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Anti-social Behaviour, Crime and Policing Bill

Volume 750: debated on Monday 2 December 2013

Committee (5th Day)

Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.

Clause 69: Power to issue closure notices

Amendment 56ZF

Moved by

56ZF: Clause 69, page 41, line 31, leave out “habitually”

I shall speak also to Amendments 56ZG, 56ZH, 56ZJ, 56ZK, 56ZL, 56ZQ, 56ZR and 56ZS.

This group of amendments takes us to Clause 69, Chapter 3, on the “Closure of premises associated with nuisance or disorder”. The heading ends with “etc”. We have talked quite a lot about the “etc” in this Bill. I am concerned in these amendments with who may be affected by a closure order. For instance, Clause 69(1) provides that there may be a closure notice if,

“the use of particular premises has resulted, or … is likely … to result, in nuisance to members of the public, or … that there has been, or … is likely soon to be, disorder … associated with the … premises”.

The closure notice will prohibit access by everyone, essentially, subject to some particularities. It occurred to me that premises that may well be affected are pubs, which very often have staff living in them. There are particular rights for people who habitually live on the premises, but “habitually” is quite a high test. The provision that I have just mentioned is about access to the premises. I read that as allowing the people listed to continue to occupy the premises, but I may be wrong in that. The guidance that the Government have issued in draft suggests that it means access in order to collect belongings. Will the Minister confirm, or otherwise, that the closure notice could mean that people will be turned out of where they live? The amendment removes the word “habitually” and Amendment 56ZK is consequential.

Amendment 56ZG would add a right of access not just for the owner but also for an operator. I am again thinking about pubs and other leisure or business places. The owner is not necessarily the person who operates the business on the premises. In a later clause, there are provisions for rights of appeal. Again, I seek to add an operator in there, because I am not clear whether an operator would have an interest in the premises for the purposes of these provisions. Interest in land has a narrower meaning than I read it here. I also suggest that there should be access by anyone designated and agreed by the police who is required to ensure the safety and security of the premises. It would be unreasonable to refuse access if looking after the safety and security of the premises is required, as I assume that it would be.

Amendment ZJ is what my noble friend Lord Greaves would call, “One of those legal things”. As the Minister said, he is occupied “Pendling” today, rather than being in your Lordships’ Chamber. Clause 69(4) states:

“A closure notice may not prohibit access by”,

certain people,

“and accordingly they must be specified”.

I suggest that they should be deemed to be specified. If they must be specified, what happens if the specification fails to include them? That would be grounds for a challenge over a relatively small issue. I am trying to be more helpful there than perhaps I am in the other amendments.

Amendment 56ZL is about the service of notices. The guidance to which I referred states that it is a local matter as to who is designated by the local authority to serve the notice. I agree with that, so I think that we should say so and not just say any employee of the local authority.

Amendment 56ZR inserts a new subsection on the display of information. There is a defence of a reasonable excuse. I am not sure whether a lack of knowledge, which this amendment would cure, is a sufficient excuse when we are talking about a criminal offence.

Finally, Amendment 56ZS concerns compensation. In Clause 83(5), it seems that the court needs to be satisfied as to all four matters set out. However, that cannot be right, because the first two are mutually exclusive. This is therefore a drafting amendment, but not a drafting amendment for the sake of it. I am suggesting that the court needs to be satisfied as to the matters in paragraphs (a) or (b) and paragraphs (c) and (d). I beg to move.

My Lords, these amendments address aspects of the new closure power. As noble Lords will recall, the power has two key parts: the closure notice and the closure order. Where informal measures have failed, or are inappropriate, the closure notice allows the police or the local authority to close quickly those premises for up to 48 hours out of court. In some cases this will be sufficient to resolve the problem, but in others a longer-term closure order might be required. Following the closure notice, the police force or the local authority that issued it can apply to the court for a closure order to close premises for up to three months, although this can subsequently be extended by the court to a maximum of six months. This allows the local authority or the police to find a solution to the problem while protecting victims and communities.

Amendments 56ZG and 56ZH seek to exempt the operator of the premises and anyone else designated to secure the premises from the effect of a closure notice. The purpose of the closure powers is to restrict the number of people who are able to access premises, and therefore to reduce the nuisance or annoyance associated with it. The clause allows the owner as of right to access the premises so that they may secure and maintain it and obtain any items or information they may need. As my noble friend has explained, there may be cases where a person other than the owner is in control of the premises. Alternatively, the owner may not be able to attend and secure the premises. The closure powers cover a wide range of premises and therefore a wide range of situations. To include the term “operator” may make the definition too wide, enabling a large number of people to claim that they cannot be prohibited from accessing the premises by the closure order. This could have the effect of undermining the closure notice itself.

However, Clause 69 already contains provisions to allow the closure notice to be tailored to the appropriate circumstances, which was a concern my noble friend raised. Subsection (3) allows for the police or for the local authority to define who is prohibited, at what times and in what circumstances. The police or the local authority will therefore consider what the appropriate arrangement is on a case-by-case basis. It is in their interests to have the premises properly and safely secured, as this will help ensure adherence to the closure notice. They will be able to make arrangements to ensure that the appropriate people can access the premises, whether this be the operator or someone designated by the owner.

The list of those whom a closure notice cannot prohibit relates to those who should not be prohibited by an out-of-court notice in any circumstances. It is our view that this should remain as those who habitually live there or who own the premises. The clause adequately caters for my noble friend’s point as regards the operator of the premises.

Amendment 56ZJ seeks to amend Clause 69(4). Subsection (4) states that the closure notice cannot prohibit access to those who,

“habitually live on the premises, or … the owner”.

This means that those people can continue to access and, indeed, occupy the premises. However, a closure order can prohibit those who live in the premises and the owner. A closure order can be made only by the court. That is an important distinction between the two measures. It is for the court to decide who should be prohibited. The breach of closure notice is also a criminal offence, whether or not it is specified. It is important to be clear who can enter premises subject to a closure notice. It also needs to be clear to those who may seek to enter premises as well as those enforcing the closure notice. Whether this is specified or not does not change the fact that the closure notice cannot prohibit those who habitually live on, or own, the premises, as I have already said. Therefore, even where an oversight occurs, it will not result in an individual having breached a closure notice as the notice cannot prohibit access. As I say, a closure order can be made only by the court.

Amendment 56ZQ seeks to allow the owner, occupier or operator of the premises to appeal a closure order. I am pleased to reassure my noble friend that the Bill already allows for this. Clause 77 sets out two categories of people who can appeal a closure order. These are, first, a person on whom the notice was served and, secondly, a person who has an interest in the premises but on whom the closure notice was not served. Clause 72(2) covers the serving of a notice. It lists a number of ways the police or local authority can serve the notice and requires that they do all of these, if possible. Therefore, in the majority of cases, the owner, operator and occupier will be served the notice and therefore can appeal under Clause 77(1)(a). If, for some reason, it was not possible to serve the notice on the owner, operator or occupier, they would be able to appeal under Clause 77(1)(b), which provides that anyone,

“who has an interest in the premises but on whom the closure notice was not served”,

can appeal the closure order. In this clause, “interest” covers those with a financial or legal interest in the premises. Given those reasons, I hope that my noble friend will not move the amendments I have covered.

Amendment 56ZL would allow a local authority to appoint a business partner to serve a closure notice, as my noble friend explained. I acknowledge from my own experience that this can be helpful. Local authorities considered different ways of delivering these services and concluded that the decision to serve a notice should remain with the local authority. I would like to take the amendment away and come back to it on Report.

Amendment 56ZR seeks to ensure that those who may need to know about a closure notice or order are properly informed of its provisions to ensure that it is not breached inadvertently. The Bill requires that the police or local authority,

“must if possible … fix a copy of the notice to at least one prominent place on the premises … each normal means of access … any outbuildings that appear … to be used with or as part of the premises”.

They must also, if possible,

“give a copy of the notice to at least one person who appears … to have control of or responsibility for the premises, and … to the people who live on the premises and to any person who does not live there but was informed (under section 69(6)) that the notice was going to be issued”.

