues, which I agree are extremely sensitive, in the way that the noble Earl suggests. I hope that he does not mind me interrupting him.
I thank the Minister for his response. I need to look very carefully at what the Government are doing here and the nuanced way that they are trying to approach this. I hope I can be comforted by that. I am most grateful to the Minister for agreeing to have a meeting at some point with those Peers who are particularly interested in this area. I beg leave to withdraw the amendment.
Amendment 22KB withdrawn.
Amendment 22KC not moved.
Clause 29 agreed.
Clauses 30 and 31 agreed.
Clause 32: Authorisations to use powers under section 33
22L: Clause 32, page 18, line 35, after “necessary” insert “and proportionate”
I shall speak also to Amendment 22N. Amendment 22L would add the term “proportionate” to the period during which a dispersal order would apply so that the use of the power is both necessary and proportionate. When this matter was discussed in the Public Bill Committee in the Commons, the Minister said that he was confident that the powers will not be used disproportionately and referred to the need for authorisation by an officer of at least the rank of inspector. My amendment would insert a degree of objectivity into the clause. This is not intended to be critical of police officers, but if the power is intended always to be used proportionately, should that not be spelled out and be capable of being challenged?
My second amendment, Amendment 22N, would provide that the authorisation must clearly identify the locality in question. That is a matter of clarity, but rereading the clause over the past few minutes, it strikes me that the term “locality” could be understood in different ways in Clause 32(1), which is the specified locality to which the order will apply, and Clause 32(2)(a), where we are directed to reducing the likelihood of members of the public in the locality being harassed, alarmed or distressed. In the second case, the normal meaning of “in the locality” would be in and around the area, not in the specified locality referred to in Clause 32(1). I have only just thought about this. Reading things again, they sometimes read slightly differently. I do not know whether the Minister can assist me on that.
The amendment relating to proportionality was raised in the context of concern about peaceful assembly. I think we will come to that later, but I shall just say that I, too, am concerned that we should do nothing in the Bill to prevent peaceful assembly when people in a proper manner exercise their democratic rights as citizens. I beg to move.
My Lords, I rise to speak to Amendment 22M in the name of my noble friend Lady Smith of Basildon, which would insert into the Bill the words,
“and once the relevant local authority has been consulted”.
I do so on two main grounds. One is to revert to a topic that we discussed in Committee on Monday, which concerned the importance of the powers in the Bill being exercised as part of a wider pattern and a wider agreement with local government and other interested parties. That is a general principle that we should not move away from. However, the main issue is that this is clearly a power that relates to a specific locality. It might relate to, for example, aggressive begging in a particular park, square or precinct. Therefore, you would expect the local authority or the custodian of the public space concerned to have very clear responsibilities and interests. There may well be community implications. There may well be a need to listen to what the local authority may feel will be the community impact of such an action or, indeed, to consider the local authority’s view on whether the community benefits from such an action.
I understand that the local authority should be the custodian of those public spaces and that these are the circumstances in which this power may be used so it is appropriate that it be involved. I understand that the parallel of this power, the old anti-social behaviour order regime, did involve consultation with the local authorities concerned, yet the Government have specifically excluded it in this Bill. I would be interested to know a little more about the rationale behind why this has happened in this particular case as this seems to me an obvious area where you would expect there to be consultation with local authorities.
If the argument is that local authorities have been slow in responding to consultation and that this has led to a continued problem, I would be surprised because local authorities usually are well aware of concerns that are being expressed by local communities about a problem in a particular area. If that is the case, I suspect there are some faults on the side of the local authority. These could be remedied by some expectation of what the normal period is within which the local authority should respond when asked for its views on these matters. However, I think there is an extraordinary weakness in the way that these powers could be pursued. The way in which the legislation is framed, this is a quite a broad power. The authorisation could come from a police officer and would proceed solely on the basis of the authorisation of a police inspector. This is not something that would have necessarily gone to court, although obviously it relates to people about whom there are clearly concerns.
I would like to know why it is not felt to be appropriate in these circumstances for the local authority to be consulted. If the argument is that there have been unconscionable delays associated with that, can the Minister give us some examples of where they have occurred, and can the Minister say why it would not be possible to build in to the legislation something which required a specific time period for the local authority to respond when such a power is being considered?
My Lords, I will speak to Amendment 22M and also comment on whether Clause 32 should stand part of the Bill. I will make a very similar point to that made by my noble friend Lord Harris. We do not have an issue with the principle of dispersal powers. In fact, we introduced such powers back in 2004, although I recognise that they were pretty controversial at that time. Our worry is that the new power now being proposed by the Government can be authorised much more easily than the existing one and also for longer. The issue we are raising is that of proper and effective democratic oversight. Local authorities must and should be consulted by the police before the issuing of dispersal orders. That is the process that currently exists.
What I find curious is that the Home Affairs Committee, in its pre-legislative scrutiny, recommended that there should be a duty to consult local authorities on applications for dispersal powers of more than six hours. The Government’s response to that comment by the Home Affairs Select Committee in the other place was that they would ensure that the legislation allowed for that. In fact, it does not. It would appear that the commitment that the Government gave in their response to the Home Affairs Select Committee has not been brought forward in the Bill—unless it is in the pile of amendments that were issued very late last night for debate today, but I do not see them grouped here at the moment. Unless an amendment is coming forward from the Government, can the Minister explain why a response was made to the Home Affairs Select Committee to do something that does not appear to be in the Bill now?
When evidence sessions were held during the Committee stage of the Bill in the other place, there was no suggestion that the existing power was not working properly. The police have also said that working with the local authority really helps them get community consensus and support when a dispersal order is needed. That is why we consider Amendment 22M to be so important. Why fix something that is not broken? If there is an issue, why try to change the process? If the Minister can tell me that he and the Government have received representations from organisations or individuals that suggest that the current provisions are inflexible and inadequate, that would help to explain why the Government have made such changes. If he can tell us who those organisations or individuals were, what changes they sought and for what reasons, that would perhaps help to explain why a power has now been proposed that is different from the existing one.
I was reading through the debate in Committee in the other place. Damian Green, as the Minister, said then that the powers were designed,
“to allow police officers to react to a dynamic situation”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 27/6/13; col. 240.]
Have there been complaints that there has not been a response, as the Minister would like? If that is the case, there is a concern that this could lead to the powers being used recklessly and in inappropriate circumstances if there is not that check. Can the Minister say on how many occasions there has been a situation where a community has been at threat or in danger because the local authority could not be consulted about a dispersal power over the week and the power then could not be used? Have there been such cases that have led the Government to bringing forward a very different kind of procedure now?
The noble Baroness, Lady Hamwee, and my noble friend Lord Harris raised the question of locality. There is concern that the meaning of “locality” is not quite clear or is wider than necessary. If the Minister can address that, it would be helpful.
The noble Baroness was not in the House when we dealt at some length with the question of what “locality” means, specifically in relation to town greens and village greens in the Countryside and Rights of Way Act when it went through this House rather a long time ago—about 13 years ago—and the Commons Act more recently. The courts had got themselves into terrible difficulties about the definition of “locality”, about whether localities and neighbourhoods are the same thing and about the question of neighbourhoods within localities. There was a lot of abstruse discussion and debate and I am not sure that we actually clarified the matter. The important thing is that locality is not the same as location. A location is a specific place on the surface of the Earth. A locality, however you define it, is wider in some respect or other.
Having listened to the noble Lord, I am sorry that I missed that debate. However, I get his point about locality and location; I just seek further clarification on how that can be dealt with.
I have a couple of other points. The 48 hours that the Government propose for these dispersal orders are twice the period in the Anti-social Behaviour Act 2003. I understand that the only other legislation that permits dispersal powers in this way is the Violent Crime Reduction Act. I would understand why a longer timescale would be used in connection with violent crime. However, we are not talking about violent crime but about anti-social behaviour. There must be some evidence base for why the Government think that 48 hours rather than 24 hours is appropriate.
It would be helpful if the Minister could talk us through “Directions excluding a person from an area”. I have had conversations with those who could be practitioners in this area of legislation, and some of them seem to be slightly confused by how it will work. It is quite clear how the current process works, but how will such a direction to exclude an individual or group of individuals from an area work? If they are to be excluded from a locality for 48 hours, does somebody draw a handwritten map—“This is the area that you’re going to be excluded from”—to make clear where it is? Who else should be notified? Forty-eight hours is quite a long time. If there has been no local authority consultation and it has all been done very quickly, how do the person and other authorities know that they are to be excluded for 48 hours? If the direction is to be withdrawn or varied, how will they and others be notified? This lack of involvement and consultation with the local authority gives rise to a number of practical questions. I would be grateful if the noble Lord would on this occasion be able to answer my questions—which he has not, so far, been able to do on any other occasion, although I am getting used to it—and talk us through the process.