This ensures that, where it is possible to do so, the notice will be clearly displayed and given to the key individuals who may be seeking to access the premises. If, for whatever reason, the notice could not be served and displayed in the way I have indicated, resulting in an individual accidentally entering premises in contravention of a closure order or notice, it could be considered that in the circumstances the individual had a reasonable excuse. They would not then be in breach of the notice or order and would not have committed an offence.

Amendment 56ZS would allow those seeking compensation to have to satisfy only two of the conditions set out in the Bill rather than all four. I listened very carefully to what my noble friend said about the drafting elements, and I am sure that officials have noted that as well. However, the amendment would mean that the court would have to be satisfied only that one of the conditions set out in paragraphs (a), (b) or (c) of Clause 83(5) had been met alongside the condition in paragraph (d). However, I take on board the helpful comment made by my noble friend Lady Hamwee about the drafting. We will reflect on that in advance of Report.

We have deliberately framed these provisions around the four conditions that have to be met. We often decry the growth of compensation culture and we do not want to add to it here. Of course, where the owner or occupier of the premises subject to a closure notice or order has suffered financial loss, was not in any way associated with the anti-social behaviour on the premises and took reasonable steps to prevent such behaviour, that person should be entitled to claim compensation. However, we do not believe that the ability to seek compensation should extend more widely than this. To do so would open up the police and local authorities to numerous claims, and would make it more difficult for applicants to know whether their claim was likely to be successful. Importantly, this amendment might also deter police and local authorities from exercising their closure powers in appropriate cases, thereby exposing victims to continued distress.

Having said that, I note that my noble friend’s intent in tabling this amendment came from a drafting perspective. However, based on the assurances that I have given, I hope that she will withdraw the amendment.

My Lords, of course I shall do so but, on that last point, when I looked again at my amendment in preparation for today’s debate, I thought that this would be something that would be completely bemusing to anyone who did not have the Bill in front of them. I apologise for that. It should be paragraph (a) or (b) and (c) and (d). It also seems that the applicant having incurred financial loss, as set out in paragraph (c), was a given—one has to incur loss to have a claim for damages. So it may or may not need to be said.

I am grateful to my noble friend for the other points that he has covered. On whether or not one refers to the operator—I am thinking about businesses—we are back to guidance. My noble friend talked about discretion on a case-by-case basis. He is aware that I would prefer to rely on guidance as little as possible.

I remain concerned about the term “habitually resident”. There is a danger of people who live in the premises being adversely affected when they should not be caught up in this. Where will they go?

I note that the Minister talked about “interest”, where it is used in the context of a financial and legal interest, as being something between interest in property and the normal, general meaning of the term. I will think about that. I beg leave to withdraw the amendment.

Amendment 56ZF withdrawn.

Amendments 56ZG to 56ZK not moved.

Clause 69 agreed.

Clauses 70 and 71 agreed.

Clause 72: Service of notices

Amendment 56ZL not moved.

Clause 72 agreed.

Clause 73: Power of court to make closure orders

Amendment 56ZM not moved.

Clause 73 agreed.

Clause 74: Temporary orders

Amendment 56ZN not moved.

Clause 74 agreed.

Clause 75: Extension of closure orders

Amendment 56ZP not moved.

Clause 75 agreed.

Clause 76 agreed.

Clause 77: Appeals

Amendment 56ZQ not moved.

Clause 77 agreed.

Clause 78 agreed.

Clause 79: Offences

Amendment 56ZR not moved.

Clause 79 agreed.

Clauses 80 to 82 agreed.

Clause 83: Compensation

Amendment 56ZS not moved.

Clause 83 agreed.

Clauses 84 and 85 agreed.

Amendment 56A

Moved by

56A: After Clause 85, insert the following new Clause—

“Crime and disorder reduction: development control

(1) The Secretary of State shall designate a body representative of chief officers of police for the purposes of this section.

(2) A body designated under this section shall publish guidelines that specify for a particular type of development the measures that should be included in that development to promote—

(a) crime and disorder reduction, and(b) the prevention of anti-social behaviour.(3) Guidelines under this section shall only be produced following consultation with organisations that represent—

(a) local authorities, and(b) persons engaged in the design and construction of developments requiring planning permission.(4) A planning authority may, in respect of any application that it receives for planning permission, specify as a condition for the approval of that planning permission that the development concerned must follow guidelines published under this section.

(5) A planning authority may only specify a condition under subsection (4) if it is satisfied that to do so would promote—

(a) crime and disorder reduction, or(b) the prevention of anti-social behaviour.”

My Lords, the problem with this Bill and the discussions that we have had in Committee is that, throughout, it has not always been clear who wants the changes that are proposed in it. Most of the proposals made by the Government are not evidence-based and many of them are ill thought through. Furthermore, there is a serious danger that the Bill will be irrelevant. Overall, levels of crime have declined over the past 15 or so years, and the trend in burglary is particularly marked. However, there is no cause for complacency there. A report on the front page of today’s Times talks about a, “Sudden surge in property crime”. Therefore, the stability with which we have seen crime figures move downwards is not something that we can take for granted.

However, unmentioned in the Bill is the fact that the Government are seeking to do something that would have the effect of undermining all their objectives in this legislation. Indeed, they are seeking to undermine the progress that has been made over the past 20 or so years in reducing crime levels. Certainly, over the past 20 years those building new developments—new-build homes, refurbished homes and so on, schools, play areas, hospitals and many others—have increasingly been informed by or have adopted the principles of Secured by Design.

What was achieved over that 20-year period under this initiative carried out under the auspices of the Association of Chief Police Officers and adopted by many local authorities? First, Secured by Design developments—those using the approved products and materials—are now half as likely to be burgled, and show a reduction of 25% in criminal damage. That is evidence that these measures make a difference. Secondly, the additional cost of using Secured by Design standards in the average home is modest, estimated at only around £170 per property, yet, as I have already indicated, these are changes that make a real difference to the risk of burglary and criminal damage.

Thirdly, it is estimated that in one year alone, some 700,000 burglaries have the potential to be thwarted if appropriate security devices are installed—representing an annual saving of more than £1.97 billion. Fourthly, the Association of British Insurers has estimated that the introduction of Secured by Design standards across the UK would bring more than £3.2 billion-worth of savings to the economy over 20 years. Finally, householders who are not offered security recommendations after a burglary are 69% more likely to suffer a repeat incident than those who are offered advice. Therefore, the lesson is that the Secured by Design initiative has made a real difference. This is a success story that is widely copied and cited internationally, and it is the subject of many academic studies testifying to its efficacy.

What is the Government’s approach to something that clearly makes a difference and clearly works? It is the old, traditional approach of, “If it ain’t broke, take it to pieces anyway”. I appreciate that the Minister is not responsible for the activities of the Department for Communities and Local Government, but we are always assured that government is a seamless whole, working together in the interests of the people of this country.

The Department for Communities and Local Government issued a consultation document seeking views on its recent review of building regulations and housing standards. The proposals put forward by the department suggested a two-tiered standard of security: a basic minimum level that would be generally required and a so-called “enhanced” standard. The basic standard is demonstrably inadequate and has been shown to have little security benefit. Yes, that basic standard might specify stronger locks; but if it does not say anything about the flimsiness of the doors, you may have a nice, firm lock, but the door will burst open with one firm kick while the lock remains in place. That does not do much for security, though it may please the lock-makers.

Even the so-called “enhanced” standard would be lower than the existing Secured by Design standards. It is most significant that that could be required by local authorities only where what is described as a “compelling” case exists for the higher standard to be the norm. In legal terms, “compelling” is a strong test to meet. To make a compelling case, a local authority would have to demonstrate that the development would be subject to an elevated rate of burglary—you will be expected to be able to demonstrate that before the building is even built. Moreover, you will have to determine that there will be a higher than normal impact of burglary on tenants even before a property is let.