My Lords, I might have preferred to be participating in the passage of the CRoW Act, although it seems to have been a merciful release that I was not here to be involved in those debates. This is the first time we have had a chance to talk about dispersal orders, so it would be useful to give the background of what we want to achieve by them and try to answer the questions that noble Lords have asked me.
The new dispersal power will allow the police to deal quickly—I emphasise that word—with anti-social behaviour centred on a particular locality, nipping such behaviour in the bud before it escalates and providing immediate respite to the victims of the anti-social behaviour that is the cause of the difficulty. The new power combines the best elements of the current legislation into a single, more effective and less bureaucratic tool. When I come on to the business of liaison with local authorities, I think that the noble Baroness and the noble Lord, Lord Harris, will see what I mean by that.
The current process can be very slow, and as a result victims and communities can suffer for a number of months before the police can act. Part of the problem is that the existing dispersal power can be used only once a dispersal zone is in place, and a zone can be designated only following consultation with the local council. The new power will not require prior consultation, so it can be used more quickly. However, we recognise that there should be some supervision of the new power, and in this respect the provision has benefited from scrutiny by both the Home Affairs Select Committee and the Joint Committee on Human Rights. Responding to points made by the HASC, we have included the safeguard that the dispersal power must be authorised by an officer of at least the rank of inspector. The authorisation may be given if the officer is satisfied on reasonable grounds that use of the dispersal power may be necessary in a specified locality during the specified 48-hour period.
The requirement for the officer to be satisfied “on reasonable grounds” was included on the recommendation of the Joint Committee on Human Rights. We had intended it to be part of the test when the Bill was introduced, and we believed it to be implicit. However, in this instance we agreed with the committee that it would be clearer to have that explicit in the Bill. I am grateful to the committee for drawing this to our attention. The addition of “reasonable grounds” further emphasises that the test for authorising use of the power is objective.
On Amendment 22L, tabled by my noble friend Lady Hamwee, the two elements of the test will mean that officers consider whether use of the dispersal power is a proportionate response to the problem at the particular time and locality. As a public authority, the police must also exercise their powers proportionately under general public law principles and human rights obligations. It is not, therefore, necessary to include “proportionate” in the Bill. I am firmly of the view that the safeguards in the legislation will ensure that the dispersal power is used appropriately, based on local knowledge of the area and on intelligence that there are likely to be problems at a specific time.
I return to the question of locality. My noble friend has put forward Amendment 22N to ensure that an authorisation clearly identifies the locality where the dispersal power can be used. The authorisation for the use of the power must be given in writing, must be signed by the officer giving it, and must specify the grounds on which it is given. These grounds must include the specified locality and time period for which the authorisation applies. My noble friend’s amendment is therefore provided for in Clause 32(1), which states that the time and location for which the dispersal may be used are as specified in the authorisation. Perhaps I can elaborate on that.
Clause 32(1) and (2) are concerned with this authorisation process, so the intention is that the reference to locality in both subsections has the same meaning; i.e. they cover the same geographical area to be specified in the authorisation. As drafted, the Bill makes this clear. The new dispersal power will allow the police to respond swiftly and flexibly. For example, on a particular housing estate where there is likely to be anti-social behaviour at the weekend, an inspector could pre-approve use of the new power by his or her officers. Alternatively, if an incident occurred at a different time of the week when it had not been anticipated, a police officer could contact an inspector for authorisation to use the dispersal in that specific instance.
Amendment 22M, tabled by the noble Baroness, Lady Smith, and supported by the noble Lord, Lord Harris of Haringey, raises an important issue for the Local Government Association regarding consultation with local authorities. As noble Lords know, I have had meetings with the Local Government Association Safer Communities Board. The association has expressed some concern about the impact of these dispersal powers on community relations and has therefore argued for them to be subject to democratic oversight. I understand this point, but to require consultation would seriously undermine the flexibility and utility of the power and would reinstate precisely the difficulties we seek to remove from the current system.
However, the draft guidance states that the authorising officer may wish, where practical, to consult with the local council or community representatives before making the authorisation, in particular where there are concerns about community relations and the use of the dispersal in a particular area. Therefore, for example, when planning the policing of a football match, the police might decide to authorise use of the dispersal in the area surrounding the stadium. It is likely that the police already work with the local authority in planning this kind of event, and this would include a discussion on the use of powers in such a dispersal.
This issue was raised when I met with the Local Government Association recently. I agreed to include in the guidance that it is good practice for the police to inform the local authority after the dispersal authorisation is used. This will help the local authority work with the police to plan longer-term solutions in areas where there are persistent problems. I remind your Lordships that the Government have published this guidance in draft to assist with scrutiny of the provisions.
I agree that accountability is important, and Police and Crime Commissioners now have a vital role in holding forces to account on behalf of the public. Police forces will be required to keep records of the use of the dispersal power and, while there is no duty to do so, they may wish to publish data in the interests of transparency. Police forces can share data about the use of the dispersal power with councils to assist in their crime prevention planning, and plan longer-term solutions to hot-spot areas. The draft guidance that accompanies the legislation emphasises the importance of involving the community in taking a problem-solving approach in areas with persistent problems. Clearly, this would be a case in which we would expect police forces and local authorities to work closely together.
The current Section 30 dispersal power has worked well in some areas to deal with longer-term issues. Those powers are led by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the new public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems.
I will deal with some particular questions asked by the noble Baroness. On the question of dispersal orders, she thought that people might be confused about what is actually involved in being dispersed. Much of the new power is available to the police now, but guidance will share good practice on how the dispersal orders should be used. In most cases, the officer will provide this information in writing and, in many forces, officers actually provide a map for the person given the dispersal order to show them the area from which they are excluded.
I do not want to disrupt the Minister as he answers other noble Lords’ questions, and I am grateful to him for answering one of the questions that I raised. I just wondered whether he is going to come to the other questions I asked, about the representations he received that the current process was inflexible, and what examples he had of those. I also asked why the Government have not abided by their response to the Home Affairs Select Committee, as they committed themselves to do.
I have given the noble Baroness the information I have on our response to the Home Affairs Select Committee. I can give her no more information than I have given her already on the representations that were made. However, if the noble Baroness will permit it, I will write to her on the subject. It might be useful that I exchange the information with her. Of course, I will include any other Peers who have spoken on this group of amendments.
While the Minister’s flow has been disrupted, perhaps I could disrupt it a little bit further. Can he explain a little bit more how the Government envisage that this will work? The more I have heard about this, the more concerned I have become. Suppose, for example, there is a fairground in an area. It may be a visiting fair. During the previous evening, there were some problems with youths fighting and so on. Does that mean that an inspector could issue an authorisation or exclusion from people carrying out certain sorts of behaviour during the following day?
I think I am also right in saying that Clause 38 would permit—if the right authorisation has been given—a police community support officer, rather than a warranted officer, to carry out the exclusions concerned. What would then happen, if I am right, is that an area would be defined and police officers and police community support officers would be deployed with maps in their pockets to give to people whom they thought—in their opinion—were causing disruption or bad behaviour, and those people would then be required to leave the area shown on the map which they would be given from the back pocket of the police constable or the police community support officer.
That would then be a power for which there would be no accountability other than the authorisation by a police officer of the rank of inspector. This is one of the federated ranks—not even superintendent—so in many ways it would be a comparatively low-level authorisation. There would be no requirement to consult. It was said that it would be good practice to inform the local authority; but I think I heard the Minister say that this would be after the event, rather than before.
This could have an enormous impact on community relations. I can think of parts of London where the sudden arrival of police officers clutching maps and saying, “We are going to exclude you from this area for 48 hours”, would cause serious problems and disruption. Even if it were a proportionate response to the problem that had occurred the previous evening, it seems that this is something that should be exercised with proper consultation with the community representatives concerned. I have ended up being more disturbed by these provisions in the Bill following the Minister’s very careful and helpful explanation than I was beforehand. It would obviously have been better had he not tried to explain it to us.
That is not my practice; I try to be open with the Committee about what these proposals entail and what they mean. Perhaps I have not emphasised that the whole Bill is built on good working relations between the police and local authorities. That is the whole purpose behind so much of this legislation. The reason why prior consultation has been eliminated is not because of the situation where the fairground had trouble the night before and it has been decided to put in place a dispersal order to deal with the problem the following evening, because clearly that would be a case where the authorities would talk together about how to deal with the problem. The situation we are dealing with is where there is disorder in an area at that time and where consultation with a local authority would impede a prompt response to that situation, and prompt dispersal.
That is even more disturbing because it implies that if, at 11 am, there is a concern that there is about to be disorder, that is the point at which an inspector could authorise police officers. It is always difficult to see how they are going to have the maps in their pockets to serve to people if they are dealing with a situation of that degree of urgency. I just think that what we are being told describes a series of situations where you really wonder how this is going to work in practice. The danger is that a misjudgment —and I am sure it would not be common—made by an officer of the rank of inspector could cause really serious community disruption. I can envisage circumstances where this would happen and this would provoke riotous behaviour in a wide area far worse than the disorder that was originally expected.