That is nonsense. It goes without saying that this test will be almost impossible to pass in respect of a new development. As the test has to be applied site by site, it is not even clear that it will simplify matters for developers; it is likely to produce confusion and added uncertainties for them, because when they submit a proposal they will not know whether the authority will attempt to apply the enhanced standard.

As I said, the enhanced standard will not be as beneficial as the proven Secured by Design guidelines. It will not be open to a local authority to require the proven Secured by Design guidelines, even if it wishes to do so; and to apply even the so-called “enhanced” standards, it will have to go through a complicated process to demonstrate the compelling case required by the Department for Communities and Local Government, with all the implicit threats of legal action that that entails.

This is the antithesis of localism. In my naivety, I assumed that the Department for Communities and Local Government was supposed to promote localism. If this is promoting localism, it is a very strange way of doing it, because it removes from local authorities the power to set what they regard as the most appropriate standards in their area. In practice, it is a centrally driven dumbing down of standards: the Department for Communities and Local Government is dumbing down the standards of security that must be met by new developments. That is putting communities and householders at greater risk; it is putting at risk progress in reducing crime, especially burglary.

When the Minister responds, will he tell me where the demand is for this dumbing down? Who is it—apart from the burgling fraternity, obviously—saying, “We want lesser security”? I am not aware of this great demand. What representations were received by the Department for Communities and Local Government before it made these proposals? Did it consult the Home Office? If it did, what did the Home Office say? Did it say, “Yes, please, Department for Communities and Local Government; undermine all the work we have been doing to reduce crime for the past 20 years by removing these requirements for better security in the home”? Did it listen to local authorities? Did it listen to the communities affected and those who would have to live in ill-secured properties?

This has all been put forward as a simplification of the planning process. It has been suggested that, somehow, Secured by Design standards have been the cause of stalled developments. Could we be given an example of a development that has stalled because of the requirement to have Secured by Design standards? I rather suspect that no such development exists.

If there has been any communication centrally to say that these standards ought to be lessened or lifted, it has probably been produced by some intern working for one of the groups of housebuilders, who has drawn up a list of all the regulatory requirements that they are subject to and said, “We don’t like them”. Where is the evidence that there is a real problem? What world do the officials and Ministers who support this measure live in? Have any of them had to live in an area blighted by excessive crime that is facilitated by poor design and inadequate security standards? These things make a real difference to people’s lives. They are the sort of thing that the rest of the Bill is about.

If we believe in localism, local authorities should be able to choose the level of security standards that they consider appropriate for the communities that they represent. That is the whole principle. Local residents elect their local councillors to protect their local interests and to make local determinations of policy. So what is the problem that Ministers think that they will solve by preventing that local, democratic discretion? What this risks is that progress made over the past two decades in designing out crime, reducing burglary and making anti-social behaviour harder will be put into reverse. This is, in short, an act of vandalism—anti-social behaviour of the worst sort.

The measure also risks adding to the costs of the criminal justice system. Indeed, if we throw away the advantage that designing out crime has given us, how will our communities cope in the future, with a diminished police force and neighbourhood policing no more than a distant memory, while the threat of crime, as the Times reports today, rises again? Who benefits from this short-sighted policy? Obviously burglars do, and maybe developers who will see a modest increase in their profits. But yet again we seem to have a Government who neglect the many in favour of a privileged few—in this case, burglars.

That is why I tabled this amendment. It requires the Home Secretary to ask the Association of Chief Police Officers or a successor body to draw up Secured by Design guidelines. It requires that those guidelines are produced following consultation with local authorities, builders and developers, and it gives local planning authorities the option of making the following of these guidelines a condition of any planning permission that they make. It is a localist and permissive power.

The noble Lord, Lord Greaves, is—thankfully—not in his place today. He put forward an amendment that I assume will not be moved, which is a wrecking amendment. It would render the guidelines voluntary for the developers. I am not sure what purpose he had, although no doubt he would have explained it to us at some length had he been given the opportunity. But my amendment gives the Government the opportunity to think again. It allows them to put prevention first. Surely protecting people against crime is an investment—better than facing the spiralling costs of enforcement while waiting for the unproven measures envisaged in the Bill. It allows the Government to put localism first. If local elected councillors choose to prioritise Secured by Design, they will be able to with the amendment. If they choose not to, that, too, is their prerogative. If local people want higher security standards, they will elect local councillors accordingly. My amendment is all about localism, crime prevention and better security for communities. I beg to move.

Amendment 56AZA (to Amendment 56A) not moved.

My Lords, I support the amendment of the noble Lord, Lord Harris. I need to declare a new interest to the House that has happened in the past year. I am one of the patrons of Neighbourhood Watch and Home Watch. At an awards ceremony for that organisation, I spoke on the same platform as the noble Lord, Lord Taylor. I will make a simple point. As a chief police officer, I lost count of the numbers of Secretaries of State and Police Ministers I stood next to on platforms who supported Secured by Design. Therefore, it seems rather odd that a Government have come forward to remove something that has clearly appeared successful to politicians of all parties.

Secondly—I will keep this brief—as I understand it, the assessment of whether an enhanced standard is needed will be based on crime maps—that wonderful invention that both parties have claimed over the years. If this is a development on a brown site, there will not be any crime. Therefore, the brown site will be built with the lowest possible standard. This does not seem very sensible. I urge the Government to look again at supporting the amendment of the noble Lord, Lord Harris, which puts back that which does not need to be lost.

My Lords, I apologise for missing the first moment or two of debate on this amendment. As one of the Ministers who went round the countryside talking about the importance of Secured by Design, I merely say quietly to the Minister that there is a great deal to be said for any actions which mean that you get started right. So much of what we do is retro-fit. It is being faced with a difficult situation and saying: “What the blazes do we do; how do we actually sort this out?”.

The point about this concept is that you start off right, and say from the very beginning: “Would we not do better if we organised things so that it was more difficult for people to find themselves in a vulnerable position, and more difficult for those who wish to be criminals actually to be criminals?”. My reason for speaking is this: I look round the House and it is probably true that there is a high proportion of us who were lucky enough to have been brought up in circumstances where our environments encouraged us to behave properly. That may not be true of everybody, but of an awful lot of us. The older I get, the clearer I become that the environmental effects upon children and young people are really important.

This is just one aspect of it—a tiny, but very important one. I hope that the Government will think carefully about this. I will not indulge in the discussion about interns writing lists of things, but it is not true that this is a burden. It is what any sensible developer ought to do without any question. It is the natural way of developing today. I say that and declare an interest because I advise a number of developers, trying to make them do these things in any case, so I know perfectly well that this is what they would normally do. I hope that the Government will think very hard before this is removed from what ought to be the natural way of things.

My Lords, I feel slightly like the meat in the middle of a robust sandwich, because I am afraid that I shall voice a slightly different view. In addition to my declared interests in connection with the Local Government Association and the National Association of Local Councils, I am also a chartered surveyor in private practice. To some extent I become involved with issues of design, and although I am not any sort of specialist security consultant, security becomes a necessary part of that.

I re-read with some interest what the noble Lord, Lord Harris, said on Second Reading. I hope that I listened with sufficient care to what he has just said, but while not actually disagreeing with any of the ingredients that he set out, I would voice a word of caution about his conclusions. First, it must be said that this is about a commercial initiative of the Association of Chief Police Officers, or rather a subsidiary company of ACPO. It is an accreditation-based approach in which, as I understand it, Secured by Design would become the accreditation body and would set the standards. As I see it, this amendment paves the way to giving this statutory backing. The question is: do the Committee think that that is appropriate or that it is proof against later mission creep?

Secondly, I asked a building control officer of my acquaintance, quite a senior man who goes around lecturing on these matters, what he thought about Secured by Design as a necessary ingredient in building control and planning matters. He did not think that security should be singled out as a category for statutory treatment, or that the regulatory burdens should in some way be increased thereby. That said, I feel sure that, where it is necessary and desirable to do so, developers and others will be pleased to adopt Secured by Design standards on a voluntary basis and as a marketing tool. That is entirely fair.

Residents also need in the context of their built environment, whether it is Secured by Design or not, themselves to be vigilant and to take reasonable steps to ensure that the opportunities for criminal activity against their homes and belongings in a residential setting are minimised. That is inevitably a movable feast. There might be a perverse incentive here. If people feel that Secured by Design somehow gives a warranty or guarantee or underpins a relatively crime-free environment, they may tend to forget those things. I think that getting people better in tune with the real risks, bearing in mind that this is a movable feast and that criminal activity is always changing and evolving, might be a better incentive. I will listen with interest to what the Minister has to say.

My Lords, I am grateful to the noble Lord, Lord Harris, who first raised this issue at Second Reading. It can sometimes be difficult across government to see how the actions of one department impact on another. I say to the noble Earl, Lord Lytton, that the reason that the amendment is before us today is that Secured by Design is in great danger of being totally undermined by the action of the Department for Communities and Local Government. There seems to be a holy grail of deregulation, to see what we can pull out of regulation, without making a proper assessment of where regulation is good or bad, of what is its impact.

Secured by Design is there to protect people in their homes. One of the non-violent crimes that causes the most distress to anybody is the intrusion into and burglary of one's home. It is not necessarily about theft of items, although they may be things of great personal, sentimental or monetary value; it is the intrusion into one’s home, the place where we expect to be the most safe, but where we suddenly feel the least safe and the most insecure. That is what Secured by Design sought to address.

I have to say: it works. The noble Lord, Lord Deben, mentioned his experience of it. I was looking at some of the case studies of what was done and how much difference it made. Secured by Design case studies are interesting because they show the situation before and after. Prior to the work being undertaken in Nottingham City Council area, a particular estate, Bells Lane and Broxtowe, suffered 227 burglaries. Following the work undertaken by Secured by Design, there was a 42% reduction in the number of burglaries, yet in the city as a whole there was a reduction of just 21%, so it was inevitable that Secured by Design had an impact there.

The Secured by Design estates in West Yorkshire outperformed the region as a whole on burglary of dwellings offences. Between August 2007 and 2008, there were 19,701 burglaries, but only two of those were in Secured by Design properties. Similar research in Glasgow demonstrated that total housebreaking crime fell by 26%, while attempted housebreaking decreased by 59% at properties with new Secured by Design doors and windows. So there is clearly a case that that is extremely effective.

That is what surprised me about the consultation by the Department for Communities and Local Government, which was introduced under housing standards, building regulations, and so on.

The noble Lord is chuntering away to me, but I cannot hear a word he is saying, so he should know that I cannot respond.

It is a consultation but it was in August, and I recall that when we discussed it at Second Reading the Minister seemed to be unaware of the consultation and could not tell us then if the Home Office had responded to the DCLG. It would be helpful if he could say what response the DCLG has had now from the Home Office. I do not think that the noble Lord, Lord Harris, is overstating the issue when he says that the proposals being consulted on—some of us are a bit more sceptical about government consultations perhaps than others these days—undermine the standards currently being met by Secured by Design properties.

It was interesting to see the response from neighbourhood watch, in which the noble Lord, Lord Blair, said he was involved. Since neighbourhood watch arrived 30 years ago, the number of domestic burglaries has fallen sharply, due in no small part to the development of high security standards for locks, doors and windows and the design of open spaces. These kinds of issues have really made a difference.

The noble Lord, Lord Harris, asked who asked for these changes. The noble Lord even mentioned developers. My experience of dealing with developers when I was building regulations Minister was that many of them wanted to see the higher standards. Good developers feel that they will be undercut by bad developers if they want to meet the high standards, whether in security, building regs, the kind of materials they use or environmental works in the home. They find it very difficult to compete with what they would call the cowboys, who do not meet the same high standards. I would find it difficult if developers were asking for this change. I do not think there is a national union of housebreakers in existence yet, so I doubt if it was that. It would be great if the Minister was able to say to us again, “This has been taken off the table. We wish to continue with Secured by Design. We have spoken to the DCLG. It understands our concerns and the necessity for this”. Will he answer the questions raised at Second Reading and today about why this was ever considered, because it is clearly such a ridiculous move?

My Lords, perhaps I could seek some clarification from the noble Baroness. As I understood it, the noble Lord, Lord Harris of Haringey, moved this amendment in the context of new-build—that was certainly the sense I got. A number of the examples that the noble Baroness, Lady Smith, has outlined appear to relate to the retrofit of existing buildings. The two are not the same. We have 23 million to 24 million houses in the country, of which new-build is a tiny proportion at any given moment. If we are talking about the application of Secured by Design to existing buildings—in other words, retrofit—how is that going to be affected by this amendment?

Perhaps for the convenience of the Committee, I could respond very quickly. My amendment is couched in respect of planning permissions. If it is simply an alteration to an existing building that does not have a planning impact, obviously it does not apply. The purpose of this amendment—if I get really irritated by the Minister of course I will put it to a vote—is to try to get clarity as to why the Government are making this change and why they are doing something that is so potentially retrograde.

The point that the noble Earl has just made highlights why this is so dangerous. Most of the changes have happened in new buildings or major refurbishments. It is a slow burn. It has taken 20 years for the impact of these changes to be seen and felt. If you stop the higher standards, it will take another five, 10, 15 or 20 years before we see the consequences and the sorts of problems that used to exist in many estates and developments 20 or 30 years ago, which I am sure many of your Lordships will remember. That is why it is so important. Making the change now will not have an immediate effect in three months’, six months’ or 12 months’ time but it will have an effect over the next five, 10 or 20 years. That is why this change is so short-sighted.

My Lords, to answer the point that the noble Earl made, I gave examples of both retrofit and new-build because it is only through retrofit that we can look at the before and after figures.

My Lords, the noble Lord, Lord Harris, whom I do not want to annoy because we have a lot to do today, has brought back something that he raised at Second Reading. If I was unable to respond to him then, I think he will understand that there are no proposals in the Bill about any changes to planning procedures. He is seeking to introduce a new measure which, I hope to demonstrate, rather presumes the consultation.

As the noble Baroness, Lady Smith of Basildon, should know, that consultation finished on 31 October and the Government are considering their response to it. I suggest that the noble Lord, Lord Harris, is rather jumping the gun in seeking to impose on the Bill a particular predetermination of that consultation in advance of the Government coming back on it. However, we can all agree on the important role that design and security measures can play in helping to prevent crime—I agree with my noble friend Lord Deben on that—and I am grateful for the opportunity that this debate gives me to explain how the Government are going about it.

In England, the police have for many years successfully worked to prevent crime and anti-social behaviour through their close engagement with developers and builders, and local planning authorities. Working alongside them from the very earliest stages of the design process, they offer specialist advice on the measures which can prevent crime and anti-social behaviour. The guidance on which they base their advice is shaped by the central police crime prevention management service—the Association of Chief Police Officers’ Crime Prevention Initiatives Ltd—and promoted under the corporate title Secured by Design. As the noble Lord, Lord Harris, says, Secured by Design is a well respected brand that, among other things, provides guidance on the layout and design of developments, and on security standards. I agree with him that involving the police in shaping places and setting standards for secure buildings has been worthwhile and has undoubtedly served to prevent many crimes.

However, I disagree with his call to legislate to designate a body of police leaders and then to charge it with publishing guidelines about the measures to be included in each type of development. On a practical level, the police are already doing this and will continue to do so. It is right that they are reviewing the standards for building security. Over the years these have grown considerably in number, making a review sensible, but the police do not need a statutory duty to do this. In addition, Crime Prevention Initiatives Ltd, through Secured by Design, already works closely with standards test houses, manufacturers and, increasingly, with building developers. I am not persuaded that we should seek to prescribe its working model in legislation, as subsection (3) of the proposed new clause seeks to do.