The noble Lord is concerned about the rank of inspector, but of course operationally, inspectors are the rank that has local knowledge and information. That is one of the key elements of this legislation; we are talking about locality here, and that is one of the main reasons why the rank of inspector was included in the Bill, in response to the Home Affairs Committee’s legislative scrutiny. I should emphasise that these powers already exist, and the way in which they are being used in this Bill comes as no surprise to the police nor to local authorities. The powers are used on a regular basis; they are familiar with the issues raised by the noble Lord, and the PCCs are in a position where they provide democratic accountability on the use of these powers.
I appreciate that lots of noble Lords are present for the next debate and I am sorry that this is holding them up. The way in which the legislation is framed—and I cannot immediately see how it could be done in a different way—does not necessarily mean that the inspector who authorises it is the one with knowledge of that particular community or locality. I use the word “locality” to make sure that I get it exactly right for the noble Lord, Lord Greaves. The provisions simply say, “an inspector”. I can conceive of circumstances in which a police force might decide to have an expert at the rank of inspector who will deal with dispersal orders for the whole force, who would then not have the local knowledge or input, which local councillors or neighbourhood officers might have, about the likely community reaction under those circumstances. There are some serious issues here which I hope the Minister will take away and consider.
Of course, I will consider all matters raised in this debate—I am happy to do so. We want to try to make sure that this works. But I have emphasised to the noble Lord the role of local authorities, the inspector and the police on the ground; it is all a matter of responding to a situation and having a vehicle available that harnesses powers to disperse that already exist to effectively handle that situation.
I think that I must respond to points made by other noble Lords—
If the Minister will forgive me, what he is saying is that all those different bodies will of course be working together. But that will be in the absence of an overarching plan in which the local authorities must necessarily engage—we debated that on Monday night. And it is in the absence of the specific power that used to exist whereby a local authority had to be consulted before the powers were used. That is not a recipe for saying that there will automatically be that degree of co-ordination and working together. That is the ideal, and I am sure that it is what everyone will strive to achieve, but we are talking now about things that will almost be happening in the heat of the moment, and I question how, in the heat of the moment, it will be possible to have a map that will clearly define the locality from which individuals are being excluded.
My Lords, the noble Lord is forgetting that anti-social behaviour is a concern for all public authorities, whether they are police and crime commissioners, who place it pretty high up their list of priorities, or local government and elected councillors or serving police officers. All those authorities place anti-social behaviour high up their list; they are not going to be negligent about dealing with the practical application of those powers. There will be pre-discussions between those authorities on the way in which all those powers are used.
We do not need in this Bill to tell people what to do or where their duty lies; they are quite capable of fathoming it out for themselves. We need to explain to them what power they have and the methodology whereby that power can be legitimately exercised. We are doing that in this Bill. I hope that the noble Lord will understand exactly the point the Government are coming from in this legislation. If I may say so, he has a mischievous side to his nature, and I think that he is seeking to make difficulties for the legitimate aspirations of people in authority, in local government and the police, who will clearly make sure that these powers are used effectively in the interests of preventing anti-social behaviour. That is why I am so resilient in resisting his temptations on these things.
I will reflect on what the noble Lord says, but I was about to address the points raised by the noble Baroness, Lady Hamwee, some time ago.
I am not being mischievous. Like the Minister, I want to make sure that these powers are effective. I also do not want to see unnecessary disorder caused because of their misapplication. That is why I am raising these issues. I actually made a self-denying ordinance that I was not going to intervene on the Minister again. However, his suggestion that I am doing this mischievously rather than because I am concerned about it led me to do so.
I accept the noble Lord’s explanation, but perhaps I can turn to the points raised by the noble Baroness, Lady Hamwee.
The noble Baroness asked about how we undertook in the draft Bill to provide the consultation with local authorities; we did not do that in the draft Bill. I have made it clear that I would expect police and local authorities to work closely together in the exercise of all anti-social behaviour powers under the provisions in the Bill. We believe that this clause and the dispersal power that arises from it are useful. The current Section 30 dispersal power has worked well in dealing with longer-term issues. Those powers are held by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems. The arrangements set out in Clause 32 balance the need for safeguards with the flexibility vital to dealing with a wide range of anti-social behaviour. I commend the clause to the Committee.