Subsection (4) of the proposed new clause seeks to define the way in which the police guidance is used by local planning authorities. The reforms we in Parliament have made to the planning system continue to place safety and crime prevention as a key part of sustainable development. The National Planning Policy Framework—your Lordships have been in this Chamber when listening to discussions on that document—promotes the design of places that are safe and where crime and disorder, and the fear of crime, do not undermine the quality of life or community cohesion, so I am at one with the noble Baroness, Lady Smith of Basildon, on this issue.

The recently published draft planning practice guidance, which supports national planning policy, covers safety, crime, anti-social behaviour and counterterrorism. It continues to highlight the importance of engagement with crime prevention design advisers and counterterrorism security advisers at local level.

Both the noble Baroness and the noble Lord, Lord Harris, asked what discussions there have been between DCLG and the Home Office. The noble Lord will be fully aware—that is why I am confident about replying on behalf of the Government even though my department is the Home Office and not DCLG—of the principle of collective responsibility. While DCLG takes the lead in consulting on changes to planning guidelines, these are government proposals and of course the Home Office has had discussions with DCLG on this and other issues. Councils will continue to be able to consider the locations and layouts of sites and proposals when drawing up local plans and deciding on individual applications. They do not need a further statutory duty to do this.

Turning to perhaps the most complex area—the review of housing standards, to which the noble Lord referred at Second Reading and again today—the review process is holistic, taking into account all standards applying to housing. The review is intended to make it simpler for local authorities to apply the right standards. Security is seen as one of those core standards; we want it to be an integral part of development at the right level where local authorities believe that this is necessary. That is the way we have consulted on proposals for national standards and we continue to work with ACPO—and Secured by Design, for that matter—to evaluate the best way forward.

The Government are currently working through the recent housing standards review to simplify the way in which technical standards such as those in Section 2 of the Secured by Design standards are used in new housing developments. Proposals on the recent consultation—about which I recently made a mistake: I said 31 October but it was actually 27 October and I apologise to the Committee for that error—explored how a national security standard could be introduced for the first time. The proposed standard includes two possible levels of specification, with the higher level intended to mirror the current standards in Section 2 of Secured by Design. The intention is not to weaken these standards but to ensure that households adopting the higher specification will benefit from the same level of protection as they do now.

A range of options for implementation have been proposed, including possible integration of these standards into the building regulations or allowing local authorities to retain discretion in requiring higher standards of security—as they do now—providing that there is suitable evidence of need, and that the viability of development is not unduly affected by such a requirement. These are matters on which the consultation sought views and which we are now analysing.

The fact that security is one of only four areas in which the Government are considering national standards amply demonstrates the importance of this issue, and underlines our continuing commitment to ensure that new homes are built from the outset with measures in place that we know will significantly reduce households’ vulnerability to burglary in particular.

However, moving from the current position to one where national standards are adopted brings with it some complexity. By necessity, this includes reassessing the way in which compliance can be most effectively delivered. The Government will be looking at responses to the consultation over coming weeks in deciding how to proceed; officials remain in regular dialogue with those supporting the national policing lead for crime prevention and representatives of Secured by Design. However, it would be wrong for me to pre-empt the outcome of the review at this time. I believe it would be wrong for this Committee to seek to pre-empt the outcome of that review at this time. For the reasons that I have outlined, I ask the noble Lord, Lord Harris, to withdraw his amendment.

My Lords, I am particularly grateful to the noble Lords, Lord Blair of Boughton and Lord Deben, and my noble friend Lady Smith for their support for the intention of this amendment. The point that the noble Lord, Lord Deben, made—that this is what sensible developers ought to do—is absolutely right. The problem is whether in circumstances where there is pressure on costs all developers will be so sensible.

The noble Earl, Lord Lytton, raised the legal status of ACPO, which I know is a matter of concern in a number of quarters, including the Home Office. This amendment does not specifically refer to Secured by Design or to the Association of Chief Police Officers. I did as shorthand, but I am aware that there are a lot of discussions going on at the moment about the future of ACPO and, going forward, whether any agglomeration of chief police officers should be in the form of a limited company will have to be revisited. The fact that it is a commercial initiative, as the noble Earl, Lord Lytton, rather disparagingly called it, does not alter the principle. The principle is that there needs to be a system of best practice that is duly recognised and takes note of the policing experience in reducing crime in a particular area.

This amendment does not refer just to housing. It also refers to developments such as schools, play areas and so on. It is about building security in at the earliest stage. I remember the very early involvement of the police in the discussions that took place about the building of Wembley Stadium and security in terms not only of counterterrorism but of the safety and everything else of the people using it.

I am grateful to the Minister for responding at length. He pointed out that this is still at consultation stage. I hope your Lordships will forgive me if I am not entirely uncynical about many consultations. Many government consultations now have the tone of, “We have decided what we are going to do. We will now allow a minimum period for you to comment on it, and then we will go ahead with it anyway”. However, let me be positive and assume that this is a genuine consultation—a genuine invitation with an open mind, which I think is the phraseology used in legal cases about consultation—to seek advice.

The advice that I am giving and that many others have given is that these proposals do not work. The Minister said that this is a new clause and is not in the Bill. That is exactly my problem with the Bill. It talks about anti-social behaviour and reducing crime. Here is something that is potentially going to make crime worse, and it is not in the Bill. That is why I have tried to introduce it into the Bill. The timing is extremely beneficial in that, assuming that the Government genuinely have an open mind on these matters, they have the opportunity of reading what is said in Committee today and considering further. I hope that the Minister will take it across to his counterparts in the Department for Communities and Local Government who might not otherwise be studying the Hansard of this debate quite so avidly.

The Minister said that he agrees about the importance of involving the police at an earlier stage. My understanding of the DCLG document—which is albeit just out for consultation at the moment, although the Government have had more than four weeks to consider the results of that consultation—is that the effect of the Government’s proposals is that it would not be open to a local authority to specify standards that go beyond the minimum or enhanced standards specified. You can have a local authority, locally elected, that says, “We would really like to go along with the Secured by Design standards, but we are not allowed to because we have to go along with either the basic level or the enhanced level”. The enhanced level is not the equivalent of the Secured by Design standard; it is a lower standard in practice.

Will the Minister tell us whether or not we will know the outcome of the Government’s consideration on this point before we come back to the Bill on Report? If this is not going to be possible, will we know the outcome of the consultation before Third Reading? If the Government go ahead with these changes, will Parliament have any right to intervene before they are made?

The timing of the legislative programme is not in my hands, so I cannot give the noble Lord a clear response on that. Parliament seems to have a way of raising these issues, even if the Bill does not include a proposal from the Government in this context. Noble Lords are quite capable of raising issues at any point and the noble Lord, Lord Harris of Haringey, gives a perfect example of how Parliament can be used.

I am grateful to the Minister for addressing the question, but I am not sure that he answered the question, which was whether we would know the outcome of the consultation by the time the Bill reaches Report and Third Reading. If he is saying that the usual channels may decide either to accelerate the Bill—they have done very well so far—or that it is going off into the distant future, then that is a different matter. If he were to give an indication of the date when the consultation will be responded to by Government and government policy becomes clear, that would help us understand whether or not we will be able to return to it in the course of the Bill.

I suspect the Minister’s silence suggests that he does not have the information to hand. Perhaps he could write to me so that I am aware of the timetable for this. If security is a core standard, why will local authorities not be able to go to the higher standard? It would be helpful if the Minister could give us an assurance that they will be able to choose their standard and are not obliged to follow either the basic or so-called enhanced rate. In the hope that the Minister will enlighten us on some of these points between now and Report, I withdraw the amendment.

Amendment 56A withdrawn.

Clause 86: New ground for serious offences or breach of requirements etc

Amendment 56AA

Moved by

56AA: Clause 86, page 52, line 37, after “met” insert “and that such an order is proportionate”

Part 5 of the Bill is about recovery of possession of dwelling-houses on grounds of anti-social behaviour. This amendment—and others in this group in my name—proposes that the court’s response should be proportionate and that this should be written into the legislation. I very much support the thrust of the amendments in this group in the name of the noble Baronesses, Lady O’Loan and Lady Young, which are more oppositionist than mine.

The draft guidance on the purpose of the new absolute—I emphasise that word—ground for possession says that it is,

“intended for the most serious cases of anti-social behaviour and landlords should ensure that the ground is used selectively.”

So it is an absolute ground but is to be used selectively. I am very uncomfortable with that. If it is to be used selectively, the legislation should make it clear that the absolute ground is not an absolute ground to be applied in every instance. The Joint Committee on Human Rights, which made this point in relation to exclusion from dwelling houses under other clauses, takes the view that reliance on the Human Rights Act, which the Government have prayed in aid, is not satisfactory when Parliament has the opportunity, as we do here, to define the test in the legislation.

Another group of amendments seeks to leave out the term “visiting” so that possession could not be sought on the basis of behaviour by someone who is visiting premises. Can the Minister be specific as to what may or may not be proportionate to fulfil the conditions in the grounds for possession of properties under various tenures—that is, possession of somebody else’s home—when the visitor may not even be a regular and frequent visitor but an occasional one? I would not be persuaded that the fact that someone was a regular and frequent visitor and behaved badly should be grounds for possession.

Amendment 56AE is a small amendment on the regulations about reviewing the requirements. Sometimes whether something “may” or “shall” be provided seems to be a matter of how you feel on the day and how the wind is blowing. I have always had a problem with understanding the term “may in particular” if it means that you must do something. Frankly, some of the Bill is hard enough without it being elliptical.

My noble friend Lord Greaves has tabled a number of amendments to these provisions, to which I will speak briefly. He seeks to change the term “locality” to “vicinity” and asks whether the term “locality” means the same as where it is used elsewhere in the legislation—for instance, with public spaces protection orders—and whether it is wider or narrower than “neighbourhood”. Of course, in any event, how appropriate is it here? His Amendments 56ACA and 56ABA on Clause 86 deal with conditions surrounding a breach of an IPNA which is not in the dwelling house or its locality, but which is capable of causing nuisance or annoyance to a resident or occupant of housing in the locality or to the landlord or manager. Therefore, as my noble friend says, something that could annoy outside the locality would fulfil the condition and allow possession to be obtained, and a person on his own with nobody else in sight might fulfil the words in the Bill. There would be considerable evidential problems if the person was on his own and nobody else could see it, but in terms of the strict wording he may be right.

Finally—as far as I am concerned—Amendment 56ADD would leave out Clause 87(8), which directs the tenant who needs help or advice about possession notice to,

“take it immediately to a Citizens’ Advice Bureau, a housing aid centre, a law centre or a solicitor”.

My noble friend queries whether it is appropriate to include a reference to the citizens advice bureaux in legislation. Of course, the very obvious questions here are about willing the ends by suggesting that a tenant should go there to seek help, but not willing the means to do so. I beg to move.

My Lords, Amendments 56ADC and 56AL are in my name and that of my noble friend Lady O’Loan. As something urgent has come up, I am afraid that my noble friend cannot be here today. Essentially, I tabled these amendments in order to find out a bit more about what the Government see as the implications of Clauses 86 and 89. My understanding of the Government’s case is that they want to speed up the process of evictions from social housing in order to,

“better protect victims in the most serious cases of anti-social behaviour and criminality”.

I am sure that we would all support that.

The DCLG consultation described the proposed new measure on possession as limited to cases of proven,

“serious housing-related anti-social behaviour”,

which suggests that there would be limited application of these clauses rather than using them as a way of increasing the number of evictions. It would be helpful if the Minister could clarify this point because only one of the triggers for mandatory possession in this section relates to a conviction for seriously violent crime. The other triggers relate to breaches of injunctions or criminal behaviour orders.

Given the high rate of breaching of ASBOs over the years of approaching 58%—of that figure, another 43% of all ASBOs issued have been breached more than once—there does not seem to be proportionality in these sanctions. Where is the discretion to allow for different circumstances and for the fact that approximately seven in 10 children breach their ASBO, often due to lack of support or organisation rather than calculated non-compliance? It seems that this proposed new power must inevitably lead to a rise in evictions. If this is not the Government’s intention, will the Minister tell the Committee how the Government will prevent such a rise? These clauses could have very severe implications for under-18s. It will affect children who have done nothing wrong but who have had the bad luck to share a dwelling with somebody who has. The clauses could also be deemed detrimental to the children and young people who do breach or offend.

I am concerned in particular that children will suffer. There do not appear to be many, or any, safeguards. Therefore children will suffer due to the impact of, potentially, one person’s behaviour, especially as a family evicted on these grounds may be deemed to have made themselves intentionally homeless—that is, of course, what the amendment seeks to address—and are thus unlikely to be rehoused in comparable accommodation in their neighbourhood. How does this sanction address the underlying causes of anti-social behaviour? Surely making a whole family homeless due to the behaviour of one family member, or indeed a visitor, is both a both a double punishment and counterproductive. My understanding is that even if mandatory eviction would not amount to a breach of the human rights convention, it is still a public policy proposal that doubly punishes the most vulnerable families in our society. A mandatory requirement for the judge to order possession removes all but the bare minimum of judicial discretion in deciding whether or not an individual or a family is to be evicted.

Can the Minister explain how it is desirable that by the simple act of having a visitor in a dwelling place, a family might be made homeless? How is someone supposed to know that a visitor has breached an ASBO? How will these clauses be policed and monitored? I am particularly concerned that care leavers, who may be helped through the allocation of a local authority flat when they leave care, often find it difficult to prevent local drug dealers or other undesirable elements subject to ASBOs entering their property and sometimes settling in for a long stay. What would the consequences be for a young person in this position who felt bullied into providing accommodation for someone in breach of an ASBO?

My Lords, I hope that my noble friend will be very careful about not accepting the amendment for a very important reason. The noble Baroness talked about the most vulnerable people in society. From my experience as a Member of Parliament, the most vulnerable people I ever came across were decent families whose whole lives had been made totally unacceptable by their neighbours. I am afraid it is one of the facts of life that up till now no measures have been introduced that have dealt with this issue. Unless these measures are very serious, these people will go on suffering, not just for a year or two but very often for whole lifetime. The situation is remarkably regular; it is not one of those things that happens occasionally. Indeed, I fear that it has become more likely today than it was when I first started being a Member of Parliament 40 years ago.

This particular part of the Bill will be received with considerable support by those most concerned about the most vulnerable—people who cannot defend themselves and are subject to years of abuse by neighbours who seem unable to take account of all the legislation that we have had. ASBOs and the like, as the noble Baroness said, are very often ignored, and we have no other way in which to deal with this. So I hope that we recognise that we have to be tougher than we would normally like to be. I say that as someone who does not have a reputation in this House for being overly tough. If you have not seen the state to which some people’s lives are driven by these sorts of neighbours, you really do not understand why this measure is so terribly important.

I endorse what my noble friend said about the need to protect those who are the victims of anti-social behaviour. Very often they are just the sort of people who are held up as being vulnerable to the effects of the provisions in the Bill. From my experience of a barrister practising for public authorities, I add the observation that it has become quite a regular feature of litigation that public authorities are sued for failing to take sufficient steps to protect those who are the victims of anti-social behaviour. The Bill will at least provide some form of additional power to give an answer to those sorts of claims.

My Lords, the amendments with which we are associated relate to Clauses 86 and 89 and whether they should remain in the Bill in their present form. We also wait with considerable interest to hear the Government’s response to the different points that have already been made in the debate on this group of amendments.

As the government documentation on the Bill indicates, the existing grounds for possession for anti-social behaviour are discretionary and require the county court, on application from the landlord for possession on an anti-social behaviour ground, to decide that the ground is made out and that it is reasonable to grant possession. The Government say that it takes on average seven months to get an outcome from the courts in anti-social behaviour possession cases, and that the existing discretionary grounds apply only to anti-social behaviour and criminality in, or in the locality of, the property. Indeed, in the light of the riots two and a half years ago, the Government are also proposing later in the Bill to extend the scope of the discretionary ground so that landlords can seek to evict a tenant who adversely affects the lives of those in neighbouring communities through rioting and looting, or who attacks or threatens landlords’ staff away from their homes.

The purpose of the new absolute ground for possession, say the Government, is to speed up the possession process in cases where anti-social behaviour or criminality has already been proven by another court. The Government’s draft guidance states that the court must grant possession subject to any available human rights defence, provided that set procedures have been followed. In addition, the court’s discretion to suspend possession will be limited to no later than 14 days, or six weeks in exceptional circumstances.

It is worth reflecting on the conditions that have to be met for a grant of possession; at least one of them has to be met. The first is that a tenant, a member of the tenant’s household or a person visiting the property, has been convicted of a serious offence. The second is that the tenant, a member of the tenant’s household or a person visiting the property has been found by a court to have breached an injunction to prevent nuisance and annoyance—in other words, an IPNA. The third is that the tenant, a member of the tenant’s household or a person visiting the property has been convicted of breaching a criminal behaviour order. The fourth is that a tenant’s property has been closed for more than 48 hours under a closure order for anti-social behaviour. The last is that a tenant, a member of the tenant’s household or a person visiting the property has been convicted of breaching a noise abatement notice order.

These powers have potentially significant effects. Will the Minister say—this question has already been asked—whether the number of evictions is expected to increase as a result of these provisions, particularly in the light of the Government’s implied comments about the deterrent effect of the current length of eviction proceedings on landlords taking action? These would seem to imply that an increase in evictions is likely if the length of time to complete court proceedings is reduced.

Will the Minister confirm what will happen to those families who are evicted, including any children or elderly or disabled people? Who, or which body if any, will have responsibility for finding accommodation for such families who become homeless as a result? Alternatively, will such families simply be left to their own devices, even if that means being on the streets, on the basis that they will be deemed to have made themselves—including any women, children, elderly or disabled people—intentionally homeless?

As I understand it, the power to evict under Part 5 relates to those in social housing and to those in assured tenancies in the private sector. Will the Minister confirm that that is the case? The power to evict does not appear to apply to owner occupiers, including those living in a mortgaged house who might well have secured their mortgage under a state-backed scheme that is ultimately supported by all taxpayers, including by those in rented accommodation. To that extent, it does not appear that there is equality of treatment for victims irrespective of tenure. It would appear that under the Government’s Bill, which is intended to put victims first, a victim who lives in social housing and has had their life made a misery by a person or persons in a nearby owner-occupied property does not have eviction available as a possible solution—unlike a victim who lives in their own home and has had their life made a misery by a person or persons living in social housing or an assured tenancy.

If the Government’s intention is to put the victim first, why are there apparently two classes of victim, one for whom eviction of the perpetrator and their family is a possible solution, and another for whom it is not a possible solution and for whom there is no alternative additional sanction available? Will the Minister address this point? If I am right, will he confirm that the Government nevertheless regard this as totally fair and just, when there do appear to be two classes of victim?

My Lords, Clauses 86 to 88 introduce a new absolute ground for possession for anti-social behaviour for secure tenancies generally—local authority tenants and some tenants of other social landlords in secure tenancies. Clause 89 makes equivalent provision for assured tenancies, which applies to housing association tenants or tenants in the private rented sector. This is about possessions of tenanted property. It is not designed to address owner occupiers, because they are not tenants. They are under a different form of possession.

Does the Minister not accept that that in itself means that there are two classes of victim? If you are a victim in an owner-occupied property, having your life made a misery by somebody in a rented property, eviction is a possible solution. However if you are living in a rented property, whether under a social or an assured tenancy, having your life made a misery by someone in an owner-occupied property, eviction is not a possible solution. Does that not mean that under the Bill there are two classes of victim?

No, under the Bill there are two categories of housing occupation. It is perfectly possible for someone living next door to an owner occupier who is being anti-social to use any of the other measures in this Bill. Eviction is not one that is currently open to the courts, but there are plenty of other measures. That is one of the reasons why we have discussed things such as the community trigger, about which the noble Lord asked me a lot of questions on the previous occasion the Committee met. Existing grounds for possession—

I do not want to put words in the Minister’s mouth, but I think he is agreeing with me that there are two different classes of victim. There is different treatment. If you are a victim living in an owner-occupied property having your life made a misery by somebody in rented accommodation, eviction is a possible solution. However, if it is the other way round and you are a victim living in rented property, whether social housing or an assured tenancy, and your life is being made a misery by somebody in an owner-occupied property, eviction is not a solution. I am asking the Minister not to tell me what is in the Bill but simply to agree that it creates two different classes of victim.

I think the noble Lord is being disingenuous on this point. There has never been a power of possession applied to owner occupiers in such cases as there is no landlord-owned property to possess; it is the property of the person living in the house. We have already debated the mechanisms whereby that sort of anti-social behaviour is dealt with both by individuals who might consider themselves victims and by authorities whose job it is to enforce those mechanisms. I do not accept the premise behind the noble Lord’s question.

Existing grounds for possession for anti-social behaviour under the Housing Act 1985 are discretionary. This means that the court may grant possession only if the ground is made out and it considers it reasonable to do so. In practice, this means that a significant amount of time is required for the court to consider the matter, leading to extensive delays. This prolongs the suffering of the victims who have to continue living next door to the perpetrators. Indeed, the evidence we have suggests that it can take an average of some seven months from application to the grant of a possession order, as the noble Lord said. The provisions in these clauses seek to short-circuit that process by removing the requirement on the landlords to prove to the court that it is reasonable to grant a possession order where criminal or anti-social behaviour has already been proven in another court.

Under the new absolute ground, the court will be required to grant possession, subject to any human rights defence, if any one of five conditions is met. These all relate to anti-social or criminal behaviour. The offence or anti-social conduct must have been committed in the tenant’s property or in the locality of the property, affected a person with a right to live in the locality, or affected the landlord or a person employed in connection with the landlord’s housing management functions. I would like to emphasise that it is not our intention or belief that the new absolute ground will increase the number of evictions for anti-social behaviour. The available evidence shows that eviction for anti-social behaviour is an exceptional course of action. There are, on average, some 2,000 each year in the context of 4 million social homes in England. Overwhelmingly, landlords look to alternative remedies and tools to address the anti-social behaviour and its causes before resorting to possession proceedings. However, where landlords do seek eviction, it will avoid duplication and delay in the process.

The noble Baroness, Lady Young of Hornsey, was concerned that these new arrangements might lead to an increased number of evictions. The noble Lord, Lord Rosser, also asked about that. I wish to cite a few examples from evidence that was given to the House of Commons. Angela Mawdsley, Anti-Social Behaviour Manager at Leeds City Council, said:

“It takes a significant period of time to get possession orders through the court. For a lot of these crimes or offences, we would be looking to take possession action anyway, so I do not think it will increase the amount of possession action that we take. I agree with my colleague that it is about the amount of time it is taking to get through the court, and it is very difficult to keep witnesses on board while a court case goes on for more than 12 months”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 18/6/13; col. 32.]

Chris Grose, anti-social behaviour adviser and senior consultant at the Chartered Institute of Housing, said that,

“although we see the proposed absolute ground for possession, we do not necessarily see that there will be a lot more evictions. As I said before, we are really good at nipping things in the bud and getting in there early with early intervention work”—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill Committee, 18/6/13; col. 31.]

People want to sustain their property. These are just the points that have been made by my noble friend Lord Deben.

I will address the specific amendments tabled by my noble friend Lady Hamwee. Amendment 56AA and Amendment 56AG seek to amend the provisions of Clause 86(1) and Clause 89(1) to make explicit that, when the court is considering whether or not to grant possession under the absolute ground, it may do so only where it considers this to be proportionate. We have been here before in Part 1 and Part 4 of this Bill. I do not think these amendments are necessary. The Bill already provides that the granting of a possession order by the court under the new absolute ground is subject,

“to any available defence, based on the tenant’s Convention rights, within the meaning of the Human Rights Act 1998”.

It is clear, therefore, that the tenants of public authorities will be able to raise proportionality under Article 8 of the Human Rights Convention. It means that public authority landlords will need to consider carefully which cases to bring under the absolute ground. As we have made clear in the draft guidance, we expect it to be used selectively for serious anti-social behaviour only.

My noble friend went on to speak to Amendments 56AB, AC, AD, AH, AJ and AK—the first ones relating to secure tenants and the others to assured tenants. These seek to amend three of the conditions that must be met for a court to grant possession under the absolute ground so that the anti-social behaviour of a visitor to a property could not be considered. These amendments would mean that the absolute ground could be used only when the anti-social or criminal behaviour was done by the tenant or by a member of the household. The provisions for the absolute ground are in line with existing grounds for possession. They make clear that tenants are responsible for the anti-social behaviour of visitors to their property as well as that of members of the household. This is a well established principle, based on the fact that, in practice, there is sometimes very little that differentiates a regular visitor to a property from a resident. Landlords have indicated that excluding the anti-social behaviour of visitors from the absolute ground is unhelpful when they are seeking to take action against persistent, serious anti-social behaviour by those who spend much of their time at the property, but where it is not clear whether or not they are strictly members of the household. We would not expect a landlord to seek possession as the result of the behaviour of an occasional visitor. It is important to remember that public authorities will need to ensure that any decisions they make to bring possession proceedings under the absolute ground are proportionate.

My noble friend Lady Hamwee spoke to a number of amendments which were tabled by my noble friend Lord Greaves—Amendments 56ABA, 56ABB, 56ACA, 56ADZA, 56AH, 56AHA, 56AHB, 56AJA, 56AJB, 56AKA and 56AKB. The amendments seek to amend the first, second and third conditions so that the anti-social behaviour must have taken place in the vicinity of the property instead of the locality. I do not think that these amendments will improve the Bill. “Locality” is a well established term in local housing law. Existing provisions for possession under anti-social behaviour require the anti-social behaviour to have taken place in the locality of the property. Landlords and the courts are therefore familiar with this term and its meaning in housing actions. The amendments would simply reinvent the wheel and create new confusion over what area is covered by the term “vicinity”. In addition, they would create inconsistency with existing possession provisions, which are based on the offence being committed in the “locality” of the property.

The term “locality” in this context dates back to the Housing Act 1996. Parliament preferred it then as suggesting a wider geographical area than “vicinity”, while still maintaining the link between the tenant’s behaviour and the area in which they live. Vicinity might, for example, capture just close neighbours, while locality could capture the impact of a tenant’s behaviour on an estate more widely. I think that that argument still holds good today.

My noble friend also spoke to Amendments 56ACB and 56ACC. These amendments seek to amend Clause 86 by redefining the second condition for the absolute ground; namely, that an injunction to prevent nuisance or annoyance has been breached. The amendments would mean that this would relate to conduct,

“intended or likely to cause”,

nuisance or annoyance instead of “capable of causing” as currently drafted. Given that this provision relates to the injunction under Part 1, it is essential that the definition here mirrors the test for the issuing of the injunction. We have already debated in detail the test for the injunction and it will be no surprise that I believe that the language of the IPNA test should be retained here.

The noble Baroness, Lady Young of Hornsey, and my noble friend Lady Hamwee spoke to amendments which would mean that tenants evicted under the new absolute ground would not be considered to have made themselves intentionally homeless. I am afraid that I believe these amendments are misconceived. They imply that tenants evicted for anti-social behaviour are the innocent victims of circumstances when quite the reverse is the case. The type of tenant that we would expect to be evicted under this new ground would be someone who, as described by my noble friend Lord Deben, had been given many chances to change their behaviour, on the understanding that failing to do so could result in their being evicted, but had repeatedly refused to do so, choosing instead to keep making their neighbours’ lives a misery.

Quite properly, the decision on whether someone is intentionally homeless rests with the local authority. I see no good reason for creating special rules in relation to the absolute ground which do not apply in relation to the existing discretionary grounds for possession.

I assure my noble friend that, in making decisions about whether an applicant for homeless assistance is intentionally homeless, local authorities must be satisfied that the act or omission that led to homelessness was deliberate. Applicants must always be given the opportunity to explain such behaviour. Therefore, they will look not simply at the fact of the eviction alone but at what led to this action and take that into account.

In addition, where tenants have been evicted for anti-social behaviour and have been found to be intentionally homeless but are in priority need—for example, because they have children—the local authority has a duty to provide temporary accommodation for such time as to allow them a reasonable opportunity to find their own alternative accommodation. This is typically for 28 days but it could be longer depending on the circumstances.

I now turn to Clause 87, which ensures that tenants are given adequate notice of the landlord’s intention to take action to seek possession, are told the reasons why possession is being sought and are informed of how they can access advice. It relates to tenants with secure tenancies. Clause 89 introduces corresponding notice requirements for possession of assured tenancies under the new absolute ground. Amendment 56ADD, in the name of my noble friend Lord Greaves, seeks to remove the requirement that the tenant receives information about where advice can be sought. I believe that this is an important safeguard to ensure that the tenant is given every opportunity to get necessary help and advice about the landlord’s action.

My noble friend also spoke to Amendment 56AE, which relates to Clause 88. This clause provides tenants of local authorities with a right to seek a review of any decision by the landlord to seek possession on the new ground. That is a sensible safeguard for the tenant, which will not introduce undue delay because of the timescales specified. The amendment would require that the matters my noble friend sets out are included in regulations made in respect of such reviews. I assure my noble friend that that is unnecessary. We have already published draft regulations, which cover both her points about who should carry out the review and the arrangements for an oral hearing.

Amendment 56AF seeks to prescribe that the regulations should make provision for the landlord to grant the tenancy of the property to another individual. That is entirely unnecessary. Social landlords already can decide to whom they grant new tenancies on properties that become vacant as a result of the previous tenant being evicted, in line with allocation policies locally.

There is no absolute right to social housing or to accommodation in the private sector. Tenants have responsibilities that are enshrined in the terms of the tenancy. They are duty bound to comply with the terms of such agreements and that includes not engaging in crime or anti-social behaviour, particularly where that makes the lives of their neighbours a misery. Where they do engage in such behaviour they have to expect there to be consequences, including, potentially, having their home repossessed. Where a court has already passed judgment—for example, finding a tenant guilty of breach of a criminal behaviour order—the landlord should be able to take swift action to seek repossession. These clauses provide for just that and I commend them to the Committee.

My Lords, I do not want to go through every amendment again. On the question of the term “locality”, the Minister has explained that there will be confusion if the term used in housing law is not used here and I understand that. My noble friend’s point was that, while that may be the case, there will be confusion if the term is used in the Bill in different places meaning different things, but I will leave that to him to pursue after today.

I was intrigued by the comments of the noble Lord, Lord Faulks, about local authorities being sued for failing to take steps that were open to them. I wonder whether providing an absolute ground, which the guidance says is to be used selectively, might not cause more difficulties as regards what is open to neighbours to claim. I understand entirely the point about the impact on neighbours—although perhaps I do not understand it entirely, because I am lucky enough not to have suffered from such a degree of unneighbourly activity. Having been a councillor, however, one cannot be unaware of what goes on.

I would be repeating what I said before if I were to comment on the term “proportionate” and the use of discretion, so I will simply beg leave to withdraw the amendment.

Amendment 56AA withdrawn.

Amendments 56AB to 56ADZA not moved.

Amendments 56ADA and 56ADB

Moved by

56ADA: Clause 86, page 55, line 10, leave out from “instrument” to end of line 16

56ADB: Clause 86, page 55, line 19, at end insert—

“(13) A statutory instrument containing an order under subsection (10) or (11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of—

(a) each House of Parliament (in the case of an order of the Secretary of State), or(b) the National Assembly for Wales (in the case of an order of the Welsh Ministers).”

Amendments 56ADA and 56ADB agreed.

Amendment 56ADC not moved.

Clause 86, as amended, agreed.

Schedule 3 agreed.

House resumed. Committee to begin again not before 5.50 pm.